Abstract
The aim of this chapter is to look at the role played by soft law measures in the design and implementation of the Belt and Road Initiative. Starting from a systematisation of the literature on soft law, I shall try to classify this jungle of measures and explain the reasons for their massive use within the BRI. I shall pay special attention to the Memorandum of Understanding (MoU) between China and Italy that represents, in my view, an emblematic example of this trend.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Similar content being viewed by others
Notes
- 1.
‘To sum up, soft law is preferred to treaties in China’s BRI approach. Although existing treaties remain relevant, the BRI does not have many formal international law instruments. There is no BRI-wide treaty or similar international law instrument establishing the BRI. The BRI neither has a constituting treaty with all BRI states (a BRI-wide treaty) nor formal membership protocols. China, as such, does not appear to have a strong intention to bring in BRI-wide hard law obligations at this stage’ (H. Wang 2019: 43).
- 2.
‘Obviously, the structures and provisions of the two arrangements are very similar. However, if the China-Philippines MoU is representative of China’s BRI cooperation with a developing country while the China–New Zealand MoA represents BRI arrangement with a developed country, several interesting points of differences can be observed. First, there is clearly a “development” dimension in the China-Philippines MoU, in which China offers assistance to Philippines’ development. Understandably, China–New Zealand MoA does not need such development-based assistance, but it constantly stresses the importance of the private sector and market economy. Second, in cooperation principles, the China–New Zealand MoA mentions the need to follow “international good practice, market orientation and professional Principles”, which does not exist in the China-Philippines MoU as the latter seems to emphasize adherence to national rules and regulations. Third, in areas of cooperation, the China-Philippines MoU specifically encourages the use of local currencies in bilateral trade and investment, while the China–New Zealand MoA specifically mentions regulatory harmonization. Fourth, both arrangements provide that they only embody the “common will” or “common aspiration” of the state actors involved, but the China–New Zealand MoA does not contain a “legal status” clause to emphasize that none of the provisions in the text is binding. Further, with respect to amendment, though both arrangements require mutual consent for amending the text, the China-Philippines MoU uses “shall” while the China–New Zealand MoA uses “will”, arguably indicating a stronger consensus requirement, which is symbolic in nature, in the MoU for changing anything that is already agreed upon between the Participants’ (J. Wang 2019).
- 3.
‘We immediately recognize that the question is not necessarily one of hard versus soft law: there is also the issue of the possible interaction between these two approaches to governance and thus of “hybrid” constellations in which both hard and soft processes operate in the same domain and affect the same actors’ (Trubek et al. 2005).
- 4.
Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, 2019, available at: https://undocs.org/A/74/335.
- 5.
On the Open Method of Coordination, see Dawson (2011).
- 6.
Court of Justice of the EU, Case C-399/11, Stefano Melloni v Ministerio Fiscal, ECLI:EU:C:2013:107.
- 7.
Court of Justice of the EU, Opinion 2/13, ECLI:EU:C:2014:2454.
- 8.
Court of Justice of the EU, Case C-399/11, Stefano Melloni v Ministerio Fiscal, ECLI:EU:C:2013:107, para. 60.
- 9.
Court of Justice of the EU, Opinion 2/13, ECLI:EU:C:2014:2454, para. 174.
- 10.
Full text of the Vision for Maritime Cooperation under the Belt and Road Initiative, https://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1249618.shtml.
- 11.
‘This Memorandum of Understanding does not create legally binding obligations for the Participants. It is an expression of their common aspiration to cooperate on the Belt and Road Initiative for the mutual benefits’, Memorandum of Understanding between the Government of the Republic of Philippines and the Government of the People’s Republic of China on Cooperation on the Belt and Road Initiative.
- 12.
‘Reflecting Chinese culture, China takes a flexible “middle-of-the-road” strategy in respect of the BRI, avoiding extremes or “radical” development’ (H. Wang 2019: 53).
- 13.
‘In China today, soft laws far outnumber hard laws. With regard to their functions, according to Professors Haocai and Song, soft law remedies the structural deficiencies of hard law governance; it enhances the effectiveness of the rule of law, reduces the costs of the rule of law and social progress, creates a more responsive public governance and promotes the rule of law. In terms of their impact, without soft law to fill in the gaps and spaces, and enable flexibility and detail in the legal system, hard law could not function. Indeed, given the growth in size and complexity of Chinese society today, hard law is becoming “softer” because of its need to adjust to changing circumstances’ (Clark 2013).
- 14.
Two for the Road: China’s International Commercial Courts, 17 August 2018, http://simc.com.sg/blog/2018/08/17/two-road-chinas-international-commercial-courts/.
- 15.
‘Zuigao Renmin Fayuan Guanyu Renmin Fayuan wei “Yidai Yilu” Jianshe Tigong Sifa Fuwu he Baozhang de Ruogan Yijian’ (“Several Opinions of the Supreme People’s Court on the Judiciary’s Provision of Judicial Services and Safeguard for the Belt and Road”), Fa Fa (2015) 9 Hao, 16 June 2015, quoted by J. Wang (2019).
References
Abbott, Kenneth W. and Snidal, Duncan (2000), “Hard and Soft Law in International Governance”, in International Organization, 54(3), 421–456.
Borràs, Susana and Jacobsson, Kerstin (2004), “The Open Method of Co-Ordination and the New Governance Patterns in the EU”, in Journal of European Public Policy, 11(2), 185–208.
