Chinese Journal of International Law - Advance Access

The Wang Tieya Lecture in Public International LawThe Peaceful Settlement of International Disputes

Brownlie, I. — 2009-07-03

The purpose is to provide a general survey of the practice among States of the peaceful settlement of international disputes. The survey reflects the variety of instruments for peaceful settlement, including negotiation, conciliation and commissions of inquiry. Care is taken to indicate the quantitative significance of the inter-State arbitration in relation to the use of standing international tribunals, such as the International Court of Justice. The analytical commentary includes discussion of the typology of disputes and the comparative merits of arbitration and the process of adjudication in the International Court.

Aerial Belligerency within a Humanitarian Rhetoric: Exploring the Theorizing of the Law of War/Terrorizing of Civilians' Rights Nexus

St-Fleur, Y. — 2009-06-27

Aerial belligerency, with respect to the law of war, is key to achieving the political objectives of a party to the conflict, and to convincing its adversary to accept conditions as negotiated solutions to a confrontation. However, a much more restrictive interpretation of humanitarian rights law during the planning of military air strikes in Kosovo, Iraq, Afghanistan, Ecuador, Gaza and Pakistan has demonstrated that civilian immunity is still a legal concern. This paper describes and analyses the modernity of aerial acts of belligerency conducted within a legal framework. In fact, most recent armed conflicts and hostilities bring to light the fact that aerial warfare is now an attractive option in international affairs. Airpower is used as a strategic weapon to elevate foreign policy over legal principles. Aerospace weaponry and surveillance systems exist to insure superiority over low-tech and like-minded resistance groups. The means and methods in aerial warfare will in fact present the next legal challenge of the twenty-first century.

The Legal Status of Taiwan and the Legality of the Use of Force in a Cross-Taiwan Strait Conflict

Chan, P. C.W. — 2009-06-25

The legal status of Taiwan remains one of the most important concerns in international relations, as the continual political tensions have the potential of generating armed conflicts, not only across the Taiwan Strait but also between the People's Republic of China government and the United States, and of destabilizing the security in the Asia-Pacific region and the international community. This article examines on the basis of international law whether Taiwan has a valid claim to statehood. The implications of relevant peace treaties, the issue of foreign recognition of States and governments, the nature and extent of the right to self-determination, and the permissibility of the use of force under the right of self-defense and the notion of humanitarian intervention in relation to the Taiwan question are discussed.

Customary International Law, Arms Control and the Environment in Outer Space

Brisibe, T. C. — 2009-06-23

Recent military doctrines and activities have re-kindled a long-standing debate about the relationship between international law and arms control in space. There is a notion that existing rules governing certain military uses of outer space are inadequate. Nonetheless, protection of the environment remains sacrosanct. While, to some extent, treaty-based rules governing military uses of outer space also seek to place limitations on the deliberate infliction of environmental damage for military purposes, the development and role of customary international law are pertinent.

The Relevancy of Nationality to the Right to Prisoner of War Status

TSE — 2009-06-20

In 1960, the Privy Council of the United Kingdom, in Public Prosecutor v. Oie Hee Koi and connected appeal, ¹ refused to recognize the prisoner of war (POW) status of some of its citizens who were captured while acting as members of the opposing forces in hostilities because they had breached their duty of allegiance owed to the Crown. The purpose of this article is to prove that it defies the spirit of the Geneva Conventions (GCs) as well as the development of international humanitarian law to deprive a national of the detaining power of his POW status solely on the basis of nationality or duty of allegiance. The first half of this article shows that the non-allegiance requirement of POW status is not sustainable; the second part demonstrates that the object and purpose of humanitarian law require such nationals to be covered by GC III.

Legal Materials on China Received and Catalogued in the Peace Palace Library: 2008

Kost, I. — 2009-06-20

The Closest Connection Doctrine in the Conflict of Laws in China

YU, XIAO, WANG — 2009-06-19

The closest connection doctrine plays an important role in the conflict of laws in China. It has been applied not only in the field of contracts but also to several particular issues in areas other than contract. The Supreme People's Court in China adopts the notion of characteristic performance and provides some presumptions to determine the country of closest connection. If the presumptive rules cannot be applied, the Chinese courts tend to take the contacts-counting approach to identifying the country of closest connection, which often leads to the application of Chinese law. The authors put forward three suggestions for China's future legislation: (a) to adopt the closest connection doctrine as a general principle; (b) to adopt the "integrated contacts-evaluation" approach to determine the country of closest connection; (c) to regulate the presumption of characteristic performance in legislation.

What Role for Academic Writers in Interpreting International Law?--A Rejoinder to Orakhelashvili

Hilpold, P. — 2009-06-13

The points of criticism advanced by Orakhelashvili can be confuted easily. Secession is a fact. A rule according to which secession can produce legal effects only to the extent these are allowed, as identified by Orakhelashvili, cannot be found in International Law. On a whole, the right to self-determination is a far more complex concept than portrayed by Orakhelashvili. Finally, Orakhelashvili seems to attribute a very limited role to the academic writer in norm interpretation: the straightforward choice between "right" and "false" interpretations. However, a more nuanced position must be taken.

