Chinese Review of International Law(4-2020)



Challenges, Reflections and Prospects of the COVID-19 Global Pandemic: An Observation from Italy’s Perspective


Maria Francesca Staiano & Fabio Marcelli(Translated by Li Jiang)


Abstract: The newly emerging COVID-19 has posed unprecedented challenges to national and international public health security. The failure of various nations’ responses to COVID-19 disclosed the fragility of their national public health systems and highlighted the inadequacy of regional and global coordination as well. Basically, Italy and China have adopted two distinctive types of response strategies with shared features such as considering seriously the potential destructiveness of COVID-19 and organizing swift and comprehensive national reactions. From Italy’s perspective, this pandemic exposed its national institutional shortcomings. Moreover, the deep entrenched divergences among EU members and the Union’s dysfunction loom large against this backdrop of common bio-threat. In view of the catastrophic impact, it is imperative for the whole world to review the fundamentals based on which the domestic society and international community establish and operate, and accordingly, to further the necessary conceptual transformation and commence a new round of reform process. Besides, conflicts and problems cropping up in the global pandemic reveal the urgent need to innovate global governance and carry forward the principle of international cooperation. Meanwhile, the pandemic itself will hopefully serve as a historic moment for the humanity to explore and implement new concept such as the “Community of Shared Destiny of Mankind”.

Keywords:COVID-19, Global Pandemic, Italy, China, International Cooperation



The Restrictions on Human Rights of Preventive and Controlling Measure of Epidemic: Observations from the Perspectives of International Human Rights Standards


Sun Shiyan


Abstract: During the outbreak of major and serious public health emergencies such as the COVID-19, the measures taken by the State to prevent and control the epidemic will restrict the enjoyment and exercise of many human rights such as freedom of movement, right to personal liberty, right to privacy, freedom of assembly and association, rights of trade union, religious rights and minority rights, right to work and related rights, family rights and the rights of the child, freedom of expression, right to education and cultural rights. The State is allowed to restrict and even derogate from such rights during the outbreak of epidemics under international human rights standards. The State nevertheless must reasonably balance the prevention and control of epidemics with the protection of human rights, take the protection of human rights as the primary test for those measures, and ensure that the measures taken to restrict human rights do not exceed the limits permitted by law.

Keywords:Public Health Emergency, COVID-19, International Health Regulations, Restrictions on Human Rights



PHEIC in the International Health Regulations (2005): Normative Analysis, Implementation Dilemma and Governance Approach


He Tiantian


Abstract: In today’s interconnected world, health security is a global issue, and the International Health Regulations (2005), or IHR (2005), has been the only governing framework for global health security. “Public Health Emergencies of International Concern” (PHEIC) is a newly created global warning system for public health emergencies in the IHR. It is currently the only legal tool used by the World Health Organization (WHO) to respond to the global public health emergencies. The PHEIC under the IHR have their important jurisprudential significance, legal logic and operational methods, but the related-issues of declaration and implementation have encountered quite a lot difficulties in reality, including the WHO having been deeply trapped between goals and means, science and politics, and the lack of cooperation and willingness of States Parties As a collective means to protect the world’s population from the threat of health emergency, the way to improve the PHEIC system requires a deeper understanding of the texts and concepts of the IHR, and the global role of governance of the WHO. At present, it can be improved from the internal governance of the WHO.

Keywords:International Health Regulations, Public Health Emergencies of International Concern, COVID-19, World Health Organization



Controversy, Reflection and Improvement of the World Anti-Doping Rules:From the Perspective of “Sun Yang’s Case”


Mei Ao and Qian Li


Abstract: After the FDP and the CAS hearings, Sun Yang’s case got two different results. This reflects the fact that understanding and application of the world anti-doping rules is still disputed. As far as the case concerned, the controversy manifests itself in three aspects, including whether “notification” procedure is appropriate, whether “tamper” conduct is established and the applicable standard of “compelling justification” in the rules, etc. The controversy mentioned indicates some issues need to be discussed, such as the legal gaps between vague rules and unclear applicable standards, and the imbalances between the athletes’ obligations and their procedural rights. We should take Sun Yang’s case as a warning, examine the flaws and deficiencies of the rules and try to find some solutions. In the process of formulation and revision of the world anti-doping program and rules, rules should be clarified in order to shaping the fairness and authority of rules. The anti-doping organizations, such as WADA, should play an effective role in practice, through applying the concept of procedural justice to ensure harmonized, coordinated and effective anti-doping programs. The CAS, as an international quasi-judicial body, should play an equitable role in interpreting the existing rules.