Chaisse, Julien and Ji, Xueliang (2018), “‘Soft Law’ in International Law-Making—How Soft International Taxation Law Is Reshaping International Economic Governance”, in Asian Journal of WTO & International Health Law and Policy, 13(2), 463–509.
Chinkin, Christine (2000), “Normative Development in the International Legal System”, in Shelton, Dinah (ed.), Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System, Oxford University Press, Oxford.
Clark, Eugene (2013), “China’s ‘Soft Law’ a Major Factor for Success in Future”, available at: http://www.china.org.cn/opinion/2013-10/17/content_30321578.htm.
Dawson, Mark (2011), New Governance and the Transformation of European Law: Coordinating EU Social Law and Policy, Cambridge University Press, Cambridge.
de Búrca, Gráinne and Scott, Joanne (eds.) (2000), The Changing Constitution of the EU: From Uniformity to Flexibility, Hart, Oxford.
Di Matteo, Larry (2018), “‘Rule of Law’ in China: The Confrontation of Formal Law with Cultural Norms”, in Cornell International Law Journal, 51(2), 391–443.
Esping-Andersen, Gøsta (1990), The Three Worlds of Welfare Capitalism, Princeton University Press, Princeton.
Ferrera, Maurizio (1998), Le trappole del welfare, Il Mulino, Bologna.
Hatzopoulos, Vassilis (2007) “Why the Open Method of Coordination Is Bad for You: A Letter to the EU”, in European Law Journal, 13(3), 309–342.
I.L. (2019), “The Trap of the Italian-Chinese Memorandum of Understanding”, 18 May 2019, available at: https://www.lavoceditrieste.net/2019/05/18/the-trap-of-the-italian-chinese-memorandum-of-understanding/.
Kay, Richard S. (2005), “Book Review Essay: Canada’s Constitutional Cul De Sac”, in American Review of Canadian Studies, 35(4), 705–714.
Lazar, Harvey (2000), “The Social Union Framework Agreement: Lost Opportunity or New Beginning?” in Institute of Intergovernmental Relations School of Policy Studies, Queen’s University Working Paper, available at: https://qspace.library.queensu.ca/handle/1974/14909.
Motzo, Giovanni (1965), “Commento Sub Art.189”, in Quadri, Rolando, Monaco, Riccardo and Trabucchi, Alberto, Commentario C.E.E, Giuffrè, Milan, 1388–1422.
Senden, Linda (2004), Soft Law in European Community Law, Hart, Oxford.
Shaffer, Gregory C. and Pollack, Mark A. (2010), “Hard vs. Soft Law: Alternatives, Complements, and Antagonists in International Governance”, in Minnesota Law Review, 94(3), 706–799.
Shepard, Wade (2017), “Why the Ambiguity of China’s Belt and Road Initiative Is Perhaps Its Biggest Strength”, in Forbes, 19 October 2017, available at: https://www.forbes.com/sites/wadeshepard/2017/10/19/whatchinas-belt-and-road-initiative-is-really-all-about/#72adce76e4de.
Snyder, Francis (2010), “Soft Law and Governance: Aspects of the European Union Experience in the European Union Experience”, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3101617.
Stefan, Oana (2012), Soft Law in Court: Competition Law, State Aid and the Court of Justice of the European Union, Kluwer Law International, The Hague.
Theret, Bruno (2002), “L’Union sociale canadienne dans le miroir des politiques sociales de l’Union européenne”, available at: https://www.researchgate.net/publication/236341097_L’union_sociale_canadienne_dans_le_miroir_des_politiques_sociales_de_l’Union_europeenne.
Treib, Oliver, Bähr, Holger and Falkner, Gerda (2007), “Modes of Governance, Old and New: A Note Towards Conceptual Clarification”, in Journal of European Public Policy, 14(1), 1–20.
Trubek, David M., Cottrell, Patrick and Nance, Mark (2005), “‘Soft Law’, ‘Hard Law’, and European Integration: Toward a Theory of Hybridity”, available at: https://ideas.repec.org/p/erp/jeanmo/p0242.html.
Wang, Heng (2019), “China’s Approach to the Belt and Road Initiative: Scope, Character and Sustainability”, in Journal of International Economic Law, 22(1), 29–55.
Wang, Jiangyu (2019), “China’s Governance Approach to the Belt and Road Initiative (BRI): Partnership, Relations, and Law”, in NUS Law Working Paper No. 2019/005, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3346427.
Wang, Yi (2019), “What Is the China-Italy MoU?”, available at: https://www.oboreurope.com/en/what-is-the-china-italy-mou/.
Zeitlin, Jonathan (2005), “Social Europe and Experimentalist Governance: Towards a New Constitutional Compromise?” in European Governance Papers (EUROGOV), available at: http://www.connex-network.org/eurogov/pdf/egp-connex-C-05-04.pdf.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2020 The Author(s)
About this chapter
Cite this chapter
Martinico, G. (2020). Comparative Law Reflections on the Use of Soft Law in the Belt and Road Initiative. In: Martinico, G., WU, X. (eds) A Legal Analysis of the Belt and Road Initiative. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-46000-6_7
Download citation
DOI: https://doi.org/10.1007/978-3-030-46000-6_7
Published:
Publisher Name: Palgrave Macmillan, Cham
Print ISBN: 978-3-030-45999-4
Online ISBN: 978-3-030-46000-6
eBook Packages: Law and CriminologyLaw and Criminology (R0)