Chinese Review of International Law(5-2020)



Some Issues of International Law Relating to the Future of WTO


Zhang Naigen


Abstract: The WTO is facing unprecedented crisis of existence. It is necessary,based on the analysis of the root causes of the crisis and its background of international relation, to explore the issues of international law relating to the future of the WTO, including the first issue in respect of treaty law, the second issue of peaceful settlement of international disputes and the last one regarding international law of institution. It should be taken on the reality of WTO for China to consider the future trend of its rules system, dispute settlement mechanism as well as institutional reform, while understanding China’s unique situation in the WTO and that the United States wants to surround China as the target. China must take the existing multilateral trade rules and the MPIA as the linkage to keep the WTO as the multilateral trade system, to promote the new rules by plurilateral agreements, and to insist in the future reform of WTO in accordance with the principle of inclusiveness under the Charter of the United Nations.

Keywords:WTO, Future, International Law, Reform, China’s Response





Tort Liability and Jurisdictional Immunities in UN Peacekeeping Operations: Confrontations and Decisions


Tian Li


Abstract: The Post-Cold War period has witnessed a number of disputes over “third-party” damages as a result of torts committed by UN Peacekeeping Forces This is most recently evident in the two class action lawsuits that have recently come before United States courts against the United Nations Stabilization Mission in Haiti (MINUSTAH) for importing the cholera virus into Haiti and causing a nationwide epidemic. In “Laventure v. United Nations”, the Court held that an express declaration of UN liability for damages caused by peacekeeping forces otherwise than by operational necessity does not constitute an “express waiver” of immunity. In “Georges v. United Nations”, the Court ruled that the provision by the UN of alternative means of dispute settlement for disputes of a private-law nature is not a prerequisite for its immunity from jurisdiction. This paper argues that, although the Courts' decisions are consistent with the domestic law of the United States and relevant rules of international law, a serious “contradiction” between UN judicial immunity and the right of third parties to access to justice and effective legal remedies is clear. This situation can therefore be meaningfully remedied by choosing a reform strategy that minimizes the adjustment to the established system, taking full account of the policy considerations relating to the relationship between the UN, its Member States and individuals. For example, it may be possible, within the framework of the Convention on the Privileges and Immunities of the United Nations, to weaken the “absoluteness” of judicial immunity or to strengthen the role of alternative dispute settlement mechanisms. A more radical approach to the reform of the legal regime of immunity would be to establish a permanent, specialized tribunal, independent of the Organization and its Member States.

Keywords:United Nations, Peacekeeping Operations, Judicial Immunity, Tort Liability, Alternative Settlement of Dispute



China and World Order Around World War I: An Analysis of the International Legal Solution of the Shandong Question by the Peace Treaty Research Institut


Yan Liyuan


Abstract: It was generally believed that the refusal of the Chinese delegates to sign to the Versailles Treaty at the Paris Peace Conference in 1919 made the Shandong Question unsettled until the Washington Conference in 1921. In fact, after the Paris Peace Conference and before the Washington Conference, the relevant measures of the Beiyang Government played a key role in solving the Shandong Question successfully. The Beiyang Government immediately established the peace treaty research institute, which focused on discussing the best solution of the Shandong Question peacefully without negotiating directly with Japan. The relevant international plans broke through the limitation that China might be restrained in bilateral diplomacy due to the disparity of powers between China and Japan. The relevant international plans also conformed to the latest trend of the development of international law and international organizations. It provided an excellent legal analysis perspective for studying China’s participation in the construction of the new world order around World War I.

Keywords:The Peace Treaty Research Institute, Twenty-One Demands, Shandong Question



Reanalysis on the Legal Effect of the U. N. General Assembly Resolution:Taking the Practice of International Rule of Law in Outer Space as an Example


Jiang Shengli


Abstract: Nowadays, the conflict between the lag of the current international legal system and the urgent need of the fast-growing international community for the timely and specific rules of international law has been even more serious. As a consequence, it is of great importance to reanalyze the legal effect of the U. N. General Assembly resolution, so as to make clear if such resolution can and how it can “fill” the lag and even the blank of the current international legal system in certain fields, and further promote the realization of international rule of law in such fields. First of all, it should be noted that, the U. N. General Assembly resolution does not have the legal binding force against Member States, but does have the legal effect of promoting the establishment of rules of international law. Moreover, taking the practice of international rule of law in outer space as an example, as the international soft law and the proof for instant international customary law, the U. N. General Assembly resolution has not only made practical development on its legal effect, but also played a more important role in promoting the realization of the rule of law in outer space. The international community should put more emphasis on the U. N. General Assembly resolution’s function as international soft law, so that the resolution may become important supplement to help solve legal problems in related fields.

