Editor's Note: The Second Seminar of the International Commercial Expert Committee of the Supreme People's Court and Appointment of New Members of the International Commercial Expert Committee was held successfully on December 8, 2020. The theme of this seminar is the Latest Developments of International Commercial Dispute Resolution Mechanism and the Research on Relevant Issues on International Law. The participants, on site or virtually, had discussions on the two topics, the Development of International Commercial Dispute Resolution Mechanism: New Situation and New Challenges and the Research and Application of International Law Related Issues in the Post-Pandemic Era, respectively. The texts of speeches delivered by the participants would be posted on the CICC's website. 

Strengthening the Research and Application of International Law in Greater Need in the Post-Pandemic Era

Director of Academy of International Law and Global Governance and Director of Institute of International Law, Wuhan University  Professor Xiao Yongping

Honorable Chief Justice Zhou Qiang, distinguished guests, ladies and gentlemen:

I am honored to serve as a member of the International Commercial Expert Committee, and very grateful for the trust of the Supreme People’s Court (SPC)! I will discharge my duties as a member of the Committee impartially and conscientiously, and contribute intelligence and strength to the construction of China International Commercial Court (CICC) and the development of foreign-related civil, commercial and maritime justice. Due to time constraints, I will talk about three observations regarding the research and application of international law in the post-pandemic era.

First, the post-pandemic era is an important period to application and development of international law. The current global COVID-19 pandemic has and will profoundly affect international politics, economy, law, culture, and even the global governance system. The international society has come to the crossroads of cooperation or confrontation, openness or closure, mutual benefit and win-win situation or beggar-thy-neighbors. Friedrich Engels noted, "There is no great historical evil without a compensating historical progress." Reviewing the history of international law will show that international law has been continuously developed and gradually improved alongside with mankind has passed through major crises and transformed from extreme chaos to good governance, and has gone through different historical periods from regulating wars to maintaining peace and then to promote cooperation. At the source, international law originated from war. Before the 20th century, international law was mainly about the rules of war. In this legal system, a state had absolute power to resort to wars, and wars were the primary approach to settle international disputes. However, the two World Wars of the 20th century not only changed the structure of the world and affected international political and economic relations, but also brought opportunities for the development of international law. The focus of international law has shifted from regulating wars to maintaining peace. With the end of the Cold War, the advancement of science and technology, and the deepening of globalization, international law has begun to develop in the direction of promoting cooperation. By establishing a multi-dimensional cooperation mechanism, international law regulates the actions of international actors, and develops various transnational relations, turning the sharing concept of the international community into reality.

The impact of the raging COVID-19 pandemic on mankind is no less significant than that of the two World Wars. The anti-pandemic practices of various countries have proven that facing the common threat of mankind, only if the States cooperate earnestly on the basis of mutual respect for sovereignty, they can share the progress and achievements brought by globalization and obtain their own security and development. In this sense, international law in the post-pandemic era needs to develop towards international law for the community, based on the concept of a community with a shared future for mankind, so as to respond to the needs of the international community for common interests, common values, and common actions.

Second, China needs to strengthen the application of international law from three dimensions. Historically, pandemics of diseases or plagues often have a profound and comprehensive impact on human civilization. The COVID-19 pandemic not only affects the international public health security system, but also affects the global economy, politics, and culture. The globalization model in the pre-pandemic era may change. However, regardless of the form or pattern of globalization, the formulation of international rules, which not only influences the distribution of power and interests between countries, but also demonstrates a country’s international status, plays a fundamental role in international relations and global governance. Therefore, President Xi Jinping proposed to actively participate in the formulation of international rules and “strengthen the research and application of international law”. In the post-pandemic era, China needs to strengthen the application of international law from the following three dimensions. (1)To coordinate the application of international law to improve the foreign-related legislative system of China, to enhance capacity-building in cross-border law enforcement, to improve international credibility of judicial system of China, and to demonstrate the image of a great power that respects international law; (2)To actively employ international law to safeguard sovereignty, security and development interests of China; (3)To effectively apply international law to facilitate the democratization and rule of law in international relations, and to promote the building of a community with a shared future for mankind.

Third, the domestic courts are important bodies in applying and framing international law. The application of international is a systematic project, the foundation of which is the application of international law to improve the foreign-related legislative system of China, the important support of which is employing international law to enhance capacity-building in cross-border law enforcement, and the main content of which is the use of international law to improve international credibility of judicial system of China and demonstrate the image of a great power that respects international law. Domestic courts play an indispensable role in the project, which demonstrates in the following aspects.

(1)To accurately apply international treaties and international usages, to equally protect the legitimate rights and interests of Chinese and foreign parties, and to maintain normal international relations.

(2)To reasonably explain international law, and influence the development of international law towards a more fair and reasonable direction. The rules of international law reflect the coordinated will of states, so their provisions are usually general and abstract, and the understanding of different countries often diverges. These “uniform rules on paper” needs to be analyzed and determined by the judicial decisions of domestic courts. Therefore, the reasonable interpretation of international treaties and international usages by domestic courts is of great significance to the formation of “substantially unified rules”.

