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Revisiting the International Rule of Law in an Era of Resistance

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Legal Protection and Sustainability of Chinese Investments in Africa

Part of the book series: Modern China and International Economic Law ((CIEL))

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Abstract

The adverse effects of globalization, liberalization, and the rise and fall of national power have led some states toward the other extreme of globalization and liberalization. A significant manifestation is their opposition to the international rule of law, such as impeding or withdrawing from international institutions and international treaties and further replacing the international rule of law with their own national rule of law to the extent of excessively and extraterritorially applying their national rule of law.

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Notes

  1. 1.

    For example, the Trump Administration of the United States denounced the Paris Agreement, obstructed the operation of the WTO Appellate Body, and withdrew from the World Health Organization, and the United States imposed a series of sanctions on China in accordance with its domestic law.

  2. 2.

    See Vesselin Popovski, “From Domestic to International Rule of Law: A Long and Unfinished Journey”, in Vesselin Popovski (ed.), International Rule of Law and Professional Ethics (Ashgate, 2014) 5–18; Simon Chesterman, “‘Unqualified Human Good’ or a Bit of ‘Ruling-Class Chatter’, The Rule of Law at the National and International Level”, in Vesselin Popovski (ed.), International Rule of Law and Professional Ethics (Ashgate, 2014) 19–48.

  3. 3.

    See Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (1st edition, Macmillan, 1885).

  4. 4.

    See Ted Honderich (ed.), The Oxford Companion to Philosophy (Oxford University Press, 1995) 780–781; Dicey Albert Venn, Introduction to the Study of the Law of the Constitution (8th edition, Macmillan, 1915) 198.

  5. 5.

    See Machiko Kanetake, The Interfaces Between the National and International Rule of Law: A Framework Paper, Amsterdam Center for International Law Research Paper 07 (2014), ACIL 2014–27, p.8.

  6. 6.

    Dwight D. Eisenhower, “Remarks Upon Receiving an Honorary Degree of Doctor of Laws at Delhi University” (December 11, 1959), available at <http://www.eisenhowermemorial.org/speeches/1959>.

  7. 7.

    Charles Rhyne, Opening Statement before Boston Conference on World Peace through Law, March 27, 1959, A.B.A. Special Committee on World Peace through Law, The Rule of Law among Nations: Digest of Proceedings of Regional Conferences of Lawyers 47 (1959).

  8. 8.

    See Arthur Larson, The International Rule of Law (The Institute for International Order, 1961).

  9. 9.

    Simon Chesterman, “An International Rule of Law?” (2008) 56(2) American Journal of Comparative Law 331–361, at 360.

  10. 10.

    Terry Nardin, “Theorising the International Rule of Law” (2008) 34(3) Review of International Studies 385–401.

  11. 11.

    See Simon Chesterman, “An International Rule of Law?” (2008) 56(2) American Journal of Comparative Law 331–361.

  12. 12.

    See William W. Bishop, “The International Rule of Law” (1960–1961) 59 Michigan Law Review 553.

  13. 13.

    Charles Sampford, “Professions without Border: Global Ethics and the International Rule of Law”, in Vesselin Popovski (ed.), International Rule of Law and Professional Ethics (Ashgate, 2014) 129–147, at 146; Vesselin Popovski, “From Domestic to International Rule of Law: A Long and Unfinished Journey”, in Vesselin Popovski (ed.), International Rule of Law and Professional Ethics (Ashgate, 2014) 5–18.

  14. 14.

    See Lan Hurd, “What is the International Rule of Law?”, in Javier Solana and Angel Saz-Carranza (eds.), The Global Context: How Politics, Investment and Institutions Impact European Business (Esadegeo-Center for Global Economy and Geopolitics, 2015), Charter 8, at 149.

  15. 15.

    Lan Hurd, “What is the International Rule of Law?”, in Javier Solana and Angel Saz-Carranza (eds.), The Global Context: How Politics, Investment and Institutions Impact European Business (ESADEgeo-Center for Global Economy and Geopolitics, 2015), Charter 8, at 155.

