Chinese Review of International Law(6-2022)




Inheritance and Innovation of Basic Theories of International Law in Contemporary China


Zhang Naigen


Abstract:China is now moving towards the new goal to build a great socialist country. It needs the innovation of Chinese theories of international law. The innovative basic theories of modern international law were the results of changed international relation in certain eras. It will be helpful to promote the contemporary Chinese innovative basic theories of international law by taking the pioneer or innovative basic theories of international law in certain situations of international relation to understand their linkages with the particular eras and the novelties in comparison with their predecessors. As a responsible great power, the contemporary China needs the innovative basic theory of international law with Chinese characteristics while facing the unknown changes of a century. It should be further innovated in comprehensive dimensions of theory, practice and recognition of international law academies to continue the innovative expounding of the basic theories of international law about Five Principles of Peaceful Coexistence, the Three World Theory and the Harmonized World so as to have all-inclusive and deep study on the new five principles of international law for a Community with a Shared Future for Mankind including the lasting peace, universal security, common prosperity, coexistence of civilizations and sustainable development. Looking forward, we must develop the basic theory as a guidance for different branches of international law and contribute the Chinese ideas and solutions for the fairer and more reasonable global governance through the multilateral construction by all and sharing of benefits by all states.

Keywords:Contemporary China, International law, Basic Theory, Inheritance, Innovation, A Community with a Shared Future for Mankind, Principles of International Law


China’s Practice in the Law of the Sea: History and the Present


Zhang Haiwen


Abstract:Over centuries, State practice, including China’s practice, has played an important role in the gradual formation and development of the international law of the sea, which was originally consisted of a body of rules of customary law mainly binding States in their marine affairs. Looking back at the history of China, the late Qing Dynasty (after the 1840 Opium War) was forced to accept and apply western international law, including the law of the sea. In 1911, the Qing Government was overthrown and the transient government of the Republic of China was founded, but the country and the people were still in a semi-colonial and semi-feudal society under an unequal treaty order until the establishment of the People’s Republic of China in 1949. Before 1949, China’s sovereignty was infringed upon by Western powers and her maritime rights and interests were severely violated. During the Qing Dynasty and the Republic of China, there were only a few practices of effective application of the law of the sea, including some equal bilateral treaty negotiations and efforts of accession to some multilateral treaties. After 1949, China has fully acquired the status of an independent country and has either terminated, abrogated or amended the unequal multilateral and bilateral treaties concerning maritime issues in order to comprehensively safeguard national sovereignty and security. In the 1970s, China fully participated in the Third United Nations Conference on the Law of the Sea, ushering in a new era in the practice of the law of the sea As one of the signatories, China has made important contribution to the formulation of the United Nations Convention on the Law of the Sea (UNCLOS), and fully implemented the international law of the sea represented by the UNCLOS through domestic practice. However, the UNCLOS cannot solve all maritime problems, and the role of other relevant international treaties, customary rules and State practice is also of significance. Today, China continues to uphold the international system with the United Nations at its core, advocate respecting the will of countries for equality, and building a maritime order based on international law.

Keywords:History of the Law of the Sea, International Law History, Unequal Treaty, State Practice, United Nations Convention on the Law of the Sea


China’s Approach to the Settlement of International Maritime Disputes


Liu Heng


Abstract:By signing the United Nations Convention on the Law of the Sea in 1982 and ratifying the Convention in 1996, China thus accepted the dispute settlement mechanism of the Convention. By the 1990s, with the most of China’s land boundaries having been delimited and demarcated, maritime disputes between China and its sea neighbors have become the main types of disputes which China faces. Adhering to the basis of the principle of consent, the priority of negotiation and consultation and the use of the third-party procedures on the premise of state consent are the basic features of China’s policy and practice on the peaceful settlement of international disputes. This approach is also clearly reflected in settling disputes concerning territorial sovereignty of islands, maritime delimitation and so on by China.China is committed to determining the maritime limits with its neighbors by negotiation and consultation, and to “pursuing joint development while shelving disputes” before the final settlement. In this regard, China has both the successful practice of the maritime delimitation in the Beibu Bay by negotiation and consultation with Vietnam, and unpleasant experience of the South China Sea Arbitration initiated by the Philippines. In recent years, China has once again emphasized the great importance of the principle of consent, and that the Convention is not the sole legal basis for the settlement of maritime disputes. China’s policy and practice on the settlement of international maritime disputes enrich the state practice on the settlement of the disputes related to the Convention, contribute to the peaceful settlement of maritime disputes. At the same time, China is also facing some practical difficulties.