Chinese Practice in Public International Law: 2008

ZHU — 2009-06-11

This Survey covers materials reflecting Chinese practice in 2008 relating to: I. Fundamental Principles of International Law (Five Principles of Peaceful Coexistence; Respect of State Sovereignty and Territorial Integrity; Non-Intervention of Internal Affairs; Peaceful Settlement of International Disputes); II. International Peace and Security (Fight against Terrorism; Women, Peace and Security; The Zimbabwe Situation; The Darfur Situation in Sudan; The Kosovo Issue); III. International Law on Disarmament and Arms Control (Nuclear Disarmament and Non-Proliferation; Chemical Weapons; Biological Weapons); IV. International Law on Recognition (Kosovo; South Ossetia and Abkhazia); V. China's Territorial Integrity and Boundaries (Taiwan; Tibet; Xisha Islands and Nansha Islands; Diaoyu Islands; China–Russia Boundary; China–India Boundary); VI. International Law of the Sea (Delimitation of the East China Sea; Delimitation of the Outer Limits of Continental Shelf Beyond 200 NMs; Straits Use for International Navigation; Conservation and Sustainable Use of Marine Biological Diversity beyond Areas of National Jurisdiction; International Seabed Authority; International Tribunal of the Law of the Sea (ITLOS); China's Convoy Fleet in Somalia Coast); VII. International Law on Outer Space (Peaceful Use of Outer Space; Anti-Satellite Weapons); VIII. International Law on the Treatment of Aliens (Frontier Health and Quarantine; North Korean Asylum-seekers in China); IX. International Law on Human Rights (Rule of Law; Death Penalty; Rights of the Child; Women's Rights; Torture; Rights of the Persons with Disabilities; Dialogue on Human Rights; Human Rights Council; Implementation of Human Rights Instruments); X. International Humanitarian Law (Children in Armed Conflict; Landmines; Explosive Remnants of War; Cluster Munitions; Tear Gas; Right of Individual Claims for Violations of International Humanitarian Law; Search of US soldiers remains in China and North Korea); XI. International Law on Treaties (Reservations to Treaties; Effects of Armed Conflicts on Treaties); XII. International Law on Environment (Principle of "Common but Differentiated Responsibilities"; Shared Natural Resources; Climate Change); XIII. International Law on Diplomatic Relations and Consular Relations (Effective Measures to Enhance the Protection, Security and Safety of Diplomatic and Consular Missions and Representatives; Diplomatic Privileges); XIV. International Criminal Law (International Criminal Court (ICC); Immunity of State Officials from Foreign Criminal Jurisdiction; Criminal Accountability of United Nations Officials and Experts on Mission; Repatriation of Some Chinese in Guantanamo; International Suppression of Drug Crimes; Conclusion of Treaties on Extradition and Criminal Mutual Assistance); XV. Charter of the United Nations (Importance of the United Nations and the Role of China; Sanctions by the United Nations; Amendment of the UN Charter; Reform of the Security Council); XVI. International Law on International Organizations; XVII. International Law on Disaster Relief.

The International Tribunal for the Law of the Sea: Activities in 2008

Gautier, P. — 2009-06-06

This paper gives an overview of the activities of the International Tribunal for the Law of the Sea in 2008. It provides information on the 18th Meeting of States Parties (2008), organizational developments, the jurisdiction and cases before the Tribunal.

The Kosovo UDI between Agreed Law and Subjective Perception: A Response to Hilpold

Orakhelashvili, A. — 2009-05-14

Just like any other important international controversy, the Unilateral Declaration of Independence in Kosovo raises multiple aspects of the relationship between law, fact and politics on the international plane. Diverse outcomes and solutions could be suggested from a theoretical perspective, with different options for balancing the importance of legal, factual and political factors. However, making an international legal argument on the independence claim of Kosovo requires that argument to be based on the verifiable set of qualified evidence pointing to the acceptance of the pertinent position by the international society of States. Over-theorizing the Kosovo question detaches its analysis from the international legal argument.

New Developments in the International Law of Piracy

ZOU — 2009-05-03

The law of piracy can be regarded as the oldest branch of international law, particularly the law of the sea. While the basic legal stipulations in international law as embodied in the 1982 UN Convention on the Law of the Sea remained unchanged for a long time, there are some new developments relating to the change of the law of piracy associated with the resurgence of contemporary piracy in the 1990s and the so-called "anti-terror war" led by the United States after the September 11 event. This paper will address three aspects: the definition of piracy; new international legislation concerning piracy; and recent State practice, all contributing to the development of the international law of piracy.

International Treaties in the Chinese Domestic Legal System

XUE, JIN — 2009-04-29

China has made considerable progress in the past thirty years with respect to implementation of international obligations in its domestic legal system. Although China's Constitution and its basic laws do not set forth a general provision on the status of treaties in the domestic legal system, substantive treaty obligations undertaken by China, to a large extent, have been incorporated into special national laws, exerting a direct impact on the economic and social activities of the country. This article examines various forms and modalities by which China implements its international obligations at domestic level. There have been an increasing number of cases where courts apply treaty provisions to give private parties additional legal protection. In the civil and commercial areas, international treaties apply primarily to cases with foreign elements, while in the criminal law area, China has prescribed almost all of the international crimes as criminal offences under its national criminal law. China implements its international obligations in good faith with the view that effective implementation of treaty obligations will not only serve well its own development, but also promote peace and cooperation among States.