  16. 16.

    See Jack L. Goldsmith and Eric A. Posner, The Limits of International Law (Oxford University Press, 2005) 171.

  17. 17.

    Andrew Guzman, How International Law Works: A Rational-Choice Theory (Oxford University Press, 2008).

  18. 18.

    See Simon Chesterman, “‘Unqualified Human Good’ or a Bit of ‘Ruling-Class Chatter’, The Rule of Law at the National and International Level”, in Vesselin Popovski (ed.), International Rule of Law and Professional Ethics (Ashgate, 2014) 19–48.

  19. 19.

    Vesselin Popovski, “From Domestic to International Rule of Law: A Long and Unfinished Journey”, in Vesselin Popovski (ed.), International Rule of Law and Professional Ethics (Ashgate, 2014) 5–18.

  20. 20.

    UN: 2005 World Summit Outcome, UN Doc. A/RES/60/1 (October 24, 2005), para.119, available at <https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_RES_60_1.pdf>.

  21. 21.

    UN: 2005 World Summit Outcome, UN Doc. A/RES/60/1 (October 24, 2005), para.134, available at <https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_RES_60_1.pdf>.

  22. 22.

    World Leaders Adopt Declaration Reaffirming Rule of Law as Foundation for Building Equitable State Relations, Just Societies, Sixty-seventh General Assembly, Plenary, 3rd, 4th & 5th Meetings, September 24, 2012, GA/11290, available at <http://www.un.org/press/en/2012/ga11290.doc.htm>.

  23. 23.

    See Wellens, Karel C, “Diversity in Secondary Rules and the Unity of International Law: Some Reflections on Current Trends” (1994) 25 Netherlands Yearbook of International Law 3–37; Oriol Casanovas y La Rosa, Unity and Pluralism in Public International Law (Martinus Nijhoff Publishers, 2001) 272.

  24. 24.

    For example, when the UN Security Council instigates sanctions targeting specific individuals and entities, it will make great efforts to follow close to the rule of law; see Jeremy Matam Farrall, United Nations Sanctions and the Rule of Law (Cambridge University Press, 2007); see Ang Sun, “Due Process of United Nations Security Council Sanctions Regimes Focusing on the Reform of 1267 Sanctions Regime” (2015) 6 Chinese Review of International Law 3–17; on December 12, 2015, at the UN Climate Change Conference held in Paris, 195 countries adopted the first universal climate agreement after two weeks’ heated discussion. It is said a “legal binding” deal. See United national conference on climate change, COP21/CMP 11, available at <http://www.cop21.gouv.fr/en/>.

  25. 25.

    See Lan Hurd, “What is the International Rule of Law?”, in Javier Solana and Angel Saz-Carranza (eds.), The Global Context: How Politics, Investment and Institutions Impact European Business (Esadegeo-Center for Global Economy and Geopolitics, 2016), Charter 8, at 149.

  26. 26.

    International Court of Justice, Press Release, The International Court of Justice has a central role to play in the promotion of the rule of law, the President of the Court affirms before the United Nations General Assembly, No. 2010/35, October 29, 2015.

  27. 27.

    Nehal Bhuta, “Are Sovereigns Entitled to the Benefit of the International Rule of Law? An Introduction” (2011) 22(2) The European Journal of International Law 313–314, at 313.

  28. 28.

    Arthur Larson, The International Rule of Law (The Institute for International Order, 1961) 19.

  29. 29.

    See UN: 2005 World Summit Outcome, UN Doc. A/RES/60/1 (October 24, 2005), para.11, available at <https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_RES_60_1.pdf>.

  30. 30.

    Lan Hurd, “What is the International Rule of Law?”, in Javier Solana and Angel Saz-Carranza (eds.), The Global Context: How Politics, Investment and Institutions Impact European Business (ESADEgeo-Center for Global Economy and Geopolitics, 2016), Charter 8, at 150.

  31. 31.

    See José E. Alvarez, International Organizations as Law-Makers (Oxford University Press, 2005).

