The “International Law Review of Wuhan University” started in 2003. It has been published 26 high-quality collections by book publishing in 14 years. It has become one of the few serial publications in China focusing on the field of International Law. And it also has been successively included as the source journal of "Chinese social science citation index" (CSSCI) since 2008. At present, the " International Law Review of Wuhan University" has established a journal exchange relationship with the Saarland University and the University of Trier, Germany; the Institute of Comparative Law, Swiss; the Huber Institute of Groningen University, the Netherlands; and the Waseda University, Japan. This publication has been collected by the United Nations Commission on International Trade Law(UNCITRAL) and the International Court of Justice in The Hague. In the UNCITRAL 2009 “newest bibliography related to UNCITRAL”, this journal is the only Chinese publication cited. Taking advantage of the country's high-level think tanks construction, the "International Law Review of Wuhan University " was approved by the State Administration of Press, Publication, Radio, Film and Television, and officially changed to a bimonthly issue from 2017.
The purpose of the " International Law Review of Wuhan University" is to gain a rational insight into various events in the development of contemporary international society. With an open mind, to accommodate all kinds of doctrines on criticizing the current maladies; to pragmatically develop new areas of international law research and development, Provide theoretical basis or practical reference for China's foreign-related legislation and judicial practice.
The main permanent columns of this journal include: monographs, law of the sea, issues of "One Belt and One Road", law of the world trade organization, international investment dispute settlement, international civil litigation, international law practice, international law case analysis, and the selected results of the think tank.
The " International Law Review of Wuhan University" welcomes the contributions of international law scholars at home and abroad, especially papers on international law (including Public International Law, Private International Law, International Economic Law and related foreign law or comparative law) with novel topics and unique insights and academic values. The journal implements an anonymous review of the manuscript. After the manuscript is adopted, the editorial department will contact the author in time. If the author fails to receive the notice of contribution for one month, he/she can handle it by himself/herself. Please submit the electronic version to the submission email: whuilr@whu.edu.cn or whuilr@163.com.
Thank you again for your support and look forward to your masterpiece!
Editorial Department of " International Law Review of Wuhan University"
September 15, 2017
" International Law Review of Wuhan University", the third issue of 2017
1.The Features
1.1 Current international situation and China’s diplomatic treaty and law work
Author: Xu Hong, Director-General of the Department of Treaty and Law of the Ministry of the Foreign Affairs, executive vice president of Chinese Society of International Law.
Abstract: In the past year, the balance of international forces and the international order have continued to undergo complex and profound adjustments. The role of China in influencing and guiding the evolution of global governance continues to increase, as well as new challenges. Generally speaking, the development of the situation in the field of international law presents four characteristics: First, the reform of the global governance system has entered a critical stage; second, the game of rules around the development and important strategic resources have been increasingly expanded and deepened; third, the “legal war” in the international game has become more intense. Fourth, China has become a driving force for adjustment of the international order and the reform of the governance system, while facing new challenges at the same time.
2 Monographs
2.1 An analysis on doctrine of competence-competence jurisdiction and judicial review in international commercial arbitration
Author: Sun Nanshen, professor and doctoral Supervisor of Fudan University Law School, Distinguished Professor of Macau University of Science and Technology;
Hu Di, postdoctoral fellow at Law School of Fudan University, J.D. at East China University of Political Science and Law.
Abstract: There is a mutual restrained relationship between doctrine of competence- competence and judicial review of arbitral jurisdiction in international commercial arbitration, which refers to aspects of objection to jurisdiction, negative effect of the doctrine, arbitration agreement, applicable law, and priority of effect. The comparative study of the legislative modes and judicial practice of the main nations demonstrates the current states and development of such relationship. Different methods and results of judicial review may be adopted in different stages of arbitral tribunals hearing disputes on their own competence, and there is no definite priority between arbitral tribunal and court. Accordingly, Chinese law should solve the problems of inappropriate authority and the court’s priority and explicitly provide that the arbitral tribunal is the authority to decide the disputes on their own competence, so as to make balance between the independence of arbitration procedure and the necessary supervision of court.
Key words: competence-competence; judicial review; objection to jurisdiction; arbitration agreement
2.2 Empirical study on the application of law in international shipping disputes (1997-2016)
Author: Wang Guohua, professor, doctoral supervisor and dean of Shanghai Maritime University Law School;
Sun Yuqing, J.D. candidate at Law School of Shanghai Maritime University.
Abstract: Cases of international maritime disputes from 1997 to 2016 were sampled by scientific methods, and the situation of application of law in international shipping disputes was researched pointedly. The study result shows that there are several aspects of problems in these cases such as application of conflict rules, process of choice of law, application of treaties, etc. Courts should raise consciousness of applying conflict rules to exterminate nonstandard application of conflict rules. Courts should enhance the process control of application of law to apply conflict rules accurately. Courts should improve legal system of application of treaties to apply treaties accurately.