Keywords:U. N. General Assembly Resolution, Legal Effect, International Rule of Law in Outer Space, International Soft Law, Instant International Customary Law



Restatement of the Grisbadarna Arbitration: From the Perspective of the Equitable Solution in Maritime Delimitation


Liu Heng


Abstract: The Grisbadarna Arbitration, as the first case on maritime delimitation decided by the international courts or tribunals, has had a far-reaching impact on the development of international law on maritime delimitation. The existing studies on the case focus on the perpendicular line principle and the quieta non movere maxim as applied by the arbitral tribunal. Looking back from the perspective of the equitable solution in maritime delimitation, the Grisbadarna Principle is a set of principles composed of the “land dominates the sea”, the doctrine of inter-temporal law, the equitable principle and the quieta non movere maxim etc. In particular, it embodies the comprehensive consideration and ultimate pursuit of the equitable solution in maritime delimitation, which is quite consistent with the development trends and current situations of the development of international law on maritime delimitation.

Keywords:Maritime Delimitation, Equitable Solution, The Land Dominates the Sea, Intertemporal Law, Historic Rights



Balance and Countermeasure: Chinese Response to the U. S. Extraterritoriality


Li Xiuna


Abstract: In view of global factor division and challenge to international law from international politics coexisting in recent years, extraterritoriality of public laws acquires partly justification and reasonability. The U. S. extraterritoriality to Chinese citizens, entities and organizations has frequently emerged, presenting high correlation with politics, especially in the fields of export control and foreign corrupt. Nowadays, China should deeply grasp the contemporary implications of extraterritoriality, follow the thought of parallel execution of construction and defense, construct Chinese extraterritoriality legal system, and flexibly apply triple restriction from the U. S., China and international society: make full use of the U. S. separation of three powers and balance mechanism, principle of comity and anti-comity; promote extraterritoriality and countermeasures legal systems; establish and advocate multilateral extraterritoriality coordinating institutions according to national and international conditions.

Keywords:The Unites States, Extraterritoriality, Countermeasures, Overseas Interests Protection



The Application of the Principle of Party Autonomy in the Field of Foreign-related General Tort in China: Based on Empirical Analysis of the Trial Practice of the Courts in China


Zhang Xijin


Abstract: The principle of party autonomy is an extension of the theory of autonomy of private law in the field of private international law. Article 44 of Law of the People’s Republic of China on Choice of Law for Foreign-related Civil Relationships made a groundbreaking effort on allowing the parties to choose the applicable laws by agreement after any tort takes place. However, Scholars hold different opinions on this issue. The results of the empirical study in the current thesis reveal that post-agreement of choice of law has the necessity and feasibility of existence. The parties from the same cultural background or the parties considering facilitation of litigation and procedure profit often choose lex fori during court trials. China accepts the ex officio application of conflict rules. Therefore, in the interpretation theory, Article 8(2) of Interpretations of the Supreme People’s Court on Several Issues Concerning Application of the Law of the People’s Republic of China on Choice of Law for Foreign-Related Civil Relationships (I) stipulates the judge’s obligation to explain, and the judge should take the initiative to ask the parties’ opinions on the application of the law in order to explore their true choice. Post-agreement of choice of law plays an irreplaceable role, but its role is limited. It is necessary to study the necessity and feasibility of pre-agreement of choice of law in the future.

Keywords:Foreign-related General Tort, Party Autonomy, Choice of Law



Security and Human Rights in the Regulation of Private Military Companies: The Role of the Home State


Francesco Francioni; trans., by Zhang Wei and Sun Yuanyuan


Abstract:Given the growing use of private military and security companies (PMSCs) in the provision of security services abroad, and the increasing risk they have on the human rights of population in host State, it’s necessary to promote governance and oversights of these new actors on the international scene. By several considerations, the article puts the focus on the home State as the addressee of human rights obligation. Through analyzing the general international law and the articles of the International Law Committee, there are three approaches to attribute to the home State of the PMSCs’ acts. And the substantive international human rights obligation that the home State has with respect to PMSCs includes: the responsibility to protect, the duty to provide access to court and judicial protection, and inter-State cooperation.

Keywords:Private Military and Security Companies, the Home State, State Responsibility, Human Rights