  32. 32.

    Simon Chesterman, “An International Rule of Law?” (2008) 56(2) American Journal of Comparative Law 331–361, at 332.

  33. 33.

    Here is just a list of some courts and tribunals, for example: International Court of Justice (ICJ) (prior Permanent Court of International Justice (PCIJ)), International Criminal Tribunal for the Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia, International Criminal Court (ICC). In addition, some regional courts are very effective. Among others, European Court of Justice (prior Court of Justice of the European Communities has been commended as “a real step forward toward the international rule of law”; see William W. Bishop, “The International Rule of Law” (1961) 59 Michigan Law Review 553, 560 is the leader of regional rule of law.

  34. 34.

    See Ingo Venzke, How Interpretation Makes International Law: On Semantic Change and Normative Twists (Oxford University Press, 2012).

  35. 35.

    See Chester Brown, A Common Law of International Adjudication (Oxford University Press, 2007).

  36. 36.

    Arthur Larson, The International Rule of Law (The Institute for International Order, 1961) 28.

  37. 37.

    Hersch Lauterpacht, The Development of International Law by the International Court (Stevens & Sons, 1958) 4 and 5.

  38. 38.

    See Christian J Tams and James Sloan, The Development of International Law by the International Court of Justice (Oxford University Press, 2013) 3–5.

  39. 39.

    See Christian J Tams and James Sloan, The Development of International Law by the International Court of Justice (Oxford University Press, 2013).

  40. 40.

    International Court of Justice, Press Release, The International Court of Justice has a central role to play in the promotion of the rule of law, the President of the Court affirms before the United Nations General Assembly, No. 2010/35, October 29, 2015.

  41. 41.

    International Court of Justice, Press Release, The International Court of Justice has a central role to play in the promotion of the rule of law, the President of the Court affirms before the United Nations General Assembly, No. 2010/35, October 29, 2015.

  42. 42.

    Katharina Pistor, “Advancing the Rule of Law: Report on the International Rule of Law Symposium Convened by the American Bar Association November 9–10, 2005” (2007) 25 Berkeley Journal of International Law 7, at 11.

  43. 43.

    See Katharina Pistor, “Advancing the Rule of Law: Report on the International Rule of Law Symposium Convened by the American Bar Association November 9–10, 2005” (2007) 25 Berkeley Journal of International Law 7, at 11.

  44. 44.

    See William J. Davey, “The WTO and Rules-Based Dispute Settlement: Historical Evolution, Operational Success and Future Challenges” (2014) 17(3) Journal of International Economic Law 679.

  45. 45.

    See John H. Jackson, “The Crumbling Institutions of the Liberal Trade System” (1978) 12 Journal of World Trade Law 93, at 99; John H. Jackson, The Jurisprudence of GATT and the WTO: Insights on Treaty Law and Economic Relations (Cambridge University Press, 2000) 6–10.

  46. 46.

    In addressing a perpetual peace between states, Kant Immanuel did not use the phrase of “international rule of law”, but he indeed mentioned that “peace between neighboring States-which can only be furnished under conditions that are regulated by Law”. See Immanuel Kant, Perpetual Peace: A Philosophical Sketch (1795), available at <http://fs2.american.edu/dfagel/www/Class%20Readings/Kant/Immanuel%20Kant,%20_Perpetual%20Peace_.pdf>.

  47. 47.

    Lan Hurd, “What is the International Rule of Law?”, in Javier Solana and Angel Saz-Carranza (eds.), The Global Context: How Politics, Investment and Institutions Impact European Business (ESADEgeo-Center for Global Economy and Geopolitics, 2016), Charter 8, at 149.

  48. 48.

    Curtis A Bradley, “Exiting Congressional-Executive Agreements” (2018) 67 Duke Law Journal 1615–1645; Justin Hughes, An “America First” Presidency, International Rule of Law and the Charming Betsy Doctrine. Loyola Law School, Los Angeles Legal Studies Research Paper, 2017–16.

