Chinese Review of International Law(2-2022)




Promoting the Rule of Law on the “Belt and Road” Initiative: Rationale and Approaches


Wang Linggui


Abstract:High-quality development of joint construction of the “Belt and Road” Initiative calls for the rule of law. Promoting the rule of law on the “Belt and Road” Initiative reflects Xi Jinping’s vision for global governance, as well as Xi Jinping’s thought on the rule of law. Additionally, the invocation of the rule of law, which could be a brand-new proposal led by China for good governance under “Belt and Road” Initiative, is an inevitable requirement for the high-quality development of the “Belt and Road” Initiative, and also is a critical measure to respond to the new stage, new concept and new pattern of China’s opening-up development. For the purpose of the promotion of the rule of law, extensive consultation, joint contribution and shared benefits, arguably, shall be the guiding principles. As an active advocate, China shall strengthen the construction of the rule of law system in areas related to foreign affairs, promote the coordination and collaboration of regulatory standards in the relevant countries, and give full play to the functions of bilateral, plurilateral, and multilateral trade and investment agreements in regional integration, as well as continuously strengthen the research and application of international law and domestic law.

Keywords:Xi Jinping Thought on the Rule of Law, the “Belt and Road” Initiative, the Rule of Law on the “Belt and Road” Initiative, Global Governance, International Law, Rule of Law in Areas Related to Foreign Affairs


The Principle of Reciprocity in China’s State Immunity Legislation: Conceptual Meaning, Legal Basis and Institutional Design


Xu Shu


Abstract:Achieving reciprocal immunity is among the most important considerations in China’s state immunity legislation. The so-called reciprocal immunity, distinguishable from the concept of countermeasures in the context of the law of state responsibility or the practice of reciprocity in the area of diplomatic immunity, aims to apply the principle of reciprocity as the prerequisite of claiming or granting state immunity. The principle of reciprocity, as the legal toolkit for dealing with conflicts of state immunity rules, also having both defensive and aggressive functions, is conducive to flexibly adjusting the scope of state immunity. Reciprocal immunity would not end up in nihilism of state immunity. Applying the principle of immunity does not necessarily lead to the uncertainty or the so-called double or multiple standards of state immunity. In state practice, the policies of reciprocal immunity have been written into law by more and more countries and the application of the principle of reciprocity keeps expanding. In her state immunity legislation, China should make clear her position over “grey zones” in state immunity rules based upon interest evaluation. Meanwhile, the principle of reciprocity should be explicitly stipulated to fill the legal toolbox, preventing other countries from arbitrarily denying China’s state immunity. The uncertainty and unpredictability that might be brought by applying the principle of reciprocity could be minimized through legalized institutional design and by refining the circumstance, procedure and conditions for the application of the principle of reciprocity.

Keywords:Reciprocal Immunity, State Immunity Legislation, Absolute Immunity, Restrictive Immunity, Countermeasure, Institutional Design


Negotiations of the HCCH 2019 Judgments Convention on State Immunity and Its Inspiration


He Qisheng


Abstract:The HCCH 2019 Judgments Convention applies to the recognition and enforcement of judgments in civil or commercial matters, and does not exclude the judgments pertaining to a state, but nothing in the Convention shall affect privileges and immunities of states. The issue of whether the judgments pertaining to a state can be recognized and enforced depends on the national law on privileges and immunities of the states. However, such provisions will objectively increase the probability of the recognition and enforcement of the relevant judgments among restrictive immunity states. Moreover, the Convention does not apply to activities of armed forces and law enforcement activities, and its relationship with the status of forces agreements deserves China’s attention. For the sovereign debt of Argentina and other countries, the Convention excludes sovereign debt restructuring through unilateral state measures. Under the Convention, a state may declare that it does not apply this Convention to judgments arising from proceedings to which the state is a party. However, the negotiation on state-owned enterprises involved in this issue shows that the game between China and Western countries in the field of international trade has extended to the field of private international law.

Keywords:The HCCH 2019 Judgments Convention, State Immunity, Judgments Pertaining to a State,Sovereign Debt, State-owned Enterprises, Armed Forces Activities, Law Enforcement Activities


On the Effect of State’s Waiver of Immunity Clauses in International Arbitration


Du Huanfang and Duan Xinrui


Abstract:One of the major obstacles faced by international arbitration in the enforcement of awards is state immunity and even states that take a restrictive position on immunity take a very cautious approach to the enforcement of waiver of immunity. In order to circumvent the impediment of state immunity, agreeing on a waiver of immunity clause in the arbitration agreement or contract becomes a possible attempt. However, no matter in academic circles, legislation or judicial practice, there is no consensus on the validity, scope of validity and liability after breaching waiver of immunity. A review of international treaties and the legislation and judicial practice of representative states shows that states which have taken the position of limiting immunity agree that a waiver of immunity clause has the effect of waiving immunity from jurisdiction, but that immunity from execution and immunity from provisional measures need to be separately and clearly expressed. A breach of a waiver of immunity clause may be contrary to both international law and domestic law, depending on the position of the state whose court is seized of the dispute. The agreed choice of court agreement, the immunity status of the state where the dispute is dealt with and other ancillary safeguards for contract performance should be taken into account when drafting the waiver clause.

