Pub Date : 2023-02-03DOI: 10.1093/chinesejil/jmad001
Jianjun Gao
Somalia v. Kenya is the first case where the ICJ delimited the boundary line of the continental shelf beyond 200 nautical miles (the so-called “extended continental shelf”) between the Parties. Compared with the previous cases decided by other international tribunals on the same issue, the present case shows some differences. Particularly, the ICJ did not mention the three-stage methodology or other delimitation methods in the delimitation of the extended continental shelf, nor did it identify the relevant area or apply the disproportionality test. The ICJ in this case did not have any reliable evidence to ascertain the Parties’ entitlements to the extended continental shelf, and it did not make a clear determination on the issue of entitlements accordingly. The ICJ delimited the extended continental shelf by extending the boundary line within 200 nautical miles in the same direction, but its reasoning is not sufficient to support the decision. Besides, the Court did not pronounce that the delimitation line achieves an equitable solution. Indeed, in light of the relationship between entitlement and delimitation as well as the circumstances of the present case, the ICJ should have declined to delimit the extended continental shelf.
{"title":"Delimitation of the Extended Continental Shelf in Somalia v. Kenya in the ICJ: A Critique","authors":"Jianjun Gao","doi":"10.1093/chinesejil/jmad001","DOIUrl":"https://doi.org/10.1093/chinesejil/jmad001","url":null,"abstract":"\u0000 Somalia v. Kenya is the first case where the ICJ delimited the boundary line of the continental shelf beyond 200 nautical miles (the so-called “extended continental shelf”) between the Parties. Compared with the previous cases decided by other international tribunals on the same issue, the present case shows some differences. Particularly, the ICJ did not mention the three-stage methodology or other delimitation methods in the delimitation of the extended continental shelf, nor did it identify the relevant area or apply the disproportionality test. The ICJ in this case did not have any reliable evidence to ascertain the Parties’ entitlements to the extended continental shelf, and it did not make a clear determination on the issue of entitlements accordingly. The ICJ delimited the extended continental shelf by extending the boundary line within 200 nautical miles in the same direction, but its reasoning is not sufficient to support the decision. Besides, the Court did not pronounce that the delimitation line achieves an equitable solution. Indeed, in light of the relationship between entitlement and delimitation as well as the circumstances of the present case, the ICJ should have declined to delimit the extended continental shelf.","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2023-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41381923","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 : 2022-12-06DOI: 10.1093/chinesejil/jmac035
Yu Chen
{"title":"Book Review of Edward S. Cohen, Power and Pluralism in International Law: Private International Law and Globalization","authors":"Yu Chen","doi":"10.1093/chinesejil/jmac035","DOIUrl":"https://doi.org/10.1093/chinesejil/jmac035","url":null,"abstract":"","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-12-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45150469","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 : 2022-11-18DOI: 10.1093/chinesejil/jmac028
Endalew Lijalem Enyew
The contemporary law of the sea is not only a making of its own time but also a result of evolutions from the past. Indeed, the LOSC reflects a particular historical trajectory from Grotius’s Mare Liberum to UNCLOS III and the historical circumstances under which it developed. Using TWAIL as a theoretical and methodological lens, this article critically analyzes the historical development of the law of the sea from Third World States’ standpoint. The article demonstrates that the rules and principles of the traditional law of the sea were conceptualized by and designed to promote the colonial and other interests of the powerful and technologically advanced Western States. Nonetheless, Third World States consistently challenged the old legal order of the sea and played significant roles in the evolution of existing doctrines and the development of new spatial architecture of the oceans and the associated principles. The article concludes that, despite such efforts of Third World States to reorient the law of the sea in a manner to address their interests, the protections that current international law offers to Third World States remain fragile in many areas, which areas continue to be subjects of the ongoing Third World struggle.
