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Editorial Board

admin — Tue, 13 Dec 2011 15:19:54 +0000

On the Al Qaida/Taliban Sanctions Regime: Due Process and Sunsetting

admin — Tue, 13 Dec 2011 15:19:54 +0000

The Al Qaida/Taliban sanctions regime established under Resolution 1267 of the UN Security Council has been under severe strain due to lack of adherence to due process standards. Over the years, the Security Council has incrementally adopted measures to try to alleviate some of the concerns, including through the creation of an ombudsperson to receive petitions from listed individuals requesting to be de-listed. In June 2011, the Security Council adopted two resolutions further strengthening the due process standards. This paper considers whether the new measures adopted are sufficient to respond to some of the concerns raised. While the new initiatives are a significant improvement, as a matter of law, the due process objections remain.

Front Cover

admin — Tue, 13 Dec 2011 15:19:54 +0000

Chinese Practice in Public International Law: 2010 (II)

admin — Tue, 13 Dec 2011 15:19:54 +0000

This part supplemented materials reflecting Chinese practice in 2010 relating to: I. International Law of the Sea (Responsibility and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the International Seabed Area; Arctic Cooperation); II. International Law on Outer Space (Peaceful Use of Outer Space); III. International Criminal Law (Crime of Aggression); IV. International Environmental Law (Climate Change).

Information for Authors

admin — Tue, 13 Dec 2011 15:19:54 +0000

The Presidency of the International Tribunal for the Law of the Sea and the "National State Extension" Concern

admin — Tue, 13 Dec 2011 15:19:54 +0000

The functions of the President of the International Tribunal for the Law (ITLOS) of the Sea are three-dimensional: the President is a normal international judge, an organizational leader and a judicial leader in a particular case. The Presidency is a powerful one, perhaps more so than that in other international judicial bodies, and can be a platform for the “national State extension” vice—the President’s possible partiality towards his or her national State—to take effect. Several antidotes or safeguards exist to combat this, including the relatively short term of office, the judicial solemn declaration and the efforts to equalize the parties by ensuring “national representation” on the Bench in a case, and the principle of separation of functions and the disqualification of the national President as President but not as Judge. However, uncertainties remain regarding the timing and scope of the application of the principle of separation of functions and disqualification of the national President. The context of the ITLOS Statute and Rules and the good administration of justice militate in favour of an early trigger point at the time when a particular case is first presented to the Tribunal and the widest scope possible for the application of the principle to cover a situation where the national State of the President is not a party but is in the same interest or substantially in the same interest as a party in a case, including the situation where, though not factually connected, the non-party national State of the President and a party share a legal position that is decisive in the case. Finally, the paper suggests that, as a further antidote, the possibility be considered of requiring a presidential solemn declaration (separate from and in addition to the judicial one) or revising the current judicial declaration to encompass presidential functions.

admin — Tue, 13 Dec 2011 15:19:54 +0000

Compliance Mechanisms in Multilateral Environmental Agreements: An Effective Way to Improve Compliance?

admin — Tue, 13 Dec 2011 15:19:54 +0000

Compliance mechanisms in multilateral environmental agreements (MEAs) have slowly but certainly replaced the classic dispute settlement procedures as the preferred means to ensure compliance with environmental obligations in public international law and their importance is growing. These mechanisms and procedures apply uniquely to the treaties that created them. At the same time, they show remarkable overlap and similarities. This article looks into the practice of 22 MEAs and compares the compliance mechanisms, procedures and practices found in these international agreements to the classic dispute settlement procedures. Based on this analysis, conclusions are drawn on the necessity and effectiveness of these compliance mechanisms in MEAs.

Wang Tieya Award and Han Depei Award

admin — Tue, 13 Dec 2011 15:19:54 +0000

The International Tribunal for the Law of the Sea: Activities in 2010

admin — Tue, 13 Dec 2011 15:19:54 +0000

This paper gives an overview of the activities of the International Tribunal for the Law of the Sea in 2010. It provides information on organizational matters, the jurisdiction of the Tribunal and cases before it.

Back Cover

admin — Tue, 13 Dec 2011 15:19:54 +0000

State Reputation and Compliance with International Law: Looking through a Chinese Lens

admin — Tue, 13 Dec 2011 15:19:54 +0000

There is no single credible explanation for the diverse patterns of rule conformity observed in the global arena. The subject has been approached from multiple perspectives, some inspired by positivist/scientific paradigms of the rationalist type. Among the latter, attempts to systematically account for the effect of reputational capital have been particularly cogent, incisively expressed and empirically well-supported. Nevertheless, the body of knowledge that has been built up is not devoid of theoretical and methodological gaps, a feature brought into focus by examining relevant developments in the seldom addressed by Western legal scholars, but highly pertinent, China context.

Chinese Society of International Law

admin — Tue, 13 Dec 2011 15:19:54 +0000

Of Occupation, Jus ad Bellum and Jus in Bello: A Reply to Solon Solomon’s "The Great Oxymoron: Jus In Bello Violations as Legitimate Non-Forcible Measures of Self-Defense: The Post-Disengagement Israeli Measures towards Gaza as a Case Study"

admin — Tue, 13 Dec 2011 15:19:54 +0000

This reply critically addresses three arguments advanced in Solon Solomon’s article. Firstly, it underscores the existing doubts as to the evolution of the right to self-defense towards encompassing operations against non-State actors. Secondly, it demonstrates that, contrary to Solomon’s suggestion, Gaza continues to be occupied by Israel after the 2005 disengagement. This qualification blocks Israel from invoking its jus ad bellum right to self-defense against actions emanating from Gaza. Finally, this reply argues that, even if the self-defense argument is accepted, the legality of Israeli measures under international law depends on their conformity with both jus ad bellum and jus in bello, since both legal regimes are independent from one another and apply simultaneously to Israeli actions.

Developing Countries’ Pursuit of an Intellectual Property Law Balance under the WTO TRIPS Agreement

admin — Tue, 13 Dec 2011 15:19:54 +0000

Progressive and steady technological advancement in developing countries has generated serious debate whether government discretion to manoeuvre IP laws is unduly curbed by the ever-increasing and fragmented international regulatory regime. The global regime has expanded from WIPO conventions to TRIPS at the WTO, and to a myriad of regional and bilateral agreements stipulating TRIPS-plus standards. The way that a harmonized IP fashion operates affects internal decisions in striking a proper balance between incentives to create and those to promote dynamic competition. For developing countries, the ultimate goal is to transform to a knowledge-based and innovative economy. In this regard, the TRIPS “balance” objective is ambiguously formulated and hence cannot be actively considered by WTO panels. Secondly, conditions in the individual exceptions are so restrictively applied that governments are set back from devising innovative exceptions to balance their obligatory commitments. To maximize the use of TRIPS leeway for technological development schemes, both deficiencies need to be managed by a balance-oriented initiative taken by the WTO judicial and/or legislative bodies.

Brief Book Reviews

admin — Wed, 14 Sep 2011 14:50:44 +0000

Universal Jurisdiction: Concept, Logic, and Reality

admin — Wed, 14 Sep 2011 14:50:44 +0000

The debates in the UNGA since 2009 on universal jurisdiction reveal great confusion on its concept, scope and application. True or pure universal jurisdiction is jurisdiction solely based on the universal concern character of the crime in issue. The concept and logic of universal jurisdiction is understandable, as each State has an interest in matters of universal concern. Universal jurisdiction can be a powerful instrument for the international system to protect its interests and to protect human rights and fight against impunity. However, the exercise of universal jurisdiction by one State may infringe the sovereignty and sovereign equality of another State and can be abused, thus destabilizing international relations. These pros and cons and other factors have influenced the international law formation process in such a way that so far only universal jurisdiction over piracy has been accepted in international law. There is no “pure universal concern jurisdiction” over other crimes yet. The evidence of State practice on “universal concern plus presence” jurisdiction is not yet substantial so as to afford the finding of a customary international law rule in its favor. Treaty practice providing for “universal concern plus treaty, presence and intra-regime territoriality or nationality jurisdiction” or “universal concern plus treaty and presence jurisdiction” is limited to the particular treaty regime only. In the light of this state of affairs, the possible application of the Lotus dictum and the presence requirement—especially the weak, procedural view of it—can be of significance and deserves attention. The movement for “pure universal jurisdiction” has been “trending down” since the conspicuous silence on the legitimacy of universal jurisdiction in the Arrest Warrant case decided by the ICJ in 2002. The subsequent downtrend may have been in no small measure due to the cautious Judgment in that case. That Judgment can be said to have, in an ingenious way, helped to inject some calming elements back into international relations. With Belgium and Spain now having abandoned pure universal jurisdiction by narrowing down their statutes, the universal jurisdiction movement appears to be a moving train without its locomotive.

