Ma Jinxing

I. Basic Information

Ma Jinxing is an assistant research fellow at CASS Institute of International Law. He obtained his LL.B. and Ph.D. from Dalian Maritime University (DMU) in China, and his LL.M. from Saarland University (UdS) in Germany. From 2015 to 2018, he worked as a postdoctoral researcher at CASS Institute of Law. His research interests include Maritime Territorial & Delimitation Disputes, Maritime Traffic Safety and Law Enforcement, Marine Environmental Protection, Historical Rights, Enforcement Mechanism of IMO Conventions, Marine Police and Legislation, Integrated Management of Coastal and Marine Areas, etc.

He has published about 20 articles (including translation) in some authoritative journals; his recent works have been published at International Review of the Red Cross (2016), Chinese Review of International Law (2017), and Journal of East Asia & International Law (2018). Some of his papers are included in China Social Science Excellence (CSSE). He finished the first Chinese translation of German Commercial Code(HGB) Part V Maritime Act after its restatement in 2013.

In recent 5 years, He has submitted more than 40 internal research reports, all of which have been adopted by Central Governmental departments, some have obtained written approvals from leaders of the Central Government and awarded prizes by CASS. He has finished the research project (Class I) “Study on Legal Countermeasures for Regulating the Utilization of Uninhabited Islands” (2016M590174)with the support of China Post-Doctoral Science Foundation, and participated in many research programs, such as National Social Sciences Foundation Programs, Major Research Projects of Philosophy and Social Sciences of Ministry of Education, MOT and NOS programs, and so on.

His main researches involve the following four subjects: (i) maritime territorial & boundary delimitation disputes, including the Diaoyu Islands issues between China and Japan, South China Sea disputes between China and neighboring countries, Territorial Sea and Exclusive Economic Zone delimitation, etc. (ii) marine environment, which involves the Particularly Sensitive Sea Area in IMO Convention, the prevention and control of pollution from ships, and the protection of the environment in armed conflicts at sea. (iii) Maritime Traffic Safety Maintenance, involving Ship’s Routing, Collision and Navigation Rules, etc. (iv) National Marine Legislation & policies, including the Basic Law of Marine Issues, Island Legislation and Marine Legal System.

II. Main Academic Viewpoints

1. The Effect of Island Occupation in China-Japan dispute over Diaoyu Islands. Occupation is the common claim made by China and Japan in the dispute over Diaoyu Islands, other viewpoints of China and Japan over Diaoyu Islands are all based on the claim of occupation. Based on historical facts and international law, this article puts forward the idea that China is the sole legitimate owner of the Diaoyu Islands and the Japanese claim on territorial sovereignty over the Diaoyu Islands based on occupation is deceptive. The Chinese claims over the Diaoyu Islands, basing on occupation and efficiency control, are reasonable and lawful. A critical date exists in the dispute between China and Japan, Japanese and American infringing behaviors after the critical date do not have the effect of obtaining the territorial sovereignty over the Diaoyu Islands in meaning of international law. Territorial sovereignty over the Diaoyu Islands was returned back to China after World War Two, China gives no tacit consent to Japanese claims.

2. Compulsory Dispute Settlement Mechanism and the South China Sea Arbitration Case. Compulsory arbitration procedure is a unique compulsory dispute settlement mechanism under UNCLOS. Philippines’ submission of the dispute to the International Arbitration Tribunal evaded the limitations on the applicability of the procedure. As a result, China’s rejection to the arbitration only means a preliminary objection to the jurisdiction of the tribunal but cannot cease the procedure. With regard to the development of the compulsory arbitration, China should adhere to its claims for sovereignty over the islands in the South China Sea and regions within the “Nine-dashed line”, and declare that the tribunal has no jurisdiction over the dispute. China should intensify the actual control of the disputed regions between China and Philippines by building marine structures and setting up the ADIZ, so as to uphold its inherent interests on the South China Sea.

3. Maritime Safety Investigation is an important measure to improve the safety of marine navigation. Under the influence of the emphasis of territorial jurisdiction, there exists an imbalance between coastal state jurisdiction and flag state jurisdiction in marine safety investigation, the implementation of IMO Maritime Safety Investigation Rule and its amendments accelerates the uniform trend of International Maritime Safety Investigation Legislations, expanded state participation in the investigation, strength the flag state obligations and the protection of seafarers' human rights.