  49. 49.

    See Murray v. Schooner Charming Betsy, 6 U.S. 64, 2 L.Ed.208 (1804), available at <https://supreme.justia.com/cases/federal/us/6/64/>.

  50. 50.

    See Yi Wang, China: A Staunch Defender and Builder of the International Rule of Law (Oxford University Press, 2014); Jielong Duan, “Statement on the Rule of Law at the National and International Levels” (2007) 6(1) Chinese Journal of International Law 185–188; Jovanović, Miodrag A., “Responsibility to Protect and the International Rule of Law” (2015) 14(4) Chinese Journal of International Law 757–776.

  51. 51.

    See Zhenmin Liu, “Following the Five Principles of Peaceful Coexistence and Jointly Building a Community of Common Destiny” (2014) 13(3) Chinese Journal of International Law 477–480; Zhenmin Liu, “Laying the Foundations of Peace and Stability for an Asian Community of Shared Destiny” (2014) 49 Chinese International Studies 17–26; Jiaxuan Tang, “Work Together for Peace, Prosperity and a Beautiful Future” (2014) 49 China International Studies 5–16; Yi Wang, “Peaceful Development and the Chinese Dream of National Rejuvenation” (2014) 44 China International Studies 18–44.

  52. 52.

    See Burnay, Matthieu, Chinese Perspectives on the International Rule of Law: Law and Politics in the One-Party State (Edward Elgar Publishing, 2018).

  53. 53.

    The Five Principles include: mutual respect for territorial integrity and sovereignty; mutual non-aggression; non-intervention in each other’s internal affairs; equality and mutual benefit; peaceful coexistence. They are guiding principle put forward by Prime Minister Zhou Enlai in 1953 and utilized by China to deal with the foreign relations between China and other states.

  54. 54.

    Aniruddha Rajput, “The BRICS as ‘Rising Powers’ and the Development of International Law”, in Heike Krieger, Georg Nolte, and Andreas Zimmermann, The International Rule of Law: Rise or Decline? (Oxford University Press, 2019) 105–124, at 124.

  55. 55.

    See Simon Chesterman, “International Law and Its Others: Comment on Aniruddha Rajput”, in Heike Krieger, Georg Nolte, and Andreas Zimmermann, The International Rule of Law: Rise or Decline? (Oxford University Press, 2019).

  56. 56.

    In history, although other states also have the tradition of rule of law, and different traditions understand and emphasize different sides of rule of law, modern ideal on rule of law mostly comes from the Western countries. It can be said that the rule of law in English is achieved by the head of the King. According to British constitutional scholar AV Dicey, the rule of law refers to the “supremacy of the law”. As a whole, the “instrumental limitations on the exercise of State authority” is essence of rule of law idea. See Dicey Albert Venn, Lectures Introductory to the Study of the Law of the Constitution (1st edition, Macmillan London, 1885) 171; generally, the notions of rule of law from the Germany and France which “focused on the nature of State, particularly on the role of constitutionalism” are more abstract and more difficult to grasp. See UN, “What is the Rule of Law”, available at <http://www.unrol.org/article.aspx?n=What%20is%20the%20rule%20of%20law?>.

  57. 57.

    See Machiko Kanetake, “The Interfaces between the National and International Rule of Law: A Framework Paper”, in Machiko Kanetake and André Nollkaemper (eds.), The Rule of Law at the National and International Levels: Contestations and Deference (Hart Publishing, 2015); Amsterdam Center for International Law No. 2014–27, Amsterdam Law School Research Paper No. 2014–44, footnote 5.

  58. 58.

    See UN General Assembly Resolution adopted on September 24, 2012, “Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels” UN Doc. A/RES/67/1, November 30, 2012, available at <https://www.un.org/ruleoflaw/files/37839_A-RES-67-1.pdf>.

  59. 59.

    UN General Assembly Resolution adopted on September 24, 2012, “Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels” UN Doc. A/RES/67/1, November 30, 2012, para. 2, available at <https://www.un.org/ruleoflaw/files/37839_A-RES-67-1.pdf>.

