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East Asia’s Renewed Respect for the Rule of Law in the 21st Century

The Future of Legal and Judicial Landscapes in East Asia

Series:

Edited by Setsuo Miyazawa, Weidong Ji, Hiroshi Fukurai, Kay-Wah Chan and Matthias Vanhullebusch

This volume showcases the most recent research on the future of the legal and judicial landscape in East Asia and its renewed respect for the rule of law in the 21st century. The book features research on emerging judicial stratifications in the legal profession; war crimes and their legacies in the post-colonial era; citizens' participation in the justice system; gender, law, legal culture and profession as well as environmental justice.

China and International Investment Law

Twenty Years of ICSID Membership

Series:

Edited by Wenhua Shan and Jinyuan Su

The first volume in the Silk Road Studies in International Economic Law Series, China and International Investment Law: Twenty Years of ICSID Membership examines cutting-edge issues of international investment law and arbitration in interaction with China, the second largest economy of the world. With particular attention to ongoing major negotiations of bilateral and regional investment treaties, including the TPP, TTIP and China's BIT negotiations with the EU and USA, the collection is timely, thorough, and incisive.

All readers with an interest in the latest developments in international investment law in general, and the Chinese foreign investment regime in particular, will find an indispensable new resource in this collection of essays from esteemed experts in the field.

The volume originated from the "China and ICSID" International Workshop and Roundtable on International Investment Law and Arbitration, organized to commemorate the 20th anniversary of China's accession to the ICSID Convention.

Norman P. Ho

Little scholarly work has been done on understanding Taizong’s (one of China’s most influential emperors) legal thought. Existing historiography has been descriptive and has not fully contextualized Taizong’s legal thought in his broader political thought. Furthermore, it has been influenced by the traditional bias in Tang historiography as a whole, which has been adulatory toward Taizong’s reign. Drawing from a variety of sources, including dynastic histories and Taizong’s writings, this article seeks to complicate the existing historiography. It lays out key characteristics of Taizong’s legal thought, situating them in the historical context in which Taizong operated, as well as contextualizing them within his broader political thought, to present a more balanced analysis. It will argue that Taizong was an emperor who was concerned with legality, competent legal administration, and leniency in punishments. His actions and rhetoric also suggest that he believed that law should be applied to the emperor’s conduct as well. At the same time, this article also argues that Taizong should not be viewed primarily as an innovative legal thinker or as someone with an ideological or idealistic commitment to legal reform for its own sake. Rather, he was a man whose views on law were greatly motivated by practical, political concerns, such as concerns regarding the stability and legitimacy of his rule. More broadly, this article contributes to the historiography of traditional Chinese legal history by complicating the so-called dominant narrative of the process of “Confucianization of law” in premodern Chinese history by highlighting the role that specific historical actors (such as Taizong) played in that process.

Liu Lu and Qi Qi

This paper explores the law in China determining the validity of ad hoc arbitration agreements. It first points out the particularity of China’s attitude toward ad hoc arbitration through a textual analysis of key provisions in Chinese laws and the comparison between Chinese law and the law of other jurisdictions. The authors then adopt an empirical approach to analyze Chinese courts’ practice in the application of Chinese arbitration laws and conclude that, despite the clear wording employed by the Chinese Arbitration Law, Chinese courts could use two ways to save the ad hoc arbitration agreements without disobeying the statutory law. The paper then moves to analyze the Opinion of Supreme People’s Court on Providing Judicial Guarantee for the Construction of Free Trade Pilot Zone (hereinafter referred to as “SPC Opinion”) issued in December 2016, which is viewed as a tipping point toward a supporting regime of ad hoc arbitration. By implementing this SPC Opinion, for the first time, China regionally embraces ad hoc arbitration. On the basis of the analysis of this new development, the authors suggest possible facilitations to the SPC Opinion and predict the future reform of ad hoc arbitration.

