Pub Date : 2023-11-23DOI: 10.1093/chinesejil/jmad040
Raymond Yang Gao
In the unfolding digital era, personal data has increasingly been conceptualized in a hybrid way, primarily drawing on notions of economics, privacy, and national security. Such a sui generis nature makes personal data something of its own category, opening the door to different conceptualizations by different actors. This article identifies three primary conceptualizations of personal data adopted by three major powers (the US, the EU, and China) with respect to cross-border data transfers—namely, a factor of production, an embodiment of fundamental rights, and an element of national security. Highlighting different attributes of personal data, these conceptualizations differ in what they understand personal data to be, how they address the relationship between individuals, their data, and the governments, as well as what they frame as the most important normative goals for regulatory interventions. Moreover, these conceptualizations are embedded in different philosophies and ideologies, ranging from neo-liberalism to human rights and to sovereignty. These irreducible normative elements render the contestations among such conceptualizations unable to be easily resolved. Further, divergent conceptualizations of personal data mandate and justify different legal paradigms to institutionalize their basic logics and policy choices. Built on different primary conceptualizations of personal data, three major legal paradigms compete to regulate cross-border personal data flows: a trade paradigm, a privacy paradigm, and a security paradigm. Aligned with its major conceptual framing of personal data, a great power often embraces a particular paradigm as its dominant approach to regulate cross-border transfers of personal data. These paradigms strive to provide legal and regulatory solutions (including legal prescriptions, regulatory institutions, and enforcement tools) to address the salient problems identified and framed by different conceptualizations of personal data.
{"title":"A Battle of the Big Three?—Competing Conceptualizations of Personal Data Shaping Transnational Data Flows","authors":"Raymond Yang Gao","doi":"10.1093/chinesejil/jmad040","DOIUrl":"https://doi.org/10.1093/chinesejil/jmad040","url":null,"abstract":"In the unfolding digital era, personal data has increasingly been conceptualized in a hybrid way, primarily drawing on notions of economics, privacy, and national security. Such a sui generis nature makes personal data something of its own category, opening the door to different conceptualizations by different actors. This article identifies three primary conceptualizations of personal data adopted by three major powers (the US, the EU, and China) with respect to cross-border data transfers—namely, a factor of production, an embodiment of fundamental rights, and an element of national security. Highlighting different attributes of personal data, these conceptualizations differ in what they understand personal data to be, how they address the relationship between individuals, their data, and the governments, as well as what they frame as the most important normative goals for regulatory interventions. Moreover, these conceptualizations are embedded in different philosophies and ideologies, ranging from neo-liberalism to human rights and to sovereignty. These irreducible normative elements render the contestations among such conceptualizations unable to be easily resolved. Further, divergent conceptualizations of personal data mandate and justify different legal paradigms to institutionalize their basic logics and policy choices. Built on different primary conceptualizations of personal data, three major legal paradigms compete to regulate cross-border personal data flows: a trade paradigm, a privacy paradigm, and a security paradigm. Aligned with its major conceptual framing of personal data, a great power often embraces a particular paradigm as its dominant approach to regulate cross-border transfers of personal data. These paradigms strive to provide legal and regulatory solutions (including legal prescriptions, regulatory institutions, and enforcement tools) to address the salient problems identified and framed by different conceptualizations of personal data.","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":"94 2","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139245718","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-11-09DOI: 10.1093/chinesejil/jmad044
Muneeba Javid, Yen-Chiang Chang
Journal Article Book Review of Emily Jones, Feminist Theory and International Law: Posthuman Perspectives Get access Emily Jones, Feminist Theory and International Law: Posthuman Perspectives, Routledge, 2023, xii, 204 pp., index; ISBN 978-1-032-04389-0 Muneeba Javid, Muneeba Javid PhD Scholar, School of Law, Dalian Maritime University, Dalian, Liaoning Province, China Search for other works by this author on: Oxford Academic Google Scholar Yen-Chiang Chang Yen-Chiang Chang Professor of Law, School of Law, Dalian Maritime University, Dalian, Liaoning Province, China E-mail: ycchang@dlmu.edu.cn (Corresponding Author). Search for other works by this author on: Oxford Academic Google Scholar Chinese Journal of International Law, jmad044, https://doi.org/10.1093/chinesejil/jmad044 Published: 09 November 2023