  60. 60.

    See Jeremy Waldron, “Are Sovereigns Entitled to the Benefit of the International Rule of Law” (2011) 22(2) European Journal of International Law 315–343, at 329.

  61. 61.

    See André Nollkaemper, National Courts and the International Rule of Law (Oxford University Press, 2011) 3–5.

  62. 62.

    See Dicey Albert Venn, Lectures Introductory to the Study of the Law of the Constitution (1st edition, Macmillan London, 1885); Paul Craig, “Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework in Public law” (1997) Public Law 467; Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University Press, 2004) 91, Chaps. 7–9.

  63. 63.

    Simon Chesterman, “‘Unqualified Human Good’ or a Bit of ‘Ruling-Class Chatter’, The Rule of Law at the National and International Level”, in Vesselin Popovski (ed.), International Rule of Law and Professional Ethics (Ashgate, 2014) 19–48.

  64. 64.

    Simon Chesterman, “An International Rule of Law?” (2008) 56(2) American Journal of Comparative Law 331–361, at 342–343.

  65. 65.

    See Charles Sampford, “‘Thin Theories’ of the Domestic and International Rule of Law”, in Vesselin Popovski (ed.), International Rule of Law and Professional Ethics (Ashgate, 2014) 49–76.

  66. 66.

    See Charles Sampford, “Professions without Border: Global Ethics and the International Rule of Law”, in Vesselin Popovski (ed.), International Rule of Law and Professional Ethics (Ashgate, 2014) 129–147.

  67. 67.

    Matthias Kumm, “International Law in National Courts: The International Rule of Law and the Limits of the Internationalist Model” (2003) 44(19) Virginia Journal of International Law 25–26.

  68. 68.

    See Jeremy Waldron, “Are Sovereigns Entitled to the Benefit of the International Rule of Law” (2011) 22(2) European Journal of International Law 315–343.

  69. 69.

    See Simon Chesterman, “An International Rule of Law?” (2008) 56(2) American Journal of Comparative Law 331–361, at 355–356; Simon Chesterman, “‘Unqualified Human Good’ or some ‘Ruling-Class Chatter’, The Rule of Law at the National and International Level”, in Vesselin Popovski (ed.), International Rule of Law and Professional Ethics (Ashgate, 2014) 19–48.

  70. 70.

    William W. Bishop, “The International Rule of Law” (1960–1961) 59 Michigan Law Review 553, at 553.

  71. 71.

    André Thomashausen, China in Africa, available at <www.legesmundi.com>.

  72. 72.

    Foreign Investment Law of the People's Republic of China, Order No. 26 of the President of the People’s Republic of China, laws, issued on March 15, 2019, entered into force on January 1, 2020. For example, in article 1, it provides that “regulating the administration of foreign investment”, and in article 4, it provides that “The state applies the administrative system of pre-establishment national treatment plus negative list to foreign investment”.

  73. 73.

    See Geranne Lautenbach, The Concept of the Rule of Law and the European Court of Human Rights (Oxford University Press, 2013) 19.

  74. 74.

    See Geranne Lautenbach, The Concept of the Rule of Law and the European Court of Human Rights (Oxford University Press, 2013) 1, 20.

  75. 75.

    See Lan Hurd, “What is the International Rule of Law?”, in Javier Solana and Angel Saz-Carranza (eds.), The Global Context: How Politics, Investment and Institutions Impact European Business (Esadegeo-Center for Global Economy and Geopolitics, 2016), Charter 8, at 152.

  76. 76.

    For the sources of international law, see Statute of International Court of Justice, article38, 59 Stat. 1060 (1945), available at <https://www.icj-cij.org/en/statute>.

  77. 77.

    Vesselin Popovski, “From Domestic to International Rule of Law: A Long and Unfinished Journey”, in Vesselin Popovski (ed.), International Rule of Law and Professional Ethics (Ashgate, 2014) 5–18.

  78. 78.

