Lawfare in Dispute Settlement

2019 ◽  
pp. 267-320
Author(s):  
Congyan Cai
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
International Community ◽  
Normative Framework ◽  
Rise Of China ◽  
Trade War ◽  
International Adjudication ◽  
The Rise Of China

This chapter examines how China resolves international disputes from the unique perspective of lawfare. It reviews the concept of lawfare and then invents a normative framework for analyzing lawfare. Furthermore, it examines China’s changing policies and practice in international adjudication in the context of the rise of China and the judicialization of international law. Relying on the normative framework for analyzing lawfare, this chapter analyzes how China understands and uses international law to handle the China-Philippines SCS arbitration and the China-U.S. trade war, which are two crises that China and the entire international community face.

The Rise of China and International Law

2019 ◽  
Author(s):  
Congyan Cai
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
National Level ◽  
International Dispute ◽  
International Legal Order ◽  
Rise Of China ◽  
Rising China ◽  
Legal Policies ◽  
Identity Changes ◽  
The Rise Of China

The rise of China represents a far-reaching process of international relations in the twentieth century, which should bring about extensive but uncertain ramifications. How China interacts with international legal order—namely, how China takes advantage of international law to facilitate and justify its rise and whether and how international law is relied upon to engage a rising China—has been inviting growing debates among academics and policy circles. A couple of recently eye-catching events, for instance, China-Philippines South China Sea (SCS) arbitration and the China-U.S. trade war, have intensified unease in international society. This book for the first time provides a systematic and critical elaboration on interplay between a rising China and international law. It focuses on several crucial issues, including: Is international law relevant to the rise of China? How has China adjusted its international legal policies as China’s state identity changes over time, especially as it rises as a new great power? What methodologies does China adopt to comply with international law, in particular, to achieve its new legal strategy of norm entrepreneurship? What is the typology of China’s engagement with international organizations? How does China organize its domestic institutions to engage international law to enhance its rise? How does China use international law at the national level (Chinese courts) and the international level (lawfare in international dispute settlement)? And finally, how should “Chinese exceptionalism” be understood? This book adds important literature on emerging comparative international law.

The Relevance of International Law

2019 ◽  
pp. 13-40
Author(s):  
Congyan Cai
Keyword(s):  
International Law ◽  
International Community ◽  
Political Context ◽  
Fundamental Difference ◽  
Great Powers ◽  
The Past ◽  
Community Power ◽  
Rise Of China ◽  
The Rise Of China

This chapter, from four perspectives of community, power, adjudication, and spirit, reviews the transformation of international law during the past several decades and the relevance of international law on the rise of China, thereby examining the legal and political context where China rises and showing the fundamental difference between the rise of China and the rise of great powers in the history. In light of new political and legal circumstances, international law can play a larger role in the rise of China than that to great powers in history, which may be either expected or unexpected both for China itself and international community.

Identifying Community Interests in International Law

2018 ◽  
Author(s):  
Rüdiger Wolfrum
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
International Community ◽  
Available P ◽  
General Question ◽  
Global Commons ◽  
Settlement Systems ◽  
Community Interest ◽  
National Jurisdiction ◽  
Advisory Opinions

This chapter explores the general question of how to establish that the regulation of a certain matter constitutes a matter of community-wide concern, which is the necessary step for the recognition of community obligation. The hypothesis is that such a qualification must, first, be well founded factually and, secondly, accepted as such in a legal or political legitimizing process. On this basis, the chapter suggests that the governance of spaces beyond national jurisdiction constitutes a community interest and has to be guided by the interests of the international community. Exploring this question with respect to key common spaces and particular issues, the chapter notes the difficulty of most of the dispute settlement systems, which, being bilateral, are not fully adequate to address questions related to the management of global commons as well as for the protection of the environment. To avoid this difficulty, the chapter suggests greater reliance on advisory opinions where available.

scholarly journals China in the Post-World War II International Legal System

2015 ◽  
Vol 01 (02) ◽  
pp. 205-222
Author(s):  
Sheng Hongsheng
Keyword(s):  
World War Ii ◽  
International Law ◽  
Legal System ◽  
World War ◽  
System A ◽  
Evolving System ◽  
International Legal Order ◽  
Rise Of China ◽  
International Legal System ◽  
The Rise Of China

Dramatic changes have taken place in the international legal system since the end of World War II, such as the expanding arenas for application of international law, the emergence of a series of new legal institutions, and the parallel extension of both rights and obligations of states. In recent years, new developments have been arising in the international legal system, manifested by three important sets of transition, that is, from a "sovereign priority" to a "human rights priority"; from "consent-orientation" to "coercion-orientation"; and from "integrity" to "fragmentation." The rise of China and the evolution of international law are closely related: while China's ascent has been achieved within the parameters of the international legal system, a more prosperous and stronger China will certainly influence the future trajectory of the evolving system. China should and can be a positive force in constructing a contemporary international legal order through promoting domestic justice and international rule of law. In this process, China needs to take a more proactive role and evolve from being a recipient to a rule-maker, in order to modify the outdated principles and rules in international law.

