Chinese Journal of International Law - current issue

Promoting Democracy without Starting a New Cold War?

Mullerson, R. — 2008-03-10

Spread of market economy and promotion of democracy are twin components of globalization. Both are generally positive phenomena that are taken by many to be something as obvious as God, motherhood and apple-pie. However, there is too much naivety and hypocrisy, especially in the process of promotion of democracy. In the case of societies that lack elementary preconditions for the introduction of democracy, the remedy may be worse than the illness. The end of the Cold War did not end the attempts to use concepts, such as democracy and human rights, as ideological tools to undermine other States. Attempts to change domestic social and political systems, especially those of great powers or their allies and neighbours, may lead to a new era of great power confrontation that would be especially dangerous because of common threats such as terrorism, spread of weapons of mass destruction, environmental crisis and so on.

Discourses of Division: Law, Politics and the ICJ Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

Burgis, M. — 2008-03-10

This article undertakes a critical reading of the arguments used at the bench and the bar in the 2004 ICJ Wall advisory opinion. The Wall case included an unprecedented number of State and non-State participants and it is therefore a valuable site in which to explore the parameters and limits of legal speech. What argumentative strategies were employed at the Peace Palace? How did different participants present the relationship between law and politics? In particular, because the example of Palestine can be seen as a challenge to the post-colonial order, how did Third World States employ the language of international law in support of Palestinian self-determination? It is shown that although international legal speech is highly restrictive, many Third World States are willing to challenge its boundaries through a deep-set faith in the dividends of legal argumentation.

Implementing Security Council Resolutions in Hong Kong: An Examination of the United Nations Sanctions Ordinance

Bonnie, C. Y. K. — 2008-03-10

The United Nations Sanctions Ordinance is the primary legal basis of the Hong Kong Special Administrative Region (HKSAR) for implementing the United Nations Security Council's resolutions. However, there are concerns that the Ordinance is potentially violating the separation of powers in its delegation of regulation-making authority to the executive. There are also criticisms against the expediency of the Ordinance as a mechanism for enforcing Security Council sanctions. Against this background, this paper attempts to examine the separation of powers doctrine, its place in HKSAR's constitutional system and its relevance to the Ordinance. On the issue of expediency, this paper focuses on the scope and speed of implementing the sanctions, and the human rights and criminal justice problems it involves. For comparative purposes, references are to be made to the law of the USA, Canada and Singapore.

Towards a Harmonious World: The Roles of the International Law of Co-progressiveness and Leader States

Yee, S. — 2008-03-10

This paper briefly summarizes the tenets of the idea of a Harmonious World as proposed by China, compares them with those of a Co-progressive World as proposed by the author and highlights the important roles of the international law of co-progressiveness and leader States in realizing the vision of the Harmonious World or Co-progressive World.

Comments on the 2007 Draft Manual on International Humanitarian Law in Air and Missile Warfare

WANG — 2008-03-10

Although substantial changes have been made to the 2006 Draft Manual on International Humanitarian Law (IHL) in Air and Missile Warfare, questions remaining in the 2007 Draft should be clarified from the point of view of IHL, and the fundamental principles and basic concepts of IHL ought to be reaffirmed and respected. Since there are hints of confusion and violations of these principles and concepts, in places such as the definition of terms, the controversial and permitted weapons and the scope of application of the Manual, attention should be paid to them when perfecting the Draft Manual.

Reasonableness of the Bond under Article 292 of the LOS Convention: Practice of the ITLOS

GAO — 2008-03-10

The International Tribunal for the Law of the Sea plays an important role in the formation of the rules concerning the reasonableness of the bond in the prompt release proceedings under the LOS Convention. In order to strike a balance between the interests of the flag State and the detaining State, the amount of the bond should not be unrelated to the gravity of the alleged offences, and it should be able to secure the enforcement of the judgment of the domestic court on the merits of the case after the release of the detained vessel and its crew. Thus, the penalties imposable under the laws of the detaining State should be taken sufficient account of. The gravity of the alleged offences may be evaluated by reference to the facts and circumstances of the particular case.

