Chinese Review of International Law(5-2021)



Who Resolved the Sovereignty Dispute over the Chagos Archipelago?—— A Note on the Preliminary Objections Judgment in the Mauritius/Maldives Case


Gao Jianjun


Abstract:The Special Chamber of the ITLOS in the Dispute concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean Case faces a mixed dispute involving both the land sovereignty issue and the maritime delimitation question. However, the dispute over the sovereignty of the Chagos Archipelago did not prevent the Chamber from exercising the jurisdiction over the dispute of maritime delimitation. Both the Chagos arbitral award and the Chagos advisory opinion did not resolve the sovereignty dispute over the Chagos Archipelago.The Chamber in the Case removed the obstacle to its exercise of jurisdiction in a covert way.The Chamber, in discerning whether the sovereignty dispute over the Chagos Archipelago still exists, evaluated and denied the validity of the claim of one party and therefore concluded that the sovereignty dispute did not exist any more.However, the doings of the Chamber exceeds the proper limits of jurisdiction for verifying whether a dispute exists and constitutes a resolution to the sovereignty dispute actually.Furthermore, given the sovereignty dispute involves a third party, the doings of the Chamber also violates the recognized Monetary Gold principle.

Keywords:the Mauritius/Maldives Case, Chagos Archipelago, Existence of a Dispute, the Monetary Gold Principle, Sovereignty Dispute


The Judgment on Preliminary Objections in the Mauritius/Maldives Case: Problems, Judicial Techniques, and Implications


Zhu Lijiang


Abstract::The judgment of the Special Chamber of the ITLOS on the preliminary objections in the case concerning the maritime delimitation in the Indian Ocean between Mauritius and Maldives entails at least four debatable international law issues: whether the Special Chamber deviated from the previous approach to deal with mixed disputes of maritime rights with territorial sovereignty in international jurisprudence; whether the Special Chamber correctly analyzed the legal effect of the ICJ advisory opinion; whether the obligation to negotiate between States under Article 74 (1)-(2) and Article 83 (1)-(2) is the same as the obligation to exchange views between States under Article 283 of the UNCLOS; whether the Special Chamber correctly applied the established jurisprudence to identify international disputes in question. By using various judicial techniques, the ITLOS determines it has jurisdiction over this case. The judgment may give rise to more international disputes and international legal issues surrounding the Chagos Archipelagos, and may stimulate more international legal issues to be referred to the ICJ to seek advisory opinions.

Keywords:UNCLOS, the Mauritius/Maldives Case, Maritime Delimitation, Advisory Opinion, the Judgment on Preliminary Objections, Chagos Archipelago


To Determine the Dispute Concerning “Whether the Dispute Has Been Settled” to the Extent of Jurisdiction: From the Judgment on Preliminary Objections in the Mauritius/Maldives Case


Lei Xiaolu


Abstract:The Special Chamber delivered its judgment on preliminary objections from Maldives in the case Dispute concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives). Maldives contends that there is an uncharted dispute over the sovereignty of Chagos Islands. Maldives argues that it is the pre-requisite question of the Mauritius’ Application, which the Special Chamber does not have jurisdiction, and furthermore, the “Monetary Gold Principle” should be applied. The Special Chamber recognizes there is a dispute concerning the legal effect and meaning of the ICJ’s Advisory Opinion and related Resolution of General Assembly, and it determines the Advisory Opinion and related Resolution has the legal effect to define the legal status of the Chagos Islands, thus makes a conclusion that the sovereignty dispute has been settled. Even if the Special Chamber has correctly perceived the intended meaning and the legal effect of Advisory Opinion and related Resolution, there is still a problem on whether it is appropriate for the Special Chamber to deal with the dispute within the extent to determine the jurisdiction. When assessing the dispute concerning the legal effect of Advisory Opinion and related Resolution, the Special Chamber should be more prudent especially when it concerns the interests of the third party and the sovereignty dispute which it has no jurisdiction. In other case concerning there is a disagreement regarding the legal effect of legal instruments that addresses the rights to land territory, the Arbitral Tribunal ad hoc has avoided to determine the legal effect and meaning of that instrument. The approach and logic should be followed. Besides, even if the Advisory Opinion and related Resolutions has the legal implication as the Special Chamber indicates, at the stage of determine jurisdiction, the “plausibility test” of the claims should not be applied. The decision of the Special Chamber on UK’s claim “is merely an assertion” is not consistent with the international jurisprudence.

Keywords:Maritime Delimitation, Mauritius, Maldives, Chagos Archipelago Sovereignty Dispute, Dispute Settlement


The Competence of International Mechanism to Determine Territorial Sovereignty: From the Perspective of the Mauritius/Maldives Casee


Song Yan


Abstract:For the stability and certainty of territorial relations, international law provides relatively strict rules for the settlement of territorial disputes.Especially, resorting to international mechanism should acquire the consent of the interested States.In the case concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean, mainly based on the close link between decolonization and territorial sovereignty, the Special Chamber extended the impacts of the advisory opinion of the International Court of Justice (ICJ) as well as the resolution adopted by the General Assembly. Nevertheless, international law has set up limits to their competence over disputes concerning territorial sovereignty, implying that it is questionable to affirm the legal status of the Chagos Archipelago by means of “relevance or implication”.First, the influence of ICJ’s advisory opinion is limited by the scope of advisory jurisdiction, the principle of State consent as well as the lack of legally binding force of its opinion. Second, while the General Assembly performs important functions about decolonization, its resolutions are primarily of recommendatory and political nature, which would impose restrictions on their impact.Finally, according to the provisions of the United Nations Convention on the Law of the Sea, the Special Chamber has no jurisdiction over territorial disputes.Since the existence of a territorial dispute merely depends on the clearly opposite views held by the Parties, an in-depth analysis of the plausibility underlying their views would break through the jurisdictional limits. The Special Chamber has thus expanded the implications of ICJ’s advisory opinion and the resolution adopted by the General Assembly as well as its own jurisdiction, leading to a de facto and substantive impact on the territorial title of the relevant States.These determinations would not contribute to the stability and certainty of territorial relations.

