Editor-in-chief, Chinese Journal of International Law
(an Oxford journal)
Email: sienho@chinesejil.org;
tel. and fax (
** Chinese Journal of International Law
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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 International Court of Justice and
discussed in that filing (pp. iv; 28) 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 (Example 1 December 15, 2004; section III, para. 15, & n. 25) in the
related cases. His arguments were discussed several times in open court on 9 May 2006 in another
related case at the ICJ (all references).
Sienho Yee is an
Invited Participant in two major world projects:
(2) As a contributor to Commentary on the Statute of the International Court of
Justice;
(1) As a contributor to Towards World Constitutionalism.
Sienho
Yee's Publications: To buy all books by Sienho Yee, hit: Amazon and put “Sienho” in the search box.
Books (authored & edited):
(5) Sienho Yee (co-editor with J.Y. Morin),
Multiculturalism and International Law:
Essays in Honour of Edward McWhinney
(forthcoming 2007 Martinus Nijhoff).
(4) Sienho Yee (author), Towards an
International Law of Co-progressiveness (the
concept of “international law of co-progressiveness”; the collected
works) (Martinus Nijhoff Publishers)
(January 2004) (table of contents; index (see if your
name appears here)).
(Reviewed at Annuaire Français de droit
international (2004), 990; Zeitschrift für öffentliches Recht / Austrian
Journal of Public and International Law, Vol. 62, No. 1 (March 2007), pp.
162-165 (by Hans Köchler); translation of one chapter featured in Xinhua Digests and Renmin
University Reprints).
(3) Sienho Yee (editor), International Crime
& Punishment: Selected Issues, volume 2 (University
Press of America, May 2004).
(2) Sienho Yee (editor), International Crime
& Punishment: Selected Issues, Volume 1 (University Press
of America (order from catalog & get discount), May 2003). (Reviewed at Annuaire Français de droit
international, 2003, 847.)
(1) Sienho Yee
(co-editor (with Wang Tieya)), International
Law in the Post-Cold War World: Essays in Memory of Li Haopei (Apr. 5, 2001, Routledge) **table of contents **bios of authors; Reviewed
in Virginia Journal of
International Law (Fall, 2001), 363 (“International
Law in the Post-Cold War World is a powerful collection honoring a
great jurist and presenting critical new perspectives on the backdrop of
history, theory and practice in the evolution of international law”); Netherlands ILR 2003, 211
(posted with permission).
Journal
edited:
Editor-in-chief, Chinese Journal of International Law, Volume 1
(2002), No. 2; volume 2 (2003,
Nos. 1 & 2); volume 3; volume 4;
Founding Co-editor-in-chief (with Wang Tieya), Chinese
Journal of International Law, Volume 1 (2002), No. 1 (Nov.
2002).
(26) 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 (
(20) 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.
(19) 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.
(13) Sienho
Yee, The State of the System and Content of
International Law: A Review of the Abi-Saab Festschrift, Chinese JIL (2002),
314-25.
(12) 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: “Collected
Works” (2004), above, 219.)
(11) Sienho
Yee, Xiang Gongjin Guojifa Maijin (in Chinese, shortened
version of Article No. 10 below), Oxford China Forum (Student forum; Winter 2001), 14-19.
(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: “Collected Works” (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: “Collected Works” (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: “Collected
Works” (2004), above, 193.)
(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: “Collected Works” (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
(3) Sienho
Yee, The New Constitution of
(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: “Collected Works” (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
Short book reviews and current development
notes including:
(9) Sienho
Yee, Review of Nisuke Ando, Edward McWhinney and Rüdiger Wolfrum (eds), Liber Amicorum Judge Shigeru Oda, 5 Chinese JIL (2006), 254-256.
(8) Sienho Yee, Review of Shabtai
Rosenne, The Perplexities of Modern International
Law, 5 Chinese JIL (2006), 256-159.
(7) Sienho
Yee, Review of Xue Hanqin, Transboundary Damage in International Law (2003), 3 Chinese
JIL (2004), 669-75.
(6) 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.
(5) Sienho Yee, A Tribute to Professor Wang Tieya,
1 Chinese JIL (2002), vii-ix.
(4) Sienho Yee, Professor
Wang Tieya: My Friend, Critic, Colleague and Example,
4 Journal of the History of International Law (2002), 230-235.
(3) Sienho Yee, Co-author (with Wang Tieya),
Foreword, Chinese JIL (2002), iii.
(2) Sienho Yee, Pay Tribute to Reason and Think Long-term:
Reflections on the 9-11 Tragedy, Guest Column, Jurist (September 20, 2001), on line
publication.
(1) Sienho
Yee, Review of Zhu Wenqi: Outline of International Humanitarian Law, International
Review of the Red
Cross (1997), 733.
