Sienho Yee’s Paper, The Interpretation of “Treaties in Force” in Article 35(2) of the Statute of the ICJ, 47 ICLQ (1998), 884 was reproduced by Germany as Annex 31 to its Preliminary Objections filed in the Legality of Use of Force (Serbia and Montenegro v. Germany) case before the ICJ and was described as an “excellent study” [sic] in Italy’s filing (pp. 11-12), and then was quoted in Judge Elaraby’s 8 separate opinions (ICJ Reports 2004，pp. 362, 508, 653, 798, 944, 1093, 1240, 1385) in the related cases. Also discussed several times in open court on 9 May 2006 in another ICJ case. He was also cited in the Mauritius v. United Kingdom arbitral award and in oral arguments before the ITLOS.
Books (authored & edited):
(6) Sienho Yee (author), Towards an International Law of Co-progressiveness, Part II: Membership; Leadership and Responsibility (Martinus Nijhoff, 2014), 386, xii pp.
(5) Sienho Yee (author), Towards an International Law of Co-progressiveness (the concept of “international law of co-progressiveness”) (Martinus Nijhoff, 2004), 315 pp.; index; Reviewed: Annuaire Français (2004), 990; 62 Austrian JPIL (2007), 162; trans.: Xinhua Digests; Renmin U Reprints).
(3) Sienho Yee (editor), International Crime & Punishment: Selected Issues, Vol. 2 (University Press of America, 2004).
(1) Sienho Yee (co-editor
with Wang Tieya), International
Law in the Post-Cold War World: Essays in Memory of Li Haopei (2001, Routledge); Reviewed: Virginia JIL; Netherlands ILR.
(73) Sienho Yee, Notes on the International Court of Justice (Part 6)—The Fourth Use of Travaux Préparatoires in the LaGrand Case: To Prove the Non-preclusion of an Interpretation, 16 Chinese Journal of International Law (2017), 351-362 (free access: https://academic.oup.com/chinesejil/article/16/2/351/4100236/Notes-on-the-International-Court-of-Justice-Part?guestAccessKey=2a6f2b05-c1e9-4717-881c-65a4f00e2874 )
(72) Sienho Yee, Article 38 of the ICJ Statute and Applicable Law: Selected Issues in Recent Cases, 7 Journal of International Dispute Settlement (2016), 472–498. (Original in English) (Principal presentation on the topic delivered at the seminar organized by the ICJ to celebrate the 70th anniversary of its founding) (https://academic.oup.com/jids/article/7/2/472/1751109/Article-38-of-the-ICJ-Statute-and-Applicable-Law?guestAccessKey=de234942-b418-4aac-923d-2f6c19d1e10d)
(71) Sienho Yee, L’article 38 du Statut de la Cour internationale de Justice et le régime de droit applicable: Questions choisies et affaires récentes, 7 Journal of International Dispute Settlement (2016), 499–529 (In French, translation of Article No. 72 above). (https://academic.oup.com/jids/article/7/2/472/1751109/Article-38-of-the-ICJ-Statute-and-Applicable-Law?guestAccessKey=de234942-b418-4aac-923d-2f6c19d1e10d)
(70) Sienho Yee, The Recognition of the Existence of a Dispute regarding Sovereignty over Diaoyu Dao and Some Implications for the Parties and Other States, Especially the United States, 15 Chinese Journal of International Law (2016), 849-858 (https://doi.org/10.1093/chinesejil/jmw048).
(69) Sienho Yee, The South China Sea Arbitration Decisions on Jurisdiction and Rule of Law Concerns, 15 Chinese Journal of International Law (2016), 219-237 (https://academic.oup.com/chinesejil/article/15/2/219/2548394/The-South-China-Sea-Arbitration-Decisions-on?guestAccessKey=2ed7bce8-7526-43ca-bf5c-c822b22383dc).
(68) Sienho Yee, The South China Sea Arbitration: The Clinical Isolation and/or One-Sided Tendencies in the Philippines’ Oral Arguments, 14 Chinese JIL (2015), 423-435 (free access link: https://doi.org/10.1093/chinesejil/jmv044 ).
(67) Sienho Yee, The South China Sea Arbitration (The Philippines v. China): Potential Jurisdictional Obstacles or Objections, 13 Chinese Journal of International Law (2014), 663-739 (Free access link: https://doi.org/10.1093/chinesejil/jmu045 ).