{"title":"Book Review of Emily Jones, <i>Feminist Theory and International Law: Posthuman Perspectives</i>","authors":"Muneeba Javid, Yen-Chiang Chang","doi":"10.1093/chinesejil/jmad044","DOIUrl":"https://doi.org/10.1093/chinesejil/jmad044","url":null,"abstract":"Journal Article Book Review of Emily Jones, Feminist Theory and International Law: Posthuman Perspectives Get access Emily Jones, Feminist Theory and International Law: Posthuman Perspectives, Routledge, 2023, xii, 204 pp., index; ISBN 978-1-032-04389-0 Muneeba Javid, Muneeba Javid PhD Scholar, School of Law, Dalian Maritime University, Dalian, Liaoning Province, China Search for other works by this author on: Oxford Academic Google Scholar Yen-Chiang Chang Yen-Chiang Chang Professor of Law, School of Law, Dalian Maritime University, Dalian, Liaoning Province, China E-mail: ycchang@dlmu.edu.cn (Corresponding Author). Search for other works by this author on: Oxford Academic Google Scholar Chinese Journal of International Law, jmad044, https://doi.org/10.1093/chinesejil/jmad044 Published: 09 November 2023","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":" 38","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135291797","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-10-19DOI: 10.1093/chinesejil/jmad041
Yi Liang
Journal Article Book Review of Ming Du, The Regulation of Product Standards in World Trade Law Get access Book Review of Ming Du, The Regulation of Product Standards in World Trade Law, Hart Publishing, 2020, VII+318 pp.; Table of Cases; Bibliography; Index; ISBN 9781509931132 (hardback); ISBN 9781509931156 (Epub) Yi Liang Yi Liang SJD, Case Manager, China International Economic and Trade Arbitration Commission liangyi175@foxmail.com https://orcid.org/0009-0001-4895-9187 Search for other works by this author on: Oxford Academic Google Scholar Chinese Journal of International Law, jmad041, https://doi.org/10.1093/chinesejil/jmad041 Published: 19 October 2023
{"title":"Book Review of Ming Du, <i>The Regulation of Product Standards in World Trade Law</i>","authors":"Yi Liang","doi":"10.1093/chinesejil/jmad041","DOIUrl":"https://doi.org/10.1093/chinesejil/jmad041","url":null,"abstract":"Journal Article Book Review of Ming Du, The Regulation of Product Standards in World Trade Law Get access Book Review of Ming Du, The Regulation of Product Standards in World Trade Law, Hart Publishing, 2020, VII+318 pp.; Table of Cases; Bibliography; Index; ISBN 9781509931132 (hardback); ISBN 9781509931156 (Epub) Yi Liang Yi Liang SJD, Case Manager, China International Economic and Trade Arbitration Commission liangyi175@foxmail.com https://orcid.org/0009-0001-4895-9187 Search for other works by this author on: Oxford Academic Google Scholar Chinese Journal of International Law, jmad041, https://doi.org/10.1093/chinesejil/jmad041 Published: 19 October 2023","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":"186 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135668080","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-06DOI: 10.1093/chinesejil/jmad030
Lucas Clover Alcolea
Joint Interpretative Statements have grown in popularity in recent years as a tool States can use to authoritatively interpret, or reinterpret, investment treaties with the seminal case being NAFTA but provisions for making them have been included in numerous investment treaties and India, Colombia, France, Mauritius, and the EU member States themselves have recently entered into joint interpretative statements. The CETA Joint Committee would also appear to be close to issuing its first “decision” which, in effect, is a joint interpretative statement. Despite this growth, in general, investment tribunals are ill-equipped to apply such statements and, as case studies analyzed in the article show, often commit serious errors when deciding cases involving them. These errors include not applying the relevant articles of the Vienna Convention on the Law of Treaties (VCLT), failing to consider decisions by international tribunals, including the ICJ, regarding joint interpretative statements, and ignoring “the teachings of the most highly qualified publicists” with respect to such statements. These failings risk undermining States’ legitimate use of joint interpretative statements, as well as eroding the legitimacy of the ISDS system as a whole, due to repeated misinterpretations and misstatements of the applicable law. This paper aims to respond to the crisis by firstly setting out the relevant international law principles, with these being found primarily in the VCLT, secondly outlining when and how tribunals, and on occasion State courts, have fallen short in their analysis of said principles, and thirdly outlining various possible “futures” for joint interpretative statements, as well as suggesting means by which States might ensure that they are properly applied.
