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The Law of the Seabed

Access, Uses, and Protection of Seabed Resources

Series:

Edited by Catherine Banet

The Law of the Seabed reviews the most pressing legal questions raised by the use and protection of natural resources on and underneath the world’s seabeds.
While barely accessible, the seabed plays a major role in the Earth’s ecological balance. It is both a medium and a resource, and is central to the blue economy. New uses and new knowledge about seabed ecosystems, and the risks of disputes due to competing interests, urge reflection on which regulatory approaches to pursue.
The regulation of ocean activities is essentially sector-based, and the book puts in parallel the international and national regimes for seabed mining, oil and gas, energy generation, bottom fisheries, marine genetic resources, carbon sequestration and maritime security operations, both within and beyond the national jurisdiction.
The book contains seven parts respectively addressing the definition of the seabed from a multidisciplinary perspective, the principles of jurisdiction delimitation under the United Nations Convention on the Law of the Sea (UNCLOS), the regimes for use of non-living, living and marine biodiversity resources, the role of state and non-state actors, the laying and removal of installations, the principles for sustainable and equitable use (common heritage of mankind, precaution, benefit sharing), and management tools to ensure coexistence between activities as well as the protection of the marine environment.

Neil B. Nucup

Abstract

With the anarchic multiplication of international courts and tribunals, and the concomitant possibility for jurisdictional and decisional conflicts among them to occur, treating the International Court of Justice as the “invisible” international supreme court seems an attractive solution. After all, it is the principal judicial organ of the United Nations and the only court with universal general jurisdiction. Revisiting this proposal, the article argues that the World Court suffers not only from political (extrinsic) constraints, but also from institutional (intrinsic) limitations, thereby endangering its sociological and normative legitimacy. Nonetheless, this does not mean rectifying them for the purpose of enabling it to discharge its envisioned role as the international supreme court. Rather the problem is not so much improving the World Court, but understanding the merits of maintaining the status quo, that is, a decentralised judiciary.

Judicial Dialogue in Human Rights

Introductory Remarks

Elżbieta Karska and Karol Karski

Abstract

The editors and other authors of the studies contained in this volume have chosen to focus attention on the problem of the broad concept of judicial dialogue, defined as the communication between various judicial authorities. The studies included consider the problem of institutional relations in the field of human rights protection from a national and international perspective. The issue of judicial dialogue in the field of human rights after the civil war in Rwanda is assessed. Next, the issue of the legal responsibility for placing hyperlinks in the context of the judicial dialogue between the European Court of Human Rights and the Court of Justice of the European Union in the field of protecting human rights on the internet is raised. Finally, the question of whether private or public legal entities can find direct protection under the Inter-American System of Human Rights is analysed. The academic value of the analytical considerations presented in this volume is very high and this should lead to considerable readers’ interest. This is because intellectual considerations of judicial dialogue in the field of human rights protection undoubtedly bring an interesting and significant new dimension not only to the theory but also to the practice of applying the law.

Yifeng Chen and Ulla Liukkunen

This article examines deficits in the current legal framework of posted workers in a global setting through a case study involving Chinese posted workers striking in Equatorial Guinea. Posting highlights the challenges that economic globalisation and transformation of the labour market pose to labour law. As a phenomenon whose normativity is deeply embedded in the cross-border setting where it occurs, posting should profoundly affect the transnational labour law agenda. The emergence of transnational labour law should be seen from the perspective of reconceptualising existing normative regimes in the light of an underpinning transnationality and sketching the architecture for the normative edifice of transnational labour protection. The transnational legal context under scrutiny calls for a wider normative framework where the intersections between labour law, international law and private international law are taken seriously. Global protection of posted workers should be a featured project on the transnational labour law agenda.