(65) Sienho Yee, Notes on the International Court of Justice (Part 5): Temple of Preah Vihear (Interpretation) (2013), 14 Chinese JIL (2015), http://chinesejil.oxfordjournals.org/cgi/reprint/jmv040?ijkey=f4aFzz5hWsMSeRF&keytype=ref
(62) Sienho Yee, A Reply to Sir Michael Wood's Response to AALCOIEG’s Work and My Report on the ILC Project on Identification of Customary International Law, 15 Chinese JIL (2016), 33-40 (free access link: https://academic.oup.com/chinesejil/article/15/1/33/1745030/A-Reply-to-Sir-Michael-Wood-s-Response-to-AALCOIEG )
(57) Sienho Yee, The International Law of Co-progressiveness: The Descriptive Observation, the Normative Position and Some Core Principles, 13 Chinese Journal of International Law (2014), 485-500. (free access: https://academic.oup.com/chinesejil/article/13/3/485/2755670/The-International-Law-of-Coprogressiveness-The?guestAccessKey=b33c0430-17c1-4266-8c77-6fe22a248e92)
(56) Sienho Yee, The Competition between and among Intrinsic and Instrumental Values in Selected Competing Visions of the World, 13 Chinese Journal of International Law (2014), 241-250. (http://chinesejil.oxfordjournals.org/cgi/reprint/jmu028?ijkey=TzUmxH3BQ4AeC1U&keytype=ref )
(53) Sienho Yee, ‘Member Responsibility’ and the ILC Articles on the Responsibility of International Organizations: Some Observations, in: Maurizio Raggazi (ed.), Responsibility of International Organizations: Essays in Memory of Sir Ian Brownlie (Martinus Nijhoff 2013), 325-336. (Full text pdf: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2286793 )
(52) Sienho Yee, A Call for a More Rigorous Assessment of Universal Jurisdiction, ASIL Proceedings (American Society of International Law 2013), 242-245.
(50) Sienho Yee, Amicus Brief of the US-China Law Society before the US Supreme Court on the Non-Extraterritoriality of the Alien Tort Statute (Kiobel v. Royal Dutch Petroleum) (2012), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2347223 .
(49) Sienho Yee, Reform Proposals Regarding the International Court of Justice, 75 ILA Report of Conference (2012), 948-959. (Final Report of the sub-reporter on ICJ reform, for the ILA Study Group on UN Reform) (In English)
(47) Sienho Yee, Article 45 [of the ICJ Statute], in Andreas Zimmermann, Christian Tomuschat, Karin Oellers-Frahm & Christian J. Tams (eds), The Statute of the International Court of Justice: A Commentary (2d. ed. October 2012, Oxford University Press), 1182-1196.
(46) Sienho Yee, The Dynamic Interplay between the Interpreters of Security Council Resolutions, 11 Chinese Journal of International Law (2012), 613-622.
(45) Sienho Yee, Сиенхо Йии (Вухан, Китай) Универсальная юрисдикция: понятие, теория и практика, РОССИЙСКИЙ ЮРИДИЧЕСКИЙ ЖУРНАЛ (Russian Juridical Journal), 2012. № 4, 7-31. (Russian Trans. of Sienho Yee, Universal Jurisdiction: Concept, Logic, and Reality, 10 Chinese Journal of International Law (2011), 503-530.)
(44A) Sienho Yee, Voluntary and Compulsory Conciliation under the United Nations Convention on the Law of the Sea, 15 Dokdo Research Journal (Korea Maritime Institute) (November 2011), 20-33. (In English) (updated and expanded in new paper, Item 54 above: Conciliation and the 1982 U.N. Convention on the Law of the Sea, 44 Ocean Development and International Law (2013), 315-334. (An expanded and revised version of Article No. 49 below) (In English) (SSCI) (cited in the Mauritius v. United Kingdom arbitral award))
(42A) Sienho Yee, Book Review Lawsuits and Book Review Standards: An Editorial Comment, 10 Chinese Journal of International Law (2011), 171-172. (Free access: www.sienhoyee.org/yeebookreviewlawsuits.pdf)
(42) Sienho Yee, Notes on the International Court of Justice (Part 4): The Kosovo Advisory Opinion, 9 Chinese Journal of International Law (2010), 763-782.
(40) Sienho Yee, Notes on the International Court of Justice (Part 3): Rule-making at the Court—Integration, Uniformization, Keeping Existing Article Numbers and Giving Public Notice, 8 Chinese JIL (2009), 681-694.
