Showing papers in "Chinese Journal of International Law in 2006"
TL;DR: In this article, the main reasons for the apparent ineffectiveness of the environmental regulatory regime in the People's Republic of China are examined, and the authors highlight enforcement tensions between the centre and the periphery as major obstacles to the implementation process.
Abstract: The purpose of this paper is to take a look at the main reasons for the apparent ineffectiveness of the environmental regulatory regime in the People's Republic of China. In order to assess the current state of China's environmental legislation framework, an overview of all major environmental codifications is provided, firstly, by establishing the institutional and historical context and, secondly, by reviewing environmental legislation and policies. This examination will reveal that China's environmental protection regime is surprisingly comprehensive, even though statutory deficiencies exist, and will highlight enforcement tensions between the centre and the periphery—a result of decentralization and growing local protectionism—as major obstacles to the implementation process.
141 citations
TL;DR: In this paper, the authors investigated the capacity of the 2008 Olympic Games in Beijing to catalyse sustainable development reforms, and the essence of green Games is examined and the aptitude of Beijing's ambitious Olympic Action Plan evaluated to provide solutions to key environmental problems.
Abstract: The paper investigates the capacity of the 2008 Olympiad in Beijing to catalyse sustainable development reforms. The essence of green Games is examined and the aptitude of Beijing's ambitious Olympic Action Plan evaluated to provide solutions to key environmental problems. It concludes by outlining improvements and giving recommendations for long-term sustainable development which preserve the legacy of green Olympic Games.
37 citations
28 citations
TL;DR: Wang et al. as discussed by the authors examined the transplant effect of the Chinese patent law and analyzed the reasons for lack of effect and success of the patent in China by delving into the traditions and social structure of China and the cultural constraints on the development of a sound legal system conducive to the patent law.
Abstract: Ever since the debut of its open door policy, China has been importing laws from the West either due to external political pressure or due to internal desires to develop its economy. However, the crucial point is not what is borrowed and written on paper, but rather whether the imported laws can function positively and properly in the new habitat. The article examines the transplant effect of the Chinese patent law. First, it looks at some theories on the transplant effect; next, it discusses the effect of the Chinese patent law; then, it analyses the reasons for lack of effect and success of the patent in China by delving into the traditions and social structure of China and the cultural constraints on the development of a sound legal system conducive to the patent law. The article paints a not so rosy picture for the future of the law in China.
25 citations
TL;DR: The notion of compulsory jurisdiction of the International Court of Justice (ICJ) has been studied in the context of international dispute resolution as mentioned in this paper, where states have the option to accept or not to accept the Court's jurisdiction and can do so under terms and conditions they determine themselves.
Abstract: The ''compulsory jurisdiction'' of the International Court of Justice is not truly com- pulsory. The Court's jurisdiction is based on the consent of the parties. States have the option to accept or not to accept the Court's jurisdiction and can do so under terms and conditions they determine themselves. However, once a State has granted its consent, and when a dispute that falls within the scope of that consent is submitted to the Court, the State must subject itself to the Court's jurisdiction. It is that legal obligation that is at the root of the term ''compulsory''. The jurisdiction of the International Court of Justice (ICJ, ''the Court'') is based on the consent of the parties. No State can be compelled without its consent to submit a dispute with another State to international adjudication. In the words of the Court, the principle that ''the Court can only exercise jurisdiction over a State with its consent'' is ''a well estab- lished principle of international law embodied in the Court's Statute''. 1 If that is the case, why then speak of compulsory jurisdiction? After all, States cannot be compelled to grant their consent to the Court's jurisdiction. This short essay will attempt to address that question and compare with similar concepts in other dispute settlement regimes. Before addressing that question, we need to consider the various ways in which a State can express its consent. A State that wishes to express its consent to the jurisdiction of the Court is required to take two separate steps. First, it must become a party to the Statute of the Court. 2
25 citations
TL;DR: The case law of the International Court of Justice remains largely rooted in the traditional perspective, in which decisions of domestic courts are just facts, in recent cases we can see some evidence for a more complementary relationship as discussed by the authors.
