Transnational benefit sharing from the exploitation of Marine Genetic Resources’ (MGR’s) in Areas Beyond National Jurisdiction (ABNJ) presents a unique problem in international law. Proposals to govern MGR’s in ABN...Transnational benefit sharing from the exploitation of Marine Genetic Resources’ (MGR’s) in Areas Beyond National Jurisdiction (ABNJ) presents a unique problem in international law. Proposals to govern MGR’s in ABNJ include leaving them unregulated, governance under the International Seabed Authority (ISA) or the Convention on Biological Diversity (CBD) or implementing a new international regime. This paper demonstrates that a hybrid solution for MGR governance?under the ISA which is modeled on the CBD and The Nagoya Protocol (Nagoya), provides the most adroit solution to the problem of equal benefit and access to MGR’s for all States. This solution ensures adequate conservation of MGR’s, meanwhile fostering sustainable exploitation and maintaining equality in access, biodiversity and the sharing of financial and technological benefits amongst the internationalcommunity. Further, examining benefit sharing from bioprospecting under the CBD and Nagoya provides a foundation for a benefit-sharing regime in ABNJ under The United Nations Convention on the Law of the Sea (UNCLOS). Examining the CBD, Nagoya and UNCLOS demonstrates how benefits arising from exploitation of MGR’s in the high seas and deep bed should be included as a mandate of the ISA. This methodology is accomplished by focusing on bioprospecting for MGR’s and how the CBD and Nagoya facilitate access to the resource while ensuring that the host State or community benefits from granting access. As the CBD and Nagoya focus on benefit sharing in light of national sovereignty, and UNCLOS regulates in areas beyond national jurisdiction, the ISA is perfectly placed to adopt the principles of the CBD and Nagoya and provide a mechanism to ensure that MGR’s in ABNJ are adequately conserved and the benefits arising from their exploitation equitably shared.展开更多
Much of the existing scholarship on the universalization of nineteenth-century international law has framed it in terms of the imperial West＇s domination of non-Western societies. This article complicates and qualifi...Much of the existing scholarship on the universalization of nineteenth-century international law has framed it in terms of the imperial West＇s domination of non-Western societies. This article complicates and qualifies this conventional state-centric narrative by investigating the juridical, capitalist production of China as a ＂semi-civilized＂ international legal subject. It examines the foundational modern Sino-British/Western commercial and extraterritorial treaties, as well as the treatises of a new professional class of British international lawyers--James Lorimer （1818-90）, John Westlake （1828-1913）, William Edward Hall （1835-94）, T. E. Holland （1835-1926）, Thomas Lawrence （1849-1920）, and Lassa Oppenheim （1849-1920）. The juridical production of China as a ＂semi-civilized＂ legal subject throws into relief the dual capitalist nature and significance of the universalization of nineteenth-century international law. On the one hand, this ＂civilized＂ legal discourse underwrote a novel liberal conception of a universal international law （jus publicum universal） within which China was formally included as a quasi-legal subject. On the other hand, it also underwrote a particularistic, Euro-centric international law, which excluded China from its global domain and denied it basic sovereign rights. In this way also, ＂civilized＂ international law justified both formal equality in European- non-European treaty relations, as well as the real substantive inequality of these international exchanges of rights and obligations. Building on the critical theoretical work of Evgeny Pashukanis （1891-1937）, this article argues that a non-orthodox Marxist social theory of legal forms is best suited to explain the abstract, liberal universalism of nineteenth-century ＂civilized＂ international law and the contradictory forms of legal and jurisprudential discourse it made available and rendered normatively meaningful to international law practitioners. Through this Marxist theory, moreover, I shall relate said contradictory discourse to modern commodity exchange practices.展开更多
In our highly globalized but culturally divided world whereby so-called defense industry is implied as both innovative and progressive, as contemporaneously the international legal doctrine is conceived to be static a...In our highly globalized but culturally divided world whereby so-called defense industry is implied as both innovative and progressive, as contemporaneously the international legal doctrine is conceived to be static and conservative. This doubly bound narrative itself is almost as old as international law wherein the most striking contradictory moments happened in the era of, and between two world wars： In such a way that our thinking of legal and other fields owe much more thereto than we realize today. In this study, it is purported to call attention to some key understandings which may be termed as militarist humanitarianism, humanitarian militarism, or, optimist scientism, and pessimist humanitarianism. As such, it is intended to examine international issues pertaining to humanitarianism and militarism through the lens of different perspectives, doctrine-itself and their history as enshrined in the Protocol IV on Blinding Laser Weapons, issues which are almost totally neglected in the mainstream media and academia.展开更多
The Enterprise regime was intensively negotiated first in the Third United Nations Conference on the Law of the Sea (UNCLOS III) from 1973 to 1982 and then in the UN Secretary General’s informal consultations from 19...The Enterprise regime was intensively negotiated first in the Third United Nations Conference on the Law of the Sea (UNCLOS III) from 1973 to 1982 and then in the UN Secretary General’s informal consultations from 1990 to 1994. The United Nations Convention on the Law of the Sea (hereinafter the “Convention”) is a major achievement of the UNCLOS III and the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (hereinafter the “1994 Agreement”) is an achievement of the informal consultations. The Enterprise regime has been dramatically changed in many ways with the adoption of 1994 Agreement. Envisaged as an operational organ of the International Seabed Authority, the outlook of the Enterprise is still unknown. In this connection, this paper highlights a few questions which need to be answered urgently, and proposes the way forward for the operationalization of the Enterprise in terms of legal principles and institutional design.展开更多
