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| 1 |
ID:
163437
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| Summary/Abstract |
1. In the June 2018 issue of this Journal, we published, as a special issue, the Chinese Society of International Law’s The South China Sea Arbitration Awards: A Critical Study (“Critical Study”, 17 Chinese JIL, 207-748). The Critical Study has received a great deal of attention online. We are most grateful.
2. Our Journal fully appreciates that readers of the Journal and authors of papers we publish may hold different views and that the papers we publish may receive a variety of critical responses. Our Journal considers it our mission to present such papers, as long as they meet our academic standards, as judged by peer reviewers. The Foreword to our very first issue
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| 2 |
ID:
170435
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| Summary/Abstract |
This amicus brief for China Chamber of International Commerce was filed on 4 April 2018 in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co., No. 16-1220 in the US Supreme Court, which was decided on 14 June 2018. The brief argues that: I. Rule 44.1 of the US Federal Rules of Civil Procedure addresses only what materials may be used in determining foreign law, not what effect to give to these materials, which effect must be determined on considerations outside the Rule, and is consistent with whatever effect properly derived, including “binding deference”; II. A distinction must be made, among the materials used to determine foreign law, between what may count as applicable law and the subsidiary means for determining applicable law, and the interpretation or characterization of Chinese trade law by MOFCOM counts as applicable law; III. The Pink precedent demands that binding deference be given to the interpretation or characterization of Chinese trade law by MOFCOM as the authoritative decision-maker in this area; IV. The act of state doctrine as reflected in Sabbatino also supports binding deference to the interpretation or characterization of Chinese trade law by MOFCOM as the authoritative decision-maker in this area; V. Alternatively and subsidiarily, the interpretation or characterization of Chinese trade law by MOFCOM as the highest administrative authority on trade law in China should be given substantial deference analogous to Chevron deference; and VI. The alleged inconsistency between China’s representations to the WTO and its position in this case, even assumed to exist, does not affect the validity of its position in this case as a matter of domestic law and therefore the binding deference due to it.
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| 3 |
ID:
133970
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2014.
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| Summary/Abstract |
Recently there has been a great deal of talk about visions and alternative visions of the world and the values involved in each vision.1 Obviously it is important for us to see clearly the various visions of the world. But the picture is quite murky and there is really no end to history, and there will be no conquering of one vision over another anytime soon. In the meantime, it is more important for us to be good decision-makers in any vision of the world that we find ourselves in, or choose to live in. To illustrate, if we are capitalists, we'd better be good capitalist decision-makers; if we are socialists, we'd better be good socialist decision-makers.
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| 4 |
ID:
124566
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2013.
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| Summary/Abstract |
Conciliation is an age-old peaceful means of dispute settlement. The UN Convention on the Law of the Sea provides for both voluntary and compulsory conciliation. The importance of conciliation under UNCLOS is obvious, yet it has received little focused attention.
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| 5 |
ID:
163447
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| Summary/Abstract |
This comment offers some brief observations on ideas that may promote the settlement of disputes that may arise from the Belt and Road Initiative, such as a possible standing investment court, a unified appellate mechanism or a legal aid mechanism as system components, a “lawyer for the situation” spirit for lawyering, an emphasis on a friendly style of dispute settlement, and a style of directly providing for rules of interpretation as part of the applicable law
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| 6 |
ID:
155110
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| Summary/Abstract |
Under the customary international law on the interpretation of treaties as reflected in Articles 31-32 of the Vienna Convention on the Law of Treaties, the travaux préparatoires of a treaty may be resorted to in order to confirm the meaning resulting from the application of the general rule in Article 31, to remove an ambiguity, or to cure a manifestly absurd or unreasonable result. The International Court of Justice divined a fourth use of travaux préparatoires—to prove the non-preclusion of an interpretation—in the LaGrand case. This use provides some additional comfort to the interpreter of a treaty provision that the interpretation reached through an exercise under Article 31 is not negatively affected by the travaux or is not definitely wrong. This use has also been extended by the Court to the use of context as well as text in treaty interpretation.
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| 7 |
ID:
178010
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| 8 |
ID:
047541
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| Publication |
London, Routledge, 2001.
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| Description |
xxix, 529p.
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| Series |
Routledge studies in international law
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| Standard Number |
0415236088
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Copies: C:1/I:0,R:0,Q:0
Circulation
| Accession# | Call# | Current Location | Status | Policy | Location |
| 044366 | 341/YEE 044366 | Main | On Shelf | General | |
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| 9 |
ID:
134668
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| Summary/Abstract |
This Editorial Comment elaborates the author's concept of the international law of co-progressiveness first as a descriptive observation and then as a normative position and attempts to identify some core tenets of this law.
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| 10 |
ID:
120608
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2013.
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| Summary/Abstract |
This Editorial Comment applies the author's concept of the international law of co-progressiveness to civilizations. Civilizations cannot take the place of States but can play the role of promoters of co-progressiveness. The success of this role depends on the progressiveness of a particular civilization and its ability to manage inter-civilizational relations. Three tools for managing inter-civilizational relations are suggested: (1) a "two-men mindedness" attitude when taking action; (2) a Thomas Henry Sanderson lens when perceiving a challenge or disadvantage; and (3) benign competition.