当代海洋法不仅是其自身时代的产物，也是过去演变的结果。事实上，LOSC反映了从Grotius‘s Mare Liberum到UNCLOS III的特定历史轨迹及其发展的历史环境。本文以TWAIL作为理论和方法的视角，从第三世界国家的角度批判性地分析了海洋法的历史发展。这篇文章表明，传统海洋法的规则和原则是由强大和技术先进的西方国家提出并旨在促进其殖民地和其他利益的。尽管如此，第三世界国家始终挑战旧的海洋法律秩序，并在现有学说的演变和新的海洋空间结构及其相关原则的发展中发挥了重要作用。文章的结论是，尽管第三世界国家努力调整海洋法的方向，以满足其利益，但现行国际法为第三世界各国提供的保护在许多领域仍然脆弱，这些领域仍然是第三世界正在进行的斗争的主题。
{"title":"Sailing with TWAIL: A Historical Inquiry into Third World Perspectives on the Law of the Sea","authors":"Endalew Lijalem Enyew","doi":"10.1093/chinesejil/jmac028","DOIUrl":"https://doi.org/10.1093/chinesejil/jmac028","url":null,"abstract":"\u0000 The contemporary law of the sea is not only a making of its own time but also a result of evolutions from the past. Indeed, the LOSC reflects a particular historical trajectory from Grotius’s Mare Liberum to UNCLOS III and the historical circumstances under which it developed. Using TWAIL as a theoretical and methodological lens, this article critically analyzes the historical development of the law of the sea from Third World States’ standpoint. The article demonstrates that the rules and principles of the traditional law of the sea were conceptualized by and designed to promote the colonial and other interests of the powerful and technologically advanced Western States. Nonetheless, Third World States consistently challenged the old legal order of the sea and played significant roles in the evolution of existing doctrines and the development of new spatial architecture of the oceans and the associated principles. The article concludes that, despite such efforts of Third World States to reorient the law of the sea in a manner to address their interests, the protections that current international law offers to Third World States remain fragile in many areas, which areas continue to be subjects of the ongoing Third World struggle.","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":"1 1","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-11-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43526884","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 : 2022-11-16DOI: 10.1093/chinesejil/jmac032
Xiaofan Hu
{"title":"Interpreting Diplomatic Immunity in the Context of Employment Maltreatment and Human Trafficking: Reyes v. Al-Malki","authors":"Xiaofan Hu","doi":"10.1093/chinesejil/jmac032","DOIUrl":"https://doi.org/10.1093/chinesejil/jmac032","url":null,"abstract":"","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-11-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47142893","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 : 2022-09-08DOI: 10.1093/chinesejil/jmac023
Sienho Yee
This essay reviews the work of the Institut de Droit International, for the occasion of the 150th anniversary of its founding in 1873, that addresses the acquisition or status of territory during the epochs of imperialism, sacred trust of civilization, and territorial administration by or under the United Nations. Section A of this essay introduces the work in a summary fashion. Section B briefly describes the context for each epoch. Section C highlights the challenges and controversies in each epoch surrounding the related topics studied by the Institute. Section D analyzes the three resultant resolutions. Section E briefly comments on the impact of the work, and Section F concludes by taking a look into the future. By and large, the work of the Institute relating to acquisition or status of territory stays very close to the leitmotifs or practices of the different epochs, although one can glean glimpses of inching forward on the part of the Institute, or more so of certain members. Notable examples are its assessment that notice of occupation is required to make it effective and may be done in the normal way of giving publicity to official acts or through the diplomatic channel, and its view on the international mandates system that, “The communities under mandate are subjects of international law. They have a patrimony distinct from that of the mandatory State; they possess a national status, and they may acquire rights or be held to their obligations.” The Institute’s work can be considered solid “codification” efforts. As such, the work, just like any other private codification efforts, may conceivably contribute to the strengthening of the relevant practice, for good or ill, or for good and ill, as we can see that such practice in the past, together with the codification that aspired to reflect it, can never catch up with the future.
{"title":"Territory in the Work of the Institut de Droit International","authors":"Sienho Yee","doi":"10.1093/chinesejil/jmac023","DOIUrl":"https://doi.org/10.1093/chinesejil/jmac023","url":null,"abstract":"\u0000 This essay reviews the work of the Institut de Droit International, for the occasion of the 150th anniversary of its founding in 1873, that addresses the acquisition or status of territory during the epochs of imperialism, sacred trust of civilization, and territorial administration by or under the United Nations. Section A of this essay introduces the work in a summary fashion. Section B briefly describes the context for each epoch. Section C highlights the challenges and controversies in each epoch surrounding the related topics studied by the Institute. Section D analyzes the three resultant resolutions. Section E briefly comments on the impact of the work, and Section F concludes by taking a look into the future. By and large, the work of the Institute relating to acquisition or status of territory stays very close to the leitmotifs or practices of the different epochs, although one can glean glimpses of inching forward on the part of the Institute, or more so of certain members. Notable examples are its assessment that notice of occupation is required to make it effective and may be done in the normal way of giving publicity to official acts or through the diplomatic channel, and its view on the international mandates system that, “The communities under mandate are subjects of international law. They have a patrimony distinct from that of the mandatory State; they possess a national status, and they may acquire rights or be held to their obligations.” The Institute’s work can be considered solid “codification” efforts. As such, the work, just like any other private codification efforts, may conceivably contribute to the strengthening of the relevant practice, for good or ill, or for good and ill, as we can see that such practice in the past, together with the codification that aspired to reflect it, can never catch up with the future.","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-09-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48116177","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 : 2022-09-06DOI: 10.1093/chinesejil/jmac020
Xu Qian
The increasing tensions between a government’s right to regulate and investment protection are fueling the constantly increasing number of international environmental disputes and human rights disputes, in particular with respect to renewable energies, water services, and waste management. As a result, investor-State arbitration is facing greater criticism than ever before because of its potential to contradict international environmental agreements and international human rights agreements. Concerns about State sovereignty are on the rise; particularly the perception that investment tribunals have failed to strike a proper balance between investors’ economic interests and general interests of host States to further their environmental policies and interests. Against this background, this Article investigates the methodological justification for the application of proportionality analysis while discussing potential channels in investment law to crystallize such application which would have deep practical ramifications for the global energy market. At a more conceptual level, this Article proposes an alternative viewpoint in understanding constitutionalization of international investment law and argues proportionality is indispensable discourse in investor-State arbitration.
