Chinese Journal of International Law Advance Access originally published online on May 20, 2008
Chinese Journal of International Law 2008 7(2):571-574; doi:10.1093/chinesejil/jmn019
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© The Author 2008. Published by Oxford University Press. All rights reserved
REVIEWS & BIBLIOGRAPHY |
Review of Chinese Reviews: Selected Articles Recently Published in Chinese [Part 7(2)]
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I. General issues in international law |
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 Top I. General issues in... II. International peace and...III. JurisdictionIV. Human rightsV. Law of the...VI. WTO, trade, investment... |
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10. WANG Yunxia, The Legal Basis and Related Problems on the Return of Cultural Properties Looted During the Second World War, Liaoning Daxue Xuebao (Zhexue Shehui Kexue Ban) (Journal of Liaoning University) (Philosophy and Social Science Edition), no. 4 (2007), 140–45.
In reference to the practice of the return of the looted cultural relics of the Jews after World War II, the author explores the same issue presented with China. So far, despite that there has been no valid international legal basis yet to be resorted to, the UNESCO is making efforts, aiming for providing a guideline for the return of the antiquities looted during World War II.
Furthermore, the author addresses several measures for the return. Firstly, for the purpose of solving the leftovers of this problem thoroughly, the countries concerned can conclude bilateral or multilateral agreements on this issue via diplomatic communication and negotiation. Secondly, international organizations can take an active part in promoting the return of the cultural properties. Thirdly, civil institutions (NGO) and other individuals in the international community can influence that too, which will bring about an effect. Fourthly, the victims can take lawsuits, but it is a tough way.
(LI Hongying)
11. ZHU Wenqi, On the Tokyo Trial and Nanjing Massacre, Zhengfa Luntan (Tribune of Political Science and Law), no. 5 (2007), 122–36.
Under the circumstances that Japan denies the unshakable fact, Nanjing Massacre, the author analyses the process of the Tokyo Trial in terms of international criminal law. The International Military Tribunal for the Far East was established according to the Charter of the Military Tribunal for the Far East. During the process of the trial, the principles of procedural justice and the presumption of innocence were well observed and the rights of the defendants were fully concerned. In addition, from the standpoint of the core of the procedural law from the common law, all the evidence presented by the prosecutors was beyond any reasonable doubt, and hence the criminal acts were proved beyond any reasonable doubt in the Tokyo Trial. On the basis of the above interpretation, the author reaches his conclusion that the verdict concerning the fact of Nanjing Massacre is undeniable and indisputable.
(LI Hongying)
12. MAO Guohui and LENG Mei, On the Transmutation of the Scientific Technique and International Humanitarian Law, Xi'an Zhengzhi Xueyuan Xuebao (Journal of Xi'an Politics Institute of PLA), no. 4 (2007), 57–61.
International humanitarian law is developing with the pace of the ways and means of war which manifested itself in history as three stages, namely, the age of metal weapons, age of hot weapons and age of mechanized war. Nowadays, both modern science and technology have the same impact on the means and methods of warfare. Currently, the so-called information warfare gives rise to challenges as well as opportunities for international humanitarian law. In regard to opportunities, it means that the precisely guided technology makes the control of unnecessary losses possible and the usage of non-lethal weapons minimizes the injuries and deaths who are not or no longer the participants in hostilities. However, the information warfare also challenges the fundamental principles of the international humanitarian law.
(LI Hongying)
13. ZHAO Haifeng and LI Jingzhu, NGOs and the International Criminal Court, Dangdai Faxue (Contemporary LR), no. 5 (2007), 23–27.
NGOs play significant roles in the formation of the ICC. For one thing, NGOs made persistent efforts to the formation of the ICC, which laid a solid foundation for the establishment of the ICC in theoretical and practical aspects by persistent efforts. For another, NGOs promoted the lawmaking process and the ratification of the Rome Statute. Consequently, the Rome Statute was ratified in a wide range of countries. In addition, with regard to NGOs' role in the operation of ICC, they act as information providers and amicus curiae for the Court. Moreover, NGOs not only serve as a bridge connecting ICC with victims and witnesses, but also as an overseer to the ICC. NGOs' contribution is well recognized, which exemplifies the involvement of the global civil societies in international relations.
(YAN Xin)
14. HUANG Jianqiu, The Status of Women under International Law: On Feminist Approaches to International Law, Shanxi Shifan Daxue Xuebao (Shehui Kexue Ban) (Journal of Shanxi Normal University) (Social Science Edition), no. 1, vol. 35 (January, 2008), 96–101.