US-China Relations and the Fate of the UN Framework Convention on Climate Change: Traditional Conservatism as an Ideological and Cultural Constraint on US Participation in a Successor to the Kyoto Protocol on Chinese Terms

admin — Wed, 14 Sep 2011 14:50:44 +0000

The Kyoto Protocol to the United Nations Framework Convention on Climate Change (UNFCCC), which the People’s Republic of China (PRC) has ratified but the United States has not, imposes legally binding greenhouse gas (GHG) emissions reduction requirements only on developed countries, and only through 2012. Like most less developed countries, the PRC has insisted that only developed countries should be required to limit their GHG emissions as a matter of international law under any successor to the Kyoto Protocol. American traditional conservatives repeatedly have cited the lack of legally binding international limits on the PRC’s own emissions as a principal reason for not ratifying the Kyoto Protocol or binding the United States to any successor accord with similar terms. Many observers regard an accommodation between the United States and the PRC—the world’s two largest GHG emitters by far—as essential to the success of efforts to limit global warming to acceptable levels under the UNFCCC. In the absence of a major breakthrough in the Conference of the Parties, which no one expects to happen anytime soon, the UNFCCC seems destined to become a mere footnote in the story of how we humans either succeeded or failed in our efforts to avert catastrophic global climate change, with both US-China relations and American traditional conservatism having played no small role in sealing its fate.

Protection and Admission of Sovereign Investment under Investment Treaties

admin — Wed, 14 Sep 2011 14:50:44 +0000

Sovereign investment, particularly by Sovereign Wealth Funds, constitutes an increasingly important portion of foreign investment. In 2009, Sovereign Wealth Funds invested US$22.9 billion in foreign direct investment, 15 per cent more than in 2008.¹ Investment treaties protect investments of investors of the contracting parties. Whether sovereign investors benefit from investment treaty protection depends on the definitions of “investor” and “investment” in an otherwise applicable investment treaty. Investments made by sovereign investors are clearly protected under an investment treaty if these definitions expressly include the State, State entities and companies and their investments. This article addresses the more difficult question of protection where the definitions are silent or ambiguous as to whether sovereign investment is covered. Also addressed are the evolving standards of admission of sovereign investment and access of sovereign investors to investor-State arbitration, ICSID arbitration constituting a special case.

Teething Phase of the ECCC

admin — Wed, 14 Sep 2011 14:50:44 +0000

The Extraordinary Chambers in the Courts of Cambodia is a careful attempt to respect the sovereignty of the host State while providing for participation of outsiders. In the view of the writer, the court is domestic, with authorized jurisdiction over certain international crimes. Decisions have to be supported by at least one foreign judge. The system of appeals and allied matters are reviewed.

More of the Same or Something Different? Preliminary Observations on the Contribution of Universal Periodic Review with Reference to the Chinese Experience

admin — Wed, 14 Sep 2011 14:50:44 +0000

Using the People’s Republic of China as a case study, this paper will consider the extent to which the Human Rights Council’s Universal Periodic Review process consolidates and reinforces the pre-existing treaty-monitoring system of the United Nations. Is universal periodic review simply more of the same (comments on a self-evaluation report submitted by the State, the rigor being erratic); or is the process something different, either more or less effective? Furthermore, is there evidence of consistency of practice within the UN itself? While the first full cycle of universal periodic review concludes late 2011, it is possible to draw tentative conclusions on the system at this stage.

Environmental Impact Assessment under the United Nations Convention on the Law of the Sea

admin — Wed, 14 Sep 2011 14:50:44 +0000

Degradation of the marine environment pushes the law of the sea to develop both substantial and procedural measures to safeguard marine environmental sustainability. Ill-planned and non-planned activities, land, sea or sea-bed based, become one of the main forces behind marine pollution. Environmental impact assessment (EIA), as an effective precautionary tool in evaluating and monitoring potential harm of planned activities, has been rapidly and widely integrated into both national and international legal regimes. However, the rudimentary and unelaborated EIA provisions in the United Nations Convention on the Law of the Sea do not create an effective marine EIA procedure, which can be improved through a comparative study of relevant sources of international law on EIA.

"Mopping-up": UNHCR, Neutrality and Non-Refoulement since the Cold War

admin — Wed, 14 Sep 2011 14:50:44 +0000

Since the close of the Cold War, the United Nations High Commissioner for Refugees (UNHCR) has undergone a fundamental mutation, reinventing itself as a humanitarian actor, extending its activities into “countries of origin” and, most recently, providing increasing assistance to internally displaced persons. Mainstream narratives present this expansion of UNHCR activities as the realization of a humanitarian potential previously curtailed and a signal improvement in the organization’s work. This article offers a critical reassessment of UNHCR’s evolution and, in doing so, questions the orthodox account. It traces the curve of UNHCR’s recent development to the early 1990s and argues that the use of a humanitarian discourse masks what is fundamentally a shift to policies of containment—and the pursuit of State, not refugee, interests—which have undermined UNHCR’s protection mandate.

Legal Materials on China Received and Catalogued in the Peace Palace Library: 2010

admin — Wed, 14 Sep 2011 14:50:44 +0000

Chinese Practice in Public International Law: 2010

admin — Tue, 14 Jun 2011 14:33:55 +0000

This survey covers materials reflecting Chinese practice in 2010 relating to: I. Fundamental principles of international law (Five principles of peaceful coexistence; Rule of law at the national and international levels); II. International law of treaties (Effects of armed conflicts on treaties; Mr. HUANG Huikang elected as member of the International Law Commission (ILC); China–DPRK Treaty of Friendship, Cooperation and Mutual Assistance); III. China’s territorial integrity (China’s core interest; Taiwan; Tibet; Diaoyu Island and its affiliated islands; Xisha Islands; Nansha Islands); IV. International law of the sea (General position; Development of the Chunxiao oil and gas field in the East China Sea; Military activities in the Yellow Sea; Freedom of navigation in the South China Sea; Nature of the Douglas Reef (Okinotori Reef); Somali piracy); V. International law on civil aviation (Beijing Convention and Protocol on Aviation Security); VI. International human rights law (General position on human rights; Racism and self-determination; Human organ transplantation; Freedom of information; Call for repatriation of Uighur terrorist suspects in Guantanamo to China; Expulsion of aliens; North Korean asylum seekers; UN High Commissioner for Refugee (UNHCR); Human Rights Council; Implementation of human rights instruments); VII. International humanitarian law (Protection of civilians in armed conflicts; Occupied Arab territories; Humanitarian assistance; The 1972 Sino-Japan Joint Statement); VIII. International law on disasters (Protection of persons in the event of disasters); IX. International law on arms control, disarmament and non-proliferation (General position; Ratification of CCW Protocol on Explosive Remnants of War); X. International criminal law (The International Criminal Court (ICC); The Bashir case; Scope and application of universal jurisdiction; Measures to eliminate international terrorism; Ratification of the International Convention for the Suppression of Acts of Nuclear Terrorism; Bilateral treaty on extradition with Indonesia; The Park Joo-tark extradition case; Hacking and other cyber attack; Transnational organized crime; International drug control; Anti-corruption); XI. International environmental law (Climate change; Prevention of transboundary harm from hazardous activities and allocation of loss in the case of such harm; Use of water resources of Mekong River); XII. International law on diplomatic and consular relations (Vienna Convention on Diplomatic Relations and Vienna Convention on Consular Relations; Responsibility of States to ensure protection of diplomatic personnel and premises; Diplomatic asylum; Ratification of bilateral consular agreements with the Philippines and Cambodia; The Rio Tinto case and bilateral consular agreement with Australia); XIII. International law on international organizations (Role of UN and its reforms; UN peacekeeping operations; Regional cooperation of Northeast Asia); XIV. International law on settlement of disputes (Shelling of Yeonpyeong Island incident; International Court of Justice (ICJ); Kosovo advisory case before the ICJ; Ms. XUE Hanqin Elected as Member of the ICJ).

Foreword and Invitation

admin — Tue, 14 Jun 2011 14:33:55 +0000

No Longer Outside, Not Yet Equal: Rethinking China’s Membership in the World Trade Organization

admin — Tue, 14 Jun 2011 14:33:55 +0000

China joined the WTO in 2001 under exceptionally unfavourable, non-reciprocal and asymmetric terms of membership. China’s less-than-equal status raises difficult legal questions with respect to the rule of law in the WTO, as they call into question the normativity of the fundamental principles that underlie the WTO system. It is argued that, in Dispute Settlement Body cases involving China’s WTO-plus obligations, restrictive interpretation should generally be used to determine the meaning of an ambiguous provision, as a value-oriented interpretative approach in favour of the equilibrium of rights and obligations of China and in deference to the uniformity and integrity of the WTO legal system. For bilateral trade relations to be mutually advantageous and more balanced, major WTO members should offer equal status to China in the world trading system, in exchange for China’s full compliance with its WTO commitments and greater contribution to the world trading system. This entails the development of reciprocal and cooperative trade policies on both sides.

The Kyrgyz Tragedy: Particular and General

admin — Tue, 14 Jun 2011 14:33:55 +0000

In June 2010, a bloody conflict took place in southern Kyrgyzstan. In inter-ethnic clashes, more than 470 people were killed, and more than 110 000 became refugees. The Independent International Commission, of which the author was one of seven members, found that certain attacks against Uzbeks might constitute crimes against humanity. The article analyses the political context of the crisis, the role of ethno-nationalism in its genesis as well as difficulties and challenges the Government and people of Kyrgyzstan face in building an inclusive society where all ethnicities feel at home. The article scrutinizes the June events and following developments in the light of international, including human rights, law. Comparative analysis allows a singling-out of what in the Kyrgyz crisis may be specific for this country and what lessons other societies may learn to avoid similar conflicts.