    Lan Hurd, “What is the International Rule of Law?”, in Javier Solana and Angel Saz-Carranza (eds.), How Politics, Investment and Institutions Impact European Businesses (Esadegeo-Center for Global Economy and Geopolitics, 2016), Chap. 8, at 150.

  79. 79.

    Lan Hurd, “What is the International Rule of Law?”, in Javier Solana and Angel Saz-Carranza (eds.), The Global Context: How Politics, Investment and Institutions Impact European Business (Esadegeo-Center for Global Economy And Geopolitics, 2016) Charter 8, at 149; Guzman points out that “countries that decide against developing a strong reputation for compliance with international obligations choose short-term benefits over long-term gains”, Guzman Andrew T, “A compliance based theory of international law” (2002) 90 California Law Review 1823–1887, at 1850.

  80. 80.

    UN Charter, preamble, para.3, available at <https://www.un.org/en/about-us/un-charter/preamble>.

  81. 81.

    See Report of the Secretary-General, “Delivering Justice: Programme of Action to Strengthen the Rule of Law at the National and International Levels”, UN Doc. A/66/749, March 16, 2012, available at <https://www.un.org/ruleoflaw/files/SGreport%20eng%20A_66_749.pdf>.

  82. 82.

    Rule of law at the national and international levels, available at <http://www.unrol.org/article.aspx?article_id=25>.

  83. 83.

    Tom Bingham, The Rule of Law (Allen Lane, 2010) 110.

  84. 84.

    See Ian Brownlie, The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations (Martinus Nijhoff Publishers, 1998) 79.

  85. 85.

    Geranne Lautenbach, The Concept of the Rule of Law and the European Court of Human Rights (Oxford University Press, 2013) 7.

  86. 86.

    See Simon Chesterman, “An International Rule of Law?” (2008) 56(2) American Journal of Comparative Law 331–361, at 345.

  87. 87.

    Simon Chesterman, “An International Rule of Law?” (2008) 56(2) American Journal of Comparative Law 331–361, at 355.

  88. 88.

    Rule of law at the national and international levels (Agenda item 82), resolution 68/116, General Assembly of the United Nations Legal-Sixth Committee, available at <http://www.un.org/en/ga/sixth/69/rule_of_law.shtml>; also available at <http://www.unrol.org/article.aspx?article_id=25>.

  89. 89.

    See 2005 World Summit Outcome, UNGA Res 60/1 (October 24, 2005) UN Doc A/RES/60/1 [134], available at <https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_RES_60_1.pdf>; UNGA Res 63/128 (January 15, 2009) UN Doc A/RES/63/128, available at <https://www.un.org/ruleoflaw/files/A-RES-63-128.pdf> ; UNSC Presidential Statement (June 22, 2006) S/PRST/2006/28, available at <https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/IJ%20SPRST%202,006%2028.pdf>.

  90. 90.

    Geranne Lautenbach, The Concept of the Rule of Law and the European Court of Human Rights (Oxford University Press, 2013) 2.

  91. 91.

    See Katharina Pistor, “Advancing the Rule of Law: Report on the International Rule of Law Symposium Convened by the American Bar Association November 9–10, 2005” (2007) 25 Berkeley Journal of International Law 7.

  92. 92.

    See Laura Grenfell, “The UN and ‘Rule-Of-Law Constitutions’” (2012) Working Paper no 1.6, Centre for International Governance and Justice, Canberra, 1–25, at 1.

  93. 93.

    Vesselin Popovski, “From Domestic to International Rule of Law: A Long and Unfinished Journey”, in Vesselin Popovski (ed.), International Rule of Law and Professional Ethics (Ashgate, 2014) 5–18, at 11.

  94. 94.

    For example, South African Constitution stipulates the Supremacy of Constitution, that is, “This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.” See Constitution of the Republic of South Africa, No. 108 of 1996, article 2, available at <https://www.gov.za/documents/constitution/constitution-republic-south-africa-1996-1>.

  95. 95.

