| This paper mainly focuses on the development of China’s foreign aid legal system.In this paper,a comparative study was carried out based on the foreign aid legal systems of the United Nations(UN),Organization for Economic Co-operation and Development(OECD),and the major foreign aid providers,the USA,the UK,Australia and South Korea and the fundamental theoretical issues concerning foreign aid legal systems were analyzed.The history,major content and characteristics of foreign aid legal systems in international organizations and of other countries were taken into account and China’s foreign aid practice was combined to analyze the current situation and problems faced by China’s foreign aid legal system and summarize the development and improvement of China’s foreign aid legal system.This paper mainly concerns the official foreign(development)aid.Chapter Ⅰ describes the theoretical basis for the foreign aid legal system.Here,the definitions of “foreign aid” prevailing in the foreign aid laws of the UK,the USA and South Korea were compared.With globalization-based development,the current definition of“foreign aid” has been extended to “development and cooperation” rather than “aid and development”.Many nations inherited the development aid definition by OECD and developed their definition of foreign aid,which mainly consists of the following: 1.By the government and based on tangible or intangible assets owned by the government;2.Through a bilateral or multilateral mechanism;3.For developing countries;4.Including cash grants,preferential loans,physical transfer,labor provision,technical cooperation,etc.;5.Aiming to promote the economic and social development of the recipient countries.Generally,the definition clarifies the subject,object,manner and purpose of foreign aid.In addition,foreign aid legal system means the entire legal system keeps the foreign aid behaviors and mechanism of a nation standard.From the perspective of the binding effect of a legal system,the foreign aid legal system of a nation should originate from the following: international conventions concluded;initiatives of international organizations it participates in,the objective and requirements;country-based aid agreements entered into between this nation and other countries;norms of a legal nature in this nation;its foreign aid policies and foreign aid commitments.Foreign aid legal system records the most vivid and stable embodiment of the foreign aid policies of a country.For example,the USA put the political objective of its foreign aid into the foreign aid legal system,constituting the highly ideological feature of its foreign aid legal system.The European Union(EU)also included the facilitation of democratic reform,political participation of citizens and other issues in its foreign aid initiatives.Compared with the USA,the foreign aid system of South Korea and other countries seems to be neutral.For this reason,the effects of foreign aid for the provider are concluded: performing international commitments and boosting the development of the recipient country;realizing its own benefit through foreign aid;satisfying international development and cooperation requirements;and creating policy tools for its foreign exchange.Chapter Ⅱ concerns the analysis of development aid systems in main international organizations and the development aid systems of the UN,OECD and EU were strengthened in this chapter.As a multilateral international organization providing development aid,the UN has made great contributions to promoting the advancement of the international community,alleviating poverty and boosting the development of developing countries.In the UN,there are several divisions responsible for humanitarian aid.The two most significant foreign aid initiatives by the UN include the “Millennium Development Goals” and “2030 Agenda for Sustainable Development”,which provide detailed objectives and specific commitment concerning development aid and constitute the guiding principles for foreign aid of various countries.OECD is an important organization aiming to facilitate mutual economic assistance and economic aid and has made great advances in the development of a foreign aid system,including raising the transparency and effectiveness law of foreign aid,establishing the assessment rules and criteria of development aid,supervising and evaluating the development aid performance of OECD members,and formulating development aid objectives.The endeavors of OECD resulted in reliable guidelines and criteria for various countries to develop their own foreign aid legal systems.These countries further included transparency,effectiveness,sustainability,consistency and other principles and standards concerning the foreign aid system in their domestic laws and regulations.The EU is an economic integration-based organization and its development aid is characterized by such integration distinctively,including the development aid philosophies,consistency,harmony and complementarity,and the highlighted internal division of labor.The analysis of the development aid systems of these international organizations shows that China’s foreign aid legal system involves few relevant principles applied by these internal organizations,indicating a huge gap,especially in transparency and effectiveness.Chapter Ⅲ presents a demonstration of the foreign aid legal systems of major countries and the history,legal system and main content of the foreign aid systems in the UK,the USA,Australia and South Korea were compared as key features of these legal systems were analyzed.Comparatively,the foreign aid legislation in the UK is clear,definite,operable and foreseeable.It also voluntarily participated in launching foreign aid initiatives in international organizations,incorporated its foreign aid philosophies in these initiatives and promoted its global governance ideas.The UK has prepared sound foreign aid legal provisions and formed a clear and definite hierarchy of its foreign aid legal norms.Sufficient enabling acts have been produced for the monetary support to foreign financial institutions so as to ensure the legally permitted use of foreign aid capital.China’s foreign aid legal system lacks such acts and we may learn from them.The USA sees a rather sound foreign aid system and its foreign aid legal system is equipped with distinctive characteristics: 1.Its legal system is definitely ideological,especially after the USA started a new foreign aid agenda to promote democracy and contain