Editorial Note

In April 2019,Chinese President XI Jinping made a global appeal to build a “maritime community with a shared future”,in which he encouraged all States worldwide to uphold the principles of mutual benefit,win-win and joint response to risks and challenges in the process of marine exploitation and governance,with concerted efforts to safeguard the peace,tranquility and prosperity of the ocean world.This new marine concept,centered on the“maritime community with a shared future”,is a demonstration of the Chinese government’s devotion to the complex global maritime security situation in its role as an active,open,inclusive,peaceful and friendly large power.In this Issue,the four articles published mainly take a theoretical and practical approach to explore the theories,methods and strategies of establishing and improving the voice of a State in international maritime affairs from the perspective of the international law of the sea.There are both macro theoretical elaboration and practical discussions of individual cases,reflecting the active academic efforts of the academia in promoting China’s participation in building the “maritime community with a shared future”.

In his paperOn the Fundamentals of the Public Order at Sea,Professor CAI Congyan of Fudan University delves into the theories and methods of rebuilding the public order of the oceans in the new era from a macroscopic and global perspective,concluding that an accurate understanding of the public order at sea is crucial for a State,especially an emerging maritime large power,to establish,maintain and improve its voice in ocean affairs,to achieve which any States cannot disengage from the theory and practice of general international law.This paper presents an in-depth discussion of the epochal character and complexity of the public order at sea from the aspects of elements,ideological foundation,structure of actors,governance pattern,legal modalities,regulatory methodology,etc.,with high-level arguments and delicate analysis.The author takes a particular view of the evolution of freedom of the seas from “monopoly” and “oligarchic” in the historical stages to “universal” in the modern stage after the promulgation of theUnited Nations Convention on the Law of the Sea(UNCLOS),arguing that this evolution has profoundly influenced and even reshaped the form and nature of all aspects of the public order at sea,which is discussed throughout all parts of the paper.For example,regarding the components,historically,“freedom” has long been the theme of the public order at sea.In contrast,“security” is recently considered as a new concern in the public order at sea.Regarding the conceptual basis,the public order of the oceans historically built based on individualism is not one in its true sense.Only the communitarianism-based public order at sea can be said as the genuine one.Regarding the actors,the maritime large powers have historically controlled the shaping of the public order at sea.Lately,maritime small powers have been playing an increasingly important role,which share both consistent and inconsistent interests in rebuilding the public order at sea.Regarding the governance pattern,the maintenance of the public order at sea as a whole has undergone a process of development from strength to rule of law.Judging from national interests,the rule of law may not necessarily be good for the emerging maritime powers,fettering the space for them to use their strength freely to pursue large power interests as the historical maritime powers have done.The paper points out that in seeking to lead the process of building a maritime community,China should avoid being constructed in opposition thereto.

It is not uncommon in international dispute settlement to find nonappearance as a legal litigation strategy for sovereign States Parties.Notwithstanding the principle of the relevant international institutions on the fact finding in proceedings where one party doesn’t appear before the court,many ambiguities still exist,leaving uncertainties in the judicial practice of dispute settlement bodies.The paperFact-Finding in Non-Appearance before International Courts and Tribunals:A Review of the Tribunal’s Practice in the South China Sea Arbitrationwritten by Professor LIAO Shiping of Beijing Normal University provides a detailed discussion of such judicial practice in international law and the problems that exist.The author argues that the Statute of the International Court of Justice does not grant the party appearing before the Court a direct right to a judgment in its favor.In cases where a particular State concerned doesn’t appear before the Court,the International Court of Justice (ICJ) makes findings of fact in light of specific circumstances,which has given the ICJ greater judicial latitude.In cases where a party does not appear before the International Tribunal for the Law of the Sea,it is likewise unclear what type of standard of proof to follow in the hearing,leaving a great deal of discretion to the Tribunal.As for cases involving the absence of one party,including the South China Sea Arbitration heard by the UNCLOS Annex VII Arbitral Tribunal,the “preponderance of the evidence standard” is also not applicable and the case needs to be analyzed in context.Despite the fact that the adoption of out-of-court documents in the South China Sea Arbitration basically conforms to the practice of international law,there are still some shortcomings that do not meet the requirement of “well founded in fact”,such as unreasonable analysis of evidence and insufficient attention to contradictions in the evidence of the Philippines.

The militia is a common reserve or an auxiliary force of the conventional army in ancient and modern times.Recent years have seen States such as Vietnam mobilize their militia forces to assume the public authorities in the South China Sea (SCS),such as “sovereignty” assertion,which is inconvenient for conventional defense forces to do in front,bringing new complexity and potential conflicts to the gradually stabilizing situation in the SCS.Based on an exposition of the background and institutional characteristics of Vietnam’s militia system,CUI Haoran,a lecturer at the Law School of Shanghai University,presents in his paperEvolution of Vietnam’s Maritime Militia and Its Impact on the Situation in the South China Seaa probe into the activities of Vietnam’s militia in the SCS,such as maritime law enforcement and emergency rescue,“sovereignty” assertion,illegal fishing,military reconnaissance and tracking and monitoring,in cooperation with the navy,coast guard,border force and fishery administration departments,which,as pointed out by the author,jeopardizes the mutual trust and cooperation between China and Vietnam and has a negative impact on regional security and stability.The paper suggests that the Chinese government should,in view of risk prevention and peace and stability in the SCS,discuss and formulate rules on maritime activities of militia ships in collaboration with Vietnam and other States involved in the SCS dispute,in an effort to reduce misjudgment and conflict between different maritime activity subjects in peacetime.This is in line with the spirit and commitment of the new marine concept of a “maritime community with a shared future”.

The paperOn the Potential of Cooperation between China and SmallIsland Developing States in the Construction of International Maritime Legal Orderco-authored by LIU Xinxin and XU Peng of the South China Sea Institute,Xiamen University,puts a novel focus on the cooperation between China as an emerging maritime large power and small island developing States (SIDS) in the current process of rebuilding the international maritime legal order.Upon analysis of the political and economic status and maritime development strategies of SIDS,this paper discusses the potential for cooperation between China and them in safeguarding the maritime rights and interests of developing States,taking a part in international maritime law organizations and supporting each other’s developers.The paper also lists the prospects for cooperation in the fields of global fisheries governance,exploitation of seabed mineral resources and response to climate change and sea-level rise,and puts forward useful suggestions,such as cultivating talent teams,building exchange platforms,and expanding cooperation targets and fields.It is of practical significance to strengthen cooperation between China and SIDS in order to shatter the maritime hegemony of Western States and facilitate the construction of a new international maritime legal order that is more just and reasonable.In addition,there is a long-term challenge facing the maritime lawmakers of China to mitigate and overcome potential and objective conflicts of interest with SIDS in its course of building a maritime large power and great power.

The new marine concept has rich and complex connotations in theory and practice,ranging from the evolution and accumulation of historical processes to the contradiction between rule of law ideals and real interests.China’s journey towards a new type of maritime large power is filled with complex relationships with various maritime actors.In this regard,it is a historical mission that China,as an emerging maritime large power,cannot avoid leading the building of a“maritime community with a shared future” in a steady manner.

Guest Editor:CAI Congyan*

* Professor of Fudan University Law School.

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