Pub Date : 2023-08-26DOI: 10.1093/chinesejil/jmad032
Chao Wang, Xin Xiang
Journal Article Book Review of Yuji Iwasawa, Domestic Application of International Law: Focusing on Direct Applicability Get access Book Review of Yuji Iwasawa, Domestic Application of International Law Focusing on Direct Applicability, Brill Nijhoff, 2023, xxix+314 pp., ISBN 978-90-04-52340-1(e-book) Chao Wang, Chao Wang Professor of International Law and Assistant Dean, University of Macau Faculty of Law chaowang@um.edu.mo https://orcid.org/0000-0001-8687-1824 Search for other works by this author on: Oxford Academic Google Scholar Xin Xiang Xin Xiang PhD Candidate at the Faculty of Law, University of Macau, and Advisor to the Secretary for Administration and Justice, Government of Macao SAR, China Search for other works by this author on: Oxford Academic Google Scholar Chinese Journal of International Law, jmad032, https://doi.org/10.1093/chinesejil/jmad032 Published: 26 August 2023
岩泽裕二:《国际法的国内适用》书评以直接适用性为重点的国际法国内适用，Brill Nijhoff, 2023, xxix+314 pp, ISBN 978-90-04-52340-1(电子书)王超，澳门大学法学院国际法教授、院长助理chaowang@um.edu.mo https://orcid.org/0000-0001-8687-1824欣翔澳门大学法学院博士研究生、澳门特别行政区行政律政司司长顾问欣翔作者其他著作请查阅:牛津学术谷歌学者中国国际法杂志，jmad032, https://doi.org/10.1093/chinesejil/jmad032出版日期:2023年8月26日
{"title":"Book Review of Yuji Iwasawa, <i>Domestic Application of International Law: Focusing on Direct Applicability</i>","authors":"Chao Wang, Xin Xiang","doi":"10.1093/chinesejil/jmad032","DOIUrl":"https://doi.org/10.1093/chinesejil/jmad032","url":null,"abstract":"Journal Article Book Review of Yuji Iwasawa, Domestic Application of International Law: Focusing on Direct Applicability Get access Book Review of Yuji Iwasawa, Domestic Application of International Law Focusing on Direct Applicability, Brill Nijhoff, 2023, xxix+314 pp., ISBN 978-90-04-52340-1(e-book) Chao Wang, Chao Wang Professor of International Law and Assistant Dean, University of Macau Faculty of Law chaowang@um.edu.mo https://orcid.org/0000-0001-8687-1824 Search for other works by this author on: Oxford Academic Google Scholar Xin Xiang Xin Xiang PhD Candidate at the Faculty of Law, University of Macau, and Advisor to the Secretary for Administration and Justice, Government of Macao SAR, China Search for other works by this author on: Oxford Academic Google Scholar Chinese Journal of International Law, jmad032, https://doi.org/10.1093/chinesejil/jmad032 Published: 26 August 2023","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135236202","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 : 2023-08-23DOI: 10.1093/chinesejil/jmad031
Yong Gan
Abstract The increasingly intensified competition arose among national courts over their judicial authority to resolve standard-essential patents (SEPs) disputes. This competition drove courts and litigants to resort to antisuit injunctions (ASIs) more frequently. However, ASIs Chinese courts issued in SEP-related cases raised concerns in foreign countries. Chinese ASIs’ legal basis has evolved through decades of legislation regarding injunctions, including compulsory maritime orders, IPR preliminary injunctions, and general rules of act preservation, despite containing inherent defects that troubled the subsequent antisuit practice. Likewise, Chinese antisuit practice did not emerge overnight but took years to develop, growing from a mere sprinkle in maritime litigations to a respectable drizzle in SEP-related actions. It encompasses orders to prevent foreign collateral proceedings, the injunction to inhibit foreign antisuit orders, and orders to halt foreign substantive proceedings. Chinese antisuit practice is at its nascence and exhibits striking features in SEP cases. However, closely examining Chinese antisuit decisions in SEP cases reveals that so-called Chinese worldwide ASIs were justifiable and legitimate, in terms of substantive conditions and actual operation, even by the EU and US standards. Nevertheless, China needs to reform the relevant laws regarding antisuit relief and refine its antisuit practice in various aspects to fend off due process and other equitable concerns. Only through international coordination can national courts efficaciously tackle the proliferation of antisuit relief in SEP cases.