Pushing the Limits of Global Governance: Trading Rights, Censorship and WTO Jurisprudence–A Commentary on the China-Publications Case

admin — Tue, 14 Jun 2011 14:33:55 +0000

For decades, China has maintained State import monopoly in cultural products. The opaque State trading operations ensure a maximum level of flexibility and efficacy in the government censorship of imports. The WTO judiciary held in the China–Publications case that this practice is inconsistent with China’s trading rights commitments under its Accession Protocol and cannot be justified by the public morals exception of the General Agreement on Tariffs and Trade. To comply with the WTO ruling, China must restructure its censorship regime, which it apparently is not prepared to do. This article analyses the implications of the WTO decision and provides a critical assessment of the new WTO jurisprudence regarding trading rights and the China Accession Protocol.

Illegal, Unreported and Unregulated Fishing: Responses in General and in West Africa

admin — Tue, 14 Jun 2011 14:33:55 +0000

West Africa enjoys exceptionally good climatic and ecological conditions. Its coastal and maritime areas are among the richest fishing grounds in the world. These maritime waters have a high biological productivity due to the rising of deep, nutrient-rich waters at the basis of the marine food chain. This phenomenon, known as “upwelling”, is caused by winds pushing the surface waters away from the land area, allowing waters from the deep ocean to rise to the surface. One of the major features of the region, from Mauritania to Cape Shilling, is the abundance of fisheries resources. The fishing industry in the sub-region has been going through a crisis since 1990 due to overfishing, overexploitation by fishermen, industrial fishing companies and especially the highly disturbing incidence of illegal, unreported and unregulated fishing. This paper looks into the applicable law through the treaty law and the case law prior to discussing States’ practice in the sub-region. The latter is reflected in the laws and regulations of these States that give effect to the United Nations Convention on the Law of the Sea and that govern fishing activities in areas under national jurisdiction. State practice is also reflected in bilateral agreements between States to establish the conditions for access of foreign vessels to living resources in the exclusive economic zones. Various inter-governmental arrangements have also been developed to ensure the management of resources in the maritime region of West Africa covered by the Sub-Regional Fisheries Commission.

WTO Law and Human Rights: Bringing Together Two Autopoietic Orders

admin — Tue, 14 Jun 2011 14:33:55 +0000

In comparison to GATT law, WTO law is characterized by a notably expanded coverage. Since its inception in 1995, its material density and reach has been further extended. It was only a question of time before the demand would arise for this branch of law to fulfil objectives lying outside the traditional borders of International Economic Law (IEL). In particular, it was recognized that WTO law touches in many ways upon human rights issues. Vigorous claims were made to transform the WTO order into a human rights organization. Some authors were of the opinion that human rights law (HRL) could be integrated into WTO law via the interpretative rules of the VCLT. This contribution tries to evidence that such attempts are inherently flawed. There is no possibility, nor even a perceptible need, to transform the WTO system into a human rights instrument. After examining the many areas of interaction between HRL and IEL, it is evidenced that the many common ends of each branch of IL are best served if both masses of law are mutually coordinated but at the same time maintain their autopoietic nature. This is also to demonstrate that the consideration of this fragmentation as a so-called problem of IL is overrated.

Responding to Ms. Zhang’s Talking Points on the EEZ

admin — Tue, 01 Mar 2011 14:38:11 +0000

Centuries of State practice support the position that military activities in the EEZ are lawful without coastal State notice or consent. A plain reading of Articles 56, 58, 86 and 89 and the negotiating history of the 1982 UN Convention on the Law of the Sea (UNCLOS) likewise support the position that military activities may be conducted in the EEZ without notice to or consent of the coastal State. Zhang’s position on the EEZ exemplifies how Chinese scholars and government officials misuse the law to support China’s anti-access strategy in the maritime domain.

American and Chinese Views on Navigational Rights of Warships

admin — Tue, 01 Mar 2011 14:38:11 +0000

Opposing American and Chinese views on navigational rights of warships in the exclusive economic zone (EEZ) reached a climax in 2009 with a number of incidents. Developments in 2010 indicate that the general climate between the two States in the South China Sea has not improved. By focusing on navigational rights of warships in the EEZ as well as in the territorial sea, the present contribution highlights some salient features of the relevant ocean policies of both States, some of which seem hard to square with the United Nations Convention on the Law of the Sea. After having noted that these opposing positions of China and the United States concerning navigational rights of warships are hard to reconcile at present, the article looks for possible solutions as to the future.

A Response to Pedrozo: The Wider Utility of Hydrographic Surveys

admin — Tue, 01 Mar 2011 14:38:11 +0000

The author agrees with most of the Pedrozo article on the right to conduct military activities in China’s exclusive economic zone (EEZ) with the notable exception of its discussion of the relationship between hydrographic surveys and marine scientific research. The arguments in the article that hydrographic surveying in an EEZ is not under the jurisdiction of the coastal State are anachronistic. They do not stand up in the light of customary practice, the current economic utility of hydrographic data, technological developments and the requirement of a coastal State for hydrographic data to manage its EEZ and coastal zone effectively and to exploit the resources of its EEZ. Dialogue to resolve these differences of view regarding rights and duties in an EEZ is important if we are to have effective management of EEZs and good order at sea in the Asia-Pacific.

The International Law of the Sea

admin — Tue, 01 Mar 2011 14:38:11 +0000

The Korean Implementing Legislation on the ICC Statute

admin — Tue, 01 Mar 2011 14:38:11 +0000

This note sets out the main content of the Korean ICC Act. The Republic of Korea enacted and promulgated its implementing legislation of the Rome Statute on 21 December 2007 as Law No. 8719. The main constitutional issues were the question of whether it was at all necessary to enact a piece of implementing legislation and the immunity of the Korean President under Article 84 of the Korean Constitution. The Korean ICC Act incorporates the crime of genocide, crimes against humanity, war crimes, as well as the offences against the administration of justice under the Rome Statute into Korean law. The Act also deals with surrender and legal assistance in criminal matters, but does not contain a provision on the enforcement of sentences.

Book Review Lawsuits and Book Review Standards: An Editorial Comment

admin — Tue, 01 Mar 2011 14:38:11 +0000

The State of Functional Immunity of International Organizations and Their Officials and Why It Should be Streamlined

admin — Tue, 01 Mar 2011 14:38:10 +0000

Arguably, international organizations are among the important social innovations of the twentieth century. In the last 50 years, they have managed to become global conglomerates by establishing a stake in every facet of human life. Their growing role has brought the efficacy of the legal rules that govern their interaction into spotlight. This article inquires how functional immunity, one of the above-mentioned rules, is, arguably, erroneously understood and applied. It also presents arguments that should shape application thereof.

The Good, the Bad or the Ugly? A Critique of the Decision on Jurisdiction and Competence in Tza Yap Shum v. The Republic of Peru

admin — Tue, 01 Mar 2011 14:38:10 +0000

In stark contrast to the explosive growth of Chinese bilateral investment treaties (BITs), the utility of these BITs has been very limited, which is, as argued, attributable to the restrictive investor–State arbitration clauses in these BITs. Against this background, the jurisdictional award of the recent International Centre for Settlement of Investment Disputes case, Tza Yap Shum v. The Republic of Peru, therefore, is of particular significance as the governing treaty, the Agreement Between the Government of the People’s Republic of China and the Government of Peru Concerning the Encouragement and Reciprocal Protection of Investments of 1994, embodied a narrow dispute settlement clause. This article attempts, in the context of established international investment case law, to scrutinize several key aspects of the investor–State arbitration clause that were heavily debated and arbitrated in the case of Tza Yap Shum as well as the treaty interpretation methodologies employed by the tribunal.

President Obama’s 2010 United States National Security Strategy and International Law on the Use of Force

admin — Tue, 01 Mar 2011 14:38:10 +0000

At first sight, President Obama’s 2010 United States National Security Strategy provides a marked contrast with George W. Bush’s 2002 and 2006 Security Strategies. Its main emphasis is on engagement with the international community through a multilateral approach. The section Use of Force stresses that force should be used only as a last resort. But it leaves certain issues unclear. It does not expressly reject the earlier “Bush doctrine” of pre-emptive self-defense. It seems to raise the possibility of unilateral humanitarian intervention. And there are many continuities. Although Obama abandons the language of the “global war on terror”, he still maintains that the United States is at war with “a far-reaching network of violence and terror”. This article considers the implications for international law on the use of force.

