On 29 June 2018, Mr. Ma Xinmin (马新民), Deputy Director-General of the Department of Treaty and Law of Ministry of Foreign Affairs of P.R.C., delivered a speech titled “Domestic Judges and International Law in the Practice of China”, during the Consultation among Director-Generals of the Departments of Treaty and Law of the Ministries of Foreign Affairs of the Five Permanent Members (P5) of the United Nations (UN) Security Council held in in Bordeaux of France. The speech was given as a part of the visit at the National College for Magistrates of France, during which Mr. Ma Xinmin held discussions with Director-Generals (Legal Advisors) of the Departments of the Treaty and Law of the Ministries of Foreign Affairs of the United States, Russia, the United Kingdom and France. In the speech, Mr. Ma Xinmin introduced the important role of the Chinese judges in ensuring the compliance and clarification of the rules of international law and promoting international judicial cooperation and the codification of international law. The full text of this speech is as follows.
Ladies and gentlemen, good morning.
It is my pleasure to be here and exchange views with you on the topic “National judges and international law”. For hundreds of years, the relationship between international law and domestic law has attracted many prominent jurists. Léon Duguit, the prominent French jurist who taught at the University of Bordeaux for a long time, is one of the advocates of the Monist theory of international law. Today’s exchange has not only touched upon this issue which is highly important in theory and practice, but also addresses the role of domestic judges in the operation of international law from the perspective of judicial practitioners. Today, I will talk about the relations between the work of Chinese judges and international law, which could be summarized to be four C’s.
The first “C” is Compliance. Judicial activities of domestic judges are an important aspect of a country' s implementation of international law. To abide by international law and to perform its international obligations in good faith is not only the basic policy of China's foreign policy, but also the basic principle of Chinese domestic law. Moreover, it is a judicial policy that has been honored by Chinese domestic courts at all levels.
With regard to “Compliance”, I would like to introduce to you a case in the area of public international law. In 2005, Mr. Li, a Chinese citizen, announced that he owned the moon and set up a company to sell the land of the moon. The relevant government department in charge of industry and commerce decided that it was a violation of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty), which China has ratified, in particular, the provision that “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”, and accordingly imposed administrative penalty on Mr. Li’s company. Mr. Li disputed the penalty. A case was brought to a district court, and then intermediate court in Beijing. The courts at both levels upheld the penalty and ruled against Mr. Li. Both judgments explicitly invoked article 1, paragraph 1 and article 2 of the Outer Space Treaty, stressing that no country can validly claim ownership over the moon. Furthermore, the appeal court ruled in the final judgment that "not only countries are not allowed to claim ownership over the moon, citizens and organizations within the country have no such right either". The case attracted extensive attention at that time and became a model case for Chinese judges to make decisions in accordance with the country's obligations under international treaties.
The second “C” is Clarification. Domestic judges clarify relevant international law rules through judicial activities and play a greater normative and guiding role in domestic social life. With the deepening of globalization, domestic courts play a more and more prominent role in the interpretation of international law. In the cases where an international treaty is applicable, judges in domestic courts would inevitably have to interpret the relevant provisions of the treaty. Where domestic laws are inconsistent with the treaty, they also need to make sure their judgment is not against international treaty obligations.
In China, the Supreme People's Court (SPC) plays an important role in interpreting international law. According to the Organic Law of the People's Courts, which regulates the function and structure of Chinese courts, the SPC shall have the power to make judicial interpretations in the application of law in the trial work, including clarifying the questions from the lower court regarding the application of international treaties. For example, in 2002, the SPC issued a judicial interpretation regarding international trade cases, which states that “if there are two or more reasonable interpretations for a specific clause of the law or administrative regulation applied by a people's court in the hearing of an international trade case, and among which one interpretation is consistent with the relevant provisions of the international treaty that the PRC has entered into, such interpretation shall prevail, with the exception of the clauses on which the PRC makes reservation”.
It is also worth mentioning that guiding cases have been issued by the SPC. Since 2010, the SPC has regularly released a number of typical cases, refining common legal rules for reference by lower courts. Distinct from the precedents of Anglo-American legal system, these cases are not legally binding and need not be followed by the lower courts. But the lower courts would generally refer to these cases when they encounter similar cases in the judicial practice. Therefore, these cases have important influence in judicial practice. Some of these guiding cases directly involve the clarification of international law. In 2015, for example, the SPC released eight guiding cases for the People's Courts to provide judicial service and guarantee for “Belt and Road Initiative”, in which it interpreted relevant provisions of the UN Convention on the International Sale of Goods Contract and the Convention for the Unification of certain rules of the International Air Transport i.e., the Montreal Convention (1999).
Chinese domestic judges take a rigorous approach in the clarification of international law, and always keep in mind the importance of soliciting opinions from the experts and referring to the practice of the international counterparts. For example, in Yang v. US North-West Airlines in 2005, the local court sought expert opinion on the question whether the word “damage” in Article 17 of the Convention on the Unification of Certain Rules Relating to International Carriage by Air (the 1929 Warsaw Convention) includes mental damage. The SPC consulted extensively the judicial practice of other countries when interpreting the term “public policy” in Article V.2(b) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
The third “C” is Cooperation. The courts and judges in China play an important role in promoting international judicial cooperation. Let’s take the recognition and enforcement of foreign arbitral awards as an example. Upon China’s accession to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, the SPC released detailed regulations on the recognition and enforcement of foreign arbitral awards, by publicizing enforcement announcements, establishing a reporting system, and issuing judicial interpretations. In judicial practice, Chinese courts at all levels conduct procedural, but not substantive review over the cases related to the recognition and enforcement of foreign arbitral awards. The above efforts of Chinese courts have contributed to the promotion of international cooperation effectively.
