比较法视野下的国际私法渊源——兼论一般国际惯例不是国际私法的渊源

本文以比较法的视角探讨了国际私法的国内渊源和国际渊源。国内渊源包括国内制定法、国内判例法和国内习惯法,国际渊源主要是双边和多边的国际条约。关于国际习惯是否是国际私法的渊源,本文在对国际习惯和国际惯例加以辨析后指出：只有国际习惯法规则才具有法律约束力,才有可能成为法的渊源;一般国际惯例因不具有法律约束力而绝不可能成为法的渊源,遑论国际私法的渊源。     

法院地国家国内法中的冲突规则与国际条约的关系

法院地国家国内法中的冲突规则和已对该国生效的国际条约中的冲突规则同属该国国际私法的渊源。多数国家的国际私法制定法均有优先适用国际条约中的冲突规则的规定,但其国际私法分则对国际条约中的冲突规则的处理方式则主要有三种不同的立法模式。在裁判涉外民事案件的实践中,实体法解决办法有别于冲突法解决办法,仅在案件不符合国际统一实体私法条约的适用条件的情形下,才能依法院地国家国内法的冲突规则确定准据法。涉外合同的双方当事人选择已对法院地国家和其他缔约国生效的国际条约并不等于选择了合同准据法。而如果涉外合同的双方当事人选择了尚未对法院地国家生效、但已对两个或两个以上其他国家生效的国际条约,则只能视为对无法律约束力的“非国家规则” 的选择。由于“程序问题适用法院地法”,涉外民事案件的程序事项既不适用冲突规则,也不适用实体私法规则。法院地国家国内法的冲突规则不会同国际条约中的国际民事程序法规则发生抵触。     

Genocide, Complicity in Genocide and International v. Domestic Jurisdiction: Reflections on the van Anraat Case

When adjudicating international crimes, domestic courts arefaced with a choice between the application of internationallaw or national law. In the recent van Anraat judgment, a DutchDistrict Court explicitly opted for the former alternative.This approach led to the accused's acquittal of complicity ingenocide. In the Court's opinion, there was no proof beyonda reasonable doubt that van Anraat had actual knowledge of SaddamHussein's special intent to destroy part of the Kurdish population.According to the Court, such proof is required under internationallaw. This article argues that the Court's preference for internationallaw was not prescribed, either by international law or by domesticlaw, although in principle such preference may prove advisable,whenever international rules are clear and exhaustive. Aftertracing the intricate legal discussions on mens rea requirementsfor genocide and complicity in genocide, the author concludesthat the issue has not yet been completely elucidated in internationalcase law and legal literature. In situations of ambiguity whereinternational case law offers insufficient guidance, domesticcourts would better resort to their own criminal law. As Dutchcriminal law extends the mens rea of the accomplice beyond ‘knowledge’so as to cover dolus eventualis as well, application of domesticlaw might have affected the outcome of the case.     

试论国际法之不成体系问题——兼及国际法规则的冲突与协调

国际法领域的扩展使不同国际法规则之间的冲突大大增加,国际法发展呈现不成体系的特征。演进中的国际法并非一个统一的体系,现代国际法表现为国际共存法和国际合作法并存,并在发展趋向上向价值定向发展。国际法随着范围的扩展形成大量次级体系,不同的次级体系多能“自成体系”并“专题自主”的特征,导致规则的冲突增加,造成在适用国际法规则上的困难。究其原因,一方面由于国际法自身的固有特征,另一方面则是国际法领域的扩展等新趋势导致的。国际法要研究如何防止并协调国际法规则矛盾与冲突,但是很难使之成为一个真正统一的体系,另一方面国际法的不成体系的特性却使国际法充满了张力。     

Expulsion to Face Torture? Non-refoulement in International Law

Non-refoulement is a principle of international law that precludesstates from returning a person to a place where he or she mightbe tortured or face persecution. The principle, codified inArticle 33 of the 1951 Refugee Convention, is subject to a numberof exceptions. This article examines the status of non-refoulementin international law in respect to three key areas: refugeelaw, human rights law and international customary law. The findingssuggest that while a prohibition on refoulement is part of internationalhuman rights law and international customary law, the evidencethat non-refoulement has acquired the status of a jus cogensnorm is less than convincing.     

Remarks on the Normativity of International Legal Rules and Global Constitutionalism

The article reflects on the possibility of conceptualising the complex problem of the normativity of international legal rules, including in particular the phenomenon of “relative normativity.” The author utilises the critical potential of Ronald Dworkin's proposal for a new philosophy of international law to reflect on the classical accounts explaining normativity of international law. By building on Dworkin's argument, the author argues for a constitutional account of international law. The far‐reaching constitutional proposals may provide a more complex and coherent set of possible rationalisations of international legal rules. International law is in great need of a comprehensive theory that could better explain its normative character as well as its sources, and it is argued that international constitutionalism has the potential to serve this purpose.     