文摘Transnational benefit sharing from the exploitation of Marine Genetic Resources’ (MGR’s) in Areas Beyond National Jurisdiction (ABNJ) presents a unique problem in international law. Proposals to govern MGR’s in ABNJ include leaving them unregulated, governance under the International Seabed Authority (ISA) or the Convention on Biological Diversity (CBD) or implementing a new international regime. This paper demonstrates that a hybrid solution for MGR governance?under the ISA which is modeled on the CBD and The Nagoya Protocol (Nagoya), provides the most adroit solution to the problem of equal benefit and access to MGR’s for all States. This solution ensures adequate conservation of MGR’s, meanwhile fostering sustainable exploitation and maintaining equality in access, biodiversity and the sharing of financial and technological benefits amongst the internationalcommunity. Further, examining benefit sharing from bioprospecting under the CBD and Nagoya provides a foundation for a benefit-sharing regime in ABNJ under The United Nations Convention on the Law of the Sea (UNCLOS). Examining the CBD, Nagoya and UNCLOS demonstrates how benefits arising from exploitation of MGR’s in the high seas and deep bed should be included as a mandate of the ISA. This methodology is accomplished by focusing on bioprospecting for MGR’s and how the CBD and Nagoya facilitate access to the resource while ensuring that the host State or community benefits from granting access. As the CBD and Nagoya focus on benefit sharing in light of national sovereignty, and UNCLOS regulates in areas beyond national jurisdiction, the ISA is perfectly placed to adopt the principles of the CBD and Nagoya and provide a mechanism to ensure that MGR’s in ABNJ are adequately conserved and the benefits arising from their exploitation equitably shared.
文摘Much of the existing scholarship on the universalization of nineteenth-century international law has framed it in terms of the imperial West＇s domination of non-Western societies. This article complicates and qualifies this conventional state-centric narrative by investigating the juridical, capitalist production of China as a ＂semi-civilized＂ international legal subject. It examines the foundational modern Sino-British/Western commercial and extraterritorial treaties, as well as the treatises of a new professional class of British international lawyers--James Lorimer （1818-90）, John Westlake （1828-1913）, William Edward Hall （1835-94）, T. E. Holland （1835-1926）, Thomas Lawrence （1849-1920）, and Lassa Oppenheim （1849-1920）. The juridical production of China as a ＂semi-civilized＂ legal subject throws into relief the dual capitalist nature and significance of the universalization of nineteenth-century international law. On the one hand, this ＂civilized＂ legal discourse underwrote a novel liberal conception of a universal international law （jus publicum universal） within which China was formally included as a quasi-legal subject. On the other hand, it also underwrote a particularistic, Euro-centric international law, which excluded China from its global domain and denied it basic sovereign rights. In this way also, ＂civilized＂ international law justified both formal equality in European- non-European treaty relations, as well as the real substantive inequality of these international exchanges of rights and obligations. Building on the critical theoretical work of Evgeny Pashukanis （1891-1937）, this article argues that a non-orthodox Marxist social theory of legal forms is best suited to explain the abstract, liberal universalism of nineteenth-century ＂civilized＂ international law and the contradictory forms of legal and jurisprudential discourse it made available and rendered normatively meaningful to international law practitioners. Through this Marxist theory, moreover, I shall relate said contradictory discourse to modern commodity exchange practices.
文摘In our highly globalized but culturally divided world whereby so-called defense industry is implied as both innovative and progressive, as contemporaneously the international legal doctrine is conceived to be static and conservative. This doubly bound narrative itself is almost as old as international law wherein the most striking contradictory moments happened in the era of, and between two world wars： In such a way that our thinking of legal and other fields owe much more thereto than we realize today. In this study, it is purported to call attention to some key understandings which may be termed as militarist humanitarianism, humanitarian militarism, or, optimist scientism, and pessimist humanitarianism. As such, it is intended to examine international issues pertaining to humanitarianism and militarism through the lens of different perspectives, doctrine-itself and their history as enshrined in the Protocol IV on Blinding Laser Weapons, issues which are almost totally neglected in the mainstream media and academia.
文摘The Enterprise regime was intensively negotiated first in the Third United Nations Conference on the Law of the Sea (UNCLOS III) from 1973 to 1982 and then in the UN Secretary General’s informal consultations from 1990 to 1994. The United Nations Convention on the Law of the Sea (hereinafter the “Convention”) is a major achievement of the UNCLOS III and the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (hereinafter the “1994 Agreement”) is an achievement of the informal consultations. The Enterprise regime has been dramatically changed in many ways with the adoption of 1994 Agreement. Envisaged as an operational organ of the International Seabed Authority, the outlook of the Enterprise is still unknown. In this connection, this paper highlights a few questions which need to be answered urgently, and proposes the way forward for the operationalization of the Enterprise in terms of legal principles and institutional design.
