Chinese Review of International Law(3-2021)

Source: | 2021.05.20  



The Multilateralism of International Law and Its Contemporary Implications


Zhang Naigen


Abstract:The international law has the tradition of multilateral systems, but, virtually no theories about multilateralism. As the response for the fundamental changes unknown for a century, it should be the necessary approach to have the multilateral system of global governance based on the Charter of the United Nations while promoting the human community with shared future. From this multilateral perspective, the equal and independent sovereign nations shall be peaceful coexistence including no-intervene in domestic affairs, peaceful settlement of international disputes and the shared universal security by international cooperation. It is particular important to have the win-win cooperation in the respects of economy and trade and in considering to give developing and the least developed countries more favors on multilateral base. The inclusiveness shall be taken for coexistence of civilizations to holistically protect the human rights while allowing each country to decide the domestic implementation. It shall be consolidated under the United Nations’ coordination to take care of our earth for sustainable development. Being different from the multilateralism in contemporary international law construed by the theory with Chinese characters, the so-called effective and selective multilateralism is not consistent with the international law.

Keywords:International Law, Multilateralism, Contemporary Implications, Theory with Chinese Characters, A Community of Shared Future for Mankind


The Notifications Relating to the 2019 Malaysian Submission to the CLCS: Disputes Reflected and Legal Implications


Michael Sheng-ti Gau


Abstract:In December 2019 Malaysia submitted to the Commission on the Limits of the Continental Shelf(CLCS) the information on the outer limits of its continental shelf beyond 200 miles (OL) in the South China Sea (SCS).As required by Article 76(8) of UNCLOS, Malaysia shall seek CLCS recommendations as basis for establishing its OL later. If notified of a land or maritime dispute involving in the Submission, CLCS shall not consider the Submission. As of 23 April 2021 CLCS has collected 26 Note Verbales (NVs) concerning, commenting or opposing the Malaysian Submission. Among them, 11 NVs challenged China’s SCS territorial and maritime claims which said in China’s NVs initially objecting the Submission. Based on the 2016 SCS Arbitration Award, those 11 NVs aim at disqualifying China’s NVs so as to help the 2019 Malaysian Submission through CLCS process. This paper applies CLCS rules and practice, analyzes all 26 NVs, examines the disputes reflected, and predicts the outcome at the CLCS.

Keywords:Outer Continental Shelf,UNCLOS, CLCS,2019 Malaysian Submission, South China Sea Dispute


Article 29(1) of the Universal Declaration of Human Rights and Its Contemporary Significance


Mao Junxiang and Sheng Xi


Abstract:The correct interpretation and evaluation of the Universal Declaration of Human Rights(UDHR)presupposes the wholeness of its rights and obligations clauses. However, Article 29 (1) of the UDHR regarding individual duties to community and its implications have been inadvertently ignored by the international community. The incorporation of this duty clause into the UDHR was not the requirement of a unique philosophy, but a basic consensus of the international community at that time. This very clause of the UDHR on individual duties to community can draw origins from cross-cultural philosophies and sources from trans-regional legal documents, and have influenced the later various national constitutions and international human rights instruments in shape or form. In today’s era, the unlimited expansion of rights claims and the gradual loss of duties to the community aggravate the governance dilemma of western society. Group irrationality induces democracy and development difficulties, moral absence promotes trust deficits and social decentralization, lack of conscience widens the gap between the rich and the poor and marginalizes the vulnerable groups. The values of moral, reason and conscience embedded in individual duties to community are conducive to shaping citizens’ rational understanding of individual rights and freedoms, enhancing citizens’ moral recognition of the common interests of the community and inspiring citizens’ sympathy for vulnerable groups, and thus of particular significance in alleviating the dilemma of social governance so as to ensure the free and full development of each individual.

