Chinese Journal of International Law - current issue

Foreword

2009-02-25

Precedents in the Mountains: On the Parallels and Uniqueness of the Cases of Kosovo, South Ossetia and Abkhazia

Mullerson, R. — 2009-02-25

International law, especially its customary part, evolves to a great extent through acts of State practice serving as precedents. If States do not want that their behaviour becomes law (i.e. if they prefer to act contrary to Kant's categorical imperative), they claim that certain acts of their behaviour are so unique, so peculiar that they must not be considered as contributing to the change of law (they express their opinio non juris). In the 1990s, the UN Security Council also found that only uniqueness of situations in Somalia, Haiti and Bosnia-Herzegovina justified the use of "all necessary means" to deal with those situations. More recently, the recognition of the independence of Kosovo by a number of States and the recognition of Abkhazia and South Ossetia by Russia were described by recognizing States as being so unique, so sui generis that they could not serve as precedents. The article argues that the uniqueness, or parallels for that matter, is usually in the eye of the beholder. Whether certain situations, facts or acts serve as precedents depends to a great extent on whether one is interested in seeing them as precedents or not. People too often act upon their ideologies, beliefs and prejudices, not upon facts; the latter are interpreted in the light of preconceived ideas, or as Charles King, writing of the Georgia–Russian war, observes, "unfortunately, Western thinking of Russia has too often substituted analogy for analysis" ("Putin's March to the Sea", Foreign Affairs, Vol. 87, No. 6, November–December 2008). Then this article proceeds to study in greater detail parallels and differences between Kosovo, on the one hand, and Abkhazia and South Ossetia, on the other. The study ends with an inquest into the matter of how different States (or categories of States) deal with secessionist problems.

The Independence of Kosovo: A Unique Case of Secession?

JIA — 2009-02-25

The issuance of the Declaration of Independence by Kosovar authorities in February 2008 has been treated by the United Nations as not capable of creating a precedent in international law. The question remains as to whether the act was in conformity with international law. In resolution A/RES/63/3, the United Nations General Assembly decided to request the International Court of Justice to render an advisory opinion on that question. The Kosovo case, consequently, raises issues that merit further consideration. A legal finding by the Court would be worth all this trouble if it clarified the rules regarding post-colonial-age secessions, even though its conclusion on the situation of Kosovo will not be likely to affect the matter of recognition to any great extent. International intervention as a title to sovereignty is given some truth following these events concerning Kosovo. The conformity or not with international law of a unilateral act always depends on the legality of both the root for its initiation and the original rationale. From this perspective, the independence of Kosovo is indeed a unique case of secession.

The Kosovo Case and International Law: Looking for Applicable Theories

Hilpold, P. — 2009-02-25

The Kosovo problem represents a formidable occasion to re-examine some basic tenets of international law, such as the so-called right to humanitarian intervention, the right to self-determination and the right of recognition. It will be shown here, however, that many proposals suggesting the need of a radical departure from traditional positions are ill-conceived. Nonetheless, it is the uniqueness of many facets of the Kosovo problem that requires the analyst to look for new solution. It is now up to the International Court of Justice to show the way in a politically much loaded case. In particular, the right to self-determination should find a re-interpretation corresponding to the needs of the twenty-first century.

Aviation Safety, ICAO and Obligations Erga Omnes

HUANG — 2009-02-25

The International Civil Aviation Organization (ICAO) is a United Nations (UN)-specialized agency mandated to promote the safety of international civil aviation. Because of the importance of air transport in the contemporary society, safety issues have become a matter of prime and common concern. Safety oversight function is not only the individual but also the collective responsibility of States. In view of the inherent link between aviation safety and the elementary considerations of humanity, the obligation to provide safety oversight has arguably acquired an erga omnes character, and all States have a legal interest in its observance. The audit activities of ICAO have provided some preliminary experience demonstrating that this obligation should ideally be enforced through centralized and neutral mechanisms within the UN system.

Desordre Public International under the New York Convention: Wither Truly International Public Policy

Fry, J. D. — 2009-02-25

Much confusion has revolved around the nature of the public policy defense under Article V(2)(b) of United Nations Convention on the Recognition and Enforcement of Arbitral Awards (the New York Convention) to the point that the French term for public policy, ordre public, ought to be changed to désordre public to reflect the general disorder in the discourse on this particular subject. This article takes an in-depth look at the public policy defense and challenges the notion that enforcement States are obliged to consider supranational public policy when deciding whether to recognize or enforce an international arbitral award, except in only a few cases where certain regional obligations are involved. Even then, this is not the type of truly international public policy that is advocated by numerous commentators. Nonetheless, States are free to rely on truly international public policy when deciding on enforcement. Despite the perceived benefits to relying on truly international public policy, there are significant reasons to refrain from pushing for such reliance. While reliance on truly international public policy may help mitigate some of the adverse side effects associated with globalization, it is important to ask what is the price we are willing to pay to counter these side effects. The price should not be the emasculation of the New York Convention itself.