The Commission on the Limits of the Continental Shelf as a Mechanism to Prevent Encroachment upon the Area

admin — Tue, 01 Mar 2011 14:38:10 +0000

This article addresses how the CLCS can curb the situations prohibited by Article 137(1) of UNCLOS, i.e. encroachment upon the Area. The CLCS is mandated by Article 76 to consider the submitted information that coastal States intend to use in establishing limits of outer continental shelves. When the inconsistency of the Submission with Article 76 is mishandled by the CLCS, encroachment may materialize. Being critical of the CLCS’s decisions as to when to disqualify a controversial Submission, the scope of disputes under the CLCS Rules of Procedure has been unreasonably narrowed by practice and rendered inconsistent with Article 76(1). Consequently, encroachment is not discouraged. The author argues that a proper interpretation and application of Article 76(1) by the CLCS, while taking Article 121 as context, may prevent such an encroachment.

The Tenth Anniversary of the Chinese Journal of International Law

admin — Tue, 01 Mar 2011 14:38:10 +0000

The Isayeva Cases of the European Court of Human Rights: The Application of International Humanitarian Law and Human Rights Law in Non-International Armed Conflicts

admin — Tue, 01 Mar 2011 14:38:10 +0000

This note analyses the 2005 Isayeva cases of the ECtHR, involving a non-international armed conflict, in order to show whether the Court applied only and directly the stricter standards of HRL (right to life in Article 2 of the ECHR) and, if not, how the Court substantially relied on IHL, by focusing on the differences of the principles of necessity and proportionality for the use of force between HRL and IHL. It concludes, contrary to what some authors insist, that even in the absence of the invocation of a public emergency in Article 15 of the ECHR by the State concerned, and therefore cautiously, the Court did indirectly apply IHL as an interpretive guideline for HRL.

Exploring the Legal Basis of a Human Rights Approach to Climate Change

admin — Tue, 01 Mar 2011 14:38:10 +0000

In this contribution, we consider the relevance of international human rights law to climate change. We review the widely agreed understanding that climate change interferes with human rights. We then examine how a particular State or States may be held responsible for internationally wrongful acts that are caused by contributions to climate change emanating from activities that are under that State’s or those States’ jurisdiction. We focus on human beings’ actions that the best available science indicates with a high degree of certainty are responsible for climate change and the consequential interference with the human rights of individuals that are caused by the adverse impacts of climate change. We also explore the consequences of international human rights law for States’ responsibility to cooperate to achieve adequate international action on climate change.

The International Tribunal for the Law of the Sea: Activities in 2009

admin — Mon, 20 Dec 2010 15:26:48 +0000

This paper gives an overview of the activities of the International Tribunal for the Law of the Sea in 2009. It provides information on the 19th Meeting of States Parties (2009), organizational developments, the jurisdiction of the Tribunal and cases before it.

Issues on Consensus and Quorum at International Conferences

admin — Mon, 20 Dec 2010 15:26:48 +0000

At international conferences, whether quorum is relevant to a decision-making process of consensus is a very practical question that always confuses diplomats and legal advisors. There is no definitive answer yet available. Different views and practices do exist. This article, by clarifying the meaning of the concepts of consensus and quorum in the procedure law of international conferences, suggests that, in principle, a consensus decision shall be made with the necessary quorum present; exceptions may be made in special cases accompanied by necessary safeguards and procedures. This suggestion, which has fully taken account of various existing practices, could serve as a possible solution for practitioners in the future.

The Application of Article 121 of the Law of the Sea Convention to the Selected Geographical Features Situated in the Pacific Ocean

admin — Mon, 20 Dec 2010 15:26:48 +0000

Article 121(3) of the United Nations Convention on the Law of the Sea states that “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” If any of the geographical features situated in the Pacific Ocean are considered “rocks” that fail the tests of habitation or economic viability, they will not be entitled to their own 200 nautical mile exclusive economic zone and continental shelf. However, the paragraph and the tests contained in the article give rise to various questions of interpretation, which have become one of the main sources of maritime disputes between the countries concerned. This article examines the interpretation and possible application of Article 121 to five selected insular features that are situated in the Northern, Eastern and Western Pacific Ocean, namely Baker Island, Howland Island, Clipperton Island, Douglas Reef (Okinotorishima) and Marcus Island (Minamitorishima).

The 1951 San Francisco Peace Treaty and Its Relevance to the Sovereignty over Dokdo

admin — Mon, 20 Dec 2010 15:26:48 +0000

The 1951 San Francisco Peace Treaty ending World War II in the Pacific does not include any language regarding sovereignty over Dokdo, the islets situated in the East Sea/Sea of Japan between Korea and Japan. Earlier drafts had addressed this issue, but language on Dokdo was omitted because of the urgency of completing the Peace Treaty and the outbreak of the Korean War. Earlier documents issued by the Allied Powers had separated Dokdo from Japan’s main islands, Korea has strong historical evidence to support its claim to the islets and it has exercised effective occupation over them since the early 1950s. Japan agreed to a Normalization Treaty with Korea in 1965 without insisting on any language referring to Dokdo. Although Japan continues to protest Korea’s occupation of Dokdo, its claim is not strengthened by absence of any reference to these islets in the text of the San Francisco Peace Treaty.

The Complete Denuclearization of the Korean Peninsula: Some Considerations under International Law

admin — Mon, 20 Dec 2010 15:26:48 +0000

The primary purpose of this article is to propose general conditions for establishing a nuclear weapon-free zone (NWFZ) in the Korean Peninsula from the viewpoint of international law. North Korea’s nuclear weapons development has created the most negative environment for the peace and security of Northeast Asia since the early 1990s. In spite of painstaking negotiations to denuclearize North Korea, the parties concerned have not found any fundamental solution yet. This interim failure is due to the uncompromising positions of the two sides as well as the inherently paradoxical structure of the Treaty on the Non-Proliferation of Nuclear Weapons, which legalizes the development of nuclear weapons by the recognized nuclear powers. The most reasonable solution is to completely and fairly denuclearize the whole Korean Peninsula under an NWFZ. This paper scrutinizes legal, political and technical problems for realizing the plan for a nuclear-free Korean Peninsula.

In a world that all too often seems dark and ominous, the Treaty of Tlatelolco will shine like a beacon. This Treaty is a practical demonstration to all humanity of what can be accomplished when sufficient dedication and the necessary will exist.

U Thant

Notes on the International Court of Justice (Part 4): The Kosovo Advisory Opinion

admin — Mon, 20 Dec 2010 15:26:48 +0000

This note first summarizes the Kosovo Advisory Opinion of the International Court of Justice of 22 July 2010 and then makes observations regarding several issues involved in the proceedings: the reformulation of the question presented by the United Nations General Assembly, the interpretation of Security Council resolution 1244 and the Constitutional Framework, self-determination and remedial secession and the unlawful use of force by the NATO in 1999.

Multiculturalism and International Law, Essays in Honour of Edward McWhinney

admin — Mon, 20 Dec 2010 15:26:48 +0000

ASEAN Charter: Deeper Regional Integration under International Law?

admin — Mon, 20 Dec 2010 15:26:48 +0000

Southeast Asia is a region rooted in cultural, ethnic, geographic and developmental diversity but generally viewed as a united bloc. Under the steady expansion of globalization and the drastic competition from neighbouring regions, regionalization in Southeast Asia is confronting new challenges and entering a new era. To deal with this, national leaders from the Association of Southeast Asian Nations (ASEAN) Member States decided in 2008 to adopt a new agreement, the ASEAN Charter, to aim for deeper integration in the future. What are the differences in ASEAN’s position in the international community after adopting the ASEAN Charter? This article plans to analyse ASEAN’s developmental challenges and the legal contents of the ASEAN Charter, as well as to compare some of the European Union’s experiences in order to assess ASEAN’s new status under international law.

The Linkage Requirement in Enforcement Immunity

admin — Mon, 20 Dec 2010 15:26:48 +0000

This article argues that compared with adjudicative immunity, which has developed to be restrictive instead of absolute, the enforcement immunity of foreign States still tends to be interpreted as it has long been interpreted in States practice. By discussing domestic legislations, the court practices of major players in this area and rules provided in regional multilateral conventions concerning the linkage requirement in enforcement immunity, as well as the fact that the UN Convention on Jurisdictional Immunities of States and Their Property also endorses the linkage requirement, a conclusion is drawn that the linkage requirement is not only an established rule of customary law but also has gained universal acceptance at least in opinio juris as evidenced by the adoption of the UN Convention.

International Legal Obligations in Relation to Good Ocean Governance

admin — Mon, 13 Sep 2010 16:07:03 +0000

At present, the concept of good ocean governance is articulated in the literature only. This paper adopted eight elements of good governance as an analytical framework, namely, the rule of law, participatory, transparency, consensus-based decision making, accountability, equity and inclusiveness, responsiveness and coherence. These elements are partially supported by international treaty practice but have not yet received universal acceptance.