(39) Sienho Yee, Notes on the International Court of Justice (Part 2): Reform Proposals Regarding the International Court of Justice—A Preliminary Report for the International Law Association Study Group on United Nations Reform, 8 Chinese JIL (2009), 181-189.
(38) Sienho Yee, The Intrinsic and Instrumental Values of Diversity: Some Philosophical and Legal Considerations, in: Sienho Yee & Jacques-Yvan Morin (eds), Multiculturalism and International Law: Essays in Honour of Edward McWhinney (Martinus Nijhoff 2009), 207-226.
(37) Sienho Yee, Notes on the International Court of Justice (Part 1): Arguments for the Publication of the Rule-making Materials, 7 Chinese Journal of International Law (2008), 691-698.
(36) Sienho Yee, Immunities and Operational Biases: General Concluding Remarks, International Administrative Tribunals in a Changing World: UN Administrative Tribunal Conference (2008), 251-255. (Free access: www.sienhoyee.org/unatconclusions.pdf )
(27) Sienho Yee, Article 45 [on how the President controls the proceedings before the International Court of Justice], in: Andreas Zimmermann, Karin Oellers-Frahm & Christian Tomuschat (eds.), The Statute of the International Court of Justice: A Commentary (Oxford University Press) (2006), 1049-1062.
(21) Sienho Yee, Sovereign Equality of States and the Legitimacy of “Leader States”, in: Ronald St. John Macdonald and Douglas M. Johnston (eds.), Towards World Constitutionalism (2005), 737-772.
(20) Sienho Yee, The Responsibility of States Members of an International Organization for its Conduct as a Result of Membership or Their Normal Conduct Associated with Membership, in: Maurizio Ragazzi (ed.), International Responsibility Today: Essays in Memory of Oscar Schachter (2005), 435-454.
(14) Sienho Yee, The State of the System and Content of International Law: A Review of the Abi-Saab Festschrift, Chinese JIL (2002), 314-25.
(13) Sienho Yee, The Potential Impact of the Possible US Responses to the 9-11 Atrocities on the Law regarding the Use of Force and Self-defence, Chinese Journal of International Law (2002), 287-93. (Reprinted in: Yee, Towards an International Law of Co-progressiveness (2004), above, 219.) Free access: http://chinesejil.oxfordjournals.org/content/1/1/287.full.pdf+html
(12) Sienho Yee, Xiang Gongjin Guojifa Maijin (in Chinese, shortened version of Article No. 10 below), Oxford China Forum (Student forum; Winter 2001), 14-19.
(11) Pay Tribute to Reason and Think Long-term: Reflections on the 9-11 Tragedy, Guest Column, Jurist (September 20, 2001), on line publication (http://jurist.law.pitt.edu/forum/forumnew31.htm), reprinted in a university coursebook, Keith Shimko (ed.), International Relations: Perspectives and Controversies (Houghton Mifflin Company, 2005), 311-313.
(10) Sienho Yee, Towards an International Law of Co-progressiveness, in: Sienho Yee & Wang Tieya (eds.), International Law in the Post-Cold War World: Essays in Memory of Li Haopei (2001), 18-39. (Reprinted in: Yee, Towards an International Law of Co-progressiveness (2004), above, 1).
(9) Sienho Yee, The News that Opinio Juris “Is Not a Necessary Element of Customary [International] Law” Is Greatly Exaggerated, 43 German Yearbook of International Law (2000), 227-38 (2001). (Reprinted in: Yee, Towards an International Law of Co-progressiveness (2004), above, 27)
(8) Sienho Yee, The Time Limit for the Ratification of Proposed Amendments to the Constitutions of International Organizations, 4 Max Planck Yearbook of United Nations Law (2000), 185-213. (Reprinted in: Yee, Towards an International Law of Co-progressiveness (2004), above, 193.) (Free access: http://www.mpil.de/files/pdf2/mpunyb_yee_4.pdf )
(5) Sienho Yee, The Interpretation of “Treaties in Force” in Article 35(2) of the Statute of the International Court of Justice, 47 International & Comparative Law Quarterly (1998), 884-904. (Reprinted in: Yee, Towards an International Law of Co-progressiveness (2004), above, 59). (This article was reproduced by Germany as Annex 31 to its Preliminary Objections filed in the Legality of Use of Force (Serbia and Montenegro v. Germany) case before the ICJ (www.icj-cij.org/icjwww/idocket/iyge /iygepleadings/iyge_ipleading_20000705.pdf), described as an “excellent study” [sic] and discussed at length by Italy in its filing in a related case (http://www.icj-cij.org/icjwww/idocket/iyit/ iyitpleadings/iyit_ipleading_20000705.pdf, pp.11-12), and was subsequently quoted Judge Elaraby’s 8 separate opinions issued on December 15, 2004 in these cases at the ICJ.) The Court adopted in these cases a decision that is different from its preliminary decision in 1993.