{"title":"Antisuit Injunctions in Chinese Courts","authors":"Yong Gan","doi":"10.1093/chinesejil/jmad031","DOIUrl":"https://doi.org/10.1093/chinesejil/jmad031","url":null,"abstract":"Abstract The increasingly intensified competition arose among national courts over their judicial authority to resolve standard-essential patents (SEPs) disputes. This competition drove courts and litigants to resort to antisuit injunctions (ASIs) more frequently. However, ASIs Chinese courts issued in SEP-related cases raised concerns in foreign countries. Chinese ASIs’ legal basis has evolved through decades of legislation regarding injunctions, including compulsory maritime orders, IPR preliminary injunctions, and general rules of act preservation, despite containing inherent defects that troubled the subsequent antisuit practice. Likewise, Chinese antisuit practice did not emerge overnight but took years to develop, growing from a mere sprinkle in maritime litigations to a respectable drizzle in SEP-related actions. It encompasses orders to prevent foreign collateral proceedings, the injunction to inhibit foreign antisuit orders, and orders to halt foreign substantive proceedings. Chinese antisuit practice is at its nascence and exhibits striking features in SEP cases. However, closely examining Chinese antisuit decisions in SEP cases reveals that so-called Chinese worldwide ASIs were justifiable and legitimate, in terms of substantive conditions and actual operation, even by the EU and US standards. Nevertheless, China needs to reform the relevant laws regarding antisuit relief and refine its antisuit practice in various aspects to fend off due process and other equitable concerns. Only through international coordination can national courts efficaciously tackle the proliferation of antisuit relief in SEP cases.","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135571285","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 : 2023-08-17DOI: 10.1093/chinesejil/jmad029
Rutsel Silvestre J Martha, Kit De Vriese
Abstract The case of Mr. Saab, a Venezuelan ad hoc diplomat, raises numerous issues beyond codified international law. The issues discussed in this article are a vivid reminder of the importance of customary international law, and that its principles should not be held to have been tacitly dispensed with by any treaty in the absence of any words making clear an intention to do so. Indeed, whilst important portions of the law of diplomatic relations, including ad hoc diplomacy through special missions, are codified in the Vienna Convention on Diplomatic Relations (VCDR) and the Convention on Special Missions (Special Missions Convention), important aspects of ad hoc diplomacy remains governed by customary international law—as confirmed by the preambles of these treaties. The VCDR and the Special Missions Convention, whether collectively or separately, do not cover all issues relating to diplomacy. In this article, an attempt is made to how these issues should have been addressed in Mr. Saab’s case if the executive and judicial branches of the Government of Cabo Verde had kept this in mind.
{"title":"On Their Sovereign’s Secret Service: Special Envoys Detained while in Transit","authors":"Rutsel Silvestre J Martha, Kit De Vriese","doi":"10.1093/chinesejil/jmad029","DOIUrl":"https://doi.org/10.1093/chinesejil/jmad029","url":null,"abstract":"Abstract The case of Mr. Saab, a Venezuelan ad hoc diplomat, raises numerous issues beyond codified international law. The issues discussed in this article are a vivid reminder of the importance of customary international law, and that its principles should not be held to have been tacitly dispensed with by any treaty in the absence of any words making clear an intention to do so. Indeed, whilst important portions of the law of diplomatic relations, including ad hoc diplomacy through special missions, are codified in the Vienna Convention on Diplomatic Relations (VCDR) and the Convention on Special Missions (Special Missions Convention), important aspects of ad hoc diplomacy remains governed by customary international law—as confirmed by the preambles of these treaties. The VCDR and the Special Missions Convention, whether collectively or separately, do not cover all issues relating to diplomacy. In this article, an attempt is made to how these issues should have been addressed in Mr. Saab’s case if the executive and judicial branches of the Government of Cabo Verde had kept this in mind.","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136272321","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 : 2023-08-17DOI: 10.1093/chinesejil/jmad028
Alexander Orakhelashvili
This paper focuses on the comparative analysis of 19th century great power concert and the United Nations Security Council as forms of great power management of international affairs. The analysis is conducted from a cross-disciplinary perspective of international politics and international law. The paper explores historical preconditions for each of those forms of great power management to be formed and come into operation, as well as the way in which each of them became subjected to legal restraints in relation to its activities. These historical preconditions are both those which affirmatively enable great-power cooperation through multilateral crisis management, and ones that furnish risks should they not so cooperate, including the occurrence of a general war between great powers. The inter-disciplinary focus adopted here is meant to demonstrate the legal dimension of the matter as well as lessons that could be learned from the behaviour of statesmen and policy-makers.