4. Navigation safety control and the building of "21st Century Maritime Silk Road" (21st CMSR). The safety of maritime navigation, which is the basis for the building of 21st CMSR, has territorial characteristics. The national jurisdiction is the basis of the right of coastal states to participate in ensuring the safety of navigation in the South China Sea (SCS). The existing coordination mechanism in SCS belongs to soft law. In addition, the existing maritime disputes make it more difficult to safeguard the safe navigation in SCS. Under the initiative of building 21st CMSR, China and other SCS costal countries should work together to solve the dilemma of jurisdiction coordination, conditionally recognize the living space of state jurisdiction in the disputed sea areas, follow the restrictive provisions in international conventions, reasonably apply the principle of priority and closest connection of personal jurisdiction, and safeguard navigation safety in SCS through joint application.

5. The restrictions on the use of force at sea exist in different branches of international law: the law of the sea and environmental law, which are mainly applicable during the peace time, and international humanitarian law (IHL), which is applicable in times of armed conflict. Different rules from these areas must be compared and analyzed to determine the common principles applicable to restricting the use of force at sea for environmental protection. Taking into account the particular problems in protecting the marine environment in the context of the use of force, the law of the sea and international environmental law could be applied to restrict means and methods of using force at sea during armed conflict, and the interpretation of the principle of precaution should be able to fill the gaps in international law. The detailed concepts and approaches in the law of the sea and environmental law may address some of the lacunae of IHL in marine environmental protection during armed conflict.

III. Introductions to Representative Works:

1. “Review of the Award on the Legal Statue of Maritime Features in South China Sea Arbitration”, Chinese Review of International Law, 1 (2017).

Legal statue of maritime features is one of the core issues in the South China Sea Arbitration Case, the essence of such issue is territorial sovereignty and maritime delimitation disputes between China and the Philippines. Basing itself on the interception of some facts and evidences, the Tribunal distorted the China’s diplomatic position, and showed intense subjective tendency in the interpretation of Art.121 (3) UNCLOS, tried to create rights and obligation for parties on the basis of presumed intentions, deviated from in dubio mitius and evolutive interpretation of treaties, and made legislation in the name of interpretation of law, thus departing from purpose of treaty interpretation. During the factual proof, the relative evidences, which were selected from historical fragments by the tribunal, lacked of legitimacy, authenticity and relevancy, and therefore the legality and validity of the award cannot be supported

2. “On application of Particularly Sensitive Sea Area System—In the View of Ecological Environment Governance in South China Sea”, Pacific Journal,5 (2016). Particularly Sensitive Sea Area system (PSSAs), as one of Marine Protection Areas regimes led by IMO, different from other relative Marine Protection Areas regimes, is based on wide national practices. South China Sea meets PSSA standards. In order to hold international discourse power in regional environment management and accumulate political mutual trust, China should combine the bilateral and multilateral approaches under the regional cooperation system established by relevant international conventions and take part in the application for the designation of South China Sea as PSSA, then adopt the protection measures in accordance with IMO legal documents and punish the violations in accordance with the relevant domestic laws.

IV. Main Publications

1. “China's Responses to the South China Sea Arbitration: from the Perspective of Treaty Interpretation on the Status of Maritime Features”, Journal of East Asia & International Law, 1 (2018) (in English);

2. “Review of Issues relating to the Legal Statue of Maritime Features in South China Sea Arbitration”, Chinese Review of International Law, 1 (2017) (in Chinese);

3. “Restrictions on the use of force at sea: an environmental protection perspective”, International Review of Red Cross, 902 (2016) (co-authored with Sun Shiyan) (in English);

4. “Confliction and Coordination of Maritime Jurisdiction over Navigation in South China Sea”, Social Science Journal, 6 (2016) (in Chinese);

5. “The Application of Particularly Sensitive Sea Area System in South China Sea”, Pacific Journal, 5 (2016) (in Chinese);

6. “Development of International Legislation on Maritime Safety Investigation and Its Implication for China”, Journal of Ocean University of China (Social Sciences edition), 5 (2016) (in Chinese);

7. “Compulsory Dispute Settlement Mechanism under UNCLOS and China’s Response: from China- Philippines South China Sea Arbitration Case Perspectives”, Law Science Magazine, 2 (2015) (in Chinese);

8. “On the Ocean Legislation in China”, Journal of Social Science, 7 (2014) (co-authored with Li Zhiwen) (in Chinese);

9. “Study on the Effect of Island Occupation in View of International Law Principle”, Law Science Magazine, 12 (2013) (co-authored with Li Zhiwen (in Chinese).