The feminist perspective, as a reaction against the jurisprudence of masculine mainstream, is a theory on international relations. It is also a methodology in international law which uses the method of social and gender-based analysis to criticize the patriarchy system of the international society and to endeavour to change this situation. Both the organizational structure and the normative structure constitute the starting point of the deconstructive criticism of international law conducted by the feminist approaches. The organizational structure of international law leads to international law disregarding the rights and legal status of women. Meanwhile, men possess the discoursal right to determine the content of international law. The public/private dichotomy in international law results in the fact that women are confined to the family and oppressed by the structure of family authority. However, as the author reminded the readers, limitations can be found in the methodology adopted by feminism, such as the impossibility of describing the social reality comprehensively, the possibility of imposing a metaphysical feature on the realistic problems in the international society and neglecting other variables involved in the development of the international society. Hence, feminism alone is not an adequate tool to solve the overall problems of women's issues in the international society.
(BI Yi)
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II. International peace and security |
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TopI. General issues in...II. International peace and...III. JurisdictionIV. Human rightsV. Law of the...VI. WTO, trade, investment... |
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15. SONG Hui, The UN's Role and Prospects in Maintenance of International Security after the Cold War, Liaoning Xingzheng Xueyuan Xuebao (Journal of Liaoning College of Public Administration), no. 12 (2007), 210–11.
Since the end of the Cold War, public attention has gradually been turned to international security, especially after 9/11. Accompanied by the tide of economic and political integration, the international security situation is becoming more and more complicated. Therefore, the UN, as the world's largest and most authoritative international organization, has been playing an important and positive role in the maintenance of international security. The measures taken by the UN include restricting unilateralism and hegemonism, taking actions to maintain peace and security, promoting economic and social development and eliminating the roots of conflicts, etc.
The ongoing tendency of multipolarization gives the UN a bright prospect; it will continue to play an irreplaceable role in future. To be specific, the UN will perform as a platform for multilateral cooperation, as the main place for peaceful settlement of disputes and as the main channel to promote the democratization and legality in international relations.
Although the UN has some limitations in some aspects, we should attach more attention to its positive functions and advance its reform actively and steadily so as to promote the further development of the UN's important functions in future international society.
(GUO Jingfang)
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III. Jurisdiction |
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TopI. General issues in...II. International peace and...III. JurisdictionIV. Human rightsV. Law of the...VI. WTO, trade, investment... |
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IV. Human rights |
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TopI. General issues in...II. International peace and...III. JurisdictionIV. Human rightsV. Law of the...VI. WTO, trade, investment... |
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16. SHAO Shaping and LI Yuelong, Study on Legal Control of International Crimes and Human Rights Protection, Yunnan Shifan Daxue Xuebao Falü Ban (Journal of Yunnan University) (Law Edition), no. 6, vol. 20 (November 2007), 126–34.
Two trends are worth paying close attention to, against the background of economic globalization. The first one is the establishment and development of innovative systems and measures controlling international crimes, as achievements of the collaboration of the international community by an approach of concluding international conventions on international criminal law. Meanwhile, greater and greater importance is being attached to the balance and coordination of the pluralistic values existing in the regulation of international crimes.
Furthermore, from the viewpoint mentioned above, the authors put forward five propositions. Firstly, it is of great importance to provide that serious violations of fundamental human rights constitute international crimes, which protects the fundamental rights from avoidable catastrophic violations. Secondly, thinking highly of the protection of human rights in the process of controlling international crimes is an elementary need in a society ruled by law. Otherwise, this process may itself become a violation of human rights, for it is a process involving strong power and stern measures from both sovereign states and the international community. Thirdly, to be sure, international law faces with a new problem that whether sovereign States can reduce their duties and obligations in situations of national emergency, however, sovereign States, as the main subjects of international rights and duties, will still make irreplaceable contribution to this legal control, and hence they shall bear their due share of the obligations. Fourthly, the international community has gradually come to realize that international criminal judicial instrumentalities play a unique role in this legal control too, which is conducive to ensuring impartiality when a person is prosecuted for criminal responsibility.
(BI Yi)
17. SONG Yubo, The New Trends of the Theories of International Human Rights Law: Baseline Ethics and Minimal Human Rights, Guoji Luntan (International Forum), no. 1 (2008), 29–33.
