Chinese Review of International Law(2-2020)




A Study on the Basic Rights and Obligations of States Parties to China-U.S. MLA Agreement

——With Comments on “Borrel Case” of International Court of Justice

Sun Ang

Abstract: In order to eliminate uncertainties in conducting mutual legal assistance in criminal matters (MLA) in the absence of a treaty, China and the United States concluded MLA Agreement to establish treaty rights and obligations to provide MLA to each other. The Agreement also lists situations where MLA obligations may be exempted, including “essential interests exception”. The study as to which Party and which organ(s) thereof and based on what criteria to determine essential interests exception, including whether banking secret and death penalty cases are to be covered by essential interests exception, should be based upon the Agreement, the domestic laws of the Parties, and international practice.If the Requested Party refuses to assist, it shall inform the Requesting Party of the reasons for the refusal, in order for both Parties to explore residual room for cooperation and to ensure that Parties will continue to cooperate and to implement the Agreement as usual after one Party refused to assist with regard to a particular case.

Keywords:China-U.S. Mutual Legal Assistance, Obligation to Assist, Refusal to Assist, Informing Reasons for Refusal



Functional Immunity of State Officials from Foreign Criminal

Jurisdiction: An Analysis in Light of the Khashoggi Incident

Shi Xinxiang

Abstract:The murder of Khashoggi touches upon some controversial issues pertaining to consular immunity and immunity rationemateriae of State officials in general international law. The difficulty with the scope of the former lies in the determination of acts incidental to the performance of consular functions. In light of the “functional” basis of the immunity, determination should be made by reference to the relationship between an incidental act and the functions performed, rather than the seriousness of the act per se. The determination of immunity rationemateriae in general international law, on the other hand, hinges upon the place where an official act is performed: If an official act is performed on the territory of the forum State, the prior recognition by that State of the official function performed is the precondition for the recognition of immunity rationemateriae; If an official act is performed outside the territory of the forum court, immunity rationemateriae should be granted, even if the act may have constituted international crimes.

Keywords:Consular Immunity, State Officials Immunity, International Crimes, Vienna Convention on Consular Relations, Immunity RationeMateriae



Rediscover the Immunity of International Organizations in the View of National Interests from the Case of Jam, et al. v.International Finance Corp.

Li Zan

Abstract:The case of Jam, et al v.International Finance Corp. shows the main issues are the relationship of immunity of international organizations and state immunity, the absolute or restricted immunity of international organizations, alternative remedy including moral responsibility as one of the preconditions of immunity of international organizations, international organizations share the different immunity according to their functions. The logic and decision of the Supreme Court of the United States still shows the stand and interests of this country. At present China is promoting the Belt and Road Initiative and the construction of a community with shared future for mankind and do need the multiple stages of international organizations. It is very similar to the United States in the earlier after the Second World War. So China does not need follow the steps of nowadays. United States but need learn from the earlier United States after the Second World War which used fully the tool of immunity of international organizations to realize the larger national interests through domestic legislation, international treaties, domestic justice and even administrative authority.

Keywords:Jam, et al.v. International Finance Corp., Immunity of International Organizations, National Interests



Compulsory Jurisdiction Risk of Marine Law Enforcementin Disputed Sea Areas and China’s Response:Rethinking of “Case Concerning the Detention ofThree Ukrainian Naval Vessels”

Liu Mei

Abstract:In “Case Concerning the Detention of Three Ukrainian Naval Vessels”, the order of International Tribunal for the Law of the Sea actually sets a high threshold for the military activities exception.The jurisdiction of the tribunal was expanded by excluding the application of military activities exception. The order of the tribunal is part of its jurisdictional theories and judicial practices, as well as the Convention’s jurisdiction over coastal states. It also takes into account the inherent procedural value of the convention’s compulsory dispute settlement procedures. From China’s perspective of the maritime disputes settlement through negotiations, the order of the tribunal means that China may actually face the risk of compulsory jurisdiction of marine law enforcement in disputed sea areas, and should enforce the law differently depending on the country and the type of ship.China has to control conflicts and establish a unified standards of marine law enforcement. Meanwhile, China must pay attention to preservation and delivery of evidences in order to avoid disadvantages in the Convention’s dispute settlement procedure.

Keywords:United Nations Convention on the Law of the Sea (UNCLOS),Military Activities Exception,Marine Law Enforcement in Disputed Sea Areas,Compulsory Jurisdiction Risk



Developments in Animal Law and Its Enlightenment to China

Wang Qianhui

Abstract:With the change of animal ethics, animal law has become a legislative hotspot in most countries and has shown a trend of constitutionalization. Not only is the international community’s concern about animal protection growing, but global animal law that studies global legal issues of animal protection has emerged. In the global wave of animal protection, China’s animal protection legislation is still in the animal conservation stage. Unbalanced economic development and obstacles due to social culture are major barriers to the further development of animal law in China. To this end, China should strengthen animal protection publicity and education, develop academic terms for animal protection that are suitable for China’s national conditions, and use the concept of ecological civilization as a guide to revise traditional anthropocentrism in legislation and promote the development of animal law in China.

Keywords:Animal Law, Animal Conservation, Animal Welfare, Animal Rights, Ecological Civilization



Practice and Regulation of Evidentiary Privilege in International Investment Arbitration

Wang Xingcen and Du Huanfang

Abstract:Evidentiary privilege in international investment arbitration emerges from the evidentiary privilege which is readily recognized in common law jurisdictions, learning from certain national regulations and international arbitration rules. There are two kinds of lawyer client privilege, including litigation privilege and legal advice privilege. The discussion concerning evidentiary privilege on politically sensitive documents focuses on deliberative process and treaty negotiation process. Although commercial secret used to be alleged and discussed in certain cases, no precedent could sustain the existence of commercial secret privilege. The practical method to settle the claim of privilege is conflict norms, which includes the closest connection test as main test and the most favourable treatment approach as supplemental.In international practice, when making the choice on which jurisdiction’s rules of privilege should be applied, arbitrators would respect parties’ autonomy and consider parties’ legitimate expectations. In view of the complex legal environment in the countries along “Belt and Road Initiative”, Chinese corporations could positively argue for privilege claims in dispute settlement process to protect own rights, weigh prudently about the substantial effects of adverse inference caused by non-production, respond privilege claims properly.

Keywords:Evidentiary Privilege, International Investment Arbitration, Evidence Discovery, Belt and Road Initiative



Review from International Law Perspective on China’s Diplomacy and International Law by DrHuangHuikang

Yan Wenjun

Abstract:China’ s Diplomacy and International Law is tour de force of Dr. Huang Huikang, senior diplomat and international law scholar of China. With his rich experience in foreign affairs, Dr. Huang takes the relationship between diplomacy and law as the starting point and explains the development path of China’s independent foreign policy. China’s participation and progress in fields such as ocean, climate, recovery of criminally obtained gains and cyberspace are also discussed in detail.In particular, he analyzes and interprets the “one country, two systems” policy and the building of “community with shared future for mankind”.Rich in content and thought provoking, this book systematically discusses the international law issues faced by China in the development of major country diplomacy with Chinese characteristics. During the past 70 years, China has made great progress in its diplomatic work but meanwhile faces many difficulties and challenges. Like Dr.HuangHuikang, learning from experience, analyzing China’s problems and exploring path with Chinese characteristic shall be the pursuits and goals of China’s scholars on diplomacy.

Keywords:China’s Diplomacy, International Law, Treaty Bodies, Right of Self-defense, “One Country, Two Systems”, Community with Shared Future for Mankind