The Recognition of the Chinese Government and the Convention on International Civil Aviation

Talmon, S. — 2009-02-25

This article traces the membership and representation of China in the International Civil Aviation Organization. It examines which of the two governments claiming to represent China, the Government of the Republic of China (ROC) or the Government of the People's Republic of China (PRC), has, at any one time, been regarded as competent to exercise China's membership rights under the Convention on International Civil Aviation (Chicago Convention). In particular, the article asks which government can today validly designate "customs airports" in China, including Taiwan, and exercise the various other rights in respect of non-scheduled and scheduled flights referred to in Articles 5 and 6 of the Chicago Convention. It explains why airlines can operate direct international air services to non-designated airports in Taiwan without the special permission or other authorization of the Government of the PRC, despite the latter being regarded as having complete and exclusive sovereignty over the airspace above Taiwan.

Implementation of Human Rights Treaties by Chinese Courts: Problems and Prospects

Guo, S. — 2009-02-25

This article explores the implementation of human rights treaties by courts in the People's Republic of China. The general applicability of treaties in China is not mentioned in its Constitution, which leaves the status of treaties unclear in Chinese courts, and varying from area to area. In the human rights area, the application of treaties at the domestic level requires incorporation. The status of general comments and concluding observations made by treaty bodies is unclear, too. On the basis of the current human rights legislation in China, the problems and prospects of four different kinds of litigation (constitutional, civil, criminal and administrative) in Chinese courts are discussed separately.

Notes on the International Court of Justice (Part 2): Reform Proposals Regarding the International Court of Justice--A Preliminary Report for the International Law Association Study Group on United Nations Reform

Yee, S. — 2009-02-25

Written for the International Law Association Study Group on UN Reform, this Preliminary Report reviews the more significant reform proposals regarding the International Court of Justice (ICJ) and makes some suggestions for further consideration such as the appropriateness of an ICJ Bar and a Model Code of Conduct for practice before the ICJ, the role of the ICJ and its heavy caseload, and possible coalitions to promote the ICJ.

Comments on Guyana v. Suriname

GAO — 2009-02-25

Guyana v. Suriname is a case where the international tribunal has an opportunity to deal with the state responsibility issue in a maritime delimitation dispute. This paper examines the jurisdiction of the arbitral tribunal over Guyanese submission that Suriname was internationally responsible for violating its obligations under the LOS Convention, the Charter of the United Nations and general international law to settle disputes by peaceful means. And the arbitral tribunal made great contributions to the clarification of the obligations under Articles 74(3) and 83(3) of the LOS Convention to make every effort to enter into provisional arrangements and not to jeopardize or hamper the reaching of a final delimitation agreement.

Migrant Workers as Citizens within the ASEAN Landscape: International Law and the Singapore Experiment

CHEAH — 2009-02-25

Using both legal and sociological definitions of citizenship, this paper examines how the international community, ASEAN countries and Singapore have responded to the migrant worker question.

The first part of this paper uses ASEAN examples and interrogates the question of migrant worker citizenship from an international legal or policy perspective, particularly recent efforts to construct a differentiated citizenship for migrant workers within destination States based on an inclusionary principle.

The second part of this paper then undertakes a close case study of foreign domestic workers or "maids" in Singapore. I examine how maids are depicted as non-citizens under Singapore's law and policy, how Singaporean non-governmental organizations have sought to counter this and how the latter may be guided by internationally developed concepts of differentiated citizenship and the inclusionary principle.

Protection and Development of Tibetan Culture

The State Council Information Office, China — 2009-02-25

This government whitepaper outlines China's policy regarding, and its promotion of, Tibetan culture as well as the motives behind such policy and promotion. It details the learning, use and development of the spoken and written Tibetan languages, the inheritance, protection and promotion of the Tibetan cultural heritage, the respect for the religious beliefs and native customs, and the all-round development of modern science, education and the media. The paper concludes that Tibetan culture is blooming with new vigor and energy in the new age and profoundly influencing the life of Tibetans and the development of Tibet's modernization through its diverse content and innovative forms.

Reflections on International Judges and Their Decision-making: A Review Essay on Daniel Terris et al. (eds), The International Judge

Degan, V.D. — 2009-02-25

In reviewing this valuable book, some reflections were given concerning nominations of candidates for judicial posts, as well as on moral integrity of particular judges in the proceedings before the International Court of Justice on South West Africa (Namibia) between 1950 and 1971. Paradoxically, the controversial Judgment of 1966 had some salutary effects on further development of rules of general international law.