Abstract: Recent legal scholarship has argued that the traditional hierarchical relationship between international courts and domestic courts has been replaced by a relationship characterized by such features as co-operation, communication and dialogue. This article examines to what extent the practice of the International Court of Justice supports that development. It concludes that the while the case law of the International Court of Justice remains largely rooted in the traditional perspective, in which decisions of domestic courts are just facts, in recent cases we can see some evidence for a more complementary relationship.
23 citations
TL;DR: The 2006 National Security Strategy largely reaffirms the doctrines of the earlier 2002 Strategy, but whereas the focus in the 2002 Strategy was on the threat posed by Iraq and North Korea; attention has now shifted to Iran and Syria, accused of being State sponsors of terror by Hizbollah and Al-Qaida as mentioned in this paper.
Abstract: In its 2006 National Security Strategy, the USA reaffirms the controversial doctrine of pre-emptive self-defence as crucial in the ''war on terror'' proclaimed after the attacks of 9/11. But it does not provide a detailed examination of pre-emption. The questions left open in the 2002 US National Security Strategy as to what will trigger pre-emptive action, when action against non-State actors will be permissible and what degree of force will be proportionate in pre-emptive action are still unre- solved. The promise that ''The reasons for our actions will be clear, the force measured and the cause just'' does not offer much in the way of specific guidance. It is very striking that in this context, the US strategy makes no reference to inter- national law or to the role of the UN Security Council. The other main focus of the strategy is on the ''promotion of democracy'', but it does not go so far as to assert any legal right to use force for this purpose, and it makes only passing reference to humanitarian intervention. The EU 2003 Security Strategy provides a marked con- trast in that it does not adopt the doctrine of pre-emptive self-defence, does not expressly identify ''rogue States'' and does profess respect for international law and for the role of the UN. Other States have not generally shown themselves willing to accept a Bush doctrine of pre-emptive self-defence. They agree that there are new threats facing the world from international terrorists and the danger of prolifer- ation of weapons of mass destruction, but the 2005 World Summit showed clearly that there is no general acceptance of pre-emptive action. Moreover, the International Court of Justice still follows a cautious approach to self-defence. The 2006 National Security Strategy largely reaffirms the doctrines of the earlier 2002 Strategy, but whereas the focus in the 2002 Strategy was on the threat posed by Iraq and North Korea; attention has now shifted to Iran and Syria, accused of being State sponsors of terror by Hizbollah and Al-Qaida. The article ends with a discussion of the recent conflict in Lebanon: this raised the crucial question whether the war on terror gave Israel a wide right to use force, even a pre-emptive right. The conflict highlights dramatically the practical significance of the divisions on the scope of the law of self-defence with regard to action against non-State actors, pre-emption and proportionality.
16 citations
TL;DR: In this article, a study of the process of drafting of decisions of the International Court of Justice from the standpoint of the Registry is presented, showing on the basis of the author's personal recollections how the Registry contributes to the process.
Abstract: This paper is a study of the process of drafting of decisions of the International Court of Justice from the standpoint of the Registry, showing on the basis of the author's personal recollections how the Registry contributes to the process. The question of the legal propriety of such contribution is examined, on the basis of a distinction between the task of decision, and that of expression of the decision. Some remarks are also offered on drafting techniques. When in 1968 I was offered a post as one of the Secretaries of the International Court of Justice, I was living and working in Cambridge. A mutual friend offered to introduce me to Lord McNair, who was living there in retirement, having ceased to be a Member, and the President, of the Court in 1955. Lord McNair received me graciously, encouraged me to take up the post, and told me a certain amount about the workings of the Court. One remark he made has remained in my memory: ''Do not think,'' he said, ''that you will be able to contribute to the actual decision-making process, or the drafting of the judgments; those are matters reserved to the judges.'' I have no doubt that this was true during his Membership of the Court, and it was equally true in 1968. Over the years, however, and as result of the greatly increased workload of the Court, the participation of the Registry in the drafting of decisions has greatly increased. Since I was privileged to be closely involved in this development, and in the preparation of numerous judicial decisions over a considerable period, it seemed to me that, on the occasion of the Court's sixtieth anniversary, some recollections of this period, and some personal observations on drafting techniques, might be of interest to scholars who follow
16 citations
TL;DR: In this paper, the authors argue that IOs are more shapers than makers of international law and their multiplication is therefore not a source of increased chaos in the international normative puzzle.