The EOS Engineering Corporation Case and the Nemo Debet Bis Vexari Pro Una et Eadem Causa Principle in China

LU — 2008-03-10

Nemo Debet Bis Vexari Pro Una et Eadem Causa is a general principle of civil procedure applied domestically in China. Foreign judgments are not regarded as res judicata unless an applicable international treaty requires otherwise. The ruling in the EOS case by the Supreme People's Court in 2003 clarified to some extent the elements that should be considered when applying this principle.

Cyprus under British Rule: An International Law Analysis of Certain Land Surveys and Land Assignments Between 1878 and 1955

Hofstotter, B. — 2008-03-10

From 1878 onwards, Great Britain exercised sovereign rights coming close to full sovereignty over Cyprus. The present article demonstrates that, by undertaking certain land surveys and land assignments with regard to religious property in North Cyprus, Great Britain ultimately failed to abide by the restriction on the exercise of its sovereign rights flowing from international law, which in turn referred to the Ottoman Law on Foundations and Endowments. Apart from shedding light on a commonly neglected aspect of colonial law, which is closely linked to key concepts of public international law continuing to shape our present-day discourse, a loose frame of reference for reparation of past injuries is sketched out.

Chinese Practice in Public International Law: 2006 (III)

ZHU — 2008-03-10

Continued from Part II published last year, this part of the Survey covers materials reflecting Chinese practice in 2006 relating to: XI. Outer Space Law (Definition and Delimitation of Outer Space; Draft Protocol on Matters Specific to Space Assets to the Convention on International Interests in Mobile Equipment; The Status and Application of Five UN Treaties on Outer Space; Practice of States and International Organizations in Registering Space Objects; The Establishment of the Disaster Management International Space Coordination Organization; The Policy of Peaceful Use of Outer Space; The Cooperative Approach to the Peaceful Use of Outer Space; The Convention of Asia-Pacific Space Cooperation Organization); XII. International Law on Diplomatic and Consular Relation (Preconditions for the Establishment of Diplomatic Relation; Vienna Convention on the Consular Relations; Diplomatic Protection and Consular Assistance); XIII. International Criminal Law (Universal Jurisdiction in Absentia; Treaty and Judicial Practice on Extradition and Criminal Judicial Assistance; The "East Turkistan" Terrorists in Guantanamo Bay; The LAI Cheong Sing (LAI Changxing) Case in Canada; The Position Towards Tokyo Trial; Illegal Migrants; Trafficking of Persons; Anti-Corruption); XIV. International Law on Environment (Environment and Development; Climate Change; Dam-building on International Rivers; Songhuajiang River Pollution Accident; Tropical Rain Forest in Southeast Asia; Animal Fur Trade; Auction of Dinosaur Egg); XV. International Organization (United Nations; World Health Organization; Shanghai Cooperation Organization); XVI. International Economic Law (International Trade Law; International Protection of Intellectual Property Rights; International Financial Law); XVII. International Law on Energy (Energy and Development; Energy Policy); XVIII. International Law on Natural Disaster (Tsunami Warning System; International Humanitarian Donation and Assistance); XIX. International Law on Health (The Issue of SARS; the Issue of Avian and Human Pandemic Influenza).

Chinese Judicial Practice in Private International Law: 2003

HUANG, DU — 2008-03-10

This survey is an analysis of Chinese judicial practice in matters relating to choice of law in over 50 civil and commercial cases in 2003. It first presents a statistical analysis of the cases in several tables and then highlights several particular issues such as renvoi, inter-temporal conflict of laws, jurisdictional competition between judicial settlement of disputes and arbitration, and recognition and enforcement of arbitral awards.

Leading Cases from Chinese Courts

Compiled by the Supreme People's Court of China — 2008-03-10

An enterprise with qualification of legal person which has been approved and registered by the competent state authority shall independently bear its civil liabilities in accordance with law. In order to determine whether the organization that has set up the enterprise should bear civil liabilities for the debt of the enterprise, thorough examinations should be carried out on the investment to the enterprise by the organization and on whether there are circumstances in which the organization withdraws the registered capital of the enterprise or maliciously transfer the property of the enterprise. If the organization has no fault in the abovementioned aspects, it shall not bear joint liability for the debts of the enterprise.

Review of Chinese Reviews: Selected Articles Recently Published in Chinese [Part 7(1)]

FU — 2008-03-10

The First International Criminal Court Moot Court Competition in China

FU — 2008-03-10