Chinese Practice in Public International Law: 2009

admin — Mon, 13 Sep 2010 16:07:03 +0000

This survey covers materials reflecting Chinese practice in 2009 relating to: I. Fundamental principles of international law (Five principles of peaceful coexistence; Rule of law at the national and international levels); II. International law of the treaties (Reservation to treaties); III. China’s territorial integrity (Taiwan; Tibet; Disputed territories with India; Diaoyu Island and its adjacent islets; Xisha Islands; Nansha Islands and Huangyan Island in Zhongsha Islands; Danwan Reef in Nansha Islands); IV. International law of the sea [Development of Tianwaitian oil and gas field in the East China Sea; China's continental shelf beyond 200 nautical miles; Position on Japan's Submission to the Commission on the Limits of the Continental Shelf; Position on the Joint Submission by Malaysia and the Socialist Republic of Vietnam to the Commission on the Limits of the Continental Shelf; Position on the Submission by the Socialist Republic of Vietnam to the Commission on the Limits of the Continental Shelf; Position on the delimitation of the outer continental shelf beyond 200 nautical miles; US Navy surveillance vessel's activities in China's exclusive economic zone (EEZ); International Seabed Authority; International Tribunal for the Law of the Sea (ITLOS); International fisheries conservation and management; Maritime security and freedom of navigation; Somali piracy]; V. International law on civil aviation (Inapplicability of 1929 Warsaw Convention; Applicability of the 1929 Warsaw Convention; Application of Security Manual for Safeguarding Civil Aviation against Acts of Unlawful Interference of the ICAO); VI. International law on outer space (Peaceful use of outer space; International cooperation in peaceful use of outer space); VII. International human rights law [General positions on human rights; Submission of first national report to the Universal Periodic Review (UPR); Submission of the 10th, 11th, 12th and 13th periodic reports to the Committee on the Elimination of Racial Discrimination (CERD); Implementation of human rights instruments; Office of High Commissioner for Human Rights (OHCHR); National Human Rights Action Plan; Expulsion of aliens; The case of Akmal Shaikh; Refugees; Urge to repatriate Uighur terrorist suspects in Guantanamo to China; Death penalty on Tibetan criminals in Lhasa March 14 Incident; Re-education through Labour (RTL); Rights of the child; Rights of the persons with disabilities; China re-elected to the UN Human Rights Council; Chinese member re-elected to the Committee against Torture (CAT)]; VIII. International humanitarian law (Respect for international humanitarian law; Protection of women in armed conflicts; Protection of civilians in armed conflicts; Christie’s auction of Yuanmingyuan relics/return or restitution of cultural property to the countries of origin; Memorandum of Understanding concerning the Imposition of Import Restrictions on Categories of Archaeological Materials from the Paleolithic Period through the Tang Dynasty and Monumental Sculpture and Wall Art at Least 250 Years Old with the United States of America; Right of the Chinese citizens to claim compensation in the 1972 Sino-Japan Joint Statement); IX. International law on disasters (Protection of persons in the event of disasters; Humanitarian and disaster relief assistance of the United Nations); X. International law on disarmament, non-proliferation and arms control [Nuclear non-proliferation and nuclear disarmament; Biological Weapons Convention; Convention on Certain Conventional Weapons (CCW); CCW/landmines; CCW/explosive remnants of war; CCW/cluster munitions; Small arms and light weapons (SALW); Arms Trade Treaty (ATT)]; XI. International criminal law [The Bashir case before International Criminal Court (ICC); Scope and application of universal jurisdiction; Responsibility to protect; Criminal accountability of United Nations officials and experts on mission; Measures to eliminate international terrorism; Taking collective action to end human trafficking; Accession to Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime; Bilateral treaty on extradition with Mexico; Bilateral treaties on judicial assistance in criminal matters with Venezuela and Malta; Bilateral treaties on the transfer of sentenced persons with Australia and South Korea; Transnational organized crime; International drug control; SPC Judicial Interpretations on Application of Laws in Trying Crimes relating to Money Laundering]; XII. International environmental law (China’s position on the Copenhagen Climate Change Conference; NPC’s Resolution on Actively Responding to Climate Change; Green house gas emission from ships; Regulations on Administration of Prevention and Control of Pollution to the Marine Environment by Vessels); XIII. International law on diplomatic and consular relations (Vienna Convention on Diplomatic Relations; Bilateral consular agreement with Japan; Act on Diplomatic Personnel Stationed Abroad); XIV. International law on international organizations (Work and reform of the UNSC; Sanctions imposed by the UN; Reform of UN peacekeeping operations; Observer status for the Global Fund to Fight AIDS, Tuberculosis and Malaria, the International Olympic Committee, the International Conference on the Great Lakes Region of Africa in the General Assembly; Responsibility of international organizations); XV. International law on settlement of disputes [Mediation and settlement of disputes; Appointment of three Chinese members of the Permanent Court of Arbitration; Question of the Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo before the International Court of Justice (ICJ); Working languages and law clerk to judges of the ICJ].

The Great Oxymoron: Jus In Bello Violations as Legitimate Non-Forcible Measures of Self-Defense: The Post-Disengagement Israeli Measures towards Gaza as a Case Study

admin — Mon, 13 Sep 2010 16:07:02 +0000

Modern warfare and the war on terror against mainly non-State actors have obliged States to resort to innovative measures which blur the limits between jus in bello and jus ad bellum and create a legal oxymoron where the same measures constitute international law violations should they be perceived under jus in bello and legitimate means of self-defense should they be seen under the lens of self-defense and jus ad bellum. In order to demonstrate the particular axiom the note will use the Israeli–Palestinian conflict as a factual and normative framework and will put under its kaleidoscope the post-disengagement Israeli measures towards Gaza.

The Protection of Minorities in Court Proceedings: A Perspective on Bilingual Justice in China

admin — Mon, 13 Sep 2010 16:07:02 +0000

This paper examines bilingual court proceedings in China, comparing China’s approach on this issue to international standards in major treaties and agreements. Many of the principles of these international agreements are already in place and in use in China. China has adopted some practices transcending international standards such as prohibiting discrimination on grounds of language, informing the accused of his or her offence in his or her language, providing an interpreter at court proceedings and allowing a minority language to be used as an official language in minority regions. With the development of China’s economy and the promotion of freedom of movement in China, the need for bilingual courts has greatly increased, particularly in minority regions. This paper explores bilingual judicial practice in China under the auspices of these international treaties.

The Advisory Function of the International Tribunal for the Law of the Sea

admin — Mon, 13 Sep 2010 16:07:02 +0000

The advisory function can be assessed as a fallback procedure at a time when there is a lack of cases before international courts and tribunals. Although not legally binding and having no precedential effect, Advisory Opinions are generally accepted. This paper looks into the question of the Advisory Opinions in the International Tribunal for the Law of the Sea (ITLOS) system. The advisory function of the Tribunal is exercised by the Seabed Disputes Chamber within the terms of the United Nations Convention on the Law of the Sea. The first request for an advisory opinion was filed on 14 May 2010. The full Court may, however, render an advisory opinion based on other international agreements according to Article 138 of the Rules of the ITLOS. As a rule, the advisory procedure is open to international organizations only. There are neither claims nor parties involved in this procedure. The paper tries to address the legal regime relating to the Opinions.

The Wiwa Cases

admin — Tue, 15 Jun 2010 16:29:21 +0000

The Wiwa cases are important in how they relate to the US Alien Tort Claims Act (ATCA) and have been considered landmark cases by some scholars because the plaintiffs received compensation through a settlement reached with the defendants out of court. However, the question remains as to whether the plaintiffs can accept compensation or receive favourable judgments in a lawsuit for which the cause of action is that the environment has been destroyed and that environmental rights have been violated under the US ATCA. In my view, the possible judgments would not be satisfactory under the circumstances that environmental rights are still not regarded as a kind of human right and that environmental crime has been confined to wartime environmental destruction until now. Therefore, the role played by extraterritorial jurisdiction of the US Court under the ATCA concerning overseas environmental protection would still be limited.

The Treatment of Non-EU Nationals before Domestic Courts of Member States

admin — Tue, 15 Jun 2010 16:29:21 +0000

There is some uncertainty in private international law at the present time as to the correct law to be applied to decide jurisdictional disputes involving nationals of non-EU Member States who come before the domestic courts of a Member State. Examining these issues from the perspective of the third State defendant, this papers first summarizes the current legal framework as it applies to cases with an international dimension beyond the EU, then analyses some decisions of national courts, particularly in the last year, to highlight the many remaining uncertainties facing a non-EU-domiciled defendant and finally considers the likely impact on third State parties of possible future EU legislation in this area and the compatibility of present and future legislation with generally accepted principles of private and public international law.

Structural Limitations and Possible Future of the Work of the International Law Commission

admin — Tue, 15 Jun 2010 16:29:21 +0000

The article offers a theoretical response to the current identity crisis of the International Law Commission (ILC). Examining the ILC’s working procedure, topic selection and social context, the author reveals some inherent limitations structuring its work. In his analysis, the author maintains that the success of the ILC owes much to its consensus-generating process and its focus primarily on secondary rules of international law. Consequently, the author expresses some doubt about the productivity of the ILC’s work in fields involving substantive value judgments of the international community, such as human rights. Considering the challenges of institutional fragmentation and competition, the author suggests the ILC adopt a policy of strategic diversification and serve as the guider of general international law aiming at preserving the legal unity and coherence of international law.