{"title":"States as Masters of (Investment) Treaties: The Rise of Joint Interpretative Statements","authors":"Lucas Clover Alcolea","doi":"10.1093/chinesejil/jmad030","DOIUrl":"https://doi.org/10.1093/chinesejil/jmad030","url":null,"abstract":"\u0000 Joint Interpretative Statements have grown in popularity in recent years as a tool States can use to authoritatively interpret, or reinterpret, investment treaties with the seminal case being NAFTA but provisions for making them have been included in numerous investment treaties and India, Colombia, France, Mauritius, and the EU member States themselves have recently entered into joint interpretative statements. The CETA Joint Committee would also appear to be close to issuing its first “decision” which, in effect, is a joint interpretative statement. Despite this growth, in general, investment tribunals are ill-equipped to apply such statements and, as case studies analyzed in the article show, often commit serious errors when deciding cases involving them. These errors include not applying the relevant articles of the Vienna Convention on the Law of Treaties (VCLT), failing to consider decisions by international tribunals, including the ICJ, regarding joint interpretative statements, and ignoring “the teachings of the most highly qualified publicists” with respect to such statements. These failings risk undermining States’ legitimate use of joint interpretative statements, as well as eroding the legitimacy of the ISDS system as a whole, due to repeated misinterpretations and misstatements of the applicable law. This paper aims to respond to the crisis by firstly setting out the relevant international law principles, with these being found primarily in the VCLT, secondly outlining when and how tribunals, and on occasion State courts, have fallen short in their analysis of said principles, and thirdly outlining various possible “futures” for joint interpretative statements, as well as suggesting means by which States might ensure that they are properly applied.","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-09-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48443167","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-01DOI: 10.1093/chinesejil/jmad037
Xiaohui Wu
Journal Article Special Section on the Russia-Ukraine Conflict: An Editorial Note Get access Xiaohui Wu Xiaohui Wu Visiting Fellow, Chinese Institute of International Law at China Foreign Affairs University, and Editor of this Special Section xiaohui.wu99@gmail.com Search for other works by this author on: Oxford Academic Google Scholar Chinese Journal of International Law, jmad037, https://doi.org/10.1093/chinesejil/jmad037 Published: 17 October 2023
{"title":"Special Section on the Russia-Ukraine Conflict: An Editorial Note","authors":"Xiaohui Wu","doi":"10.1093/chinesejil/jmad037","DOIUrl":"https://doi.org/10.1093/chinesejil/jmad037","url":null,"abstract":"Journal Article Special Section on the Russia-Ukraine Conflict: An Editorial Note Get access Xiaohui Wu Xiaohui Wu Visiting Fellow, Chinese Institute of International Law at China Foreign Affairs University, and Editor of this Special Section xiaohui.wu99@gmail.com Search for other works by this author on: Oxford Academic Google Scholar Chinese Journal of International Law, jmad037, https://doi.org/10.1093/chinesejil/jmad037 Published: 17 October 2023","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135735642","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-01DOI: 10.1093/chinesejil/jmad038
Sienho Yee
Journal Article Book Review of Bogdan Aurescu (ed.), Romania and the International Court of Justice Get access Sienho Yee Sienho Yee Professor of International Law, China Foreign Affairs University, and Editor-in-Chief of this Journal E-mail: sienho@chinesejil.org Search for other works by this author on: Oxford Academic Google Scholar Chinese Journal of International Law, jmad038, https://doi.org/10.1093/chinesejil/jmad038 Published: 23 September 2023
{"title":"Book Review of Bogdan Aurescu (ed.), <i>Romania and the International Court of Justice</i>","authors":"Sienho Yee","doi":"10.1093/chinesejil/jmad038","DOIUrl":"https://doi.org/10.1093/chinesejil/jmad038","url":null,"abstract":"Journal Article Book Review of Bogdan Aurescu (ed.), Romania and the International Court of Justice Get access Sienho Yee Sienho Yee Professor of International Law, China Foreign Affairs University, and Editor-in-Chief of this Journal E-mail: sienho@chinesejil.org Search for other works by this author on: Oxford Academic Google Scholar Chinese Journal of International Law, jmad038, https://doi.org/10.1093/chinesejil/jmad038 Published: 23 September 2023","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135484563","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-01DOI: 10.1093/chinesejil/jmad036
Xiaohui Wu
Abstract This Survey covers materials reflecting Chinese practice in 2021 relating to: treaties, agreements and other documents signed or ratified by the People’s Republic of China; national legislation; statements made by Chinese representatives at the meetings of the UN and other international organizations, international conferences, and those made by the Foreign Ministry spokespersons, with respect to various branches of international law; and judicial decisions, in particular on the applicability and application of international conventions, by Chinese courts.