{"title":"Multilateral Diplomacy and International Law: 19th Century Great Power Concert and the United Nations in a Comparative Perspective","authors":"Alexander Orakhelashvili","doi":"10.1093/chinesejil/jmad028","DOIUrl":"https://doi.org/10.1093/chinesejil/jmad028","url":null,"abstract":"\u0000 This paper focuses on the comparative analysis of 19th century great power concert and the United Nations Security Council as forms of great power management of international affairs. The analysis is conducted from a cross-disciplinary perspective of international politics and international law. The paper explores historical preconditions for each of those forms of great power management to be formed and come into operation, as well as the way in which each of them became subjected to legal restraints in relation to its activities. These historical preconditions are both those which affirmatively enable great-power cooperation through multilateral crisis management, and ones that furnish risks should they not so cooperate, including the occurrence of a general war between great powers. The inter-disciplinary focus adopted here is meant to demonstrate the legal dimension of the matter as well as lessons that could be learned from the behaviour of statesmen and policy-makers.","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44112081","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 : 2023-08-10DOI: 10.1093/chinesejil/jmad026
Chengming Yang
{"title":"Book Review of LI Yongsheng, Lun Shouhaiguo Yiwaide Guojia Caiqu Fancuoshi Wenti [On Countermeasures Taken by a State Other Than an Injured State]","authors":"Chengming Yang","doi":"10.1093/chinesejil/jmad026","DOIUrl":"https://doi.org/10.1093/chinesejil/jmad026","url":null,"abstract":"","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43880022","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 : 2023-07-27DOI: 10.1093/chinesejil/jmad025
At the early stage of humankind’s Space Age, the former Union of Soviet Socialist Republics and the United States of America showed an inclination to non-militarize outer space, but distrust also prompted them to carry out a series of high-altitude nuclear tests. In the end, while the non-militarization aspiration materialized on celestial bodies, in the outer void space between them only Weapons of Mass Destruction were prohibited. The last few decades have witnessed the incremental militarization of the Earth orbits. The initial phase of militarization, primarily for surveillance and early warning, was conducive to international peace and security. It is in the next phase, when space systems were integrated into warfighting capabilities and Ballistic Missile Defense systems, that outer space embarked on its reduction into a domain of conflicts. This trend was subtle in the immediate aftermath of the Cold War, and didn’t become clear until the new millennium when new space powers emerged. Today, space-based weapons and terrestrial Anti-Satellite Weapons (ASATs) form the primary security concerns for space powers, depending on their relative space capability. The disparity is difficult to reconcile, putting space arms control literally on a halt. As States with counter-space capability are also highly reliant on space, there is a growing voluntary moratorium against the test and use of debris-generating ASATs and conflicts in space are likely to take an electronic and/or cyber form. The recent rise of the strategy of “deterrence and superiority” in space, however, may distract from the formation of this voluntary moratorium, aggravate an arms race in outer space, and even increase the risk of a full-scale conflict in space.