Legal Materials on China Received and Catalogued in the Peace Palace Library: 2009

admin — Tue, 15 Jun 2010 16:29:21 +0000

Developing Approaches to Trans-boundary Environmental Impact Assessment in China: Co-operation through the Greater Tumen Initiative and in the Pearl River Delta Region

admin — Tue, 15 Jun 2010 16:29:20 +0000

Trans-boundary environmental impact assessment (TEIA) applies to the relationship between States, with provisions found in customary and treaty law; it may also apply within a State, where there are separate jurisdictions. This article considers both of these dimensions from the experience of the Greater Tumen Initiative in Northeast Asia, and in the Pearl River Delta Region in South China. The fact that both areas focus on river basins is significant, as much experience with TEIA relates to trans-boundary rivers. TEIA is defined with reference to the Convention on Environmental Impact Assessment (EIA) in a Trans-boundary Context (the Espoo Convention). Recommendations include a more widespread application of TEIA, establishment of new governance structures and amendment of China’s domestic EIA Law.

Case Note: China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (WT/DS363/AB/R)

admin — Tue, 15 Jun 2010 16:29:20 +0000

The report of the Appellate Body of the WTO Dispute Settlement Body in China – Publications touches new ground by ruling on a few key legal issues. Its significance and ramifications go well beyond the present case and may influence subsequent WTO jurisprudence relating to the distinction between goods and services, trading rights commitments and availability of General Agreement on Tariffs and Trade (GATT) Article XX defense, etc. Nevertheless, the Appellate Body report has its shortcomings, especially in relation to what the author views to be a flawed interpretation of GATT Article XX(a). This paper argues for the Appellate Body abandoning the present interpretive approach in favour of a truly holistic and integrated analytical framework in its future jurisprudence.

Maritime Delimitation in the Jurisprudence of the International Court of Justice

admin — Tue, 15 Jun 2010 16:29:20 +0000

Primarily using Qatar v. Bahrain as an illustration, this Wang Tieya Lecture provides an overview and analysis of the case law of the International Court of Justice on maritime delimitation. The issues covered include: maritime zones recognized under UNCLOS, the development of the law of maritime delimitation, identification of relevant coasts and baselines, pre-existing agreement, delimitation of the territorial sea, delimitation of the continental shelf and the EEZ, and the starting point and end point of delimitation.

Processes of Dissimilation and Assimilation in Humankind’s Evolution: Will E Pluribus Unum Replace Ex Uno Plures?

admin — Tue, 15 Jun 2010 16:29:20 +0000

In the process of proliferation from Africa, communities of Homo sapiens became more and more different in terms of the colour of their eyes and skin, the languages they spoke, the songs they sang, the animals they hunted or domesticated; now a reverse process seems to be slowly taking place. Of course, many differences remain and there is a strongly positive side to that. However, today in the emerging global megapolis, a painful process of assimilation is replacing the earlier process of dissimilation. The East and the West will probably meet somewhere in the middle ground; both not merely bringing their respective values to the evolving global normative synthesis, these values are being modified in this process. Neither exclusively “Eastern authoritarian collectivistic” nor “Western liberal individualistic” responses are adequate when facing contemporary challenges. In a sense, humankind may indeed be in the process of completing a full cycle: from a single community through the proliferation and diversification of communities towards the emergence of a community of communities that should become, in some important respects, more and more similar to each other, i.e., a slow and contradictory process of assimilation is replacing the millenia-long process of dissimilation.

The United States and Human Rights Treaties: Race Relations, the Cold War, and Constitutionalism

admin — Tue, 15 Jun 2010 16:29:20 +0000

The United States prides itself on being a champion of human rights and pressures other countries to improve their human rights practices, and yet appears less willing than other nations to embrace international human rights treaties. Many commentators attribute this phenomenon to the particular historical context that existed in the late 1940s and early 1950s when human rights treaties were first being developed. These commentators especially emphasize the race relations of the time, noting that some conservatives resisted the developing human rights regime because they saw it as an effort by the federal government to extend its authority to address racial segregation and discrimination in the South. As this essay explains, the guarded and qualified U.S. relationship with human rights treaties stems not only from a particular moment in history but also is a product of more enduring, and less obviously problematic, features of the U.S. constitutional system.

Threat, Emergency and Survival: The Legality of Emergency Action in International Law

admin — Tue, 15 Jun 2010 16:29:20 +0000

The international legal discourse, whether in theory or practice, has long focused on how situations gravely affecting the national security of States would impact their legal rights and obligations. In a way, the discourse on threats is essentially about whether international law could retain its validity as a body of neutral rules in situations where extreme emergencies are arguably involved, as has been witnessed in arguments from the ancient notion of self-preservation to modern claims of exceptional legality that are developed in the context of counter-terrorist activities and encompass multiple areas of international law including jus ad bellum, humanitarian law and human rights law. This contribution examines whether the discourse on threats is inherently extra-legal, that is, if it qualifies the validity of law due to policy considerations that are external, and thus alien, to it; or whether and to what extent international law actually provides for the entitlement of States to act in the face of serious national emergencies.

Report on the Forty-eighth Annual Session of the Asian-African Legal Consultative Organization

admin — Mon, 01 Mar 2010 16:19:31 +0000

This report briefly describes the Forty-eighth Annual Session of the Asian-African Legal Consultative Organization and analyses its decisions on substantive matters including matters relating to the International Law Commission, Palestine, the International Criminal Court, the global financial crisis, the World Trade Organization, transnational migration and the Law of the Sea.

China’s Reform and Opening-up and International Law

admin — Mon, 01 Mar 2010 16:19:31 +0000

Written on the occasion of marking the 30th anniversary of the reform and opening-up process starting in 1978 which ushered in a new historical phase of both China’s own development and China’s interrelation with the world, the paper asserts that international law has played a unique role in this process through facilitating an increasingly broader and deeper mutual engagement and interaction between China and the world. The paper reviews both the benefits China has gained from its engaging with and using international law and the contribution made by China to international law in a wide range of areas covering international commerce and trade, environment protection, climate change, combating transnational crimes, human rights, disarmament, etc. In view of the ongoing significant changes both China and the world order are experiencing, the paper foresees a more important and conducive role for international law in China’s future development and presents recommendations for China’s better interaction with international law.

Central Asian States and International Law: Between Post-Soviet Culture and Eurasian Civilization

admin — Mon, 01 Mar 2010 16:19:31 +0000

Since the end of the bi-polar system of international relations, the world is in the process of reshaping. Multi-polar, multi-civilizational or heterogeneous, this world order is characterized by the search for the identity of the post-Soviet States. The States of Central Asia, being at the core of this change, are trying to find a new basis for their foreign policies by ridding themselves of the Soviet past and by reconciling with their national characteristics. Is the Soviet heritage still present in the practice of international law of the Central Asian States? What are the new tendencies in the doctrine of international law in Central Asia? Does the Eurasian civilization play an important role in the inter-civilizational dialogue of the contemporary world?

China’s Ethnic Policy and Common Prosperity and Development of All Ethnic Groups

admin — Mon, 01 Mar 2010 16:19:31 +0000

Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article

admin — Mon, 01 Mar 2010 16:19:31 +0000

In Memoriam: Sir Ian Brownlie, CBE, QC, FBA

admin — Mon, 01 Mar 2010 16:19:31 +0000

In Memory of Sir Ian Brownlie

admin — Mon, 01 Mar 2010 16:19:31 +0000

Is It Safeguarding the Freedom of Navigation or Maritime Hegemony of the United States?–Comments on Raul (Pete) Pedrozo’s Article on Military Activities in the EEZ

admin — Mon, 01 Mar 2010 16:19:31 +0000

In recent years, maritime conflicts between China and the United States have occurred successively in the sea areas around China. Legally, these conflicts were caused by the different interpretation and application between the two countries of the LOS Convention or the customary international law rules reflected in the Convention, including mainly, firstly, jurisdiction over military activities, such as military surveys in the EEZ; and secondly, marine scientific research and classification of activities of marine data collection. China’s practices conform with the Convention and the contemporary international practice. However, as a non-State-party to the Convention, the United States has taken advantage of the parts of the Convention that are in its own interests and is trying to escape from the relevant international legal obligations.

Erratum

admin — Mon, 01 Mar 2010 16:19:31 +0000

International Court of Justice: Reflections on the Electoral Process

admin — Mon, 01 Mar 2010 16:19:31 +0000

This paper considers aspects of the law and practice governing the nomination and election of judges of the International Court of Justice. The processes have led, over the last 85 or so years, to major changes in the composition of the Court. How are those changes to be related to the changing procedural and substantive challenges faced by the judges? This paper suggests possible, if provisional, answers to that large question, which is to be seen in the context of the long struggle to subject State power to law and legal process.