Key words: international shipping disputes; application of law; empirical study
2.3 Research on the recognition and enforcement of Chinese judgments concerning property law matters by Japanese courts
Author: Feng Qian, J.D. candidate in International Private Law at Law School of Osaka University.
Abstract: The present situation of non-recognition of judicial judgments in property law matters between China and Japan is not advantage for bilateral civil communication. By studying on cases of Japanese courts, this article finds that the non-recognition of Chinese judgments is resulted of three reasons: the denying of reciprocal relationship with Japan by Chinese courts, the ambiguous interpretation of reciprocal requirement, and wrong reference to Gomi Akira case by Japanese courts, and then explores future prospects of the recognition and enforcement of judicial judgments in property law matters between China and Japan.
Key words: recognition and enforcement of judicial Judgments; reciprocal recognition guaranty; reciprocal relationship; Gomi Akira case
2.4 A brief history of the mental element in the international criminal law
Author: Lu Hanyue, J.D. candidate at the Law School of Tsinghua University, 2014.
Abstract: Article 30 is one of the most important substantial provision in the Rome Statute. Scholars from the two main legal systems have disputed with each other on the issues of the conjunctive structure of “intent and knowledge” and the acceptance of dolus eventualis. This mental element clause should be interpreted from a historical aspect. In the charters of the military tribunals, the mental elements were mostly suggestive. The phrase “intent and knowledge” has already emerged in the judicial opinion from Nuremburg, although the intent here is specific rather than general, while the jurisprudence of superior responsibility has been developed in the judicial opinion from the Far East, which admitted the responsible forms under dolus directus. The international law texts enacted in the downturn of international criminal justice have provided historical sources for the later international criminal law, and this would be deemed as the successive characteristic of the international law texts. The statutes of the ad hoc tribunals succeeded many phrases from former international law texts. The term “intent and knowledge” has appeared again in the judicial opinion, the intent here has been oriented to the conduct element, and the knowledge to the circumstance element. In the meantime, the dolus eventualis has been adopted via the concepts willfulness and wantonness. The current phrasing of Article 30 was a result of avoiding the disputes between the two main legal systems, which causes the different opinions in interpreting the text. Conclusively, the “intent and knowledge” structure should be interpreted as “intent oriented to conduct” and “knowledge oriented to circumstance”, and the concept dolus eventualis should be denied in the extent of Article 30, but affirmed in multiple other contexts.
Keywords: Rome Statute; mental element; intent; acknowledge
2.5 Paths, mechanisms and models of international governance on labor migration
Author: Shang Yi, J.D. candidate in International Law at the Law School of Xiamen University, 2013.
Abstract: With the increasing trend of economic globalization, the governance of international labor migration has become an important issue on the national, regional and international policy agendas. On the governance paths, the top-down path focuses on supranational governance while the bottom-up path emphasizes the multilevel governance. But there is not black or white relationship between the two paths. Each of them reflects the characteristics and tasks of the different stages of the governance of international labor migration. In terms of governance mechanisms, the synergy mechanism, compared with simple international cooperation, has an alternative role through which the diverse interests may be accommodated and common action may be taken. Also, it provides a good operational framework to fill the protection gap and the governance gap. From the perspective of governance models, the International Administrative and Judicial Cooperation Model is more easily accepted than the Tripartite Consultation Model, which argues that the government agencies should work together directly on the issues of labor migration, and it proposes the specific areas of cooperation seems more feasible. In addition, China needs to be improved from the migration management capacity, entry and exit procedures and labor migration legislation, in order to enhance the discourse power of the governance of international labor migration, and actively participate in the formulation of relevant rules of the governance of international labor migration.
Key words: synergy mechanism; tripartite consultation; governance on labor migration; international administrative and judicial cooperation
2.6 The G20 Summit in the context of global financial legislation
Author: Zhang Xiaojing, researcher of the Post-Doctoral Research Center of Law in Xiamen University, associate professor and J.D. of Law School of Liaoning University;
Zhang Jinjin, a LL.M. candidate at the Law School of Liaoning University.
Abstract: In the global financial legislation of post-crisis period, as the leader, the G20 Summit plays an important role in rule- making process. According to its unofficial structure through legislative foundation, subject and procedure, the Summit instructs a hierarchical legislative system, which strengthens the cooperation of multiple subjects, and makes the global financial governance come true. On account of that, China should take advantage of the G20 Summit to promote national financial rights, by the means of regional alliance, agenda-setting and civil society.
