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":null,"pages":null},"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":null,"pages":null},"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":null,"pages":null},"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":null,"pages":null},"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":null,"pages":null},"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":null,"pages":null},"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}
Pub Date : 2022-07-28DOI: 10.1093/chinesejil/jmac016
Sang Man Kim
{"title":"Refusal to Issue a Letter of Credit and Fundamental Breach under the CISG: Liverina (Australia) Pty Ltd. v. Daehyun Trading Co.","authors":"Sang Man Kim","doi":"10.1093/chinesejil/jmac016","DOIUrl":"https://doi.org/10.1093/chinesejil/jmac016","url":null,"abstract":"","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2022-07-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46378254","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 : 2022-07-12DOI: 10.1093/chinesejil/jmac015
Tae Jung Park
{"title":"Meg Kinnear, Geraldine Fischer, Jara Mínguez Almeida, Luisa Fernanda Torres and Mairée Uran Bidegain (eds), Building International Investment Law – The First 50 Years of ICSID","authors":"Tae Jung Park","doi":"10.1093/chinesejil/jmac015","DOIUrl":"https://doi.org/10.1093/chinesejil/jmac015","url":null,"abstract":"","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2022-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47481619","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 : 2022-06-16DOI: 10.1093/chinesejil/jmac014
Gvantsa Dzneladze
{"title":"Wenhua Shan, Jinyuan Su and Sheng Zhang (eds.), China and International Dispute Resolution in the Context of the ‘Belt and Road Initiative’","authors":"Gvantsa Dzneladze","doi":"10.1093/chinesejil/jmac014","DOIUrl":"https://doi.org/10.1093/chinesejil/jmac014","url":null,"abstract":"","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2022-06-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49092046","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 : 2022-05-27DOI: 10.1093/chinesejil/jmac013
Suhong Yang
{"title":"Patrick Thornberry, The International Convention on the Elimination of All Forms of Racial Discrimination: A Commentary","authors":"Suhong Yang","doi":"10.1093/chinesejil/jmac013","DOIUrl":"https://doi.org/10.1093/chinesejil/jmac013","url":null,"abstract":"","PeriodicalId":45438,"journal":{"name":"Chinese Journal of International Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2022-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46144158","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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