The Relations between Treaties and Custom

admin — Mon, 01 Mar 2010 16:19:31 +0000

The interplay between treaty and custom is a topic of great importance in practice and theory. An attempt at unravelling the intrigues involved in this interplay requires an understanding of the formal nature of the two sources of treaty and custom, and of the impact they exert upon each other in the search for applicable law in a concrete situation by government officials, judges and legislators. The separateness of these two sources is at times blurred, but shall always be maintained. Rules derived from both sources contribute to the body of international law, and they are rules of equal force. The rules thus derived may restrict each other in application and conflict in content, thus being conducive to incongruity in law, and may become asymmetrically opposed, as practice often outpaces or ignores treaty in response to evolving realities.

The Preah Vihear Case and Regional Customary Law

admin — Mon, 01 Mar 2010 16:19:31 +0000

The issue of the Preah Vihear case (1962) in international law has long been debated, and even today creates tensions between Thailand and Cambodia. This article analyses Siam’s position within the international law structure in the early twentieth century when the issue arose; it also reminds the reader of a tradition in international law theory which does not consider international law and municipal law as essentially different, and on this basis suggests that there is a regional (Buddhist) customary law and regional principles in Thailand and the surrounding regions of Southeast Asia that could profitably have been considered by the International Court of Justice.

Tibet’s Putative Statehood and International Law

admin — Mon, 01 Mar 2010 16:19:31 +0000

Claims that Tibet was independent during the Qing Dynasty (1644–1911) or had “de facto independence” from the Republic of China (1911–1949) are belied by fact and law. Tibet’s elites regarded themselves as subjects of the Emperor, who saw himself and was seen by foreigners as the ruler of China, including Tibet. Supposed indicia of Tibet independence from 1913–1951 (a flag, stamps, currency, passports, visas, etc.) do not attest to statehood: many parts of China then and provinces or autonomous areas of countries today have had these features. No matter which international law theory of the recognition of States is used, Tibet was not one, but was a pseudo-State, like present-day Abkhazia or Somaliland. Tibet today thus has acquired no “right to independence”; yet, sections of Indian and US political elites continue to regard the claim of Tibet’s statehood as a useful lever in conflicts with China.

The Okinawa Trough Issue in the Continental Shelf Delimitation Disputes within the East China Sea

admin — Mon, 01 Mar 2010 16:19:31 +0000

There are two aspects to the controversy over the Okinawa Trough between the States bordering the East China Sea. The scientific aspect concerns whether the Okinawa Trough disrupts the unity of the continental shelf in the East China Sea, and the legal aspect concerns whether geophysical factors should be considered in the delimitation between opposite States where the distance between their coasts is less than 400 nautical miles. The role of the Commission on the Limits of the Continental Shelf in the determination of the scientific nature of the Okinawa Trough is limited by the non-prejudice clause in Article 76 of the Convention on the Law of the Sea. If the Okinawa Trough is proved to constitute a fundamental discontinuity between the natural prolongation of China and Korea on the one hand, and that of Japan on other hand, the median line between the opposite coasts concerned should not be applied in the continental shelf delimitation, for it cannot achieve an equitable solution.

Sketching the Debate on Military Activities in the EEZ: An Editorial Comment

admin — Mon, 01 Mar 2010 16:19:30 +0000

This Editorial Comment introduces the Agora: Military Activities in the EEZ featured in the March 2010 issue of the Chinese Journal of International Law and sketches the debate on the topic. It also highlights some arguments on pivotal issues, including (1) whether the existing framework of Part V of the LOS Convention, as a result of the existence of Article 59 on residual rights, favours the finding of a security interest of the coastal States to which others acting in the exclusive economic zone (EEZ) must pay due regard; and (2) whether the need to ensure the safety of the freedom of navigation favours the existence of the right to conduct “pure” oceanographic sea lane mapping by other States in the EEZ of a coastal State that is not prejudicial to the security interest of the coastal State.

Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China’s Exclusive Economic Zone

admin — Mon, 01 Mar 2010 16:19:30 +0000

China’s views on coastal State authority in the exclusive economic zone (EEZ) are not supported by State practice, the negotiating history of the United Nations Convention on the Law of the Sea (UNCLOS), or a plain reading of Part V of the Convention. All nations may legitimately engage in military activities in foreign EEZs without prior notice to, or consent of, the coastal State concerned. Efforts were made during the negotiations of UNCLOS to broaden coastal State rights and jurisdiction in the EEZ to include security interests. However, the Conference rejected these efforts and the final text of the Convention (Article 58) ultimately preserved high seas freedoms of navigation and overflight and other internationally lawful uses of the seas related to those freedoms, to include military activities, in the EEZ.

National Human Rights Action Plan of China (2009-2010)

admin — Fri, 06 Nov 2009 16:04:46 +0000

The Law of Command Responsibility

admin — Fri, 06 Nov 2009 16:04:46 +0000

Guo Ji Fa Ben Ti Lun [On the Noumena of International Law]

admin — Fri, 06 Nov 2009 16:04:46 +0000

Review of Chinese Reviews: Selected Articles Recently Published in Chinese (Part 8)

admin — Fri, 06 Nov 2009 16:04:46 +0000

The Relevance of the Right to Self-determination in the Kosovo Matter: In Partial Response to the Agora Papers

admin — Fri, 06 Nov 2009 16:04:46 +0000

In response to the first three articles that appeared in the Agora on Kosovo, this paper argues that there is a right of unilateral secession based on the right of external self-determination. According to the authors, the latter right is applicable outside a colonial context, in limited circumstances resembling the colonial paradigm. Modern customary international law provides the legal basis for a right of “remedial secession”, an argument that is supported by relevant State and institutional practice. After having discussed the conditions of this right and its legal basis, the authors apply their findings to the Kosovo case, in order to answer the question whether the Kosovo Albanians had a right of unilateral secession under international law.

Corrigendum

admin — Fri, 06 Nov 2009 16:04:46 +0000

Kosovo and the Pitfalls of Over-theorizing International Law: Observations on Hilpold’s Rejoinder

admin — Fri, 06 Nov 2009 16:04:46 +0000

Peter Hilpold’s rejoinder certifies that a debate about the legality of the Kosovo Unilateral Declaration of Independence (UDI) would almost inevitably involve an attempt to reconsider the basic characteristics of the international legal system. This is clear from the example of the attempts to claim the legality of that UDI supported by one part of the international community and opposed by the rest of that community, by over-theorizing international law and thus claiming that the Kosovo UDI could be lawful even though it does not comply with the criteria of legality of the emergence of new States. This approach appears to claim that academic lawyers can project the consensual decisions of States to be substituted by their own perceptions.

Global Justice and the (Ir)relevance of Indeterminacy

admin — Fri, 06 Nov 2009 16:04:46 +0000

Global justice is one of the most indiscriminately used notions in international debate, usually taken to reflect a moral imperative of securing fairness between differently positioned States. As such, global justice might accurately be described as a meta-principle, used here to refer to its universal scope and the overarching conceptual reach of its subject-matter, as well as possessing a high degree of conceptual indeterminacy. It is suggested that there are three levels of uncertainty: indeterminacy of scope (to what is it relevant?), of content (what does it require?) and of application (is justice something that can even be understood at the global level?). In recognizing this uncertainty, the paper nevertheless concludes that while the recourse to principle in political and legal debate can never anticipate the attainment of justice, this should not marginalize the significance—the relevance—of striving for fairness at the global level, particularly between economically divergent States.

Enforcement of Arbitral Awards between Hong Kong and Mainland China: A Successful Model?

admin — Fri, 06 Nov 2009 16:04:46 +0000

After the handover in 1997, the Supreme People’s Court of Mainland China and the Department of Justice of Hong Kong concluded in 1999 a bilateral Arrangement to resolve the problem of enforcing arbitral awards. The Arrangement provides a unique implementation instrument. This paper examines a number of court rulings in Hong Kong and the Mainland and evaluates how the Arrangement has played out in reality. The author observes that both the Mainland and Hong Kong share certain basic intentions for applying the Arrangement, including exclusion of reviewing merits, a cautious attitude towards public policy, and relaxed procedural requirements. On the other hand, there are also some differences in judicial practice revealed in the cases. Some of these differences, such as the scope of the Arrangement’s application and double enforcement, are derived from the ambiguity of the Arrangement itself and must be clarified. Others, such as the validity of the arbitration agreement and the difficulty in applying foreign law, arise from the different statutes and legal traditions and may be eliminated through the development of law and further legal assistance between the Mainland and Hong Kong.

Issues in the Application of Depecage in Chinese Private International Law

admin — Fri, 06 Nov 2009 16:04:46 +0000

This essay examines the doctrine of dépeçage as a tool that may be used to solve complex private international law problems arising in China that cannot be satisfactorily resolved with the law of just one jurisdiction. A comparative analysis is made with US law to help create a framework for the applicability of dépeçage in China. Lastly, the essay examines the factors that may hinder the application of dépeçage in China.

