Chinese Journal of International Law - current issue

Asian Traditions and Contemporary International Law on the Management of Natural Resources

Benvenisti, E. — 2008-07-08

In the 1997 decision of the International Court of Justice in the dispute between Hungary and Slovakia regarding the uses of the Danube, Judge Weeramantry invoked ancient Asian traditions concerning the utilization of shared water resources to offer novel insights for the development of international law. In searching for inspiration for the concept of sustainable development in international environmental law, Judge Weeramantry examined the ancient irrigation-based civilization of his country, Sri Lanka, as well as early systems in other Asian societies. Asian traditions reflect numerous examples for fruitful cooperation in the management of shared natural resources, in diverse areas such as Cambodia, China, India, Indonesia and Iran, and the Middle East. Local social norms, shared culture and even religion have been utilized for sustaining long-term equitable utilization of shared watercourses. Many of the irrigation systems, including the social arrangements that supported them, survive to this day. In later periods, under the influence of Western scientists who showed no reverence to "primitive" practices, many Asian governments upset the delicate indigenous systems by imposing centrally planned, unsustainable management systems. Contemporary scientists and disillusioned governments are now rediscovering those ancient practices and are trying to reinstate them where possible. This paper describes these traditional irrigation practices and analyses the logic of collective action that sustains them. The insights of this exercise are then used to examine contemporary issues related to the management of freshwater resources in Asia, including the Indus, the Ganges and the Mekong rivers. The basic argument is that the shared Asian traditions, which also are reflected in contemporary international law, can and should serve as guidance in the management of the region's many shared resources.

The Immunity of International Organizations and the Jurisdiction of their Administrative Tribunals

Reinisch, A. — 2008-07-08

International organizations regularly enjoy immunity from suit in employment-related cases. Instead of litigation before various national courts, staff members are supposed to bring their complaints before internal grievance mechanisms and ultimately before administrative tribunals set up by the organizations. The scope of jurisdiction of such administrative tribunals largely covers the kind of staff disputes insulated from national court scrutiny as a result of the immunity from legal process enjoyed by international organizations. Inspired by the case law of the European Court of Human Rights, in particular its 1999 Waite and Kennedy judgment according to which the jurisdictional immunity of international organizations may depend upon the availability of "reasonable alternative means" to protect effectively the rights of staff members, more and more national courts are equally looking at the availability and adequacy of alternative dispute settlement mechanisms. Some of them have even concluded that the non-availability of legal protection through an administrative tribunal or the inadequacy of the level of protection afforded by internal mechanisms justifies a withdrawal of immunity in order to avoid a denial of justice contrary to human rights demands.

State Immunity, China and Its Shifting Position

QI — 2008-07-08

This paper argues that China may well consider a probable shift of its position on the principle of State immunity from the absolute doctrine to the restrictive doctrine for the purpose of better accommodating the rapid growth of the private sector in China's economic structure and significantly enhancing the judicial protection of the interest of Chinese private entities actively involved in international commerce since the 1990s. This paper makes a brief study of China's past practice and position in relation to State immunity, offers an analysis of the rationale for a position shift, recommends means to facilitate the shift and comments on some relevant principal legal issues about which China may have legitimate concerns.

International Legal Personality of the Hong Kong Special Administrative Region

SUN — 2008-07-08

This paper briefly reviews the change in the political status of Hong Kong from a British colony to a Special Administrative Region of the People's Republic of China, sets out the international rights and obligations of the Hong Kong Special Administrative Region (HKSAR) as evidence of its international legal personality and discusses whether the HKSAR can be treated as a subject of international law.

The 2007 Record of the International Court of Justice

Bekker, P. H.F. — 2008-07-08

This article presents a brief overview of developments relating to the International Court of Justice during 2007. It also offers a succinct outlook on the basis of the status of the Court's docket and its programme of work as at 31 December 2007.

The International Tribunal for the Law of the Sea: Activities in 2007

Gautier, P. — 2008-07-08

This paper gives an overview of the activities of, and those relating to, the International Tribunal for the Law of the Sea in 2007. It provides information on the 17th Meeting of States Parties, organizational developments and the jurisdiction of the Tribunal, and comments on cases before the Tribunal in 2007.

The International Criminal Tribunal for the Former Yugoslavia in 2007: Key Developments in International Humanitarian and Criminal Law

Bostedt, F., Dungel, J. — 2008-07-08

The year 2007 was again a very productive year for The International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. This article examines the judgements rendered by the Tribunal in 2007 and highlights the principal developments in international humanitarian and criminal law at the Tribunal. Among many other issues, the Tribunal's 2007 jurisprudence clarified important aspects of three forms of individual criminal responsibility, namely, aiding and abetting ("by omission"), superior responsibility and the joint criminal enterprise doctrine.

Comments on Commission of the European Communities v. Ireland

GAO — 2008-07-08

Commission of the European Communities v. Ireland is important for it clarifies the division of areas of competences between the European Community (EC) and its Member States in the mixed agreements, such as the United Nations Convention on the Law of the Sea (LOS Convention). According to the Court of Justice of the European Communities, a finding that there has been a transfer to the Community of areas of shared competence is contingent on the existence of Community rules within the areas covered by the mixed agreement provisions in issue, even though these rules establish only minimum standards. Thus, when dealing with the LOS Convention disputes involving EC Member States, the court or tribunal needs to establish that the shared competence in question has not been transferred to the Community. Otherwise, it should decline jurisdiction on the basis that the parties or party lack(s) locus standi.