{"title":"Outer Space: From Sanctuary to Warfighting Domain?","authors":"","doi":"10.1093/chinesejil/jmad025","DOIUrl":"https://doi.org/10.1093/chinesejil/jmad025","url":null,"abstract":"\u0000 At the early stage of humankind’s Space Age, the former Union of Soviet Socialist Republics and the United States of America showed an inclination to non-militarize outer space, but distrust also prompted them to carry out a series of high-altitude nuclear tests. In the end, while the non-militarization aspiration materialized on celestial bodies, in the outer void space between them only Weapons of Mass Destruction were prohibited. The last few decades have witnessed the incremental militarization of the Earth orbits. The initial phase of militarization, primarily for surveillance and early warning, was conducive to international peace and security. It is in the next phase, when space systems were integrated into warfighting capabilities and Ballistic Missile Defense systems, that outer space embarked on its reduction into a domain of conflicts. This trend was subtle in the immediate aftermath of the Cold War, and didn’t become clear until the new millennium when new space powers emerged. Today, space-based weapons and terrestrial Anti-Satellite Weapons (ASATs) form the primary security concerns for space powers, depending on their relative space capability. The disparity is difficult to reconcile, putting space arms control literally on a halt. As States with counter-space capability are also highly reliant on space, there is a growing voluntary moratorium against the test and use of debris-generating ASATs and conflicts in space are likely to take an electronic and/or cyber form. The recent rise of the strategy of “deterrence and superiority” in space, however, may distract from the formation of this voluntary moratorium, aggravate an arms race in outer space, and even increase the risk of a full-scale conflict in space.","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-07-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46427233","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 : 2023-07-13DOI: 10.1093/chinesejil/jmad024
M. Lemos
On 1 November 2021, the Appeals Chamber of the ICC upheld the notion that, depending on the type of case over which the court exercises jurisdiction, it must use two different bodies of substantive law to evaluate whether certain conduct is criminal and, hence, whether the court has the power to prosecute and convict individuals for such conduct. This contribution argues that this bifurcation in the substantive law applicable at the ICC leads to disconcerting results, no sound normative principle supports it, and it does not correspond to the design of the creators of the court.
{"title":"The Appeals Chamber’s Jurisdictional Judgment in Abd-Al-Rahman and the Issue of Applicable Law at the International Criminal Court","authors":"M. Lemos","doi":"10.1093/chinesejil/jmad024","DOIUrl":"https://doi.org/10.1093/chinesejil/jmad024","url":null,"abstract":"\u0000 On 1 November 2021, the Appeals Chamber of the ICC upheld the notion that, depending on the type of case over which the court exercises jurisdiction, it must use two different bodies of substantive law to evaluate whether certain conduct is criminal and, hence, whether the court has the power to prosecute and convict individuals for such conduct. This contribution argues that this bifurcation in the substantive law applicable at the ICC leads to disconcerting results, no sound normative principle supports it, and it does not correspond to the design of the creators of the court.","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-07-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44893423","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 : 2023-07-07DOI: 10.1093/chinesejil/jmad021
Vijay Kishor Tiwari
{"title":"Book Review of Anne Orford, International Law and The Politics of History","authors":"Vijay Kishor Tiwari","doi":"10.1093/chinesejil/jmad021","DOIUrl":"https://doi.org/10.1093/chinesejil/jmad021","url":null,"abstract":"","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41321634","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 : 2023-07-06DOI: 10.1093/chinesejil/jmad022
J. Slawotsky
{"title":"Book Review of SHEN Wei, China’s Foreign Investment Law in the New Normal","authors":"J. Slawotsky","doi":"10.1093/chinesejil/jmad022","DOIUrl":"https://doi.org/10.1093/chinesejil/jmad022","url":null,"abstract":"","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43519742","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 : 2023-06-30DOI: 10.1093/chinesejil/jmad020
Yen-Chiang Chang
{"title":"Book Review of Stefan Talmon, The South China Sea Arbitration—Jurisdiction, Admissibility, Procedure","authors":"Yen-Chiang Chang","doi":"10.1093/chinesejil/jmad020","DOIUrl":"https://doi.org/10.1093/chinesejil/jmad020","url":null,"abstract":"","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44307545","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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