The Proliferation Security Initiative: Towards Relegation of Navigational Freedoms in UNCLOS? An Indian Perspective

admin — Fri, 06 Nov 2009 16:04:46 +0000

Terrorism is a major challenge to maritime trade. Among the many measures introduced in the post-2001 period to address terrorism at sea, the Proliferation Security Initiative (PSI) has acquired a place of prominence, especially as the 2005 Protocol to the Convention on Suppression of Unlawful Activities against the Safety of Maritime Navigation has not yet entered into force. Even though the PSI is supposedly only a political initiative of America supported by a coalition of willing countries, the implications of the PSI for the existing law of the sea regime are significant. This article attempts to examine the compatibility of the PSI with the United Nations Convention on the Law of the Sea. It is submitted that when a few States act unilaterally, as in the case of the PSI, they give rise to new State practice which weakens and relegates existing international legal norms and institutions mainly relating to the freedom of navigation, right of innocent passage, exclusive rights of flag States and ship-boarding provisions enshrined in the law of the sea, though the degree of such relegation is debatable.

Notes on the International Court of Justice (Part 3): Rule-making at the Court–Integration, Uniformization, Keeping Existing Article Numbers and Giving Public Notice

admin — Fri, 06 Nov 2009 16:04:46 +0000

This paper comments on, and makes proposals for improving, the rule-making at the International Court of Justice (ICJ or Court), with a view to making it easier for States, particularly those that are represented by lawyers who are not ICJ specialists, to litigate before the Court. The paper argues that (1) all “rules”, including provisions of the Rules of Court, Practice Directions and notes for parties should be centralized and integrated and the “rules” be called “rules”, and (2) new rules be promulgated in a way that would keep the old article numbers as much as possible and only after some notice is given to the public, with a view to receiving comments.

On the Recent Development of International Law: Some Russian Perspectives

admin — Fri, 06 Nov 2009 16:04:46 +0000

There are some new features and new trends in the development of international law at the beginning of the new century and new millennium. The relatively short historical period of 60 years since the end of World War II caused nonetheless a change in the look of international law and of its role in the life of society. The present article touches upon the most important changes and characteristics of contemporary international law regarding three aspects, namely the Russian theory of international law, the official Russian position and the relations of the internal legal system towards international law. It addresses several important issues: the growth and expansion of the legal foundation of the life of the international community; the strengthened role of law in international relations; the change of correlation between coordinating and subordinating principles; the development of international procedural law, general international law and jus cogens; the strengthened need for dynamism in norm-formation; the growth of the “presence” and functioning of international law within domestic jurisdictions; the change in the relations between the fundamental principles; and the humanization of international law. Two other issues which are still related to these trends are also covered by the article: the problem of the “myths” of international law and the threat of its fragmentation.

Chinese Judicial Practice in Private International Law: 2006

admin — Fri, 06 Nov 2009 16:04:46 +0000

This annual survey of Chinese judicial practice in private international law in 2006 opens with an analysis of several significant judicial interpretations which will serve as guidelines for Chinese courts at various levels in charge of cases involving foreign elements, and which may give rise to problems calling for further improvements. A statistical analysis follows, examining 50 trans-jurisdictional civil and commercial cases before Chinese courts in 2006, and advocating reasonable invocation of the tool of evasion of law, the doctrine of ordre public and mandatory rules. The judgment rendered by the Supreme People’s Court in Starflower Investment Service, Ltd. v. Hangzhou Jinma Real Estate, Ltd. and Hangzhou Future World Recreation, Ltd. is then discussed, with focus on choice of law for guaranties to foreign companies. Finally, after dealing with several cases in point, the authors suggest that the internet should be consulted more frequently in proving foreign law.

Law JournalFeeds » Chinese Journal of International Law

Editorial Board

On the Al Qaida/Taliban Sanctions Regime: Due Process and Sunsetting

Front Cover

Chinese Practice in Public International Law: 2010 (II)

Information for Authors

The Presidency of the International Tribunal for the Law of the Sea and the "National State Extension" Concern

Table of Contents

Compliance Mechanisms in Multilateral Environmental Agreements: An Effective Way to Improve Compliance?

Wang Tieya Award and Han Depei Award

The International Tribunal for the Law of the Sea: Activities in 2010

Back Cover

State Reputation and Compliance with International Law: Looking through a Chinese Lens

Chinese Society of International Law

Of Occupation, Jus ad Bellum and Jus in Bello: A Reply to Solon Solomon’s "The Great Oxymoron: Jus In Bello Violations as Legitimate Non-Forcible Measures of Self-Defense: The Post-Disengagement Israeli Measures towards Gaza as a Case Study"

Developing Countries’ Pursuit of an Intellectual Property Law Balance under the WTO TRIPS Agreement

Brief Book Reviews

Universal Jurisdiction: Concept, Logic, and Reality

US-China Relations and the Fate of the UN Framework Convention on Climate Change: Traditional Conservatism as an Ideological and Cultural Constraint on US Participation in a Successor to the Kyoto Protocol on Chinese Terms

Protection and Admission of Sovereign Investment under Investment Treaties

Teething Phase of the ECCC

More of the Same or Something Different? Preliminary Observations on the Contribution of Universal Periodic Review with Reference to the Chinese Experience

Environmental Impact Assessment under the United Nations Convention on the Law of the Sea

"Mopping-up": UNHCR, Neutrality and Non-Refoulement since the Cold War

Legal Materials on China Received and Catalogued in the Peace Palace Library: 2010

Chinese Practice in Public International Law: 2010

Foreword and Invitation

No Longer Outside, Not Yet Equal: Rethinking China’s Membership in the World Trade Organization

The Kyrgyz Tragedy: Particular and General

Pushing the Limits of Global Governance: Trading Rights, Censorship and WTO Jurisprudence–A Commentary on the China-Publications Case

Illegal, Unreported and Unregulated Fishing: Responses in General and in West Africa

WTO Law and Human Rights: Bringing Together Two Autopoietic Orders

Responding to Ms. Zhang’s Talking Points on the EEZ

American and Chinese Views on Navigational Rights of Warships

A Response to Pedrozo: The Wider Utility of Hydrographic Surveys

The International Law of the Sea

The Korean Implementing Legislation on the ICC Statute

Book Review Lawsuits and Book Review Standards: An Editorial Comment

The State of Functional Immunity of International Organizations and Their Officials and Why It Should be Streamlined

The Good, the Bad or the Ugly? A Critique of the Decision on Jurisdiction and Competence in Tza Yap Shum v. The Republic of Peru

President Obama’s 2010 United States National Security Strategy and International Law on the Use of Force

The Commission on the Limits of the Continental Shelf as a Mechanism to Prevent Encroachment upon the Area

The Tenth Anniversary of the Chinese Journal of International Law

The Isayeva Cases of the European Court of Human Rights: The Application of International Humanitarian Law and Human Rights Law in Non-International Armed Conflicts

Exploring the Legal Basis of a Human Rights Approach to Climate Change

The International Tribunal for the Law of the Sea: Activities in 2009

Issues on Consensus and Quorum at International Conferences

The Application of Article 121 of the Law of the Sea Convention to the Selected Geographical Features Situated in the Pacific Ocean

The 1951 San Francisco Peace Treaty and Its Relevance to the Sovereignty over Dokdo

The Complete Denuclearization of the Korean Peninsula: Some Considerations under International Law

Notes on the International Court of Justice (Part 4): The Kosovo Advisory Opinion

Multiculturalism and International Law, Essays in Honour of Edward McWhinney

ASEAN Charter: Deeper Regional Integration under International Law?

The Linkage Requirement in Enforcement Immunity

International Legal Obligations in Relation to Good Ocean Governance

Chinese Practice in Public International Law: 2009

The Great Oxymoron: Jus In Bello Violations as Legitimate Non-Forcible Measures of Self-Defense: The Post-Disengagement Israeli Measures towards Gaza as a Case Study

The Protection of Minorities in Court Proceedings: A Perspective on Bilingual Justice in China

The Advisory Function of the International Tribunal for the Law of the Sea

The Wiwa Cases

The Treatment of Non-EU Nationals before Domestic Courts of Member States

Structural Limitations and Possible Future of the Work of the International Law Commission

Legal Materials on China Received and Catalogued in the Peace Palace Library: 2009

Developing Approaches to Trans-boundary Environmental Impact Assessment in China: Co-operation through the Greater Tumen Initiative and in the Pearl River Delta Region

Case Note: China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (WT/DS363/AB/R)

Maritime Delimitation in the Jurisprudence of the International Court of Justice

Processes of Dissimilation and Assimilation in Humankind’s Evolution: Will E Pluribus Unum Replace Ex Uno Plures?

The United States and Human Rights Treaties: Race Relations, the Cold War, and Constitutionalism

Threat, Emergency and Survival: The Legality of Emergency Action in International Law

Report on the Forty-eighth Annual Session of the Asian-African Legal Consultative Organization

China’s Reform and Opening-up and International Law

Central Asian States and International Law: Between Post-Soviet Culture and Eurasian Civilization

China’s Ethnic Policy and Common Prosperity and Development of All Ethnic Groups

Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article

In Memoriam: Sir Ian Brownlie, CBE, QC, FBA

In Memory of Sir Ian Brownlie

Is It Safeguarding the Freedom of Navigation or Maritime Hegemony of the United States?–Comments on Raul (Pete) Pedrozo’s Article on Military Activities in the EEZ

Erratum

International Court of Justice: Reflections on the Electoral Process

The Relations between Treaties and Custom