习惯国际人道法规则确立方法探析——兼评红十字国际委员会之《习惯国际人道法》

习惯国际人道法规则的确立,既要遵循国际习惯法的一般原理,又要顾及国际人道法的自身特点。国际性与非国际性武装冲突的区分,在当前历史条件下仍是确立习惯国际人道法规则的前提;在证明国家实践的一致性时应首先确保作为证据的实践属"官方实践";"法律确信"的证明对一些禁止性规则的确立甚为重要;而条约作为国际人道法的另一主要渊源,在习惯国际人道法规则确立中起着重要的证据作用。红十字国际委员会《习惯国际人道法》确立规则的方法,既有可取之处,又存在疏漏,对其分析有助于我们的进一步研究。     

The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ

This article aims to extract from the jurisprudence of the InternationalCourt of Justice a basic theory of legal effects of unilateralinstruments of international organizations in public internationallaw. These effects can be divided into three categories. Thefirst is substantive effects. These include binding, authorizingand (dis)empowering effects. The second category is causativeeffects, whereby determinations of fact or of law bring substantiveeffects into existence. The third category is modal effects– how and when the substantive effects come into existence(e.g. immediate or deferred, retroactive or non-retroactive,reversible or irreversible effect). Each of these categoriesof legal effects behaves differently according to whether theeffects are intrinsic or extrinsic. Intrinsic effects are basedon the special treaty powers of the United Nations SecurityCouncil and General Assembly. In this hypothesis, all threecategories of effects exist to the full extent that the explicitand implicit powers of the adopting body allow for them. Extrinsiceffects are directly based on general international law, inparticular on the rules of formation of customary internationallaw. Here, there are no causative effects. Substantive effectsdo not strictly speaking exist; only pre-substantive ones do.And modal effects are always immediate, non-retroactive andreversible.     

A law for need or a law for greed?: Restoring the lost law in the international law of foreign investment

The 1990s brought about a change in the international law of foreign investment due to the primacy achieved by the tenets of neo-liberalism. They drove concerns about the environment and poverty away from the concerns of the law and gave priority to the interests of multinational corporations by enhancing their ability for movement of assets and the absolute protection of these assets through treaty rules. The regime created by this law was operated through secure systems of dispute settlement through arbitration which also enabled the stabilization of these rules. In the process, private power of a section within the hegemonic state was able to subvert international law through the use of low order sources of the law and secure a system of investment promotion and protection. The restoration of the more universal themes of environmental protection and poverty alleviation is necessary. This paper outlines the developments that accentuated the sectional interests of multinational capital and explores the means by which a change that reflects the global interests could be effected.

Liberal Values in International Criminal Law: A Critique of Erdemovic

Using the Erdemovi decision as its starting point, the articleexamines the philosophical foundations of international criminallaw. It asserts that international criminal law, properly understood,represents a liberal legal system, emphasizing the rights ofthe accused over the interests of the prosecution or the goalsof international peace and security. Using the work of RonaldDworkin, it argues that international jurists should apply principlesthat invoke a respect for human rights and individual autonomyover ‘policy’. Thus, it argues that the reasoningof the Appeals Chamber of the International Criminal Tribunalfor the former Yugoslavia was flawed when it determined thatduress did not constitute a complete defence in Erdemovi.     

The Uses of the Outputs of the International Law Commission in International Adjudication: Subsidiary Means or Artefacts of Rules?

This paper examines the methods which international courts and tribunals (ICTs) employ when using ILC outputs for the purpose of determining rules of international law and their content. Specifically, it identifies common patterns in the ways in which ICTs, first, justify their reliance on ILC outputs and, second, deal with their ambiguities. The paper argues in favour of a consistent methodology for the treatment of ILC outputs in international adjudication. Such a framework is based on the distinction between the identification of the status of a normative proposition contained in these texts and the determination of its content or its interpretation. The identification of the status of a normative proposition requires a critical assessment and reconstruction of the evidence leading up to its development taking also into account that these instruments are not a monolith from the perspective of sources. However, the interpretation of a proposition whose status is uncontested follows a line of inquiry akin to treaty interpretation. This observation has broader implications for the process of interpretation in international law. Specifically, apart from the context of treaty interpretation, international courts or tribunals interpret the normative propositions contained in ILC outputs as a methodological shortcut for the interpretation of rules of customary international law or general principles of law. Conversely, the employment of methods akin to treaty interpretation in this context can constitute evidence of the emergence of common rules, principles, or good practices of interpretation that are also applicable to unwritten international law.