Keywords:Territorial Sovereignty, Advisory Opinions, UNGA Resolutions, Jurisdiction, Chagos Archipelago


Reexamining the Monetary Gold Principle in International Law: Jurisprudence Evolution and Practice Challenges——A Commentary on the Mauritius/Maldives Case


Xu Qi


Abstract:With the increasing formation of a community with a shared future in the international community, the trend of multilateralization of bilateral disputes between states is obviously enhanced. The jurisprudence of “the Monetary Gold principle” as well as its application clearly reflects such a trend.The constitutive elements to be considered in the application of the Monetary Gold principle are: Whether the type of dispute is a dispute between States; whether the legal interests of a third party constitute the very subject matter of a ongoing dispute, and whether the jurisdiction to deal with this very subject matter obtains the consent of the third party; whether dealing with the rights and interests of the third party constitutes a prerequisite or basis for deciding to hear the dispute between the parties to the case. If there is a legal finding involving one of the disputing parties or a third party which is defined as a “given”, whether it is enough to exclude the application of the Monetary Gold principle.In the Mauritius/Maldives Case, although the Special Chamber did not apply this principle, the study shows that the case should have met the conditions to apply the Monetary Gold principle to exclude its jurisdiction.As the latest case to discuss the Monetary Gold principle, it shows that the principle still has practical value and significance in the current study of international law.

Keywords:the Monetary Gold Principle,Jurisdiction,Applicability,State Consent,Sovereignty Dispute, the Mauritius/Maldives Case.


The Paradigm Shift in China’s Negotiating Investment Treaty: A Commentary on the China-EU Comprehensive Agreement on Investment


Shi Jingxia and Chen Xiaoxia


Abstract:China-EU Comprehensive Agreement on Investment (CAI), concluded on December 30, 2020, is the most bilateral legal instrument between China and European Union since 1985 China-EC Trade and Cooperation Agreement. Unlike traditional investment agreements, CAI not only covers investment liberalization with an emphasis service sectors, but also regulatory framework aiming to laying a more level playing field through fair competition, covered entities, subsidy transparency, etc. Furthermore, CAI secures commitments on sustainable investment by linking investment with labor, environment, climate change, corporate social responsibility. Overall, CAI represents the progressiveness and comprehensiveness of investment commitments China has made thus far and indicates a paradigm shift of China’s negotiation and conclusion of international economic and trade treaties. The high-standard commitments in many sectors China has committed in the CAI deserve more attention. The tit-for-tat sanctions between China and EU since early 2021 undoubtedly cast shadow over the CAI’s ratification. However, the completion of CAI negotiation in time and the progressiveness of CAI rules fully exhibit its unprecedented significance in promoting China-EU economic and trade. The continuous negotiation and ratification of CAI largely relies on the impetus duly given by both sides with their conventional political wisdom. It is advisable that both China and EU take practical attitudes in carrying CAI forward to its ratification for a better future of bilateral economic cooperation.

Keywords:China-EU Comprehensive Investment Agreement, CAI, Investment Liberalization, Covered Entities, Sustainable Development



The Phenomenon of Lateral-Selecting in International Trade and Investment Rules and China’s Responding Strategies


Zhong Yingtong


Abstract:The construction of the new development pattern requires China to participate in the reform and development of the international trade and investment rules system. In international economic cooperation, the selection of the number of partners by the national or regional government in the formulation and application of relevant international law rules can be called the phenomenon of lateral-selecting. The phenomenon of lateral-selecting in international trade and investment rules is the key entry point for rule changes. In practice, lateral-selecting has developed a connotation beyond the number of partners. There are two categories of options among lateral-selecting: multilateral ones and minilateral ones. Multilateral options are represented by the multilateral international system, while minilateral options include various regional and bilateral economic and trade cooperation. The specific connotation of the two types of options and their characteristics of integration and coexistence provide the theoretical basis for the country’s lateral-selecting strategy. To counter the negative effects of attempts by individual countries to “containing China by rules” and facilitate the healthy development of international economic order, China should promote the two-way interaction between the domestic rule of law and foreign-related rule of law, and smooth the communication path of “domestic rules- minilateral rules-multilateral rules”. To utilize multilateral options cautiously and value the function of minilateral options will help to shape an international economic cycle that is conducive to China.

Keywords:the New Development Pattern, Lateral-Selecting, the Change of Rules, Multilateralism, Minilateralism



Normative Interpretation and Mechanism Improvement of “Dissemination of International Humanitarian Law”


Yan Yang


Abstract:The Geneva Conventions and their two Additional Protocols of 1977 both contain provisions on the “dissemination of International Humanitarian Law (IHL)”, contributing to establishing it as a treaty obligation. The ICRC asserts that the “dissemination of IHL” has been established as customary international law.The ICRC plays an important role in disseminating IHL, while international soft law is also conducive to the dissemination and compliance of IHL.Due to the lack of a well-developed mechanism for the dissemination of IHL, it is necessary to establish National IHL Committee and improve this system.Chinese National IHL Committee can be improved in terms of its coordination functions, giving full play to the role of consultation, establishing a planning and reporting system, and doing a good job in internal and external exchanges.Therefore, China introduce the experience to other countries, which is also the embodiment of expressing institutional discourse.

Keywords:Dissemination of International Humanitarian Law, the Geneva Conventions, Customary International Humanitarian Law, Soft Law, National International Humanitarian Law Committee, Institutional Discourse