{"title":"Chronology of Practice: Chinese Practice in Public International Law in 2021","authors":"Xiaohui Wu","doi":"10.1093/chinesejil/jmad036","DOIUrl":"https://doi.org/10.1093/chinesejil/jmad036","url":null,"abstract":"Abstract This Survey covers materials reflecting Chinese practice in 2021 relating to: treaties, agreements and other documents signed or ratified by the People’s Republic of China; national legislation; statements made by Chinese representatives at the meetings of the UN and other international organizations, international conferences, and those made by the Foreign Ministry spokespersons, with respect to various branches of international law; and judicial decisions, in particular on the applicability and application of international conventions, by Chinese courts.","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135428729","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-01DOI: 10.1093/chinesejil/jmad034
Rein Müllerson
Abstract Today’s world is less stable than the Cold War international system. Why the high expectations for a peaceful world that existed thirty years ago didn’t materialize? This article singles out two interrelated trends that stem from mistakes made when it seemed that the humanity, having learned from history, was stepping into a period of the “end of history”. However, this end of history mindset forms the very basis on which today’s negative tendencies are flourishing. The triumphant West tried not only to unify the whole world under a single leadership but to make it also uniform. Yet, the world is simply too big, complex and diverse to have its rich tapestry flattened into a carpet where only one pattern, be it a Judeo-Christian, Anglo-Saxon, Confucian, Muslim or secular liberal-democratic, dominates. Therefore, after a short unipolar moment, those States that couldn’t or didn’t want to follow Washington, began to claim their own place under the Sun and the right to go their own way. As long as it is not recognized that there is an intrinsic value not only in bio-diversity or in the acceptance of diverse ways of life within a society, but also in the existence of diverse political systems, economic models and societal arrangements, there will not be even a relative peace in the world. Equally, recognition and acceptance of balance of power in international relations is even more important than the adherence to the principle of separation of powers within States. The second trend is expressed in conflicts between elites and masses, whose grievances are exploited by populists. Moreover, the idea that globalisation would lead, if not to the disappearance of the State, then at least to a considerable shrinking of its role, turned out to be wrong.