Key words: international financial law; legislation; G20 Summit
3 Special topics on the Law of the Sea
3.1 An analysis on legal value and actual effect of the United Nations Convention on the Law of the Sea(UNCLOS)
Author: Zhang Guangyao, a J.D. candidate at Institute of International Law, Wuhan University.
Abstract: The rules of UNCLOS have legal vagueness and legal shortcomings, which have led to controversy over international maritime law and even to the occurrence of international maritime disputes. From a jurisprudential point of view, this is due to the plight of the UNCLOS that has trapped onto legal value such as freedom, equality, order, interests, sovereignty and so on. By combing rules, values and facts, the UNCLOS is confronting the diversification and complication path of dispute settlement, growing application of rules in low sensitivity area, increasing maintenance of maritime rights and fully involved in its development of organizations. It is necessary to find a link between the strategy and policies of the Chinese government and the initiatives of international organizations, to strengthen cooperation and dialogue with neighboring countries in low-sensitive areas, to participate selectively in the dispute settlement procedures of the Convention and to further coordinate with the Convention to provide a reference for realization of the strategy of the 21st century marine power.
Key words: United Nations Convention on the Law of the Sea; legal defects; legal value; marine power
3.2 China and the Convention on the Law of the Sea: historical review, experiences and lessons
Author: Chen Huiqing, a J.D. candidate at the Wuhan University China Institute of Boundary and Ocean Studies, and a researcher at the Collaborative Innovation Center for Territorial Sovereignty and Maritime Rights.
Abstract: During the Third UN Conference on the Law of the Sea, China has successful experiences in taking itself as a developing country, the establishment of the width of territorial sea, allying developing countries against sea hegemony, adhering to national sovereignty and safeguarding national territorial integrity. But we also learn lessons from the conference. We have not fully considered the special circumstances of the Asia-Pacific sea areas on the width’s support of exclusive economic zone and continental shelf. Our view on the regime of international strait passage is not perfect and the regime of the international seabed does harm to China’s long-term interests. Our participation in the conference also is not enough. In the changes of the legal system of the sea in 21st century, China should learn experiences and lessons from the Third Ocean Conference and better safeguard our marine rights and interests.
Key words: The Convention on the Law of the Sea; developing countries; ocean hegemony; sovereignty; order
3.3 On the Legislation, Practices and Challenges of France Maritime Delimitation
Author: Fu Qinwen, a J.D. candidate at the Wuhan University China Institute of Boundary and Ocean Studies, and a researcher at the Collaborative Innovation Center for Territorial Sovereignty and Maritime Rights.
Abstract: The territorial geographic situation of France is unique, and the maritime delimitation of French territory is one of the most difficult problems in the practice of French law of the sea. According to the rules of the sea area delimitation in the UNCLOS, France has made clear its own position and implemented the corresponding domestic law transformation to provide legal protection for the demarcation activities of its own maritime areas. France has tackled maritime delimitation issues mainly through bilateral agreements, but the results of the two delimitation cases involved have made an important contribution to the practice of international maritime delimitation. The challenges of maritime delimitation that France currently faced are concentrated on the delimitation of exclusive economic zones and continental shelf of their overseas territories, and the choice and interpretation of the principles and methods of delimitation, the status and effectiveness of the islands in international law, thus the increasing islands’ sovereignty disputes made it more difficult to resolve the problem. The practice of France’s delimitation issues mainly includes political and economic considerations. In recent years, France has focused on promoting regional communication in disputed sea areas through a more pragmatic approach, in order to avoid the conflict of maritime delimitation to become a block to France’s expansion of maritime rights.
Key words: islands dispute; national jurisdiction on sea areas; maritime delimitation practice; delimitation principles and methods
4 studies on cases of international law
The right to enforcement of law by coastal states in the EEZ: reasoning from the Arctic Sunrise Case
Author: Yang Yonghong, Associate Professor, J.D. and postgraduate supervisor, School of International Law, Southwest University of Political Science and Law.
Abstract: In August 2015, the Tribunal constituted under Annex VI of the UNCLOS in the mater of the Arctic Sunrise Arbitration between the Netherlands and Russia has rendered its Award on the merits, which includes many valuable interpretations on provisions of UNCLOS. At the first time, the tribunal makes a clear and general interpretation on the rights to enforcement of law by coastal states over its EEZ. In particular, the tribunal categorizes the rights of law enforcement of the coastal state in the exclusive economic zones form the strict and the broad ways, and clarifies that the coastal state can exercise the rights of law enforcement to protect its sovereign rights and interests concerning non-living resources in the EEZ, although UNCLOS does not explicitly stipulate it. Certainly, This case has significance on issues between China and non-coastal States in China’s EEZ, for instance, the EEZ of South China Sea and East China Sea.
Key words: exclusive economic zone; freedom of navigation; rights of law enforcement; jurisdiction of flag state