Elisabeth Steiner and Andreea Maria Roşu

The present article examines how the progress of science, and in particular, medically assisted human reproductive technologies (ART) have provoked a revolution in the sphere of family relations, generating a series of ethical and legal conflicts. The article focuses on the European perspective, without ignoring the international sphere, given the globalization of the phenomenon. The emerging legal issues are analyzed through the filter of international human rights, not only an important aspect to take into consideration in the context of bioethics in general, but a “passage obligé” given that certain concepts find their explanation and coordinates in international human rights law. It is from this perspective that the relationship between ART and human rights is presented. The applicable international and European legal instruments and principles shall be mentioned, as well as a brief comparison of national legal frameworks in Europe. The emerging bioethical and legal issues are examined in correlation with the response of the European Court of Human Rights through its case law aimed at balancing conflicting rights when faced with issues pertaining to ART. Lastly, the article presents in more detail the particular legal issues under debate in France and Italy, two European countries with specific legislation in the field.

Suzannah Linton

The prevailing narrative instructs us that humane treatment of captured enemy fighters is down to white knights from the western parts of the European continent with their codes of chivalry, or alternatively, the Swiss businessman Henri Dunant. This contribution challenges that narrative for overlooking, or being ignorant of, the way that societies around the world have approached the matter of the captured enemy fighter. Traces of some of the critical principles about humane treatment that we see in our present law can actually be found in much older societies from outside of Europe. A more accurate and representative way of understanding humanitarianism in the treatment of captured enemy fighters can and must be crafted, with the prevailing Euro-centric account balanced with practices, cultures and faiths from elsewhere. The quest to achieve more humane treatment in armed conflict is first and foremost a battle of the intellect. Narratives and conceptualisations that are more inclusive, recognising and appreciating of the ways of the rest of the world are likely to be more effective in communicating humanitarian ideals. This work adopts a new method of approaching the richness and diversity of the treatment of captured enemy fighters over time and space. This new framework of analysis uses six cross-cutting themes to facilitate a broader international and comparative perspective, and develop a more sophisticated level of understanding. The first theme is how older and indigenous societies approached the matter of captured enemy fighters. The second focuses on religions of the world, and what they teach or require. The third section examines the matter of martial practices and codes of ethics for combatants in certain societies. The fourth category engages with colonisation and decolonisation, and regulation (or non-regulation) of the treatment of captives of war. Fifth is the issue of modernisation and the impact it has had on armed forces and fighters, including on the treatment of captives. The final issue is the shift towards formalised agreements, beginning with the first bilateral agreements and then the multilateral codification exercise that began in the mid-19th century and continues to this day. This framework for analysis leads into a final chapter, presenting a fresh and holistic view on the evolution of prisoner of war protections in the international order. It provides a different way of looking at International Humanitarian Law, starting with this effort at a global understanding of the treatment of captured enemy fighters.

Robyn M. Powell and Michael Ashley Stein

Despite important gains in human rights, persons with disabilities — and in particular women and girls with disabilities — continue to experience significant inequalities in the areas of sexual, reproductive, and parenting rights. Persons with disabilities are sterilized at alarming rates; have decreased access to reproductive health care services and information; and experience denial of parenthood. Precipitating these inequities are substantial and instantiated stereotypes of persons with disabilities as either asexual or unable to engage in sexual or reproductive activities, and as incapable of performing parental duties. The article begins with an overview of sexual, reproductive, and parenting rights regarding persons with disabilities. Because most formal adjudications of these related rights have centered on the issue of sterilization, the article analyzes commonly presented rationales used to justify these procedures over time and across jurisdictions. Next, the article examines the Convention on the Rights of Persons with Disabilities and the attendant obligations of States Parties regarding rights to personal integrity, access to reproductive health care services and information, parenting, and the exercise of legal capacity. Finally, the article highlights fundamental and complex issues requiring future research and consideration.

Ni Zhen

By combining theories of education, human rights law, and political philosophy, the author provides lenses to understanding inclusive education, thereby establishing consensus on the new, cognitive grounds over the description of a better inclusive education system for all children. The investigation is guided by two research questions. The first question concerns what description we should hold for a better education system inclusive of disabled children. The second addresses how to arrive at a consensus over that better system among stakeholders and within the whole society. To answer these questions, the investigation is conducted through both transcendental and comparative routes. Firstly, to contextualize this research, a brief review of theoretical disagreements on inclusive education is provided, and a case study of China’s struggles towards inclusion is presented. The theoretical review and the case study provide concrete information for later assessment and comparison between reality and the ideal plan. Meanwhile, the author discusses ways to go beyond binary thoughts and disorganized practice. To achieve the goal, transcendental thought experiments are employed to generate new grounds for a more comprehensive, inclusive project; the idea of a right to inclusive education is elaborated.