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Arindrajit Basu,Arthad Kurlekar (사) 이준국제법연구원 2015 Journal of East Asia and International Law Vol.8 No.2
Transnational terrorism in the twenty-first century is a unique threat that has sparked equally unique responses from nations at the receiving end of it, particularly the US. Some of these responses, however, have ignored both provisions of international law and the political realities prevailing in regions of Pakistan where the Drone strikes have been conducted. This poses various policy problems as the US has continuously used legal lacunae in international humanitarian law to carry on its “war on terror.” This paper addresses the problem by proposing a new form of armed conflict known as “transnational armed conflict,” which accounts for the unique nature of a conflict between a State and a non-State actor operating from the territory of another State. It allows for the setting of appropriate impact and assessment thresholds that could effectively bring such countermeasures in compliance with the accepted principles of international humanitarian law.
A Revisit to China’s Foreign Investment Law: With Special Reference to Foreign Investment Protection
Yongmin Bian (사) 이준국제법연구원 2015 Journal of East Asia and International Law Vol.8 No.2
Three foreign investment laws of China were enacted when she was mainly a capitalimporting state. The main purpose of these laws was to boost the Chinese economy with the capital, technology and management of foreign investors. Many preferential treatments, rather than national treatment, were given to foreign investment especially before the country joined the WTO. Following the reform of market economy, fair and equal treatment to foreign investors are replacing the preferential treatments. A new draft of Foreign Investment Law was released in the spring of 2015 to reform the governance of foreign investment by granting national treatment to foreign investors in both admission and operation. The restrictions to foreign investment will be subject to the categories of special administrative measures, which are composed of forbidden and restrictive categories. This is going to be China’s biggest reform on the legal system of foreign investment since 1980s.
Regional Trade Agreements in the WTO System: Potential Issues and Solutions
Yong-Shik Lee (사) 이준국제법연구원 2015 Journal of East Asia and International Law Vol.8 No.2
In the international trading system today, regional trade agreements, referring to reciprocal trade agreements between two or more countries providing exclusive trade preferences, govern not only the trade relations among the parties to the RTAs, but also form additional sets of trade disciplines. These agreements exist parallel to the multilateral trading system under the auspices of the World Trade Organization. The GATT/WTO rules authorize RTAs under certain conditions; thus on the surface, RTAs appear to be a legitimate part of the WTO system. However, in substance, the preferential terms of trade in RTAs are essentially in conflict with the most important principle of the WTO system, the most-favored-nation treatment. The current proliferation of RTAs thus makes exclusive RTA preferences, which are supposedly an exception to the MFN principle, a rule rather than an exception. This article examines GATT/WTO rules on RTAs, addresses the potential conflict between RTAs and the WTO system with potential solutions, and analyzes RTAs from the development perspective.
Arina N. Shebubakar (사) 이준국제법연구원 2015 Journal of East Asia and International Law Vol.8 No.2
This article examines two questions: (1) whether the Production Sharing Contract in oil and gas sectors between different countries should be considered as an international agreement or a private agreement; and (2) how to formulate uplift in the PSC which contains the value of equity for investors and the State. In the Production Sharing Contract, there is problem of setting the tax on oil and gas sector particularly uplift policy relating to the taxation of income in the state revenue sources. This issue is related to the return of controversy of operational costs recognized by the contractor (cost recovery claim). This tax controversy gave rise to uplift that is only levied on oil and gas State owned Enterprises contracting partners in the scheme of the Joint Operating Body, especially in the old fields with advanced technology (Enhanced Oil Recovery). The controversy is related to the declining production and increased production costs that are recognized by the contractor.