{"title":"On Some Geopolitical and Societal Tendencies Threatening Peace and Stability","authors":"Rein Müllerson","doi":"10.1093/chinesejil/jmad034","DOIUrl":"https://doi.org/10.1093/chinesejil/jmad034","url":null,"abstract":"Abstract Today’s world is less stable than the Cold War international system. Why the high expectations for a peaceful world that existed thirty years ago didn’t materialize? This article singles out two interrelated trends that stem from mistakes made when it seemed that the humanity, having learned from history, was stepping into a period of the “end of history”. However, this end of history mindset forms the very basis on which today’s negative tendencies are flourishing. The triumphant West tried not only to unify the whole world under a single leadership but to make it also uniform. Yet, the world is simply too big, complex and diverse to have its rich tapestry flattened into a carpet where only one pattern, be it a Judeo-Christian, Anglo-Saxon, Confucian, Muslim or secular liberal-democratic, dominates. Therefore, after a short unipolar moment, those States that couldn’t or didn’t want to follow Washington, began to claim their own place under the Sun and the right to go their own way. As long as it is not recognized that there is an intrinsic value not only in bio-diversity or in the acceptance of diverse ways of life within a society, but also in the existence of diverse political systems, economic models and societal arrangements, there will not be even a relative peace in the world. Equally, recognition and acceptance of balance of power in international relations is even more important than the adherence to the principle of separation of powers within States. The second trend is expressed in conflicts between elites and masses, whose grievances are exploited by populists. Moreover, the idea that globalisation would lead, if not to the disappearance of the State, then at least to a considerable shrinking of its role, turned out to be wrong.","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":"152 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135049605","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-01DOI: 10.1093/chinesejil/jmad042
Sienho Yee
Journal Article Book Review of Vanda Lamm, Compulsory Jurisdiction in International Law Get access Book Review of Vanda Lamm, Compulsory Jurisdiction in International Law, Edward Elgar, 2014, xii, 318 pp., table of cases, appendix, index; ISBN 978-1-78347-321-2 Sienho Yee Sienho Yee Professor of International Law and Director, Chinese Institute of International Law at China Foreign Affairs University, and Editor-in-Chief of this Journal E-mail: sienho@chinesejil.org Search for other works by this author on: Oxford Academic Google Scholar Chinese Journal of International Law, jmad042, https://doi.org/10.1093/chinesejil/jmad042 Published: 24 October 2023
{"title":"Book Review of Vanda Lamm, <i>Compulsory Jurisdiction in International Law</i>","authors":"Sienho Yee","doi":"10.1093/chinesejil/jmad042","DOIUrl":"https://doi.org/10.1093/chinesejil/jmad042","url":null,"abstract":"Journal Article Book Review of Vanda Lamm, Compulsory Jurisdiction in International Law Get access Book Review of Vanda Lamm, Compulsory Jurisdiction in International Law, Edward Elgar, 2014, xii, 318 pp., table of cases, appendix, index; ISBN 978-1-78347-321-2 Sienho Yee Sienho Yee Professor of International Law and Director, Chinese Institute of International Law at China Foreign Affairs University, and Editor-in-Chief of this Journal E-mail: sienho@chinesejil.org Search for other works by this author on: Oxford Academic Google Scholar Chinese Journal of International Law, jmad042, https://doi.org/10.1093/chinesejil/jmad042 Published: 24 October 2023","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":"95 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135735974","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-01DOI: 10.1093/chinesejil/jmad039
Peter Hilpold
Abstract Russia’s aggression against Ukraine has been accompanied by attempts to justify this blatant violation of international law with reference to the accepted exceptions to the prohibition of the use of force. These attempts had to fail from the outset as the necessary preconditions were not given. More pernicious is, however, the endeavor to find a justification in an “alternative” system of international law. The respective arguments echo considerations popular in the first half of the 20th century, such as Carl Schmitt’s “theory of the greater space” and the “theory of encirclement”. To accept a revival of such arguments, even only in part, risks undermining the very basics of modern international law. Ultimately, to allow this “obsession with territory” (Georges Scelle) to unfold would not even be in Russia’s interest as it would deflect from this country’s real economic and societal problems that need urgent action.
{"title":"Justifying the Unjustifiable: Russia’s Aggression against Ukraine, International Law, and Carl Schmitt’s “Theory of the Greater Space” (“<i>Großraumtheorie”</i>)","authors":"Peter Hilpold","doi":"10.1093/chinesejil/jmad039","DOIUrl":"https://doi.org/10.1093/chinesejil/jmad039","url":null,"abstract":"Abstract Russia’s aggression against Ukraine has been accompanied by attempts to justify this blatant violation of international law with reference to the accepted exceptions to the prohibition of the use of force. These attempts had to fail from the outset as the necessary preconditions were not given. More pernicious is, however, the endeavor to find a justification in an “alternative” system of international law. The respective arguments echo considerations popular in the first half of the 20th century, such as Carl Schmitt’s “theory of the greater space” and the “theory of encirclement”. To accept a revival of such arguments, even only in part, risks undermining the very basics of modern international law. Ultimately, to allow this “obsession with territory” (Georges Scelle) to unfold would not even be in Russia’s interest as it would deflect from this country’s real economic and societal problems that need urgent action.","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135588750","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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