**Francais
**Espanol
The Interpretation of "Treaties in
Force" in Article 35(2) of the Statute of the International Court of
Justice
Sienho Yee
[Published at 1998 ICLQ 884. Only the conclusion section is posted here. ]
Conclusion
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."
THE ERDEMOVIC SENTENCING JUDGEMENT: A QUESTIONABLE
MILESTONE FOR THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA
26 Georgia J. Intl & Comp. L. 263 (Spring 1997)
Sienho Yee
[This piece was published in Georgia
Journal of International and Comparative Law, volume 26, No. 2, page 263 et
seq., Spring 1997. Only the introduction section is posted here. The full piece
is on Westlaw. The author was never professionally involved in the Erdemovic case.]
On November 29, 1996, Trial Chamber I of the International Criminal Tribunal
for the Former Yugoslavia (ICTY) handed down its first sentence: ten years of
imprisonment for a crime against humanity, to which Drazen
Erdemovic was said to have pleaded guilty (the
Sentencing Judgement). Erdemovic
is the first person sentenced by the ICTY and the first sentenced by an
international war crimes tribunal since the
Milestone though it may be, I respectfully submit that the Sentencing Judgement is a questionable one. The process leading to the
sentencing, from the guilty plea procedure to the Sentencing Judgement's treatment of substantive law regarding the
defense of duress and evidence, leaves much to be desired. This essay attempts
to detail some of these defects and to make suggestions for remedying them.
*n1.
Part I describes the proceedings that led to Erdemovic's
sentencing in order to provide a picture of what happened. Part II argues that
the Trial Chamber's handling of the guilty plea is regrettably defective and
deprived Erdemovic of procedural rights. These
defects rendered invalid Erdemovic's plea of guilty.
The Statute of the ICTY (ICTY Statute or the Statute) and the Rules of
Procedure and Evidence of the ICTY (the Rules or Rule) contain only vague and
general rules governing the guilty plea procedure which are insufficient. This
Part argues that since the Statute and the Rules import the guilty plea
procedure from common law, they should be interpreted as having also imported,
together with that procedure, the common law safeguards associated with it. The
ICTY should thus adopt these safeguards to give concrete content and effect to
the vague and general requirements under the Statute and the Rules.
Part III of this paper argues that the Trial Chamber's holding rejecting the
defense of obedience to superior orders is valid. Its recognition of the
possible availability of duress as a defense to a crime against humanity is
correct but its analysis is inadequate. This Part puts forward a new analysis,
proposing that duress should not be recognized as a defense to murder as the
predicate act for an ordinary war crime falling within the ambit of Article 3
of the ICTY Statute, but should be a defense to murder as the predicate act for
a crime against humanity, because the latter requires a specific intent which
would be negated when duress is found to exist. Part IV argues that the Trial
Chamber's evaluation of evidence is dubious at best. Part V concludes that the
Sentencing Judgement should be vacated, and the case
should be remanded to give Erdemovic a chance to replead.
Note 1. In so doing, I do not intend to provide a comprehensive analysis on the
Sentencing Judgement. In particular, its discussion
on the determination of the penalty and the enforcement of the sentence is not
discussed herein.
[Postcript. On
7 October 1997 the Appeals Chamber of the ICTY held that Erdemovic's
guilty plea was not an informed one, but that duress is not a defense to either
an ordinary war crime or a crime against humanity. It reversed the Sentencing
Judgment and ordered that Erdemovic be given a chance
to re-plead before a new Trial Chamber.]
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)
SIENHO YEE
[ This piece was published in Hastings
International and Comparative Law Review in Spring 1996 ]
I. Introduction
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.
The New Constitution of Bosnia and
7 European Journal of International Law
176 (1996)
Sienho Yee
[Only the introduction section is posted
here.]
The Constitution of Bosnia and
This paper comments on these issues in an effort to provoke debate. Part I
argues that questions may be raised about the legitimacy of the new
constitution as a democratic constitution and proposes that to alleviate such
concerns the respective legislatures of the Entities "ratify" the new
constitution if they have not done so properly. Part II briefly describes and
analyses the basic structures of the governmental system set up by the new
constitution. The core values enshrined in the new constitution and the legal
system are conducive to building "one nation" and a common market. It
is questionable, however, whether enough national powers have been granted by
the new constitution to make nation-building a success. Part III analyses the
decision-making process of the national institutions. The institutional
structures of the legislative and the executive branches trumpet the triumph of
"ethnic sovereignty," providing each ethnic group with an effective
veto over all essential legislative and executive decisions, and thus will
probably doom the whole enterprise of nation-building. The Central Bank and the
Yi Xianhe; 易显河
Xianhe Yi