Abstract: It seems to be presumed by many that the simple multiplication of international organizations (IOs) weakens the unity and integrity of international law. There is, in reality, nothing obvious in this assumption. First, there needs to be evidence of duplication or overlaps in the various competences of IOs. Second, it needs to be proven that, in the instances in which the activities of IOs do overlap, such overlap translates into competition, divergence or conflict. Last, and most impor- tantly, rival or competing activities must be of normative significance. This essay pro- poses to address the preliminary question which, in fact, precedes and underpins all the others as regards the multiplication of IOs and international legal unity: how do IOs matter in the making of international law? IOs, we argue, are more shapers than makers of international law and their multiplication is therefore not a source of increased chaos in the international normative puzzle.
16 citations
TL;DR: The Shanghai Cooperation Organization (SCO) represents new global visions as mentioned in this paper, and the SCO is one of the most recent regional organizations to emerge in the new millennium, it is established within an important region and in a very critical stage.
Abstract: The creation of the Shanghai Cooperation Organization (SCO) represents new global visions. The SCO is one of the most recent regional organizations to emerge in the new millennium. It is established within an important region and in a very critical stage. The SCO fulfils the criteria of the status of a regional organi- zation under the law of international organization. However, the SCO needs some improvement, especially with regard to its dispute settlement procedures and better appreciation of its enforcement mechanism in order to realize its goals and objectives.
15 citations
TL;DR: In this paper, the authors discuss the normative contradictions in the UN Charter that result from the antagonism between power and law and review the prospects for a fundamental reform of the United Nations Organization that would guarantee its survival under the radically different circumstances of the post-Cold War environment.
Abstract: The dilemma faced by the United Nations Organization at the beginning of the 21st century lies in its inability to reconcile the structural realities of power politics in a unipolar world with the requirements of the international rule of law. The paper ana- lyses the normative contradictions in the UN Charter that result from the antagonism between power and law and reviews the prospects for a fundamental reform of the United Nations Organization that would guarantee its survival under the radically different circumstances of the post-Cold War environment. In that regard, the paper emphasizes the need for a new paradigm of international organization that will do away with the idea of special privileges accorded to the great powers of 1945, and emphasizes the need for a better regional balance in the decision- making processes at the United Nations.
TL;DR: In this article, the authors explore the alternatives that may be adopted in attaining a fair and just implementation of the Court's judgment in relation to straddling villages and boundary communities.
Abstract: The existence of straddling settlements between Cameroon and Nigeria is one of the features of their geographical location as neighbouring West African States. Although the existence of these settlements did not constitute a central part of the boundary dispute between both States, implementation of the recent World Court judgment presents crucial dilemmas as to the treatment of straddling communities in particular and, to some extent, boundary villages as well. This article explores the alternatives that may be adopted in attaining a fair and just implementation of the Court's judgment in relation to straddling villages and boundary communities. The delimitation and demarcation of straddling villages and villages that fall into another State's territory are bound to be an increasingly common feature of the work of international courts and demarcation commissions as populations increase and the need to definitively specify borders increases. It is, therefore, necessary that a specialized jurisprudence is developed for this area of law. This article, therefore, attempts to highlight difficulties in the jurisprudence of the International Court of Justice in its work in this area and suggests a typology of factors that may be adopted in varying delimitation lines by adjudicators and demarcators. It also attempts a digest of what may represent good practice in the law of boundary delimitation and demarcation by examining similar cases around the world. The argument presented is that there is enough within the corpus of international law and international relations for courts to avoid splitting communities needlessly or subjecting populations to the whims and caprice of hostile States' territorial jurisdiction, particularly in relation to a continent such as Africa, which has suffered a long and unfair history of balkanization of its peoples and civilizations. The article makes the case that the World Court needs more law elaboration if not judicial activism in its delimitation work to avoid inadvertent complicity in the abuse of peoples' rights and to attain a more robust resolution of boundary disputes. The view advanced is that where aspects of the Court's delimitation may be unsatisfactory and contrary to the mutual interests of disputants, those charged with the task of implementing the Court's judgment must not be slavish in their appreciation of the spirit of judicial resolution. Where there is the danger that human and generational rights would be needlessly compromised, nothing apart from an unimaginative and unco-operative approach prevents demarcators from independently adopting a more holistic resolution of the dispute in the interest of human justice, such as by (within very strict limits) varying delimitation lines suggested by the Court in particular sectors.