Unprecedented RTA Practices between the Customs Territories of China
Liang Zhang (사) 이준국제법연구원 2011 Journal of East Asia and International Law Vol.4 No.1
China consists of four customs territories: the mainland, Hong Kong, Macau, andTaiwan. Each customs territory is an independent member of the WTO as well. Tostrengthen and promote regional economic integration, the mainland, Hong Kong,Macau, and Taiwan have concluded the CEPAs and the ECFA, respectively. TheCEPAs and the ECFA are not only RTAs under the WTO, but also administrativeagreements of China, which are unprecedented practices in the Multilateral TradingSystem. The implementation of the CEPAs and the ECFA go smoothly, and havebeen elevated to national policies of China, which will significantly promote the jointeconomic prosperity and development of the mainland, Hong Kong, Macau, andTaiwan.
Legal Issues for Implementing the Clean Development Mechanism in China
Xiaoyi Jiang,Fahui Hao (사) 이준국제법연구원 2011 Journal of East Asia and International Law Vol.4 No.1
The Clean Development Mechanism under the Kyoto Protocol was implemented inChina several years ago. In spite of the significant benefits the CDM has brought toChina, legal research on the CDM is relatively weak and there are many legalproblems with the implementation of CDM projects in Chian. This article clarifiesthe legal problems of implementing the CDM in China by exploring and analyzinghow to implement CDM projects, the legal relationships involved, CDM-relatedcontracts and various key legal issues. The conclusions drawn from the abovediscussions could have implications for the future carbon reduction activities inChina beyond 2012.
Rising Mega RTA? China-Japan-Korea FTA under the New Trade Dynamism
Ying Bi (사) 이준국제법연구원 2015 Journal of East Asia and International Law Vol.8 No.2
So far, eight rounds of China-Japan-Korea FTA negotiations have been conducted. From 2015 on, the negotiations are expected to make great progress. Accordingly, CJK FTA has drawn increasing attention of scholars from multidimensionality. Still, there lacks concerns over the possible arrangement of each specific issue under such framework. Building on prior scholarship, this paper attempts to view such fragmented debate from the perspective of building a new international economic order. It suggests a developing track for CJK FTA to consider in designing its details: WTO→CJK FTA→RCEP(OBOR)→TPP→A New Multilateral Order. Only by so viewing can the important trilateral FTA play an appropriate role in future regional and global governance, so as to obtain the Asian voice in restructuring the international rules. Based on that, this paper further exemplifies a possible stepping stone regarding regional antidumping regimes and proposes adopting the WTO ADA Plus in CJK FTA. Such a proposal would become a crucial ‘blueprint’ for restructuring the multilateral ADA mechanism.
Osamu Yoshida (사) 이준국제법연구원 2011 Journal of East Asia and International Law Vol.4 No.1
This paper examines the early operation of the Kyoto Protocol’s non-complianceprocedure since 2006. Several important non-compliance cases recently or currentlybefore the Kyoto Compliance Committee of the procedures and mechanisms deserveto be analysed and discussed. As we may see, the enforcement branch of theCompliance Committee has dealt with some important cases of non-compliance;Among them, from the viewpoint of interpretation or application of internationalenvironmental treaties, the question of compliance by Croatia would be particularlyinteresting. What must be noticed is that the Kyoto Protocol’s NCP has prepared amultilateral forum which enables both the parties and the enforcement branch to basetheir arguments on international legal perspectives. This examination will alsocontribute to contested theories of compliance with international legal rules.
Chao Zhang (사) 이준국제법연구원 2015 Journal of East Asia and International Law Vol.8 No.2
The MV Arctic Sunrise, a vessel bearing the flag of the Netherlands, was detained by Russian authorities. The Netherlands instituted Annex VII arbitral proceedings against the Russian Federation and requested the International Tribunal for the Law of the Sea to prescribe provisional measures for the immediate release of the vessel and its crewmembers. On January 22, 2013, the Philippines instituted arbitral proceedings to challenge China’s claims over the South China Sea and the underlying seabed. Both China and Russia claim that the tribunal in question does not have jurisdiction, and neither of them appeared before the tribunal. This article offers an analysis of the facts and reasoning in the Arctic Sunrise case concerning Russia’s declaration and its nonappearance. Furthermore, this article explores the relevant provisions of UNCLOS and relevant views, as well as attitudes of ITLOS towards certain issues.