(4) Sienho Yee, The Erdemovic Sentencing Judgement: A Questionable Milestone for the International Criminal Tribunal for the Former Yugoslavia, 26 Georgia Journal of Int’l & Comparative Law (1997), 263-309. (Reprinted in: Yee, Towards an International Law of Co-progressiveness (2004), 115).
(3) Sienho Yee, The New Constitution of Bosnia and Herzegovina, 7 European Journal of International Law (1996), 176-92. (Reprinted in: Yee, Towards an International Law of Co-progressiveness (2004), above, 227.) （Free access: http://www.ejil.org/pdfs/7/2/1360.pdf ）
(2) Sienho Yee, A Proposal to Reformulate Article 23 of the ILC Draft Statute for an International Criminal Court, 19 Hastings International & Comparative Law Review (Spring 1996), 529-37. (Reprinted in: Yee, Towards an International Law of Co-progressiveness (2004), above, 105). This very short paper on the relationship between the United Nations Security Council and the International Criminal Court (presenting a counter-proposal to, and beating, that made by the International Law Commission (ILC)) was presented in March 1996 as an informal document to the Chairman of the drafting committee at the United Nations. Some may only say this paper anticipated the result. This paper has been cited many times in the literature, with some authors saying that this paper was similar to Article 16 (!), although this paper was published two years earlier than the adoption of Article 16.
(1) Sienho Yee, The Discretionary Function Exception Under the Foreign Sovereign Immunities Act: When in America, Do the Romans Do as the Romans Wish?, 93 Columbia Law Review (1993), 744-82. (Reprinted in: Yee, Towards an International Law of Co-progressiveness (2004), above, 247.) (Free access: www.sienhoyee.org/fsia.pdf )
Short book reviews and current development notes including:
(8) Sienho Yee, Review of Nisuke Ando,
Edward McWhinney and Rüdiger Wolfrum (eds), Liber Amicorum Judge Shigeru Oda, 5
Chinese JIL (2006), 254-256.
(7) Sienho Yee, Review of Shabtai Rosenne, The Perplexities of Modern International Law, 5 Chinese JIL (2006), 256-159.
(6) Sienho Yee, Review of Xue Hanqin, Transboundary Damage in International Law (2003), 3 Chinese JIL (2004), 669-75.
(5) Sienho Yee, Foreign Sovereign Immunities, Acta Jure Imperii and Acta Jure Gestionis: A Recent Exposition from the Canadian Supreme Court, 2 Chinese JIL (2003), 649-53.
(4) Sienho Yee, A Tribute to Professor Wang Tieya, 1 Chinese JIL (2002), Issue 2, vii-ix.
(3) Sienho Yee, Professor Wang Tieya: My Friend, Critic, Colleague and Example, 4 Journal of the History of International Law (2002), 230-235.
(2) Sienho Yee, Co-author (with Wang Tieya), Foreword, Chinese JIL (2002), iii.
(1)(a) Sienho Yee, Review of Zhu Wenqi: Outline of International Humanitarian Law, International Review of the Red Cross (1997), 733.
(1)(b) **Francais : Livres et revues : “Outline of International Humanitarian Law”, Revue internationale de la Croix-Rouge no 828, p.780-788.
(1)(c) **Espanol : Bibliografía: “Outline of international humanitarian law”, Revista Internacional de la Cruz Roja No 144, 781-787.
The Interpretation of "Treaties in
Force" in Article 35(2) of the Statute of the International Court of
[Published at 1998 ICLQ 884. Only the conclusion section is posted here. ]
In general, the term "treaties in force" should be interpreted so as to give the maximum effect to the language and purpose of Article 35(2). This requires that, in cases involving ordinary matters, we read it as referring to the treaties relating to the settlement of World War II disputes, regardless of when those treaties went into force, and to other treaties that had entered into force as of the date when the Statute was adopted. Other readings either do not jibe with the textual context or cannot be squared with the drafting history, and should be rejected. However, in cases involving jus cogens violations, the term should be given the broadest interpretation in order to facilitate States to utilise the ICJ to resolve such disputes at the earliest possible time. This requires that it be read as meaning "treaties in force as of the date when the case is initiated, including those entering in force subsequent to the adoption of the Statute."
