Collected Courses of the Xiamen Academy of International Law, Volume 11 (2017)

Erscheinungsjahr 2017
ISBN: 978-90-04-35353-4
Verlag: Brill

Buch, Englisch, Band 11, 330 Seiten, Format (B × H): 155 mm x 235 mm, Gewicht: 680 g

Reihe: Collected Courses of the Xiamen Academy of International Law

The first essay of this volume is written by Hans van Loon, who was the Secretary-General of The Hague Conference of Private International Law (HCCH) from 30 June 1996 to 30 June 2013, and who steered the Conference during a time of global expansion and transformation. He has been a forerunner in the formulation of modern private international law through multilateral treaties and was involved in the development of nine Hague Conventions, as well as the revision of the Statute of the Hague Conference. The continued relevance of the Hague Conference in the 21st century is in large part due to his commitment to the field of private international law and his awareness of its role in a broader social context.
In recent years, private international law has become intertwined with public international law. Van Loon's essay on "At the Cross-Roads of Public and Private International Law - The Hague Conference on Private International [and its Work]" evidences that the system of modern international law is inseparable from private international law.

One of the most highly qualified figures in international marine environment law is Prof. Bimal N. Patel, Director and Professor of Public International Law, Gujarat National Law University in India. The protection and preservation of the marine environment has been the subject of global and regional cooperation within the framework of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and other multilateral treaties thereof. Prof. Patel's essay on "Marine Environment Law and Practice of China, India, Japan and Korea" provides a timely study of the material sources of international marine environmental law.

Prof. Ernst-Ulrich Petersmann has been a pioneer in formulating the material part of international economic law in each of its developmental stage. His essays display remarkable intellectual vitality, illustrating his new initiatives in the subject of international economic law. He was first invited to lecture at the Xiamen summer programme in 2006, on "New Dimensions of International Economic Law", and he was again invited to deliver a lecture on "Methodological Problems in International Trade, Investment and Health Law and Adjudication" at the commemoration of the tenth anniversary of the establishment of Xiamen Academy in 2015. With his practical experience with the World Trade Organization (WTO), and teaching and research at the European University Institute in Florence, Prof. Petersmann has not only promoted and illuminated public international economic law, he is also one of a group of highly qualified scholars who have been writing and collaborating with others in order to lay the foundation of modern international economic law.

Autoren/Hrsg.

Cheng, Chia-Jui

Fachgebiete

• Rechtswissenschaften Internationales Recht und Europarecht Internationales Recht Internationales Öffentliches Recht, Völkerrecht, Internationale Organisationen

Inhaltsverzeichnis

Preface
Notes on Contributors

At the Cross-roads of Public and Private International Law – The Hague Conference on Private International Law and Its Work
Hans Van Loon
1 Role and Mission of the Hague Conference on Private International Law
a An Intergovernmental Organisation Concerned with Private Relationships and Transactions
b Diversity of Private Law
c Unification of Private Law
d Diversity of Private International Law
e Unification of Private International Law: The Mission of the Hague Conference
2 Origin and Development of the Hague Conference
a Birth of the Hague Conference
b Establishment as a Permanent Intergovernmental Organisation
c Early Innovations
d Bridging the Civil and Common Law Divide
e Bridging the Divide between Systems Based on Faith and Secular Systems
3 The Impact of Contemporary Globalisation
a Globalisation and Its Impact on the Nation-state
b Proliferation of Legislation at All Levels – Expansion of the Hague Conference
c Impact of Globalisation on Private International Law Approaches and Methods
4 Hague Conventions Promoting Global Trade, Investment and Finance
a The Global Framework Regulating the Cross-border Movement of Goods, Services, Capital and Workers
b Hague Instruments Concerning Global Trade, Investment and Finance
5 Hague Conventions Promoting Administrative and Judicial Cooperation
a 1961 Hague Apostille Convention
b 1965 Hague Service Convention
c 1971 Hague Evidence Convention
d 1980 Access to Justice Convention
6 Hague Conventions Promoting Personal Security and Protecting Families in Cross Border Situations
a The Global Framework for the Protection of Private and Human Rights in Cross-border Situations
b Hague Conventions on Marriage and Divorce
c Hague Conventions on the Protection of Children
7 Outlook – (Potential) Significance of the Hague Conference and Its Work for the Asia-Pacific Region
Selected Publications