{"title":"Revisiting Proportionality in Investment Arbitration: Theory, Methodology, and Interpretation","authors":"Xu Qian","doi":"10.1093/chinesejil/jmac020","DOIUrl":"https://doi.org/10.1093/chinesejil/jmac020","url":null,"abstract":"\u0000 The increasing tensions between a government’s right to regulate and investment protection are fueling the constantly increasing number of international environmental disputes and human rights disputes, in particular with respect to renewable energies, water services, and waste management. As a result, investor-State arbitration is facing greater criticism than ever before because of its potential to contradict international environmental agreements and international human rights agreements. Concerns about State sovereignty are on the rise; particularly the perception that investment tribunals have failed to strike a proper balance between investors’ economic interests and general interests of host States to further their environmental policies and interests. Against this background, this Article investigates the methodological justification for the application of proportionality analysis while discussing potential channels in investment law to crystallize such application which would have deep practical ramifications for the global energy market. At a more conceptual level, this Article proposes an alternative viewpoint in understanding constitutionalization of international investment law and argues proportionality is indispensable discourse in investor-State arbitration.","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-09-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47780470","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 : 2022-08-27DOI: 10.1093/chinesejil/jmac021
Yen-Chiang Chang
{"title":"Letter to the JournalDual-Use Products in the Course of Considering National Security Exceptions under GATT Article XXI","authors":"Yen-Chiang Chang","doi":"10.1093/chinesejil/jmac021","DOIUrl":"https://doi.org/10.1093/chinesejil/jmac021","url":null,"abstract":"","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-08-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47068426","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 : 2022-08-18DOI: 10.1093/chinesejil/jmac018
Chao Wang, Taixia Shen
The relationship between a national constitution and international law reflects a nation’s self-positioning in the international legal regime and its reception of international law in the local context. The adaptation of international law in the Chinese Constitution and legal system determines China’s engagement and participation in the international law regime and indicates the country’s treaty performance. This paper provides an overview of the position and status of international law, including both treaties and customary international law, in China’s current 1982 Constitution and domestic legal system. It also analyzes current practice of international law in China’s judicial practice. By reference to recent developments in the PRC Constitution and domestic laws, especially the 2018 Constitutional Amendment, this article attempts to provide a contextual analysis on the standing of international law in the Chinese Constitution and legal system, in the hope that the understanding of the interplay between international law and the Chinese constitutional and legal system will help scholars and policymakers to pursue opportunities for cultural communication and reconciliation to seek normative consensus in the formation of international law.
{"title":"Adaptation of International Law in the Chinese Constitution and Legal System: New Developments","authors":"Chao Wang, Taixia Shen","doi":"10.1093/chinesejil/jmac018","DOIUrl":"https://doi.org/10.1093/chinesejil/jmac018","url":null,"abstract":"\u0000 The relationship between a national constitution and international law reflects a nation’s self-positioning in the international legal regime and its reception of international law in the local context. The adaptation of international law in the Chinese Constitution and legal system determines China’s engagement and participation in the international law regime and indicates the country’s treaty performance. This paper provides an overview of the position and status of international law, including both treaties and customary international law, in China’s current 1982 Constitution and domestic legal system. It also analyzes current practice of international law in China’s judicial practice. By reference to recent developments in the PRC Constitution and domestic laws, especially the 2018 Constitutional Amendment, this article attempts to provide a contextual analysis on the standing of international law in the Chinese Constitution and legal system, in the hope that the understanding of the interplay between international law and the Chinese constitutional and legal system will help scholars and policymakers to pursue opportunities for cultural communication and reconciliation to seek normative consensus in the formation of international law.","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45391413","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 : 2022-08-18DOI: 10.1093/chinesejil/jmac019
Chunlei Zhao
{"title":"Enhancing Labour Standards through the Dispute Settlement Process under FTAs: The EU-Korea Case","authors":"Chunlei Zhao","doi":"10.1093/chinesejil/jmac019","DOIUrl":"https://doi.org/10.1093/chinesejil/jmac019","url":null,"abstract":"","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48942043","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 : 2022-08-18DOI: 10.1093/chinesejil/jmac017
S. Murase
{"title":"In Memoriam: Antônio Augusto Cançado Trindade (17 September 1947–29 May 2022)","authors":"S. Murase","doi":"10.1093/chinesejil/jmac017","DOIUrl":"https://doi.org/10.1093/chinesejil/jmac017","url":null,"abstract":"","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":" ","pages":""},"PeriodicalIF":1.0,"publicationDate":"2022-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49332510","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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