TL;DR: In 2005, the European Council in 2004 decided to open accession negotiations with Turkey and linked Turkey's accession process with the Cyprus problem and made the signature of an Additional Protocol to the EC-Turkey Customs Union Agree- ment extending this Agreement to the ten new Member States of the Union, includ- ing the Republic of Cyprus.
Abstract: When the European Council in 2004 decided to open accession negotiations with Turkey, it linked Turkey's accession process with the Cyprus problem and made the signature of an Additional Protocol to the EC-Turkey Customs Union Agree- ment extending this Agreement to the ten new Member States of the Union, includ- ing the Republic of Cyprus, a precondition for the start of accession negotiations. Not having been recognizing the Republic of Cyprus since 1963, Turkey had to avoid everything that could be interpreted as a recognition of the Republic of Cyprus when concluding the Additional Protocol. This led Turkey in September 2005 to make a ''Declaration on Cyprus'' when signing the Protocol which, in turn, triggered a counter declaration by the European Community and its Member States. The two declarations do not qualify as reservations but are general statements of policy or, at best, interpretative declarations that do not have any effect on the substance of the Protocol and that are not binding upon the parties.
TL;DR: In this paper, a detailed account of the opposing views of Turkey and Syria/Iraq is provided to give readers a more complete understanding of the current water rights in Mesopotamia.
Abstract: This article analyzes cross-border water disputes in Mesopotamia that involve Turkey, Iraq and Syria. It focuses on the Southeastern Anatolia Project (Turkish: Guneydog uu Anadolu Projesi (GAP)) that is being undertaken by various adminis- trations of the government of the Republic of Turkey in the last few decades and tries to shed light on some important legal issues surrounding it. On 3 October 2005, Turkey began negotiations with the European Union (EU) for accession as a full member. Attention is also given to the extent to which the matter may complicate Turkey's relations with the EU during these negotiations. Water conflicts in the Middle East have recently become a popular subject for international scholars. 1 Numerous writers, from academics to intelligence analysts, have contributed various perspectives to the increasingly complex issues surrounding the topic. Scholars who specialize in water problems in the Middle East have devoted particular attention to the region watered by the Euphrates and Tigris Rivers, and their tributaries—an area commonly known as Mesopotamia. Many of these publi- cations are promulgated by two distinct (and opposing) party views: that of the Turkish government on the one hand, and that of the Syrian and Iraqi governments on the other. 2 Consequently, much of the work underpinning the growing body of scholarship in this area reflects the biases of each position. In analyzing the longstanding conflicts over water rights in Mesopotamia, this paper endeavors to accomplish several things. First, to give readers a more complete understanding of the current dispute, a detailed account of the opposing views of Turkey and Syria/Iraq is provided. Second, the merits of each position are
TL;DR: The decision to uphold the banning of headscarves in certain universities in Turkey is an example of how religious freedom has been limited by the European Court of Human Rights interpretation of Article 9 as mentioned in this paper.
