Hybrid journal (It can contain Open Access articles) ISSN (Print) 2050-4802 - ISSN (Online) 2050-4810 Published by Oxford University Press[419 journals]
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Authors:Yu W. Pages: 359 - 386 Abstract: AbstractAlthough China remains consistent in its stance and practice in unilateral sanctions episodes, its ‘decade of sanctions’ has witnessed some subtle changes—in particular, its endeavour to build a rule-of-law-based unilateral sanctions regime. Both international law and the domestic law of China provide for its unilateral sanctions. It is within the discretion of China to take unilateral sanctions as long as it is not against its obligation under the applicable international law, but its domestic law shows a certain level of insufficiency. The administrative nature of unilateral sanctions decides the core parameter of due process for a rule-of-law-based unilateral sanctions regime, which has its boundaries: the limit of law as a regulatory regime for unilateral sanctions as political instrument and the limit of domestic jurisdiction in terms of extraterritorial application. To upgrade the unilateral sanctions regime according to its own concept of rule of law in foreign relations, China needs to improve the compatibility among current laws and to provide proper remedies. PubDate: Sat, 19 Mar 2022 00:00:00 GMT DOI: 10.1093/cjcl/cxac005 Issue No:Vol. 9, No. 3 (2022)
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Authors:Jiang C. Pages: 387 - 417 Abstract: AbstractThis article studies how Chinese State actors address treaty practices that go beyond the wording of applicable law designated to separate the treaty-making power between the executive and the legislative branches, particularly whether the executive branch has exploited its institutional advantages in foreign affairs to circumvent the statutory interbranch checks amid the proliferation of treaties to which China has subscribed. Such practices concentrate on the following five issues: the textual inconsistency in the meaning attached to the term ‘treaty’ under different Chinese laws; the unclear distinction between important agreements and sole-executive agreements, and ministerial agreements; the State president’s lack of a constitutional or statutory grant of affirmative power to negotiate treaties; the State president’s non-performing role in ratifying treaties and important agreements; and the mismatch between the National People’s Congress (NPC) Standing Committee’s treaty-making power and domestic law-making power. This article concludes that problems of extra-textual practices, including difficulties in identifying the hierarchical order of a ratified/approved treaty and other consequences of ultra vires exercise of treaty power by the executive branch, do not occur in the Chinese treaty-making process. The State Council and its departments do not take advantage of sole-executive agreements to covertly expand their domestic affairs authorities and have prudently cooperated with the NPC and the Standing Committee to avoid violating applicable law. The ultimate decision-making power of the NPC Standing Committee in ratifying treaties and important agreements is warranted, and the mismatch between its treaty-making power and domestic authority has been solved through internal cooperation with the State Council and delegation of authority by the NPC. The president’s treaty-negotiation power has developed from the long-standing constitutional practices recognized by the State Council and the NPC, and the acquiescence of the NPC can also justify the president’s failure to perform a symbolic declaratory role in treaty making. PubDate: Wed, 23 Feb 2022 00:00:00 GMT DOI: 10.1093/cjcl/cxac004 Issue No:Vol. 9, No. 3 (2022)
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Authors:Liu Q; Wang J. Pages: 448 - 457 PubDate: Tue, 08 Feb 2022 00:00:00 GMT DOI: 10.1093/cjcl/cxac001 Issue No:Vol. 9, No. 3 (2022)
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Authors:Chen Y. Pages: 289 - 303 Abstract: AbstractThe article responds to the global expansion of foreign relations law as a distinct field of research by critically scrutinizing ideologies and political projects underlying the foreign relations law. The nationalistic sentiment of foreign relations law studies has been consolidated through the production of the Fourth Restatement of Foreign Relations Law of the USA. The foreign relations law is developing itself into a forcible competitor to international law. This article highlights the limits of comparative foreign relations law as well as the importance to transcend functionalism and reductionism in order to critically engage with the discipline. The article emphasizes the importance of transforming the discipline along with a modest, inclusive, and critical style. PubDate: Sat, 18 Sep 2021 00:00:00 GMT DOI: 10.1093/cjcl/cxab008 Issue No:Vol. 9, No. 3 (2021)