Lu Xu

Abstract

This article identifies and clarifies some of the miscommunication between Chinese and English in the discussion of rule of law or rule by law. “Rule by law” is not a concept readily understandable by a Chinese audience because there is no acceptable translation or equivalent in Chinese. At the same time, the historical and contextual significance of the different denotations of “rule of law” in Chinese is often overlooked in an English-speaking environment. Meanwhile, the abstraction in critical examination of Chinese law often masks significant changes taking place in China’s construction of a “socialist rule of law with Chinese characteristics”, such as the emergence of a system of case law. The different components and aspects of such a system, ranging from the guidance cases system published by the Supreme People’s Court, to the largest database of judicial decisions in the world, and the newly established China International Commercial Court under the Belt and Road Initiative could fundamentally alter and structure, nature and principles of Chinese law as we know it.

Tom Harper

Abstract

The Belt and Road Initiative alongside the Shanghai Cooperation Organisation are the latest phase of China’s return to the Eurasian landmass after the collapse of the Soviet Union. China has reshaped Eurasia in several ways, which includes the common definition of this concept, which had largely been perceived as a chiefly Russian entity. This is rooted in Halford Mackinder’s The Geographical Pivot of History, which depicted the Eurasian landmass as a threat to Britain’s maritime hegemony with the advent of rail. While the traditional focus had been on Eurasia as the Russian empire, Mackinder also alluded to a Eurasian empire created by ‘Chinese organised by Japanese’ as a result of the latter’s development during the Meiji Restoration. While this did not come to pass, it has become an imperative to consider the notion of an Asian power in Eurasia due to China’s rise.

The purpose of this paper is to argue that China is as much a Eurasian power in the vein of Mackinder’s theories as Russia is, with the BRI providing a potential opportunity to further integrate with Eurasia. In addition, the initiative is also symbolic of China’s bid to create an alternative order both in Eurasia and the wider world as part of its global role to challenge the dominance of the United States, which raises the spectre of Mackinder’s warning over a challenger emerging from the Eurasian Heartland.

Joshua Andresen

Abstract

China’s Belt and Road Initiative (BRI) is the largest investment in global infrastructure of all time, easily outpacing the United States’ Marshall Plan following World War II. Despite the BRI’s aspirations, it has been called into question from an increasing range of perspectives. This article focuses on security questions raised from the American perspective. By placing the BRI in historical and global perspective, I will critically evaluate the questions raised by American observers in order to separate the concerns we should take seriously from those that are overblown. The Belt and Road initiative and accompanying military buildup have been heralded as a fundamental change in the global order. Whether that is the case, of course, remains to be seen. What is certain, however, is that the balance of regional economic and military power is undergoing a dramatic change.

Bryane Michael and Say Goo

Abstract

To what extent do corporate governance practices in one jurisdiction affect another? In this paper, we look at the way that Hong Kong’s and the Mainland’s corporate governance practices have co-evolved, along with offshore incorporations from both places. Drawing on empirical illustrations of the data using analytical techniques like differential equations and Fourier Spectral Analysis, we find a strong relationship across time between changes in corporate governance practices in both jurisdictions as well as offshore incorporations. Our data also support the idea of a theory-free equilibrium level of corporate governance (determined by market participants’ own behaviour rather than by a theory-laden econometric model). We show that lethargy likely explains the persistence of corporate governance practices in both places, with innovations in one place correlating with innovations in the other. Such work clearly implies that corporate governance improvements in one place can help encourage such improvements in other markets which have not adopted laws aimed at improving corporate governance.

Mala Sharma

Abstract

China’s Belt and Road Initiative (BRI) as a geoeconomic vision and geopolitical strategy is closely watched and scrutinised by Indian economists, diplomats, and strategists. Perspectives on India’s approach to the BRI can broadly be classified into three—the optimist, the sceptic and the cautionary. Whereas, economists generally appear optimistic, there is a sense of uneasiness within India’s strategic community that the BRI represents much more than China’s ambition to emerge as an economic leader in the region. This article argues that India’s approach to the BRI has largely been pragmatic, cautious and complex. Accordingly, India has taken an atomistic approach to the various components of the BRI depending on its security and economic needs, which explains why on the one hand India has become increasingly receptive of the Bangladesh-China-India-Myanmar Economic Corridor (BCIM EC) and on the other continues to publicly oppose the China-Pakistan Economic Corridor (CPEC).