Abstract: The European Convention on Human Rights (ECHR) was largely influenced by the Universal Declaration of Human Rights, as a more precise expression of human rights that members of the European Council could support and ratify. All of the members of the European Council have proceeded to sign the Convention. While the Convention has made great strides in bringing awareness to human rights issues, there are still doubts concerning how well religious freedoms are being preserved. The decision to uphold the banning of headscarves in certain universities in Turkey is an example of how religious freedom has been limited by the European Court of Human Rights’ interpretation of Article 9. Article 9 states in paragraph 1: ‘‘Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance’’. This Article proceeds to state in paragraph 2, which has assumed central importance recently, ‘‘Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interest of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others’’. The European Court of Human Rights adopted its latest interpretation of Article 9 in Leyla S v. Turkey. 1 Leyla S was a fifth-year female medical student at the faculty of medicine of the University of Istanbul. She brought a suit against Turkey for upholding the decision of the University to prohibit her from taking exams or attending lectures while wearing her headscarf. The court first decided whether this interfered with her right to manifest her religious beliefs, concluding that it did. 2 However, paragraph 2, Article 9 of the ECHR called for a more extensive analysis. Paragraph 2 of Article 9 of the ECHR requires more than simply interference with the manifestation of one’s religious beliefs. That paragraph allows for the interference into religious freedoms if: 1) it is prescribed by law, and 2) is necessary for a democratic society. The
TL;DR: The authors proposed that proper payments to the Korean comfort women and a renunciation by Japan of its claim to Dokdo/Takeshima (the tiny islands claimed by both countries) could serve to formalize the reconciliation between these two neighbours.
Abstract: Although Japan and Korea formally normalized their relations in 1965, these neighbours remain wary of each other because of their awkward history during the first half of the twentieth century, when Japan annexed Korea and oppressed the Koreans in many ways. Korean scholars believe strongly that this annexation was ''illegal'' and that it constituted a violation of international law when it occurred. Japanese scholars tend to admit that the Japanese occupation of Korea was brutal and caused enormous suffering, but they are reluctant to acknowledge that the annexation was ''illegal'', because other great powers were annexing small countries during that period. The US action supporting the overthrow of the Kingdom of Hawaii in 1893 and annexing Hawaii in 1898 may be helpful in finding an appropriate resolution to the Japan-Korea standoff. In 1993, the US Congress enacted a joint resolution formally apologizing to the Native Hawaiian people and calling for a ''reconciliation'' between the United States and the Native Hawaiians. This resolution acknowledged that the US diplomatic and military support for the 1893 overthrow was ''illegal'' and was in violation of ''international law''. This strong statement seems to be an application of ''inter- temporal law'', whereby present views of international law are applied to the events of the 1890s, but, in any event, it is a powerful acknowledgment that a wrong occurred, causing injuries that can still be felt today. The reconciliation process between the United States and Native Hawaiians is now under way and, to be complete, it will require the restoration of the sovereignty of the Native Hawaiians and a return of land and resources to them. Japanese officials have offered apologies to the Koreans, but the reconciliation between the two countries can become complete only if these apologies are accompanied by a transfer of items of real value. This paper proposes that proper payments to the Korean comfort women and a renunciation by Japan of its claim to Dokdo/Takeshima (the tiny islands claimed by both countries) could serve to formalize the reconciliation between these two neighbours.
TL;DR: The antinomy between judicial activism and self-restraint, well known to students of the US Supreme Court, has implications today also for international tribunals as mentioned in this paper, and the resort to judicial settlement of international dispute is still predicated upon a certain basic homogeneity of legal cultures and values going with them.
Abstract: The antinomy between judicial activism and self-restraint, well known to students of the US Supreme Court, has implications today also for international tribunals. The resort to judicial settlement of international dispute is still predicated upon a certain basic homogeneity of legal cultures and values going with them. When, however, social and cultural values are in fundamental tension or collision with each other, there may be an inclination towards activism to try to resolve the conflicts or contra- dictions. Any such activism on the part of the International Court of Justice, after the way seemed opened by the landmark advisory opinion in Nambia in 1971, effectively ''overruling'' earlier, more static jurisprudence, seems, however, to have been tem- pered by a perceived obligation of judicial respect for the constitutional role and missions of the other policy-making UN organs and other main players in the inter- national community. As a result, this tends to lead to a situation in which the Court may be dealing with no major, high political-legal tension-issues of the day.
TL;DR: In this article, the authors explore the legitimacy of the international community in Bosnia and the outcome of international involvement in the process of democratization, and discuss normative definitions of legitimacy and their relation to certain elements of international community's involvement in Bosnia.