corruption in 2021.2.Its foreign aid practice is clearly commercialized.The American Government has established the “Millennium Challenge Corporation”,to lower political risks arising from foreign aid by executing foreign aid agreements with other countries,to reduce the possibility that a foreign aid may escalate into a political event,cut foreign aid costs and realize more flexible foreign aid policies.2.Measures have been taken to encourage diversified aid providers.In 2021,the American Government proposed the vision for the reform of inclusive development institutions and announced a new flexible fund,which was established to attract private sectors,stimulate the vitality of foreign aid and realize foreign aid objectives with multiple channels.However,the USA exported its values in foreign aid,which hindered the economic development of recipient countries,severely harming their independence and sovereignty and should be criticized by all other countries.The country-based strategy paper and the use of risk assessment tools in Australia,and the close tie between foreign aid legislation and the transformation of foreign aid role in South Korea provide references for China to develop our own foreign aid legal system.Besides,it is found that many countries are concerned by a new issue,foreign aid risk prevention based on the up-to-date practice of the UK,the USA,Australia and South Korea,and several guidelines and rules have been released to lower such foreign aid risks.Chapter Ⅳ presents the current situation and problems faced by China’s foreign aid legal system.The course of development of China’s foreign aid legal system was divided innovatively based on the development trend of foreign aid legal systems,in accordance with the following time points: presentation of basic foreign aid principles,release of the first foreign aid management system and release of the first comprehensive departmental regulation on foreign aid.On such bases,the proposition goes that China’s foreign aid legal system is characterized by conservatism,comprehensiveness,practicality and internationalism and China needs to consider China’s overall legal construction progress,China’s foreign policy orientation,China’s economic benefit development,degree of participation into the development aid objectives of international organizations and other factors in the development of a foreign aid legal system.In this paper,main content of China’s foreign aid legal system was analyzed.Based on the overall analysis,China’s foreign aid legal system now faces the following problems: unclear legislative ideas,conflicting systems,low binding effect of the systems,fragmented systems,lack of management rules and prominent legal risk prevention and control problems.The idea of a community with a shared future for mankind was not covered during system development.The system mainly focuses on foreign aid management and highlights the administrative function,regarding and regulating foreign aid as an internal administration task.With respect to the standards of foreign aid,the existing departmental rules and regulations are overlapping and conflicting,so it is urgently needed to clarify China’s foreign aid system.Concerning foreign aid management rules,standards related to effectiveness,transparency,risk assessment and supervision have not been established.Prominent foreign aid risk prevention and control problems exist,e.g.,legal problems resulting from political risks in foreign aid,legal risks incurred by labor,environmental protection and technical standard issues,and risks due to the competition for discourse power in foreign aid infrastructure dispute settlement.These legal risks pose a certain impact on foreign aid.Chapter Ⅴ describes the way to improve China’s foreign aid legal system.An idea was proposed here that improving the binding effect of foreign aid laws should be based on the construction of the community with a shared future for mankind.The Foreign Relations Law was recommended as the fundamental foreign aid legal system to make great advances in foreign aid legislation and the existing foreign aid legal system should be audited and clarified.Also,the foreign aid dispute settlement mechanism was suggested to be incorporated into the foreign aid legal system first time.To develop the dispute settlement mechanism,particular attention may be paid to foreign aid risk prevention,which may be conducted by the International Commercial Dispute Prevention and Settlement Organization.The experience in the Singapore Infrastructure Dispute-Management Protocol may be borrowed.Upon the commencement of a foreign aid infrastructure project,a dispute settlement group should be established,consisting of local people and relevant Chinese legal practitioners.This group will provide consulting services on relevant legal issues,organize prior mediation of disputes arising from relevant issues and form a prevention-centered,mediation-based dispute management mode with legal consulting services throughout the process.Based on the above comparison of foreign aid legal systems between different international organizations and major countries,suggestions were raised to improve the effectiveness and transparency of China’s foreign aid as well as relevant management rules.To enhance the effectiveness of foreign aid,the determination standards of aid recipients,needs assessment of recipient countries and foreign aid effectiveness should be proposed.To enhance the transparency of foreign aid,it was recommended to incorporate foreign aid fund use,foreign aid project implementation and foreign aid information release system into the transparency norm.To improve foreign aid management rules,foreign aid risk control rules should be formulated first time and political,economic and institutional risks in foreign aid should be assessed,to ensure foreign aid risk prevention.To formulate foreign aid assessment procedures and supervisory procedures,it was recommended to develop China’s foreign aid assessment and supervision system and assessment criteria and clarify that China’s foreign aid assessment and supervision department will be covered by legal norms.In combination with the recent practice of various countries in the past several years,it was recommended to develop participation rules with diversified subjects,allowing more small enterprises,social organizations and private enterprises to get involved in foreign aid. |
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