Chinese Review of International Law(4-2021)

Source: | 2021.07.27  



A Study on the Geographical Scope of the Antarctic Treaty Area


Wu Hui and Zhang Xinbo


Abstract:The geographical scope of the Antarctic Treaty Area is a fundamental issue facing the application of the Antarctic Treaty System and China’s Antarctic legislation. It firstly examines the terms of Antarctica, the area south of 60 South Latitude and the Antarctic Treaty Area, and points out that the three should be the same meaning. After discussing the specific scope of the Antarctic Treaty Area during the different periods based on the treaties of the Antarctic Treaty System and legislation practice of the original signatories to Antarctic Treaty, it concludes that Antarctic Treaty Area initially only include the continent, islands, ice shelves, and the so-called “territorial sea” below 60°South Latitude.However, it has expanded to include currently the entire region south of 60°South Latitude.In view of this, it is appropriate to propose that China may consider the Antarctic Treaty Area as the whole area south of 60°South Latitude, including sea area, but should maintain some flexibility in the related legislation and policies.

Keywords:Antarctic Treaty, Antarctic Treaty System, State Antarctic Legislation, Antarctic Treaty Area, Geographical Scope, Antarctic Waters


The Conceptual Distinction Between International Usage and International Custom and Its Realistic Inspection


Zhai Zhong


Abstract::The delineation of international usage and international custom is sometimes blurred by a mixture of different usages in translation. In public international law, international usage refers to “general practice” as prescribed in Statute of the International Court of Justice, which lacks any legal force, while international custom refers to those unwritten practices observed by states with a legal sense of obligation regarded as opino juris. But in the early years these two concepts have always been used interchangeably. In private international law, both the notion of international usage and international custom refer to international commercial usages which are arbitrary in essence. In international economic law, the usage of those terms remains the same as private international law in general, and both international usage and international custom refer to international commercial usage in international trade and commerce. International usages in private international law may legally binding on both parties by means of being incorporated into laws and contracts. In judicial and arbitral practice of private international law, international usages are being applied more independently of the will of the parties, resulting in the application of international usage similar to that of the legal norms. While it does not mean that international law has conferred international usage the same legal status as that of international custom, the expansive application of international usage also reveals the unique routine of its application and its implied “quasi-normative effect”.

Keywords:International Usage, International Custom, General Practice, International Commercial Usage, Lex Mercatoria


Analysis on the Legality of Section 301, 301 Investigation and Customs Measures Under the WTO Law: From the Perspective of “United States-Tariff Measures Case” in the Sino-US Trade War


Zhang Junqi


Abstract:“United States-Tariff Measures Case” is the key dispute in the Sino-US trade war. Based on the findings of investigation under Section 301, the US administration began to impose additional tariffs to the products originating in China, which was sued by China to WTO. On the preliminary problems, the panel of the dispute properly does not make a due response to whether China’s acts in 301 investigation and the tariff measures relate to WTO. The panel properly concludes that the additional 25% tariff in “Measure 2” is in the terms of reference of the panel, but errs in applying the rules when analyzing the problem. The panel also refuses the argument by the United States that “the parties to the dispute have reached a solution”.On the principal problems, the panel reasonably determines that, while the tariff measures at issue do not satisfy the requirements of public morals exception due to insufficient evidence, these measures violate Art.1 and Art.2 of GATT1994. Additionally, from the perspective of academic research, all of Section 301 itself, the 301 investigation against China and the tariff measures based on the investigation violate Art.23 of DSU.

Keywords:Sino-US Trade War, Section 301, 301 Investigation, “United States-Tariff Measures Case”, Legality


The Foreign Experience of Offshore Trust Tax Avoidance Regulation and Its Reference Value


Cui Xiaojing and Chen Jingxian


Abstract:As a type of trust, offshore trust refers to a trust established under foreign law. In addition to its inherent flexibility, offshore trust also benefits from the tax advantages of offshore jurisdictions and become a useful tool for international tax planning. The tax avoidance methods mainly include setting up special types of offshore trusts, planning the tax residency of the trust or its parties, accumulating trust profits in offshore tax havens, and utilizing the untransparent tax system of offshore tax havens. In order to combat the tax avoidance of offshore trust, the United Kingdom, the United States, Canada, France and other countries have established their own tax systems for trusts. Based on international experience, China should clarify the basic taxation rules of trusts, establish a comprehensive anti-avoidance rules system, and strengthen the tax information supervision of offshore trust.

Keywords:Offshore Trust, Tax System, Tax Avoidance, Legal Regulation, Special Anti-Avoidance Rules, General Anti-Avoidance Rules


United States Human Rights Policy: The Corporate Lobby


Emilie M.Hafner-Burton and Heidi M.McNamara

(Translated by Zhang Wei and Zheng Xueyi)


Abstract:Interest groups take an active stance on US human rights policy, with implications for countries around the world. Today, publicly traded companies are responsible for the majority of all lobbying dollars spent on the issue. This article leverages a unique dataset on congressional lobbying between 2007 and 2010 to map and explain variation in corporate lobbying on US human rights-related legislation. We substantiate and explain why large oil, defense, and technology companies have greater representation in terms of dollars spent trying to influence the US approach to managing human rights around the globe than any other lobbying group. Rarely do these companies publicly explain their interests or intentions when lobbying a policy. Moreover, congressional efforts to link human rights to other areas of legislation (such as trade) has incentivized certain firms—some likely without any direct interests in human rights—to weigh in on the human rights policymaking process. Whether this is good or bad news for the promotion of human rights around the world is an open—and pressing—question.

Keywords:Interests Group, US Human Rights Policy, Congressional Lobbying, US Human Rights-related Legislation, Trade


Frontiers of Private International Law Around the World: An Annual Review (2019-2020)


Du Tao


Abstract:The global COVID-19 epidemic raised many new topics to private international law. Some countries enacted laws and regulations to control the pandemic and regarded them as mandatory provisions or force majeure, which become an obstacle to the performance of international commercial contracts. The development of artificial intelligence and big data technology has led to the reform of private international law legislation in European Union and Switzerland. The US Supreme Court continued to create new jurisprudence in the area of personal jurisdiction. New progress has been made in the HCCH jurisdiction project. Chinese judgments continued to be recognized and enforced by Australian, New Zealand’s and BVI’s courts. Private international law codifications of international organizations such as the HCCH, UNIDROIT and UNCITRAL in the fields of real right, obligation rights, family affairs and intellectual property rights are advancing in depth. Private international law issues on business and human rights have attracted global attention. The dispute about civil cooperation between the United Kingdom and the EU after the BREXIT has not yet been settled.

Keywords:Private International Law, Jurisdiction, EU, HCCH, UNIDROIT, UNCITRAL