     

Switzerland and the Hague Convention

Any suggestion that 2006 has been a quiet year in the internationaltrust world is likely to be quickly denied. Of course, the worldof international trusts never stops changing. A popular conferencetopic is ‘Challenges of the trust today’ or a similartitle which calls upon the speaker to present his views on whatis happening preferably with some crystal ball gazing of impendinglegislation. The source of change offers ample opportunity for discourse.First, case law produces its finely ground decisions to resolveindividual disputes laying down jurisprudence for future settlorsand their advisers to follow. Sometimes it is favourable. Therecent re-adoption and expansion of the Hastings-Bass principle(Re Hastings-Bass (Dec’d), Hastings v IRC [1974] 2 AllER 193), whereby trustees may make good an oversight, has beenfavourable to trustees, provided (naturally) liberties werenot taken with the rules.     

Multilevel Judicial Governance of International Trade Requires a Common Conception of Rule of Law and Justice

Since the establishment of the Permanent Court of InternationalJustice in 1922, governments have consented to, and activelyused, an ever larger number of international and transnationalcourts, quasi-judicial dispute settlement bodies and ad hocarbitral tribunals for the settlement of disputes over the interpretationand application of rules of international law. Such judicialclarification of disputed interpretations of incomplete, intergovernmentalagreements reduces not only the negotiation costs of governmentsby delegating the clarification of contested facts and legalclaims to independent third-party adjudication. Judicial decision-makingat intergovernmental, transnational, national and private levelsalso supplements rule-making and offers citizens judicial remediesfor defending their rights and interests. Modern internationaleconomic law increasingly complements intergovernmental, legislative,and administrative governance by multilevel ‘judicialgovernance’ so as to protect rule of law more effectivelyfor the benefit of citizens (Section I). This contribution criticizesthe one-sidedly power-oriented perceptions of WTO law as ‘internationallaw among states’ (Section II) and the related perceptionsof international judges as dependent agents of states (Section III).Civil society, parliaments and democratic governments shouldencourage national and international judges to cooperate intheir legal task of interpreting citizen-oriented internationaleconomic law ‘in conformity with principles of justiceand international law’, as explicitly prescribed in theVienna Convention on the Law of Treaties (VCLT). The legal coherenceof multilevel judicial governance depends on protecting principlesof procedural as well as substantive justice and a common conceptionof ‘rule of law’ not only in intergovernmental relationsamong states, but also vis-à-vis their citizens engagedin, and benefiting from, international trade (Sections IV–VIII).     

南海领土争端中的国际法渊源适用探析

南海领土争端主要包括岛礁归属与海域划界两个方面.不同的国际法渊源在南海领土争端的法律适用中具有不同的作用.目前,中国主要倚重以国际习惯为代表的传统国际法规则,周边国家则大多根据《联合国海洋法公约》对抗甚至否认中国对南海岛礁及其附近海域的主权.借助国际法渊源理论,对南海领土争端中可能适用的各种法律渊源加以界定和分类后,可以确定国际条约与国际习惯的适用顺位是问题的核心,而国际习惯在解决南海领土争端问题上的优先地位应予尊重.     

Violence and Massacres -- Towards a Criminal Law of Inhumanity?

The law's responses to massacres seem to vacillate between twomodels: (i) the model of the ‘criminal law of the enemy’inspired by the national criminal law and rendered topical againby the attacks of September 11; (ii) the model of the ‘criminallaw of inhumanity’ symbolized by the paradigm of crimesagainst humanity. The latter model is better suited to takeaccount of the qualitative dimension of massacres, i.e. thefact that they, besides being mass offences (quantitative criterion),also offend against humanity. To establish a ‘criminallaw of inhumanity’ as a model with a universal, or universalizable,dimension, three conditions are necessary, which concern (i)the definition of the crimes, (ii) the assignment of responsibilityand (iii) the nature of the punishment. As for the definitionof the crime, one could implicitly deduce from the list of actsconstituting crimes against humanity (Article 7 of the InternationalCriminal Court Statute) that humanity so protected has two inseparablecomponents: the individuality of each human being, not reducibleto membership in a group, and the equal membership of each inthe human community as a whole. With regard to the second condition,it is not sufficient to hold responsible the de jure or de factoleaders; intermediaries and perpetrators, at all levels of hierarchy,must also be held accountable. As for the third condition, itis not sufficient to content oneself with the watchword of thefight against impunity without bringing up the nature and functionsof the punishment; hence the necessity not only to rethink therole ‘criminal’ law can play in a policy of punishment,but also to focus on prevention, reparation and reconciliation.Finally, the author suggests that the proposed model of a ‘criminallaw of inhumanity’ must be built through the interplaybetween municipal law and international law. On the one hand,the wealth of national legal systems — also with regardto penalties and responsibility — should be better integratedinto international criminal justice; on the other, nationalcriminal systems should be better adapted to conditions of internationallaw, through the introduction into domestic law of the definitionsof the crimes and also the rules for assigning criminal responsibility.     