    For example, besides the Supremacy of Constitution, South African Constitution stipulates that unless an international agreement is a technical, administrative, or executive nature, an international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces. Thus, the status of this kind of treaty is equal to an Act of Parliament. In addition, the customary international law only is law in the republic when it is consistent with the Constitution or an Act of Parliament. Therefore, its status is inferior. See Constitution of the Republic of South Africa, No. 108 of 1996, articles 231, 232, available at <https://www.gov.za/documents/constitution/constitution-republic-south-africa-1996-1>.

  96. 96.

    See Machiko Kanetake, “The Interfaces between the National and International Rule of Law: A Framework Paper”, in Kanetake, Machiko and André Nollkaemper (eds.), The Rule of Law at the National and International Levels: Contestations and Deference (Hart Publishing, 2015); Amsterdam Center for International Law No. 2014–27, Amsterdam Law School Research Paper No. 2014–44.

  97. 97.

    About the concern that international rule of law may disregard national politics. See, e.g., Mattias Kumm, “International Law in National Courts: The International Rule of Law and the Limits of the Internationalist Model” (2003) 44 Virginia Journal of International Law 19.

  98. 98.

    Larson, Arthur, The International Rule of Law (The Institute for International Order, 1961) 28.

  99. 99.

    See Sabino Cassese, “Administrative Law without the State? The Challenge of Global Regulation” (2005) 37 New York University Journal of International Law and Politics 663.

  100. 100.

    “What is the rule of law?”, available at <http://www.unrol.org/article.aspx?n=What%20is%20the%20rule%20of%20law?>.

  101. 101.

    The UN’s legal personality was established by the International Court of Justice (ICJ) in Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) ([1949] ICJ Rep 173).

  102. 102.

    See Charter of the United Nations, signed on June 26, 1945, came into force on October 24, 1945, articles 1.7, 103.

  103. 103.

    See Armin von Bogdandy and Ingo Venzke, “Beyond Dispute: International Judicial Institutions as Law-makers” (2011) 12(5) German Law Journal 979, 981.

  104. 104.

    International Court of Justice, Press Release, The International Court of Justice has a central role to play in the promotion of the rule of law, the President of the Court affirms before the United Nations General Assembly, No. 2010/35, October 29, 2015.

  105. 105.

    Larson, Arthur, The International Rule of Law (The Institute for International Order, 1961) 55.

  106. 106.

    See Machiko Kanetake, “The Interfaces between the National and International Rule of Law: A Framework Paper”, Amsterdam Center for International Law No. 2014–27, Amsterdam Law School Research Paper No. 2014–44, fn21. According to Machiko Kanetake, the difference between international organization and international institution lies in whether international personality is possessed.

    As for international institutions, a still broader definition is “sets of rules that stipulate the ways in which states should cooperate and compete with each other”; see John J. Mearsheimer, “The False Promise of International Institutions” (1994–1995) 19(3) International Security 5–49. For the purpose of this research, this broad definition is not adopted. In the present author’s opinion, the “institution” is a word with broad meaning; it may mean an organization, a system, or a custom. As for international institutional law, see Henry G. Schermers and Niels Blokker, International Institutional Law (4th edition, Martinus Nijhoff, 2003); Jan Klabbers, An Introduction to International Institutional Law (Cambridge University Press, 2002); Nigel D. White, The Law of International Organizations (2nd edition, Manchester University Press, 2005); René-Jean Dupuy ed., Handbook on International Organizations (Springer, 1988).

  107. 107.

    Statute of the International Court of Justice, article 2, available at <http://www.icj-cij.org/documents/?p1=4&p2=2>.

  108. 108.

    Statute of the International Court of Justice, article 9, available at <http://www.icj-cij.org/documents/?p1=4&p2=2>.

  109. 109.

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    Xiuli Han

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Han, X. (2022). Revisiting the International Rule of Law in an Era of Resistance. In: Legal Protection and Sustainability of Chinese Investments in Africa. Modern China and International Economic Law. Springer, Singapore. https://doi.org/10.1007/978-981-19-1882-7_2

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