The spirit of Cooperation based on international law is also embodied in the area of recognition and enforcement of civil and commercial judgments. I am very glad to share with all of you the recent development in this field. As you know, normally, the threshold for recognition and enforcement of foreign civil and commercial judgments is prior agreement or reciprocity. Concerning the identification of reciprocal treatment, there is no clear rule in China yet. In practice, we use “actual reciprocity” as the criteria. What it means is that there have to be some concrete precedents of recognition and enforcement of China’s judgments in that country before our courts grant recognition and enforcement. As President Xi Jinping proposed the “Belt and Road Initiative”, Chinese courts actively promote the spirit of cooperation advocated by the initiative, and are making efforts to promote cooperation in the identification of reciprocity. In 2015, the SPC issued the Opinions on providing judicial service and safeguard for the “Belt and Road Initiative”, in which the Court made it clear that, if a country alongside the “Belt and Road” has not concluded an agreement on judicial assistance with China, the Chinese court could rule on the “presumption of reciprocity”, namely that China would provide judicial assistance to the requesting country first. This policy is also reflected in the Nanning Declaration adopted during the 2nd China-ASEAN Justice Forum in June 2017 by the supreme courts of participating countries. According to the Declaration, provided that no contrary evidence is found proving that there is a precedent of rejecting the recognition and enforcement of China’s judgments by that country, we could conclude that there is reciprocity between the two countries. The above-mentioned presumption of reciprocity has highly increased the possibility of the identification of the existence of reciprocity, which will not only promote the recognition and enforcement of civil and commercial judgments between China and ASEAN countries, but also enhance international judicial cooperation as a whole.
The last “C” is Codification. The judicial practice of judges in China constitutes the practice of China in international law. Article 38 paragraph 1of the Statute of the International Court of Justice is widely considered as an authoritative statement on the sources of international law. Paragraph 1(d) provides that judicial decisions can be used as subsidiary means for the determination of rules of law. Although the statute does not specify whether judicial decisions include the decisions of domestic courts, there is a consensus that the judgments of domestic courts, as a state organ, can be used as the evidence of state practice or opinio juris in the identification of customary international law. What’s more, some general principles of law recognized by “civilized nations”, which are provided in paragraph 1(c) of the article, are also elaborated by domestic judges and have gradually become one of the sources of international law.
In recent years, Chinese courts have attached greater importance to the dissemination of their judicial practice abroad, with many judgments made by Chinese judges translated into foreign languages. For example, when Mr. Bertrand Louvel, President of the Court of Cassation, the French supreme court, visited the SPC in 2015, the Chinese side translated some judgments into French for reference by our French colleagues upon the request of the French side.
Of course, it must be acknowledged that, due to multiple factors such as the barrier of language, legal system and legal culture, the international influence of Chinese courts’ decisions as state practice of customary international law has met challenges. However, the judicial activities of Chinese judges have contributed to the accumulation of state practice and opinio juris, which are the evidences of customary international law. In this respect, I would like to introduce one case from Shanghai Maritime Court. In 1936, a Chinese company, Zhongwei Steamship Company, leased two of its vessels to a Japanese company, Datong Shipping Co., Ltd.,. Then when the Japanese aggression against China happened, the two steamships were “detained” by the Japanese navy, handed over to Datong Shipping Co., Ltd. and continued to operate until they finally sank. After the end of the war, Zhongwei Steamship Company claimed the loss of the two steamships through various channels against the Japanese government but no compensation was rendered. In December 1988, Zhongwei Steamship Company filed a lawsuit at Shanghai Maritime Court on this case and demanded that the defendant Mitsui O.S.K. Lines, Ltd., the successor to the Datong Shipping Co., Ltd., pay the rent and compensation for their loss. This case is not an ordinary civil and commercial case but a complex one involving international law issues related to war indemnity. The judges of the Shanghai Maritime Court determined the case as a civil and commercial case and severed it from the debated issue of war indemnity of Japan to China after the war. The defendant was ordered to pay the compensation and rent of the vessels and other expenses to the plaintiff. This judgment said nothing about the state responsibility of Japan, respected Japan’s state immunity, and at the same time, upheld compensation for the victim’s legitimate interests. This judgment offered a very inspiring practice in the issue related to war indemnity.
Ladies and gentleman,
All the states in the world are increasingly interconnected and interdependent, their interests are intertwined on an unprecedented level, and have been melting into a global village. So the world becomes now an interlinked and inseparable community of shared future in multiple dimensions. Correspondingly, international law now touches almost every aspect of our daily life, and becomes an international language that transcends national language, culture, race and religion, and also penetrates deeply into the national legal systems. In the future, the relations and interaction between judges in domestic courts and international law will be more intensive, even beyond the scope of four C’s I just mentioned. But no matter how the situation changes, domestic judges and international law practitioners should uphold a mentality of openness, examine the international law and domestic law more from the international perspective and the global dimension, and tackle the difficulties and challenges that we commonly face. We the Chinese legal practitioners are willing to uphold such a value, strengthen exchanges with international counterparts and make progress together.
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