Keywords:Settlement of International Dispute, Maritime Disputes, UNCLOS, State Consent, Compulsory Dispute Settlement Procedure, Negotiation and Consultation, South China Sea Arbitration


On Regulatory Issues of Health Data Cross-Border Flow in China


He Jingjing and Zhang Xinyu


Abstract:Against the background of global medical innovation and digital development, the demand for cross-border flow of health data is increasing. We should promote the orderly development of the healthcare industry on the basis of preventing and decreasing the legal compliance risks of cross-border flow of health data, and achieving the right balance between the dual goals of “Risk Control” and “Industry Development”. At present, China’s regulation on cross-order flow of health data faces three problems: lack of industry-specific perspective in terms of regulatory rules, weak compliance management competence, and obstacles in terms of establishing international normative channels of cross-border data flow. By learning from the experiences of the United States and the European Union, in order to effectively deal with the challenges facing China’s cross-border flow of health data, China should take consideration of the public goods attribute of health data, and try to achieve the “Optimal Balance” between “Risk Control” and “Industry Development”. Specifically, it is necessary to take into consideration of the characteristics of China’s medical industry, increase scenario-specific insight, establish international regulatory mechanisms, build a national health data management platform, and apply relevant technology to improve compliance capabilities.

Keywords:Health Data, Health Medical Data Processor, Cross-border Data Flow, Data Security, Risk Control, Industry Development


On the Binding Force of the Iran Nuclear Agreement


Huang Yao and Chen Zhenzhen


Abstract:The Joint Comprehensive Plan of Action (also known as JCPOA or the Iran Nuclear Agreement) is a multilateral agreement for Iran to limit its nuclear programs in exchange for sanction reliefs by the United Nations (UN), the EU and the USA. The participating parties convey the rights and obligations in clear and specific terms and mutually agree to submit the Agreement for the endorsement of the UN Security Council. Such arrangement which is divergent from the usual practice, raises questions about the nature and effect of this Agreement.An legal analysis of the intent of the relevant parties, the needs of the international community, and their subsequent practice has demonstrated that the Agreement is a treaty with binding force, and that the endorsement of the UN Security Council through Resolution 2231 has strengthened its binding nature. This flexible and practical process in making the Iran Nuclear Agreement provides a new vehicle for political diplomacy to resolve global and regional entanglements with an aim to advance global security governance.

Keywords:The Joint Comprehensive Plan of Action, Iran Nuclear Issue, United Nations Security Council Resolution, Binding Force, Treaty


The Extraterritorial Application of the EU Law: Value Objectives, Realization Approach and Self-Constraints


Jiang Xiaohong


Abstract:The phenomenon of extraterritorial application of the EU law is widespread in more and more areas and the scope of extraterritorial application of EU law is gradually expanding. The extraterritorial application of EU law is generally characterized by an international orientation revealing that the objectives it pursues are not limited to the internal objectives of the EU, but also include promoting the achievement of external objectives. It is generally accepted that international law sets limits to the legislative jurisdiction of states and the exercise of it EU’s extraterritorial jurisdiction has to meet the requirements of legitimacy and rationality. In a bid to justify the extraterritorial jurisdiction the main methods of extending the scope of extraterritorial application of the EU law include the extensive interpretation of territoriality principle and nationality principle, extending the application scope of the “effect principle” and the ambit of discretion, and loosing the relationship between the EU law and the regulated foreign conducts based on the varying assessment of “substantial connection” requirement. In addition to the demonstration of the existence of a permissive legislative basis, the EU pays attention to the rationality to avoid overlapping jurisdiction and the potential conflicts of law while exercising the right of extraterritorial jurisdiction, albeit in a limited extent. The European Court plays the role of judicial activism and acts as the driving force behind the extraterritorial application of the EU Law. The EU is facing the challenge of legitimacy from the different perspectives in the process of extraterritorial application of the EU law, whereas China can learn from its system construction and get inspired.

Keywords:EU Law, Treaty on European Union, Extraterritorial Application, Extraterritorial Jurisdiction, Territoriality Principle, Nationality Principle



Putting an End to Impunity or Opening Pandora’s Box: A Critical Study on the “International Crimes Exceptions” to the International Law Commission Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction


Deng Hua


Abstract:As the development of International Criminal Law and International Human Rights Law, the issues relating to the Immunity of State Officials from Foreign Criminal Jurisdiction have become more and more complicated, which have provoked heated debates for years. Considering its importance, the United Nations International Law Commission (ILC), after fifteen-year research on the topic “Immunity of State Officials from Foreign Criminal Jurisdiction”, adopted the texts and titles of the draft articles 1 to 18 on first reading in June 2022. However, the draft article on “international crimes exceptions”, which was provisionally adopted by unusual recorded vote in 2017, has been very controversial. The supportive views argue that, the “international crimes exceptions” draft article contributes to the protection of human rights and fighting against impunity, and the development of modern international law also supports such trends. Based on the comprehensive observation on the relevant State practice and judicial decisions, the reports submitted by the Special Rapporteurs, the discussion among the ILC, the progress of the topic itself, etc., it could be concluded that, the “international crimes exceptions” draft article has not only deviated from the original intention of the ILC when the topic was included, but also opened Pandora’s box, namely, insufficient State practice jeopardizing the legitimacy of the “international crimes exceptions” draft article, re-provoking the tough debate among the ILC on the distinction between the progressive development of international law and its codification, barricading the development of the topic itself, etc. Under such circumstances, the ILC and States have every necessity to reflect on the feasibility of the “international crimes exceptions” draft article.

Keywords:International Law Commission, State Officials, Immunity from Foreign Criminal Jurisdiction, Immunity RationeMateriae, International Crimes Exceptions, Impunity, Customary International Law