China, India, and International Law: A Justice Based Vision Between the Romantic and Realist Perceptions

2019 ◽  
Vol 9 (2) ◽  
pp. 217-250 ◽  
Author(s):  
Muthucumaraswamy SORNARAJAH ◽  
Jiangyu WANG
Keyword(s):  
International Law ◽  
Analytical Framework ◽  
Status Quo ◽  
China And India ◽  
International Legal Order ◽  
Rise Of China ◽  
The Common ◽  
Potential Impact ◽  
The Rise Of China ◽  
International Status

AbstractThis paper aims to build an analytical framework and a research agenda for a study of the potential impact of the rise of China and India on international law. In the light of the possibility that the two states may, together or individually, make changes in international law and shift it from its present Europe-America moorings, this paper attempts to analyze and answer three topics: (1) the common and different stances of China and India on the existing international legal order; (2) the changes China and India have sought to the international status quo; and (3) the contributions that have been or could be brought by China and India to the development of international law and their implications for the future. It proposes an analytical framework in which these questions are viewed through two lenses: the romantic vision and the realist vision.

International Law in Chinese Courts during the Rise of China

2018 ◽  
Author(s):  
Congyan Cai
Keyword(s):  
International Law ◽  
Great Power ◽  
The Core ◽  
Rise Of China ◽  
The Rise Of China

This chapter highlights a different set of elements that become manifest in assessing the rapid overall rise in references to, and application of, international law by courts in China in recent years. This chapter seeks to theorize Chinese judicial policy toward international law, without discussing this policy’s legitimacy. The core argument is that China’s 30-year pursuit of great power status has been a significant causal and explanatory factor in the particularities of approach, methodology, and structure in judicial application of international law by Chinese courts. Section II presents and discusses the Chinese legal system’s pathways for giving effect to international law. Section III reviews Chinese courts’ sensitivity to differences among the various categories of relationships governed by specific international rules, and explores their connection with, and implications for, the economic and geopolitical rise of China.

scholarly journals Remarks by Holger Hestermeyer

2018 ◽  
Vol 112 ◽  
pp. 238-239
Author(s):  
Holger Hestermeyer
Keyword(s):  
World Trade Organization ◽  
International Law ◽  
Legal System ◽  
World Trade ◽  
Dispute Settlement ◽  
International Community ◽  
Legal Rules ◽  
Wto Dispute Settlement ◽  
Judicial Economy ◽  
Over Time

This question is inextricably connected with the first one. The more you think a judge's or arbitrator's task consists in merely resolving a dispute, the more you will insist on judicial economy. The more you regard a judge as an instrument of the international community in developing international law or elucidating its concepts, the more you will favor her or his straying from what is strictly necessary to resolve the dispute. To some extent, the international judiciary serves both of these functions, which was made explicit with regard to World Trade Organization (WTO) dispute settlement in Article 3.2 of the Dispute Settlement Understanding. It obviously resolves disputes with an important role for judicial economy. But it also elucidates the concepts of international law. That function of adjudication gains some importance in international law, because it is a legal system without legislature, where pressures on legal rules can build over time and only the adjudicator can ensure that the system remains operable in a changing world, straying from the path of judicial economy.

scholarly journals No Provision Left Behind – Law of the Sea Convention’s Dispute Settlement System and Obligations Erga Omnes

2021 ◽  
Vol 20 (3) ◽  
pp. 519-547
Author(s):  
Eirini-Erasmia Fasia
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
International Community ◽  
Law Of The Sea ◽  
Settlement System ◽  
Left Behind ◽  
Community Interest ◽  
The Law ◽  
Dispute Settlement System

Abstract The article argues that the Law of the Sea Convention’s (LOSC) dispute settlement system (DSS) is attuned only to certain types of disputes (bilateral) and does not allow for the effective enforcement of obligations erga omnes reflected in the Convention. Mechanisms established to address enforcement of communitarian norms specifically are scarce in international law and the traditional bilateral structure of adjudicatory dispute settlement circumscribes the ability of states to act as advocates of the international community to which obligations erga omnes are owed. The article identifies the obligations erga omnes reflected in the LOSC and assesses the extent to which its dispute settlement framework is suited to address their breach. It is submitted that some of the community interest obligations of the LOSC are “left behind” by the function of the system itself.

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