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Authors:Ahl B. Pages: 304 - 327 Abstract: AbstractGlobal constitutionalism and the Chinese concept of a community of common destiny for mankind provide different master narratives for the future development of the international legal order. This study analyses Chinese legal scholarship and Chinese government statements that relate to elements of global constitutionalism and the community of common destiny in order to identify the values and structures of future international law envisaged by China. We argue that although authors and government statements refute or re-interpret the underlying values of global constitutionalism such as the rule of law, democracy and human rights, Chinese scholarship embraces the idea of a higher order of international norms that derive from the common values of the international community. However, the Chinese government’s position on jus cogens appears to reject a version of peremptory norms that empower non-state actors. We find that he principle of universal security and the principle of openness and inclusiveness that form part of the community of common destiny concept extend to international law the important regime-specific domestic doctrines of social stability and national conditions. In the legal interpretation of the community of common destiny concept, this study finds evidence of a dialectical process of norm-making that consists of both a confirmation of the normative status quo and the pursuit of far-reaching changes to the international legal order. PubDate: Mon, 25 Oct 2021 00:00:00 GMT DOI: 10.1093/cjcl/cxab011 Issue No:Vol. 9, No. 3 (2021)
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Authors:Huo Z; Yip M. Pages: 328 - 358 Abstract: AbstractWhile China strongly opposes the US practice of ‘long-arm jurisdiction’, it has decided to build its own legal system of extraterritoriality. This paradox reflects the crossroads at which China finds itself currently. Being a country weaker than the sole global superpower, it needs to stand firmly against the American ‘legal bullyism’ by invoking the shield of territorial sovereignty. Yet, as an emerging world power, it is in China’s interest to establish a legal system of extraterritoriality to safeguard its own national interests that extend globally. This article has two aims. First, it provides a comprehensive overview of the current model of Chinese extraterritoriality. Second, it proposes four key planks that should support the emerging Chinese system of extraterritoriality such that it will be both distinct from the US system as well as being practically achievable in light of China’s role in the global stage, national interests, and current capacity and conditions. PubDate: Wed, 12 May 2021 00:00:00 GMT DOI: 10.1093/cjcl/cxab004 Issue No:Vol. 9, No. 3 (2021)
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Authors:Cai C; Wang Y. Pages: 418 - 447 Abstract: AbstractChinese foreign affairs have become more transparent over the past decade. This trend, initially and largely, was induced by external pressures—especially China’s World Trade Organization accession negotiations—and China is expected to exhibit, in conducting foreign affairs, greater transparency as it exerts growing international influences. It is also enhanced by the improved rule of law and national governance in China, including the Open Government Information Regulation, China’s first freedom of information (FOI) law, adopted in 2007 and amended in 2019. The rising nationalism in China also has played a growing role in this regard. The records of FOI applications and FOI applications-related litigation indicate that, although the public has considerably increased their concerns over how China’s government conducts foreign affairs, especially those that rouse bitter historical memories among the Chinese people, they are not active in using legal means to push Chinese foreign affairs to be more transparent. Furthermore, they are frustrated by the courts in China, which tend to broadly interpret the meaning of ‘acts of state’ and therefore dismiss the relevant cases. In addition, the Chinese Community Party, an overarching political accountability mechanism in China, while having the potential to ensure that the Chinese government conducts itself in an accountable manner, often constitutes a major hindrance to the greater transparency of Chinese foreign affairs. PubDate: Wed, 22 Sep 2021 00:00:00 GMT DOI: 10.1093/cjcl/cxab005 Issue No:Vol. 9, No. 3 (2021)
Hybrid journal (It can contain Open Access articles)
[419 journals]