Keywords:“Sun Yang’s Case” , World Anti-Doping Rules, Sample Collection, Procedural Rights, International Sports Arbitration



The Analysis on the Precautionary Principle’s Status as Customary International Law


Liu Yunqing


Abstract: The precautionary principle is one of the basic principles of contemporary international environmental law. However, it remains controversial whether the principle has crystallized into customary international law. At the regional level, EU, by recognizing explicitly the customary status of precautionary principle, has applied the principle widely in practice, which has actually converted it into a regional customary international law. At the global level, the principle has been widely enshrined in international conventions, treaties, protocols and resolutions adopted by international organizations or intergovernmental conferences. Also, international dispute settlements and domestic legal proceedings have witnessed more frequently invocation by the parties or application by the courts or tribunals of the principle. It has been revealed that, for the precautionary principle, the general practices are, to a great extent, widespread, representative as well as consistent. Meanwhile, a fairly high sense of legal obligation (opinio juris) can be observed. However, some countries, especially the United States and Canada, have equivocated on or objected to the customary status of the principle. Besides, international judicial bodies, including the ICJ, usually avoid to respond directly to the issue. Thus, it can’t conclude definitively at the moment that the precautionary principle has acquired the customary status, but it could be reasonably regarded as emerging customary international law.

Keywords:Precautionary Principle, General Practice, Opinio Juris, Customary International Law



Study on the Application of MandatoryRule of Law in International Commercial Arbitration


Sang Yuanke


Abstract: Mandatory rule of law refers to the national or transnational rule of law with mandatory characteristic which shall be applied in the international commercial legal relations, it will impose fundamental influence on the finality of arbitral award and the stability of commercial relation. In considering the special nature and value orientation of international commercial arbitration, arbitral tribunal should differentiate in applying distinct kinds of mandatory rule of law, namely have obligation to apply the mandatory rule of law in the law applicable to the contract and the law of place of arbitration as well as the transnational public policy, meanwhile have discretion to apply the mandatory rule of law in the law of the place of enforcement and the law of the third country. As to the relation between mandatory rule of law and public policy, public policy has the mandatory characteristic, but not all mandatory rule of law can constitute public policy. Only when the consequences arising out of breach of mandatory rule of law seriously damage one country’s basic principle and fundamental interests, under this circumstance can annul or refuse recognizing and enforcing the arbitral awards by revoking public policy.

Keywords:International Commercial Arbitration, Mandatory Rule of Law, Directly Applicable Law, Public Policy



Frontiers of Private International Law around the World: An Annual Review (2018-2019)


Du Tao


Abstract: The United Kingdom introduced the European Union (Withdraw) Act, which included arrangements for private international law after Brexit. The European Union has promulgated new acts such as the Brussels IIa Regulation and the Directive as regards cross-border conversions, mergers and divisions, in order to strengthen the unification of private international law. The ECJ has heard a series of significant cases of private international law. The U.S. Supreme Court continued to restrict the extraterritorial application of federal laws such as the ATS and gave only restrictive immunity to international organizations. The US courts have heard a series of civil cases related to Chinese parties and continued to recognize money judgments from Chinese courts Singapore has amended the Reciprocal Enforcement of Foreign Judgments Act. Both Australia and Canada have enforced commercial judgments of Chinese courts UNCITRAL has adopted the Singapore Mediation Convention. The Hague Conference on Private International Law adopted the new Judgments Convention.

Keywords:Private International Law, Frontiers, Annual Report, Conflicts Law