Keywords:International Arbitration, State Immunity, Waiver of Immunity Clause, Jurisdictional Immunity, Enforcement Immunity, Immunity from Interim Measure


Evaluation of the Probative Value of Party-appointed Expert Opinion by the International Court of Justice


Kong Lingjie and Liu Congcong


Abstract:Party-appointed expert evidence plays an increasingly important role in the fact-finding practice of the International Court of Justice. A variety of factors, including the independence, qualification and expertise of the experts, raw data and information, the processing of data and information by experts and the derived conclusion, have been taken into consideration by the Court in assessing the probative value of expert evidence. The Court has not imposed restrictions on the independence, qualification and expertise of experts, since the Parties enjoy discretion in the designation and appointment of party-appointed experts. In a majority of the cases, the Court has not addressed the impact of various factors on the evidentiary weight of the expert evidence presented by the parties. Nor has it made general observations as to how the party-appointed expert evidence should be evaluated. A proactive approach could be taken by the Court in the future cases to respond to the points of contention between parties and to set out more detailed rules concerning the assessment of party-appointed expert evidence.

Keywords:International Court of Justice, Party-appointed Expert, Expert Opinion, Evidentiary Weight, Expert Evidence


Analysis of the International Space Law Issues of LEO Mega-Constellation


Wang Guoyu and Wei Guoning


Abstract:The development of LEO mega-constellation composed of thousands of small satellites is conducive to education, telecommunication, earth observation and disasters mitigation, simultaneously leads to practical problems, for instance, spectral orbital resource occupation, increasing risks of in-orbit collisions, affecting other countries launching window and ground observation. Moreover, it brings challenges to the application of international rules. The principles, obligations and requirements of international space law such as free exploration and use, due regard, prior consultation, registration of space object, transparency, trackability and space debris mitigation are of great significance to adjust the mega-constellation activities, but has yet to be elaborated or adjusted accordingly. The rapid development of mega-constellation would promote the evaluation of rules and mechanisms related to international space governance, for instance, allocation, coordination of the radio frequency and orbits, international governance of space environment, international governance and coordination of space traffic, and arms control in outer space. International community should in this case consider establishing unilateral transparency mechanism, coordination and consultation mechanism, crisis management and disposal mechanism in respect of the mega-constellation as soon as possible, so as to realize the benign international governance of space.

Keywords:LEO mega-constellation, International Space Law, Space Environment Governance, Space Traffic Management, Space Crisis Management, Space Debris



On the International Legal Regulation of Transboundary Movement of Plastic Waste: From the Perspective of the Basel Convention Plastic Waste Amendments


Wang Meili and Chen Yue


Abstract:The transboundary movements of plastic waste have long been in the vacuum of international legal regulation. The official entry into force of the Basel Convention Plastic Waste Amendments in January 2021 means the international community has reached a binding international arrangement for the transboundary movements of plastic waste for the first time. The introduction of the Amendments enables the vast majority of transboundary movements of plastic waste under the guidance of international rules, and begins to form the general practice for plastic waste rules,which is expected to reverse the status quo in which developing countries are bent on replacing developed countries to bear the negative environmental externalities caused by transboundary movements of plastic waste. However, the initial flaws in the institutional design of the Basel Convention, the ambiguity of key terms in the Plastic Waste Amendments, the absence of preferential policies for developing countries, and the rising trend of illegal transboundary shipments will also limit the practical effects of the Plastic Waste Amendments. Therefore, the implementation of the Plastic Waste Amendments in the future can be improved by reducing the sources of plastic waste, enforcing the more vague provisions at the domestic level, appropriately relaxing export standards and simplifying export procedures for developing countries, and taking necessary measures to curb illegal transboundary shipments of plastic waste, etc. China should seize this historical opportunity to transform the Plastic Waste Amendments into domestic law, improve the domestic legal supervision system of plastic waste, strengthen regional cooperation in the regulation of transboundary movements of plastic waste, and increase China’s role in the legal regulation of transboundary movements of plastic waste.

Keywords:Basel Convention, Basel Convention Plastic Waste Amendments, Transboundary Movements, Prior Informed Consent Procedure, Illegal Transboundary Movements



The Law-Making Dilemma of the Dispute Settlement System of the WTO


Sun Jiaxun


Abstract:It has always been controversial whether the dispute settlement mechanism of the WTO can “make law”. This issue is related to the predicament of the Appellate Body. Understanding on Rules and Procedures Governing the Settlement of Dispute requires the Dispute Settlement Body not to add or diminish the rights or obligations of Parties. However, the panel and Appellate Body still made legal interpretations in some disputes. The US considers these interpretations were overreaching and were making law. In order to settle disputes, the panel and Appellate Body are in a dilemma in which they need to make legal interpretations, but still are unable to avoid criticism about law-making. It is still controversial about the attempts of Appellate Body to justify “law-making”, for dispute settlement mechanism interpreting law along with stare decisis already constitutes “law-making”. This dilemma is also one for all international dispute settlement mechanisms, which involves the tension between judicial power of the sovereign states and that of international dispute settlement mechanisms. In order to extricate from the dilemma, international dispute settlement mechanisms can either expand or withdraw their power, the latter of which is more fit for the need of this era.

Keywords:WTO, Dispute Settlement, Law-making, Dilemma, Power Confrontation