Marine Environment Law and Practice of China, India, Japan and Korea
Bimal N. Patel
1 General Introduction – International Obligations in Municipal Legal System
a Introduction
b State Practice: An Essential Element of Customary International Law
c Need for Maritime Environmental Laws
d Enforcement of International Marine Agreements by the Four Nations
2 Legislative Implementation of International Obligations in Four States
a People’s Republic of China
b India
c Japan
d Republic of Korea
3 unclos and International Marine Environmental Law
a Sources and Type of Marine Pollution
b Legal Framework – unclos and Regional Treaties
c Operational Vessel-Source Pollution
d unclos Jurisdictional Framework
e Accidental Vessel-Source Pollution
f Pollution Emergencies
g Vessel Source Pollution
h Civil Liability
i Seabed Pollution
j Dumping at Sea
k Land-Based and Atmospheric Pollution
4 Marine Environmental Protection: Legislations, Policies Mechanisms, Practices, Issues and Challenges
a Major Marine Environmental Issues and Trends
5 International Marine Environmental Law Practice
a China
b India
c Japan
d Republic of Korea
6 General Conclusions and Suggestions
a The Enforcement of Environmental Agreements Generally
b Pollution Control on the Development of Mineral Resources in Coastal Regions
c Conclusion
d Five Important Take-Away on Future Possibilities
e Regional Dimensions of Global Issues
f Monitoring, Verification, and Non-coercive Enforcement

Methodological Problems in International Trade, Investment and Health Law and Adjudication
Ernst Ulrich Petersmann
Introduction: International Economic Law as an ‘imagined order’ and as Incomplete, Fragmented and Under-theorized ‘positive law’
1 Legal Methodology for iel: The Public Good of an Open Trading System as a Multilevel ‘republic of citizens’ (res publica)?
a From Jurisprudence to Legal Philosophy
b The ‘human condition’ and the ‘dual nature’ of Modern Legal Systems
c From State-centered to Citizen-centered Conceptions of International Law?
d Cosmopolitan International Economic Law? The pg of an Open Trading System as a ‘republic of citizens’?
2 How to Justify and Design iel for Multilevel ‘republics of citizens and peoples’?
a Republican Theories of ‘aggregate pgs’ and ‘collective action problems’
b Competing Conceptions of iel and of Its Underlying ‘principles of justice’
c Does hrl Require Cosmopolitan Conceptions of iel and ‘multilevel republicanism’?
3 ‘Constitutional justice’, Different ‘contexts of justice’, Their Democratic Regulation and Judicial Clarification
a Dialectic ‘fragmentation’ and ‘integration’ of Legal Systems Through Democratic, Republican and Cosmopolitan Constitutionalism
b Need for Comparative Institutionalism
c Need for Challenging Path-dependent iel
d From ‘constitutionalism 1.0’ to Multilevel ‘cosmopolitan constitutionalism 3.0’
e Need for ‘connecting’ Multilevel Market Regulations Through Domestic Application of ‘pgs treaties’
4 Multilevel Governance Problems of ‘global pgs’: From ‘law and economics’ towards the ‘Geneva consensus’
a The ‘Washington consensus’ on ‘law and economics’ in iel
b The Limits of ‘trade theories’ for Explaining Trade Regulation
c From ‘justice as efficiency’ to ‘constitutional economics’ and ‘human development’
d The Dialectic Evolution of iel: Towards a ‘Geneva consensus’ (P. Lamy) on Citizen-driven ‘network governance’?
e Multilevel Governance and ‘regulatory competition’
5 Legal Fragmentation: How to Reconcile Investment Law and Adjudication with Human Rights?
a The Transformation of International Investment Law Through Investment Treaties and Arbitration
b How to Reconcile Investment Law with Human Rights Law?
c The Different Perspectives of Investors, Home and Host States, Amici Curiae and Judges in isds
6 How to Reconcile Health Law and iel with Human Rights Law? The Example of Multilevel Tobacco Control Litigation
a Worldwide Recognition of Rights to Health Protection
b The wto Complaints against Australia’s Legislation on ‘plain-packaging’ of Tobacco Products
c ‘Balancing methods’ Used in wto Tobacco Control Disputes
d Administration of Justice in Investor-state Tobacco Disputes?
7 Outlook: Republican and Democratic Constitutionalism Can Legitimize Multilevel Governance of pgs and ‘global legal pluralism’
a How to Limit the Reality of ‘global legal pluralism’?
b Legal, Sociological and Moral Legitimacy in Multilevel Governance of Public Goods
c From the ‘mandate of heaven’ to ‘constitutional functions’ of iel in China?
d China’s 2014 ‘rule of law’ Strategy: Does Law Prevail over the Communist Party?
e Need for ‘multilevel republicanism’ in Multilevel Governance of Global ‘aggregate pgs’
f Conclusion: Promoting ‘constitutional justice’ Through Republican Rights for Local Protection of Transnational ‘aggregate public goods’

Index

Über Autor(innen)

Cheng Chia-Jui LLD (1968), National Athens University, is Professor of International Law. Currently he is also Secretary-General of Xiamen Academy of International Law and Secretary-General of Asia Academy of Comparative Law. He has published monographs and many articles on International and Comparative Law.