Preface XI
Notes on Contributors XIV
At the Cross-roads of Public and Private International Law – The Hague Conference on Private International Law and Its Work 1
Hans van Loon
1
Role and Mission of the Hague Conference on Private International Law 1
a
An Intergovernmental Organisation Concerned with Private Relationships and Transactions 1
b
Diversity of Private Law 2
c
Unification of Private Law 3
d
Diversity of Private International Law 3
e
Unification of Private International Law: The Mission of the Hague Conference 4
2
Origin and Development of the Hague Conference 4
a
Birth of the Hague Conference 4
b
c
Early Innovations 7
d
Bridging the Civil and Common Law Divide 9
e
Bridging the Divide between Systems Based on Faith and Secular Systems 9
3
The Impact of Contemporary Globalisation 10
a
Globalisation and Its Impact on the Nation-state 10
b
Proliferation of Legislation at All Levels – Expansion of the Hague Conference 12
c
Impact of Globalisation on Private International Law Approaches and Methods 14
4
Hague Conventions Promoting Global Trade, Investment and Finance 15
a
The Global Framework Regulating the Cross-border Movement of Goods, Services, Capital and Workers 15
b
Hague Instruments Concerning Global Trade, Investment and Finance 17
5
Hague Conventions Promoting Administrative and Judicial Cooperation 33
a
1961 Hague Apostille Convention 33
b
1965 Hague Service Convention 35
c
1971 Hague Evidence Convention 38
d
1980 Access to Justice Convention 40
6
Hague Conventions Promoting Personal Security and Protecting Families in Cross Border Situations 41
a
The Global Framework for the Protection of Private and Human Rights in Cross-border Situations 41
b
Hague Conventions on Marriage and Divorce 46
c
Hague Conventions on the Protection of Children 49
7
Outlook – (Potential) Significance of the Hague Conference and Its Work for the Asia-Pacific Region 56
Selected Publications 58
Marine Environment Law and Practice of China, India, Japan and Korea 66
Bimal N. Patel
1
General Introduction – International Obligations in Municipal Legal System 66
a
Introduction 66
b
State Practice: An Essential Element of Customary International Law 67
c
Need for Maritime Environmental Laws 71
d
Enforcement of International Marine Agreements by the Four Nations 74
2
Legislative Implementation of International Obligations in Four States 77
a
People’s Republic of China 77
b
India 89
c
Japan 91
d
Republic of Korea 113
3
unclos and International Marine Environmental Law 126
a
Sources and Type of Marine Pollution 126
b
Legal Framework – unclos and Regional Treaties 127
c
Operational Vessel-Source Pollution 131
d
unclos Jurisdictional Framework 135
e
Accidental Vessel-Source Pollution 138
f
Pollution Emergencies 139
g
Vessel Source Pollution 141
h
Civil Liability 142
i
Seabed Pollution 144
j
Dumping at Sea 145
k
Land-Based and Atmospheric Pollution 147
4
Marine Environmental Protection: Legislations, Policies Mechanisms, Practices, Issues and Challenges 148
a
Major Marine Environmental Issues and Trends 151
5
International Marine Environmental Law Practice 152
a
China 152
b
India 179
c
Japan 200
d
Republic of Korea 210
6
General Conclusions and Suggestions 215
a
The Enforcement of Environmental Agreements Generally 215
b
Pollution Control on the Development of Mineral Resources in Coastal Regions 218
c
d
Five Important Take-Away on Future Possibilities 225
e
Regional Dimensions of Global Issues 226
f
Monitoring, Verification, and Non-coercive Enforcement 226
Methodological Problems in International Trade, Investment and Health Law and Adjudication 228
Ernst Ulrich Petersmann
Introduction: International Economic Law as an ‘Imagined Order’ and as Incomplete, Fragmented and Under-theorized ‘Positive Law’ 228
1
Legal Methodology for iel: The Public Good of an Open Trading System as a Multilevel ‘Republic of Citizens’ (res publica)? 241
a
From Jurisprudence to Legal Philosophy 242
b
The ‘Human Condition’ and the ‘Dual Nature’ of Modern Legal Systems 244
c
From State-centered to Citizen-centered Conceptions of International Law? 247
d
Cosmopolitan International Economic Law? The pg of an Open Trading System as a ‘Republic of Citizens’? 250
2
How to Justify and Design iel for Multilevel ‘Republics of Citizens and Peoples’? 254
a
Republican Theories of ‘Aggregate pgs’ and ‘Collective Action Problems’ 255
b
Competing Conceptions of iel and of Its Underlying ‘Principles of Justice’ 258
c
Does hrl Require Cosmopolitan Conceptions of iel and ‘Multilevel Republicanism’? 260
3
‘Constitutional Justice’, Different ‘Contexts of Justice’, Their Democratic Regulation and Judicial Clarification 261
a
Dialectic ‘Fragmentation’ and ‘Integration’ of Legal Systems Through Democratic, Republican and Cosmopolitan Constitutionalism 265
b
Need for Comparative Institutionalism 267
c
Need for Challenging Path-dependent iel 269
d
From ‘Constitutionalism 1.0’ to Multilevel ‘Cosmopolitan Constitutionalism 3.0’ 271
4
Multilevel Governance Problems of ‘Global pgs’: From ‘Law and Economics’ towards the ‘Geneva Consensus’ 276
a
The ‘Washington Consensus’ on ‘Law and Economics’ in iel 277
b
The Limits of ‘Trade Theories’ for Explaining Trade Regulation 279
c
From ‘Justice as Efficiency’ to ‘Constitutional Economics’ and ‘Human Development’ 281
d
The Dialectic Evolution of iel: Towards a ‘Geneva Consensus’ (P. Lamy) on Citizen-driven ‘Network Governance’? 282
e
Multilevel Governance and ‘Regulatory Competition’ 284
5
Legal Fragmentation: How to Reconcile Investment Law and Adjudication with Human Rights? 287
a
The Transformation of International Investment Law Through Investment Treaties and Arbitration 287
b
How to Reconcile Investment Law with Human Rights Law? 291
c
The Different Perspectives of Investors, Home and Host States, Amici Curiae and Judges in isds 293
6
How to Reconcile Health Law and iel with Human Rights Law? The Example of Multilevel Tobacco Control Litigation 296
a
Worldwide Recognition of Rights to Health Protection 296
b
The wto Complaints against Australia’s Legislation on ‘Plain-packaging’ of Tobacco Products 297
c
‘Balancing Methods’ Used in wto Tobacco Control Disputes 301
d
Administration of Justice in Investor-State Tobacco Disputes? 305
7
Outlook: Republican and Democratic Constitutionalism Can Legitimize Multilevel Governance of pgs and ‘Global Legal Pluralism’ 309
a
How to Limit the Reality of ‘Global Legal Pluralism’? 310
b
Legal, Sociological and Moral Legitimacy in Multilevel Governance of Public Goods 313
c
From the ‘Mandate of Heaven’ to ‘Constitutional Functions’ of iel in China? 317
d
e
Need for ‘Multilevel Republicanism’ in Multilevel Governance of Global ‘Aggregate pgs’ 321
f
Conclusion: Promoting ‘Constitutional Justice’ Through Republican Rights for Local Protection of Transnational ‘Aggregate Public Goods’ 324
Index 327