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| 11 |
ID:
137765
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| Summary/Abstract |
Intervention in an international proceeding is only permissible with the consent of the parties to a case, expressed either as a general consent for a certain category of matters or as a specific consent for a particular case or a particular request for intervention. Treaty practice demonstrates this point. The UNCLOS, including Annex VII, does not contain such consent (more in terms of general consent if at all) to intervention in an Annex VII arbitral proceeding, although intervention is possible by separate consent if given by the parties in an act additional to the UNCLOS. Article 5 of Annex VII authorizing rule-making does not extend so far as to allow an Annex VII arbitral tribunal to make, without the consent of the parties, a rule that would permit intervention. Nor does such a tribunal have any inherent power or jurisdiction—independent of the consent of the parties in a case—that would allow it to permit intervention without the consent of the parties. Any innovation in this area will bring great harm to the institution of international arbitration under the UNCLOS and generally.
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| 12 |
ID:
178016
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This short review essay comments on Hugh Thirlway’s outstanding short book The International Court of Justice and expresses appreciation for his expert knowledge about the International Court of Justice (the Court or ICJ) and its law and procedure. The Essay further observes that, in addition to knowledge about the Court and its law and procedure, other factors may have a great role to play in litigation strategy. As such, litigation strategy is a matter not susceptible to broad-brush commentary, but demands tough soul-searching, in the light of all relevant circumstances and of the larger goals to be pursued. This finds illustration in some non-appearance cases and normal cases before the court and other tribunals.
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| 13 |
ID:
101599
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2010.
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| Summary/Abstract |
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.
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| 14 |
ID:
158324
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| Summary/Abstract |
The request for advisory opinion on the separation of the Chagos Archipelago puts in play (1) the cause of decolonization and the Court’s participation in the UN’s work in this regard and (2) the consent principle in international dispute settlement. Part II reviews in broad outline the law on this matter, which requires that the giving of an advisory opinion by the Court can only be done in a way compatible with its judicial character and with full respect for the consent principle. Part III argues that the giving of an opinion that would concern the main issues in a bilateral dispute without the requisite consent of the parties or that would have the effect of circumventing the consent principle would be incompatible with the Court’s judicial character and would constitute a compelling reason calling for the Court’s refusal to give the requested advisory opinion on such issues. Part IV elaborates that the fact that fully answering the questions put to the Court would necessitate addressing the main or essential issues, including the lawfulness of the detachment of the Chagos Archipelago from Mauritius and ultimately the validity of the detachment agreement, in the bilateral dispute between the Mauritius and the United Kingdom without the latter’s consent, and would be incompatible with the Court’s judicial character, is a compelling reason calling for the Court’s refusal to give the requested opinion on such issues. Part V maintains that in the light of decolonization being a Charter-mandated, important and traditional aspect of the UN’s work, if the Court feels compelled to give an advisory opinion, it may do so on what law may be applicable to, but not on how that law applies to, the main or essential issues involved in the bilateral dispute between the two States, especially the lawfulness of the detachment of the Chagos Archipelago from Mauritius and ultimately the validity of the detachment agreement. This approach may afford the best benefits to both sides. Part VI briefly concludes the paper.
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| 15 |
ID:
170426
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| Summary/Abstract |
During the lead-up to the Final Agreement settling the Macedonian name dispute, apparently no or scant mention was made of the Interim Accord (FYROM v. Greece) case that FYROM brought in 2008 and won overwhelmingly in 2011 against Greece at the International Court of Justice (“ICJ” or the “Court”). This paper highlights the structure and main points of the ICJ judgment in the Interim Accord case and analyzes the part of the judgment on the main substantive issue. The paper argues that, even on its own terms, the Court’s judgment did not conduct the interpretation exercise to the full and further that the experience with the Court’s judgment in this case does flash a warning light to any decision-maker that it must not lose sight of “the one big thing”, which may vary from case to case, in a dispute settlement endeavor if it wants to have its decision implemented. This experience also teaches any State party in a dispute that it may have to know and unyieldingly seize upon the one big thing in the dispute settlement effort in order to achieve its goal.
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| 16 |
ID:
109199
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| Publication |
2011.
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| Summary/Abstract |
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.
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| 17 |
ID:
149657
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| Summary/Abstract |
This paper highlights the issue of the recognition of the existence of a dispute between China and Japan regarding sovereignty over Diaoyu Dao, identifies such a recognition, and comments on the implications flowing from that recognition for Japan and China, as well as for other States, especially the United States, and argues that in light of the well-known US position of taking no view on sovereignty over Diaoyu Dao, Article V of the US-Japan Mutual Cooperation and Security Treaty cannot apply to the island. Some comments are also offered on Japan’s “nationalization” and other measures and China’s response measures and/or counter-measures.
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| 18 |
ID:
139155
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This Report discusses the work of the ILC on identification of customary international law and proposes comments on that work, in the light of the AALCO members' concern with protecting their sovereignty, which manifests itself in three overarching considerations—the promotion of the quality in decision-making in the identification process, the reliance on only the quality exercise of State functions, and the representativeness of the State practice and opinio juris at issue.
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| 19 |
ID:
094104
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2010.
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| Summary/Abstract |
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.
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| 20 |
ID:
141481
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This brief paper comments on the clinical isolation and one-sided tendencies in the Philippines' oral arguments in the South China Sea arbitration, with illustrations from its arguments on (1) negotiation as the agreed exclusive choice for dispute settlement, (2) sovereignty matters, (3) the optional exception of delimitation-related disputes; (4) the optional exception of military activities disputes; and (5) environmental claims.
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