A Proposal To Reformulate Article 23 of the
ILC Draft Statute for an International Criminal Court
19 Hastings Int'l & Comp. Law Review 529 (1996)
[ The full paper was published in Hastings International and Comparative Law Review in Spring 1996 ]
The operations of the proposed International Criminal Court (the Court) will no doubt be intimately related to the functions of the United Nations Security Council (the Security Council). As envisaged by the International Law Commission (ILC), the Court would be empowered to take jurisdiction over the crimes of genocide and aggression, serious violations of the laws and customs applicable in armed conflict, crimes against humanity, and other crimes punishable under certain treaty regimes. The situations that would give rise to such crimes will most likely impact upon international peace and security and therefore be dealt with by the Security Council. As a result, it is imperative to strike a proper balance between the role of the proposed International Criminal Court and that of the Security Council. The attempt by the ILC to do so, as embodied in Article 23 of its Draft Statute for an International Criminal Court, is less than satisfactory. Chief among the criticisms lodged against the ILC draft Article 23 is that it would substantially hinder the independence of the Court and interfere with its judicial functions. In its current form, Article 23 would permit the Security Council to control the Court by merely placing an item on its own agenda and dealing with the matter itself. With respect to the crime of aggression in particular, Article 23 would preclude the Court from functioning merely because of inaction by the Security Council, and would mandate that the Security Council substitute for the Court in its decision-making role with respect to the existence of aggression, an essential element of the crime of aggression. The role envisaged by the ILC for the Security Council with respect to the crime of aggression is contrary to the basic norms of judicial function and has caused some to advocate removing the crime of aggression from the jurisdiction of the Court.
The current ILC Draft Statute would give the Security Council more power than it has under the United Nations Charter (the Charter), both with respect to the general functioning of the Court and with respect to the crime of aggression in particular. The crime of aggression-the crime of crimes-should be part of the jurisdiction of the Court. Otherwise, the diplomatic conference for the establishment of an International Criminal Court would bear, in the annals of human history, the stigma of making retrogressive development of international law. The current proposal would only empower the Court to remedy minor symptoms, rather than enable it to eliminate one of the primary causes of breaches of international peace and security the crime of aggression.
I believe that draft Article 23 can be reformulated to place the Court in a position essentially analogous to that of the International Court of Justice (ICJ), strengthen the Court's independence, preserve the prerogatives of the Security Council under the Charter and, last but not least, retain the Court's jurisdiction over the crime of aggression.
II. Proposed New Article 23
The proposal for a reformulation of Article 23 is as follows:
1. Notwithstanding Article 21, the Court has jurisdiction in accordance with this Statute with respect to crimes referred to in Article 20 as a consequence of the referral of a matter to the Court by the Security Council acting under Chapter VII of the Charter of the United Nations. Such referral is not, however, binding on either the Prosecutor or any Chamber of the Court with respect to whether there is enough evidence for initiating an investigation or prosecution proceeding against an individual or for individual responsibility.
2. The Security Council may, on its own motion or upon request by any interested person or government, pardon, commute or reduce the sentence imposed by the Court on a person convicted of the crime of (a) aggression, (b) threat of aggression, or (c) a crime against the peace, if the interests of peace and justice so require. Such action by the Security Council shall not have any effect on the conviction itself.
3. The Court shall stay any judicial proceeding (other than investigative operations) upon the request by the Security Council when it, acting under Chapter VII of the Charter of the United Nations, concludes that such a stay is necessary as part of its enforcement measures to maintain or restore international peace and security. Such a stay shall be lifted and the proceeding shall continue, however, when:
(a) the Security Council notifies the Court that such stay is no longer necessary; or
(b) all relevant sanctions including both military and economic sanctions, if any, imposed by the Security Council have been suspended or terminated; or
(c) in the absence of active involvement of the Security Council, the Court decides that such stay is no longer necessary to maintain or restore international peace and security, having given due regard to the relevant actions and views of the Security Council.
[Part III contains the commentaries explaining the rationale for this counter-proposal.]
Yi Xianhe; 易显河