Chinese Review of International Law

(Bimonthly)

No. 1, January 2020 

CONTENTS

On Further Promotion of the Chinese Research and Utilization of International Law

Liu Huawen(3)

A Study on Legal Preventive Mechanism to Curb the Crossborder Movement of Terrorists

Hao Luyi(16)

On the Conditions and Limits of the Application of Straight BaselinesZhou Jiang(35)

Analysis on the Legal Status of Traditional Fishing Rights in the International Law of the Sea:

From the Perspective of State Practice and International Judicial Practice before and after the

Adoption of the UNCLOSDing Duo and Yang Li(44)

“Heavenly Principle, State Law, Human Sentiment/Compassion” and Nuclear Policy in East Asia

Akihiko Morita (Translated by Ma Jie)(65)

The Interaction between International Adjudication and Negotiation: An Exploration Based on the

Adjudication Practice of the International Court of JusticeWang Huiru(73)

Expanding Jurisdiction over Foreign Nonparty in American Discovery: Taking Cases against

Chinese Financial Institutes as ExamplesZhang Jing(88)

Chinas Belt and Road Development and A New International Commercial Arbitration Initiative in Asia

Gu Weixia (Translated by Tang Yi)(105)

On Further Promotion of the Chinese  Research and Utilization of International Law

Liu Huawen

Abstract: The Fourth Plenary Session of the 19th Central Committee of the Communist Party of China (CPC) adopted a decision particularly emphasized “the strengthening of research and utilization of international law”, which strongly encourages the Chinese circle of international law. Its significances are equivalent to the calling of Mr. Deng Xiaoping by saying that “(we) should vigorously strengthening the research of international law”. Chinese international law studies develop together with the reform and opening-up process and have contributed a lot to the national cause. Now, there is a new world of major changes that’s rarely seen in a century, therefore, the Chinese research and utilization of international law faces unpreceded opportunities and challenges. The new tasks and goals include serving the belt and road building and the promotion of new type of international relationship and building of a community with a shared future for humanity. In the future, international law education should be enhanced in order to cultivate more qualified legal professionals, for which international law should be listed as the first-class discipline within the Chinese high education system. And to strengthen the use of international law, the foreign legal affair institutions could be established at different levels. With both the national and international factors and situations bearing in mind, the international exchanges and cooperation should be promoted as well.

Keywords：International Law Research, Use of International Law, Education of International Law, Rule of International Law, Community with a Shared Future for Humanity

A Study on Legal Preventive Mechanism to Curb the Cross-border Movement of Terrorists

Hao Luyi

Abstract: The phenomenon of foreign terrorist fighters and its evolution make countries facing new challenges of transnational mobility of terrorism and escalation of violence. With UN Security Council Resolution 2178 (2014), a targeted mechanism is constructed to integrate the cross-border movement of persons into the international counter-terrorism area, which establishes a “structural” security framework to address the threats posed by the cross-border terrorism activities. The legal preventive meachanism includes three major ways: to build an overall security strategy based on the “law-to-law convergence”, to implement border controlling to restrict and block the cross-border movement of terrorists, and to crimilise the transnational movement for terrorism purpose as preparatory crime. Nevertheless, since the countries expand or more actively exercise the administrative and criminal punishable powers for the prevention of terrorism, there is a tension between maintaining national security and protection of the fundamental rights of individuals. The legal preventive mechanism should not be the irrational expansions relating to national security policy and the value orientation of counter-terrorism, but comply with the rule of law and abide by the boundaries of international human rights.

Keywords：Terrorism, Legal Preventive Mechanism, Foreign Terrorist Fighters, Cross-border Movement of Persons

On the Conditions and Limits of the Application of Straight Baselines

Zhou Jiang

Abstract: The application of straight baselines, which is different to the general applicability of normal baseline, is based on particular natural conditions, such as the coastline is deeply indented and cut into, or there is a fringe of islands along the coast in its immediate vicinity, or the coastline is highly unstable. As to the limits, in practice, the length of each straight baseline and the general direction of the coast are important issues to evaluate the reasonability of the application of straight baselines.

Keywords：Straight Baselines, Conditions, Length，General Direction of the Coast

Analysis on the Legal Status of Traditional Fishing Rights in the International Law of the Sea: From the Perspective of State Practice and International Judicial  Practice before and after the Adoption of the UNCLOS

Ding Duo and Yang Li

Abstract: Traditional fishing rights which originate from the private activities of fishermen is established in the course of the consolidation of historical elements. A long-term and continuous exercise of rights and the acknowledge or acquiescence of the States concerned are the main basis for judging whether the traditional fishing rights has been effectively established. If the traditional fishing rights is non-exclusive, the fact that it has been exercised for a long time in history is sufficient to justify its validity, and the acknowledge or acquiescence of the other States may not be a necessary condition. In practice, significant fisheries interest plays an important role in the negotiation of maritime delimitation and fisheries arrangements between the coastal States. After the adoption of the UNCLOS, traditional fishing rights continue to exist in the context of general international law and constitute a relevant factor in maritime delimitation. Its coordination with the UNCLOS is mainly reflected in maritime delimitation and the allocation of fishery resources.