Some unnoticeable changes have taken place in the ethical foundation of international human rights law since the end of the Cold War. The natural right theories rooted in western tradition has been criticized, whereas the newly promoted minimal standard of ethics and human rights as the foundation of international human rights law becomes widely accepted. Scholars in fields of philosophy or human rights rather than international lawyers, for example A.J.M. Milne, John Rawls and Jurgen Habermas, have led this transition. This tendency indicates that not only positive provisions but also philosophy and ethics will be equally stressed in international human rights law.
The author expresses his viewpoint after he has analysed the respective theories of the three scholars mentioned above in detail. Scholars home and abroad have made human rights protection an aspect of international law, and human rights are becoming more important in international law. The western countries adopt the approach of restricting State sovereignty and transcending national States, and they hold that the principle of human rights will replace the principle of State sovereignty. If the western countries are not too naive to act in this way, then they are doing this just for themselves.
(YAN Xin)
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V. Law of the Sea |
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TopI. General issues in...II. International peace and...III. JurisdictionIV. Human rightsV. Law of the...VI. WTO, trade, investment... |
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18. QIAN Fei, Comment on the Crime of Piracy in the United Nations Convention on the Law of the Sea, Xiandai Shangye (Modern Business), no. 17 (2007), 248.
The crime of piracy has been generally accepted by the international society as an international crime for several hundreds of years. There are eight articles dealing with piracy in the UN Convention on the Law of the Sea, which is improvement of regulation of piracy comparing with customary law in the past.
The author summarizes some new achievements about the crime of piracy made in the 1982 UN Convention on the Law of the Sea. Firstly, Article 100 provides that all States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place out of the jurisdiction of any State. This article imposes an obligation on each State to combat piracy. Secondly, according to the Convention, private planes, as well as private ships, can commit piracy. Thirdly, Article 102 stipulates that the objects of piracy can be warships, governmental ships and airplanes.
However, there are some defects in the 1982 UN Convention on the Law of the Sea in relation to the crime of piracy. These defects mainly lie in the purpose of piracy, the place where piracy is committed, the object of piracy and the Convention's applicability in the Exclusive Economic Zone.
At last, the author's suggestions to improve the relevant provisions in the 1982 UN Convention on the Law of the Sea include modifying the definition of piracy and lifting restrictions such as "private purpose" and "on the high seas", in order to combat piracy more effectively.
(GUO Jingfang)
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VI. WTO, trade, investment and the economy |
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TopI. General issues in...II. International peace and...III. JurisdictionIV. Human rightsV. Law of the...VI. WTO, trade, investment... |
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19. XIAO Wei, A Study on the Procedures of WTO Winning Party's Application for Authorization of Retaliation—The "Sequencing Problem" between Article 21.5 and Article 22.6 of DSU, Hebei Faxue (Hebei Legal Science), no. 1 (2008), 148–52.
WTO Dispute Settlement Mechanism is an important fruit obtained from the Uruguay Round. Compared with GATT, the main virtue of the DSU is the supervision of the implementation of the panel or, in other words, the Appellate Body's Report. Article 21—"Review of the Conformity of the implementation measures"—and Article 22—"authorization of retaliation"—are the main clauses to this point, which are now the basic rules of the WTO Law in WTO judicial practice and make the multilateral trade system stronger. However, there is an inner conflict between those two articles. According to the author, since the DSU does not regulate the "sequencing problem" clearly between Articles 21 and 22, some procedural problems may emerge.
The author analyses three WTO cases concerning this issue, i.e. "EC-Bananas", "US-Tax Treatment for ‘Foreign Sales Corporations’" and "Brazil-Export Financing Program for Aircraft", and at the same time, he discusses the views of the Contracting Members. In the author's opinion, the DSU shall add another clause to the two articles mentioned above that can clarify the sequencing problem.
(LI Wanman)
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Footnotes |
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This part follows from Part 7(1) [7 Chinese JIL (2008), 267] in numbering the entries and in categorizing them into: I. General issues in international law; II. International peace and security; III. Jurisdiction; IV. Human rights; V. Law of the Sea; VI. WTO, trade, investment and economy. Entries have not been selected for every category. 
* Law student for the Master's degree in international law, China University of Political Science and Law, Beijing (email: fadafantasy0910{at}yahoo.com.cn). The person responsible for summarizing an article is given separately at the end of each entry.
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