备战打仗中的国际人道法规则运用

国际人道法的基本原则之一是区分对待战斗员和平民,以便在武装冲突中有效地对战争受难者进行保护,平衡"军事必要"与"人道需求"这一矛盾。从实践经验上看,我军在战争中往往守法做的比较好,而在对付敌人违法作战方面准备不足。在未来军事斗争中应利用国际人道法的相关知识,做到既严格遵守又灵活运用。具体做法包括:将遵守国际人道规则列入部队训练和演习内容;运用国际人道法合理进行目标选择与打击;做到正确、灵活地对待和使用保护性标志;灵活处置国际人道法的守势反用等。     

论国际法在WTO体制中的作用

国际法中的WTO规则以及国际法在WTO争端解决机制中的作用都是我们急待研究的问题。WTO规则是国际法一般规则的一部分。WTO争端解决机制是WTO体制中具有核心作用的机制。WTO争端解决机制不仅仅是适用WTO规则 ,而且还会涉及适用国际法的其它一般规则 ,如国际人权法、国际环境法、国际劳工法等。也就是说 ,WTO的内涵及外延已经超出了经济和贸易的范畴。中国加入WTO就意味着接受国际司法管辖。     

中国参与国际能源合作的法律机制创新研究

随着经济全球化的到来,国际能源合作已成为世界各国普遍关注的问题.国内外也有学者通过政治学、经济学、外交学对国际能源合作加以探究的,但从法学的视野进行探讨的,目前还很少见.中国应该在积极推进世界能源组织(WEA)的统一法律规则构建的基础之上,加强对中国参与国际能源合作的法律机制问题的探究,坚持中国参与国际能源合作的法律原则,寻找出中国参与国际能源合作的法律对策.     

The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise

Joint criminal enterprise (JCE) as a mode of liability in internationalcriminal law is a concept widely upheld by international caselaw. It has, however, been harshly attacked by commentators,particularly with regard to what has come to be known as the‘third category’ of the notion, that of liabilitybased on foreseeability and the voluntary taking of the riskthat a crime outside the common plan or enterprise be perpetrated.This author considers that while most criticisms are off themark, at least two are pertinent: (i) that the InternationalCriminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamberin Tadi (1999) was wrong in indiscriminately using terminologytypical of both the civil law and common law tradition, and(ii) that the foreseeability standard, being somewhat looseas a penal law category of culpability and causation, needssome qualification or precision. Generally speaking, the notionof JCE needs some tightening up. For instance, in Kvoka, anICTY Trial Chamber rightly stressed that the contribution ofa participant in a common criminal plan must be ‘substantial’(the Appeals Chamber, however, disagreed to some extent in thesame case). Furthermore, with specific regard to the third categoryof JCE, the author, after setting out the social and legal foundationsof the foreseeability standard and the motivations behind itsacceptance in international criminal law, suggests various waysof qualifying and straightening it out. One of them could liein assigning to the ‘primary offender’ (i.e. theperson who, in addition to committing the concerted crimes,also perpetrates a crime not part of the common plan or purpose)liability for all the crimes involved, while charging the ‘secondaryoffender’ with liability for a lesser crime, wheneverthis is legally possible. The author then suggests, contraryto a 2004 decision of the ICTY Appeals Chamber in Branin, thatthe third category of JCE may not be admissible when the crimeother than that agreed upon requires special intent (this appliesto genocide, persecution as a crime against humanity, and aggression).In such cases, the other participants in JCE could only be chargedwith aiding and abetting the crimes committed by the ‘primaryoffender’ if the requisite conditions for aiding and abettingdo exist. The author then suggests that the view propoundedin 2004 by an ICTY Trial Chamber in Branin is sound, namelythat the general notion of JCE may not be resorted to when thephysical perpetrators of the crimes charged were not part ofthe criminal plan or agreement, but rather committed the crimesunaware that a plan or agreement had been entered into by anothergroup of persons. In conclusion, he contends that this qualifiednotion of JCE, in addition to being provided for in customaryinternational law, does not appear to be inconsistent with abroad interpretation of the provision of the ICC Statute governingindividual criminal responsibility, that is, Article 25, inparticular 25(3)(d).