Against Enforced Disappearance: the Political Detainees' Case before the Nepal Supreme Court

Uprety, K. — 2008-07-08

Enforced disappearances, for political reasons, are still a common practice in many countries. In many instances, courts have taken bold steps to deter State agencies from orchestrating and encouraging such acts through orders and decisions. In that vein, Nepal's Supreme Court, in 2007, breaking the long tradition of a conservative and passive approach to justice, issued a verdict of significant proportion which could have a long-lasting effect on the country's political governance, both from the municipal as well as international law perspectives.

The Legal Findings of Crimes against Humanity in the Al-Dujail Judgments of the Iraqi High Tribunal: A Forerunner for the ICC?

Kuschnik, B. — 2008-07-08

The Iraqi High Tribunal's (IHT) trial-and-appeal judgments in Al-Dujail against Saddam Hussein et al. contain surprisingly detailed findings in international criminal law dogmatic, particularly regarding the elements of crimes against humanity. Since the statutory legal basis of crimes against humanity on which Al-Dujail is grounded is close to identical to its ICC counterpart set forth in Article 7 of the ICC Statute, the interpretations brought forward by the IHT might be of high relevance for future interpretation of Article 7 of the ICC Statute. This article discusses possibilities and limits thereof. Particular focus has been set on the problems of what shall be meant by "multiple" commissions of acts set forth in the legal definition of "attack", and what level of mens rea shall be required for "murder" as a crime against humanity.

Chinese Practice in Public International Law: 2007 (I)

ZHU — 2008-07-08

This part of the Survey covers materials reflecting Chinese practice in 2007 relating to (i) Fundamental Principles of International Law (General Position; Respect of Sovereignty and Territorial Integrity; Non-Intervention of Internal Affairs; Rule of Law at the International Level); (ii) International Peace and Security (Nuclear Policy and Nuclear Disarmament; Non-Proliferation; Against Terrorism; Prevention and Resolution of Conflicts; North Korean Nuclear Issue; Iranian Nuclear Issue; Myanmar Situation; Afghanistan Situation; Darfur Situation in Sudan; Haiti Situation); (iii) China's Territorial Integrity (Taiwan; Tibet; Xisha Islands and Nansha Islands; Diaoyu Islands); (iv) International Law of the Sea (Delimitation of East China Sea; Okinotori Reef (Chongzhiniao Jiao); Delimitation of the Outer Limits of Continental Shelf beyond 200 nautical miles; International Seabed Authority; Navigation; Pollution from Vessels); (v) International Law of the Outer Space (Peaceful Use of the Outer Space; Application and Interpretation of the Outer Space Treaty in China's Courts); (vi) Individuals in International Law (Nationality; North Korean Asylum-seekers in China; Diplomatic Protection and Consular Protection; Expulsion of Aliens).

Statement on the Rule of Law at the National and International Levels (2007)

DUAN — 2008-07-08

In this 2007 Statement, the Chinese representative puts forward China's views on the topic of the rule of law.

China's Efforts and Achievements in Promoting the Rule of Law

The State Council Information Office, China — 2008-07-08

This government whitepaper describes the Chinese people's struggles for democracy, freedom, equality and the building of a country under the rule of law. It first provides an introduction to the historical course of these efforts and a general description of the Chinese legal system. The whitepaper then describes separately human rights protection, the market economy, public administration and governmental regulation, judicial enforcement of law and administration of justice, legal education, and international exchange and cooperation relating to these issues.

Statement on Expulsion of Aliens, Effects of Armed Conflicts on Treaties, Responsibility of International Organizations (2007)

LIU — 2008-07-08

In this 2007 Statement, the Chinese representative elaborates China's views on the work of the International Law Commission regarding expulsion of aliens, effects of armed conflicts on treaties, responsibility of international organizations.

Statement on Responsibility of States for Internationally Wrongful Acts (2007)

MA — 2008-07-08

In this 2007 statement, the Chinese representative puts forward the views of the Chinese delegation on the International Law Commission's "Draft Articles on Responsibility of States for Internationally Wrongful Acts".

Statement on "Prevention of Transboundary Harm from Hazardous Activities and Allocation of Loss in the Case of Such Harm" (2007)

MA — 2008-07-08

In this 2007 statement, the Chinese representative puts forward the views of the Chinese delegation on the International Law Commission's work relating to the "Prevention of Transboundary Harm from Hazardous Activities and Allocation of Loss in the Case of Such Harm".

Review of Chinese Reviews: Selected Articles Recently Published in Chinese [Part 7(2)]

BI — 2008-07-08

Legal Materials on China Received and Catalogued in the Peace Palace Library: 2007

Kost, I. — 2008-07-08

The New Cold War: How the Kremlin Menaces both Russia and the West

Mullerson, R. — 2008-07-08

Dui Guonei Zhanzhengzui de Pubian Guanxia yu Guojifa [Universal Jurisdiction over War Crimes in Non-International Armed Conflicts and International Law]

BAI — 2008-07-08

Globalization and Its Discontents

Du, M. M. — 2008-07-08