(3)To actively fill gaps in international law and participate in and lead the formation of the international rules in new areas and new issues. Compared with domestic law, current international law is still fragmented, imperfect, and has many loopholes, because the formation of international law rules in a certain field, especially a new field, often requires a long process. As courts are the institutions that directly face various disputes and have to make judgments even if there are no rules, judgments on new or typical cases are important sources and key evidence for determining the country’s claims and forming international rules.

(4)To safeguard sovereignty, security and development interests of China in accordance with international law. Since the 21st century, international law has increasingly affected private interests, and the enhanced private action capacities have promoted more private involvement in foreign relations of a state. While frequently adopting political methods including street movements, private individuals more often resort to courts to participate in foreign relations of a state. As the courts interpret the law in the process of resolving disputes, which help to improve the international legal discourse power of a state. The willingness and mechanism to cooperate in the field of foreign relations between the judicial department and the administrative department contributes to the overall foreign relations decision-making of a country. The participation of court in foreign relations conduces to safeguard the overall rule of law in a country. The development trend of international law and domestic law is generally more and more conducive to the participation of court in foreign relations of a state. From the perspective of international law, although a country is not obliged to allow individuals to invoke international legal norms in courts under general international law, but more and more treaties expressly or impliedly allow individuals to do so. From the perspective of domestic law, some countries have created new systems for the implementation of international law, or employed the existing systems to encourage courts to participate in foreign relations of a state. For example, many countries have formulated international criminal codes to facilitate the exercise of universal jurisdiction by courts.

A comprehensive analysis of cases of Chinese court indicates that the treaties applied by Chinese courts in various ways are almost commercial treaties regulating the transnational relations among private individuals. In recent years, the SPC has implemented a series of measures conducive to the application of international law. For example, in 2014, the Xiamen Maritime Court accepted the vessel collision case of “Minxiayu 01971” which occurred in the waters of the Diaoyu Islands, which demonstrates the jurisdiction of China over that waters. In 2015, the SPC issued the “Opinions on Comprehensively Promoting Foreign-related Commercial and Maritime Trials to Provide Strong Judicial Safeguard for the Building of an Open Economic System and Building a Strong Maritime Power”, requiring the courts to strictly abide by treaty obligations, to correctly understand and accurately apply international treaties and international usages, meanwhile to actively participate in the formulation of international rules, to attach great importance to assisting relevant departments in the negotiation of treaties, and to make a voice of Chinese justice in the formation of international investment, trade, and shipping rules. In the same year, the SPC issued the “Opinions Concerning Judicial Services and Safeguard Provided by People’s Courts for The Belt and Road Initiative”, requesting the courts to constantly improve the judicial capability to apply international treaties and international usages, to accurately apply international treaties and international usages in cases where international treaties and international usages should be applied, to conduct in-depth research on the trade, investment, finance, maritime and other international treaties concluded with or jointly participated by the countries taking part in “The Belt and Road Initiative”, and to interpret the treaties in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose according The Vienna Convention on the Law of Treaties, in order to enhance the uniformity, stability and predictability of the application of international treaties and international usages in trials. In 2016, the SPC issued two regulations concerning Several Issues Relating to the Trial of the Relevant Cases Which have Occurred at Sea Areas within the Jurisdiction of China”, conducive to the better implementation of the United Nations Convention on the Law of the Sea and domestic laws such as the Law on Exploration and Development of Deep Seabed Resources. These measures are of great significance to serve and safeguard the construction of The Belt and Road Initiative, the implementation of the maritime power strategy, and resolutely safeguard sovereignty, maritime rights and other core interests of China.

In the post-pandemic era, we need to further update our idea, strengthen the construction of systems and mechanisms, and promote Chinese courts to apply international law in a more accurate, open and efficient way. In other words, we need to abandon the idea that foreign relations are the exclusive domain of the administrative department, especially the foreign affairs department, and realize that the proper participation of court in foreign relations will not interfere with the overall diplomatic interests of China, but can open up new approaches to assert and realize national interests, and safeguard the legitimate rights and interests of different actors in foreign relations. It is also necessary to stipulate the status of international law in legal system of China in the constitution and make specific arrangements in certain laws accordingly. At the same time, it is essential to establish smoothly-operating and long-lasting mechanisms, including at least (1) an information communication mechanism, such as regularly publishing specific typical cases involving applying international law, and compile some of them as guiding cases; (2) a resource support mechanism, such as recommending appropriate judges to apply to work in relevant international judicial institutions or organizations; (3) a demand-response mechanism, such as declaring position of China and influencing the formation of relevant international usages, basic principles and rules of international law by judicial trials, according to the latest developments in international law and based on diplomatic, maritime, national defense and other national strategic needs.

Related links: 【研讨会主题发言六】肖永平：后疫情时代更加需要加强国际法的研究与运用

*The original text is Chinese and has been translated into English for reference only. If there is any inconsistency or ambiguity between the Chinese version and the English version, the Chinese version shall prevail.