Keywords:UDHR, Individual Duties to Community, Moral, Reason, Conscience, International Human Rights Law


State Sovereignty Immunity Rule in the Aftermath of Global Financial Crisis: Judicial Practice and Theoretical Loophole Surrounding the Sovereign Wealth Funds


Shen Wei


Abstract:The concept of sovereignty and the state sovereignty rule are in flux in the changing world. Market players including sovereign wealth funds are more engaged in global business activities in a less transparent and politically-driven manner. States, through these vehicles, are pursuing foreign or strategic policy objectives and heavily participating in the political and economic spheres in an unconventional way, distorting the boundary of international law. Sovereign wealth funds not only participate in commercial activities but also exercise the public functions traditionally associated with states (acts iure imperii). This dual functions create a black hole in international law. The doctrine of restrictive immunity has come into play and the bulk of municipal court decisions however offered little clear guidance. The immunity rule and the concept of sovereignty in relation to sovereign wealth funds need to be explored in depth. Due to the functional differences between sovereign wealth funds and state-owned enterprises, the state immunity rule applicable to state-owned enterprises cannot entirely apply to sovereign wealth funds. Given the importance of sovereign wealth funds and legalization of competitive neutrality, there is a need to revisit the state immunity rule when it comes to the involvement of sovereign wealth funds in international economic activities.

Keywords:The Principle of Sovereignty, State Immunity Rule, Sovereign Wealth Funds, Exception Rules to State Immunity Rule, Treaty Practice


The Settlement of the Conflicts of Law Concerning Intercountry Adoption Between China and Germany


Jiang Xinmiao


Abstract:China and Germany have huge differences in their inherent historical traditions, social systems, national characteristics, historical origins, cultural inheritance, ethical concepts, social customs, and geographical environment, which inevitably lead to the significant divergences of their respective attitudes, positions, principles, and modes of governance towards adoption. The legislative and judicial branches of China and Germany issue or prescribe different special regulations and measures governing intercountry adoption. As a matter of fact, it appears that conflicts of law between the two countries concerning adoption are unavoidable.By reference to existing theories and practical experiences, it concludes that applying the method of legal convergence, using the legal technique of the conflict of law, undertaking case-by-case negotiation, invoking bilateral agreements or international unification conventions, seeking common grounds and mutual benefits while reserving differences, and revising laws or regulations separately by China and Germany out of the consideration of promoting cooperation on intercountry adoption etc. are all feasible pathways to eliminate or resolve the conflicts of law on intercountry adoption between China and Germany.

Keywords:Intercountry Adoption, Full Adoption, Simple Adoption, Conflicts of Law, International Convention


International Cultural Property Recovery: Challenges to and Responses by Private International Law ——From the Case of Zhanggong-Zushi Mummified Buddha Statute


Huo Zhengxin and Chen Ruida


Abstract:The international legal disputes regarding the recovery of lost cultural property represented by the case of Zhanggong-Zushi Mummified Buddha Statute, has brought a series of challenges to the current regulations and practice of private international law. Therefore, the modern private international law theory should establish the principle of promoting the recovery of cultural property under the premise of ensuring its security and implement it into the legislation and application of specific rules. Courts should pay more attention to the cultural nature of the characterization of the object when applying the lex fori. It’s encouraged to recognize the claimant’s standing to sue based on his legal personality by referring to the lex personalis and his legal interest by favorable interpretation of the lex originis. The jurisdiction in which the object is located at the time suit is brought generally becomes the forum to the dispute while the jurisdiction of the country of origin can also be granted as an exception according to the general international civil proceeding rules. The lex rei sitae is the prevalent choice-of-law rule which however need to be applied more reasonably by flexible connecting factors, taking into account of the principle of return in order to overcome its shortcomings as one of the rigid conflict rules. For the recognition and enforcement of cultural property judgment, the claimant is supposed to make sufficient preparation and the states are encouraged to establish special mutual recognition mechanism.

Keywords:International Cultural Property Recovery, Characterization, Standing to Sue,Jurisdiction, Choice of Laws