Abstract: This analysis explores the legitimacy of the international community in Bosnia and the outcome of international involvement in the process of democratization. The paper discusses normative definitions of legitimacy and their relation to certain elements of the international community's involvement in Bosnia. The first part of the paper discusses the foundations of distrust of the international community during the war, specifically the presence of the UN. The second part of the paper explores the legitimacy of the Dayton Peace Agreement and the consequent Consti- tution. The final part of this paper explains how the Office of the High Representa- tive presents an enormous challenge to legitimate democracy in Bosnia and concludes with questions relating to the future of the Bosnian government.
TL;DR: Barak as mentioned in this paper employed a skilful practical disregard of the International Court's normative findings through an elision of argument by relying on the doctrine of res judicata, a concept that has no relevance whatsoever to advisory opinions.
Abstract: In Mara'abe v. Prime Minister of Israel (September 2005), Israel's High Court addressed the effect which it should give to the International Court's Legal con- sequences of the construction of a wall in Occupied Palestinian Territory advisory opinion. This had declared the wall illegal but, while affirming that it shared the International Court of Justice's normative rulings, the High Court reiterated that it thought the wall a lawful security measure. Rather than dissect the substantive treatment of the issues involved, this article examines the structure and rhetorical techniques employed by President Barak in his leading judgment in Mara'abe .H e effected a skilful practical disregard of the International Court's normative findings through an elision of argument by relying on the doctrine of res judicata— a concept that has no relevance whatsoever to advisory opinions.
TL;DR: In this paper, the authors examine the dispute settlement procedure established by Article 119 of the Rome Statute of the International Criminal Court, with particular attention paid to whether that provision creates any relationship between the ICC and the International Court of Justice, and suggest ways in which the ICC Assembly of States Parties can take steps to improve the likelihood that such referral would be deemed proper.
Abstract: This paper examines the dispute settlement procedure established by Article 119 of the Rome Statute of the International Criminal Court, with particular attention paid to whether that provision creates any relationship between the International Criminal Court and the International Court of Justice. The paper first discusses the jurisdic- tional reach of Article 119, detailing the types of disputes addressed in its two sub- sections and the manner in which such disputes are to be handled. Secondly, it focuses on the possibility of referral of disputes covered in Article 119(2) to the Inter- national Court of Justice. Although the provision expressly contemplates such a refer- ral, it remains unclear whether the provision adequately supports the jurisdiction of the International Court of Justice in accordance with the Statute of that Court. The paper goes on to suggest ways in which the International Criminal Court Assembly of States Parties can take steps to improve the likelihood that such referral would be deemed proper in order to enhance the possible and final settlement of disputes.
TL;DR: In the Simon case, decided in June 2005, the Argentine Supreme Court held unlaw- ful the application of amnesties to crimes against humanity as discussed by the authors, which ignored significant constitutional constraints that give priority to the right not to be judged by an ex post facto law.
Abstract: In the Simon case, decided in June 2005, the Argentine Supreme Court held unlaw- ful the application of amnesties to crimes against humanity. The Court relied heavily on the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, ratified in 2003 by Argentina. In so doing, however, it ignored significant constitutional constraints that give priority to the right not to be judged by an ex post facto law. The other arguments provided by the Court also fail to respect the Argentine constitutional order. Thus, notwith- standing the laudable aim of preventing and punishing all crimes against humanity, this decision is regrettable.
TL;DR: Wuhan University Law School, the Institute of International Law and the Innovation Base of International law and New International Order co-sponsored a symposium entitled ''China's Peaceful Development and International Law'' as discussed by the authors.
Abstract: On 2 - 4 December 2005, Wuhan University Law School, the Institute of International Law and the Innovation Base of International Law and New International Order co-sponsored in Wuhan University a symposium entitled ''China's Peaceful Development and International Law''. This symposium had been planned as part of the activities under one of the Major Philosophical and Social Sciences Projects of Chinese Ministry of Education in 2004—''Research on Major Issues of International Law in Relation to China's Peaceful Development'',