Keywords：Traditional Fishing Rights, General International Law, Historical Consolidation, Practice

“Heavenly Principle, State Law, Human Sentiment/Compassion”  and Nuclear Policy in East Asia

Akihiko Morita (Translated by Ma Jie)

Abstract: Energy policy is highly political and we must take it as major challenge for our democracy because political decision-making in liberal democracy must be democratic. Complex socio-technological system such as nuclear energy plants needs a new way of approach based on not the myth of rational controllability of the entire system, but recognition of bounded rationality of human. “TEPCO’s Fukushima nuclear accident” should not be taken as a special case of failure TEPCO alone was responsible for but a representative case of the post-industrial society for which Japan needs revolutionary transformation as a whole. For this end, we need to reexamine our way of thinking unconsciously embedded in our mind as a de facto framework, which was internalized through modernization process, heavily influenced by the West as the prime paradigm. “Heavenly principle, State law, Human sentiment,” the East Asian political ideal is worth reexamining as entry point for such scrutiny.

Keywords：Energy Policy, Complex Socio-technological System, Bounded Rationality, Heavenly Principle/State Law/Human Sentiment

The Interaction between International Adjudication and Negotiation: An Exploration Based on the Adjudication  Practice of the International Court of Justice

Wang Huiru

Abstract: In the process of international dispute settlement, judicial means and diplomatic means differ greatly with distinctive merits, but they are not completely incompatible or mutually exclusive. However, the extensive interaction between them in practice has been seriously ignored by the academia. As a flexible means of dispute settlement, negotiation not only penetrates through the process of international adjudication, but also interacts with the latter in different phases. From the perspective of the judicial practice and procedures of the International Court of Justice, prior negotiation is helpful in clarifying the scope and subject of a dispute and under certain conditions constitutes a precondition for the jurisdiction and admissibility of the case to the Court. Negotiation during proceedings may be the result of judicial encouragement, but it may also change the procedures and decisions of the Court. In the post-adjudicative phase, the judgment promotes the political will of the parties and provides a legal framework for further negotiation; on the other hand, negotiation exerts a positive impact to the interpretation of, compliance with and enforcement of the judgment.In this way, international adjudication and negotiation complement each other and jointly promote the peaceful, effective and final settlement of international disputes.

Keywords：International Court of Justice, Negotiation, Pacific Settlement of Disputes, International Adjudication, Judicial Function

Expanding Jurisdiction over Foreign Nonparty in American Discovery: Taking Cases against Chinese Financial Institutes as Examples

Zhang Jing

Abstract: American discovery imposes broad and severe obligation over nonparty, correspondingly provides procedural protection for nonparty. Personal jurisdiction is one of the most important mechanisms of procedural protection for nonparty, and is the prerequisite that courts could compel nonparty discovery. However, as to the relation between the standard of personal jurisdiction against defendant and that against nonparty, there is no conclusion in American academia up to now. Recently, when Federal Supreme Court of U.S. has limited the personal jurisdiction against defendant, low federal courts have expanded the personal jurisdiction against nonparty step by step, on the purpose of maintaining and expanding extraterritorial effect of American discovery. This shows U.S. distrusts multilateral mechanisms, such as Hague Convention on the Taking Evidence Abroad in Civil or Commercial Matters, judicial assistance. This is a kind of unilateral way of action that let its domestic law override international order or law of other nations. In past several decades, no effective measure has been found to fight against extraterritorial effect of American discovery. For long term perspective, only the establishment of high efficient international harmonizing and cooperating mechanism could pull international civil procedure back to multilateral track.

Keywords：Discovery, Nonparty, Personal Jurisdiction, Extraterritorial Effect

China’s Belt and Road Development and A New International  Commercial Arbitration Initiative in Asia

Gu Weixia (Translated by Tang Yi)

Abstract: China’s Belt and Road Initiative (BRI), ambitiously aspires towards expanding regional markets and facilitating regional cooperation In context of a rising volume of cross-border transactions generated by the BRI, a robust legal framework on dispute resolution is required to forge investor confidence and enable BRI’s integral goal of economic integration. In light of the substantial levels of harmonization among arbitration laws, arbitration is argued to constitute a primary vehicle of international commercial dispute resolution in an economically integrated Asia under the BRI. It is against this backdrop that the Article argues that the BRI provides a unique opportunity to contemplate the possibility of regional harmonization, as within the Asian economies along the BRI, of the public policy exception to arbitral enforcement. Such an arbitration initiative in Asia, in which China is anticipated to take a proactive role, holds a wealth of potential to project renewed momentum on China as an engine of not only economic power, but also soft power transformation in pioneering international legal norms.

Keywords：Belt and Road Initiative, Public Policy, International Arbitration, Regional Harmonization