国际法样卷

INTERNATIONAL LAW TEST I
1.Interpretation of terms
(1)International Law
International law is commonly used to describe the whole system of rules that regulate the relationship between/among states, international organizations, and other international legal persons.
International law appeared with the formation of international society. International law as a special term was first used by English philosopher and jurist Jeremy Bentham (1748-1832) and gradually accepted by most jurists in English circle.
(2)State Immunity
Jurisprudential basis of concept of State immunity is sovereign equality of states coupled with notion of reciprocity.
According to absolute immunity doctrine, any and all acts of the sovereign State enjoy immunity from the jurisdiction of courts of another State, but growth in commercial activity by states led to the doctrine of "restrictive immunity".
According to restrictive immunity doctrine, only acts of a governmental nature can enjoy immunity, and commercial acts can not.
(3)Territorial Sea
Territorial sea is a sea area seaward of baselines. According to the UN Convention on Law of Sea, rules regarding territorial sea are as follows:
a. Coastal state sovereignty extends to the territorial sea
b. Includes airspace, sea bed & subsoil
c. Extends 12 nautical miles (n.m.) from baselines
d. Subject to right of innocent passag
e.
(4)Generations of Human Rights
According to theory of Human Rights, there are three “generations”of rights. Civil and political rights are called as “first generation rights”. Economic, social and cultural rights as “second generation rights”. A “third generation”of rights, variously referred to as collective rights or solidarity rights, was the subject debate in the 1970s and 1980s. Third generation rights usually include the following rights:
a. Right to environment
b. Right to peace
c. Right to development
(5)International Criminal Law
International Criminal Law has been referred to as a product of “the convergence of two disciplines: the penal aspects of international law and the international aspects of national criminal law.”It is fairly loose and broad term, but usually to refer to the body of norms dealing with “international crimes”.
International Criminal Law has gained enormous momentum over the past fifteen years, in no small measure because of the Tribunals for the former Yugoslavia and Rwanda and the International Criminal Court.
International Criminal Law usually begins with the treatment of piracy, and then develops with the treatment of slave trade and finally extends to conduct of armed conflict following World War II such as crimes against peace, war crimes, and crimes against humanity. Now crime of genocide, crimes of terrorism are also added to the list of “crimes against international law”regulated by International Criminal Law.
2. Answer the following questions briefly (10 points for each )
(1) What are the main contents of Article 38 of the Statute of International Court of Justice?
Article 38 of the Statute of International Court of Justice states that International Court of Justice shall apply following rules in determining the disputes brought before it:
a. international conventions establishing rules expressly recognized by the contesting states.
b. international custom, as evidence of a general practice accepted as law.
c. general principles of law recognized by civilized nations.
It also states that International Court of Justice can use judicial decisions and/or writings of most highly qualified publicists as subsidiary means in determining rules of law.
Finally it states that, at the request of the parties to a dispute, International Court of Justice may decide a case ex aequo et bono (“in justice and fairness”).
(2) What does principle of Exhaustion of Local Remedies mean?
Principle of Exhaustion of Local Remedies means that an international claim cannot be brought until an individual has exhausted local remedies. “Local remedies” are defined as “legal remedies which are open to an injured person before the judicial or administrative courts or bodies, whether ordinary or special, of the State alleged to be responsible for causing the injury.”
The justification for this principle is to ensure that individuals do not attempt to circumvent local laws/judicial system by going straight to their State of nationality. The State alleged to have breached an international obligation “has the right to demand that full advantage shall have been taken of all local remedies before the matters in dispute are taken on the international level by the State of which the persons alleged to have been injured are nationals.”
There are some exceptions to principle, for example, local remedies do not need to be exhausted where there are no reasonably available local remedies to provide effective redress, or the local remedies provide no reasonable possibility of such redress.
3.Analyze the following international law issues in details.
(1)Theories of State Recognition (15 points)
State recognition concerns the process of acceptance by members of the international community of "newcomers". It operates on a state-by-state basis. There is no multilateral process of recognition, although many have argued that this might precisely what the international community requires.
According to international law, there is no duty to recognize, more courtesy. Both states and governments can be recognized. When a government is to be recognized, the criteria are usually as follows: i. Effective control over territory, reasonable prospect of permanency; ii. Political considerations and State’s interests are also taken into account. The basic rule is that recognition should not be too early.
In regards to effects of State Recognition, there exist two theories. One is Constitutive Doctrine and another is Declaratory Doctrine.
According to Constitutive Doctrine, recognition creates personality. It holds that:
a. States become subjects by will of international community
b. Unrecognized state is in a kind of legal limbo.
According to Declaratory Doctrine, recognition is a formality that acknowledges already-existing personality of the state. It holds that:
a. Statehood exists prior to recognition
b. Rights and duties exist prior to recognition
Taking the viewpoints of the above two theories into consideration together, we can find that more accurate view is that recognition has both constitutive and declaratory aspects
(2)Relationship between International Law and Municipal Law (25 points)
Relationship between International Law and Municipal Law concerns two aspects: theory and practice.
A. Theories
There are two main theories in this regard. Monism v. Dualism
a. Main ideas of monism:
It views the international law system and municipal law system as components of a single legal system. When the international law conflicts with municipal law, some monists claim that the international law shall prevail over the municipal law, but other monists think that the municipal law shall have supremacy over the international law.
b. Main ideas of dualism:
Dualists believe that international law and municipal law are independent with each other. Municipal law is designed to deal with domestic issues and to keep domestic order, and on the contrary, international law is made to cope with international legal issues and to maintain international order. International law can not directly be applied in domestic society, and conversely domestic law can not impose itself on international legal system.
B. Practices
Practices regarding the relationship between international law and municipal law are quite diverse and complicated. But we can find something meaningful by analyzing the practices of some typical States.
a. US
US president with the Senate exercises the power of entering into treaty.
US Constitution provides that US Constitution, US law and treaties made under the Authority of the US shall be the supreme law of the land of US. US Federal Supreme Court can exercise right of interpretation of US Constitution.
Treaty in municipal law: in US, treaties are divided into self-executing treaties and non-self-executing treaties. For a non-self-executing treaty to be applied in domestic setting, it needs to go through a procedure called incorporation or transformation. In contrast, self-executing treaty can be applied directly by courts of US.
Customary international law: in US, customary international law is viewed as common law and can be applied directly by courts.
b. UK:
Treaty-entering power rests on Queen or King through Cabinet. Domestic law-making power belongs to the Parliament.
UK does not permit treaty to take effect in domestic society without the legislative enactment.
UK denies the existence of self-executing treaty.
Customary international law is viewed as common law and can be applied directly by courts.
c. Germany:
Legally ratified or accepted treaty has effect over German law and can create rights and obligations for Germans. (Article 25 of Basic Law, 1949) Germany deems the customary international law as inherent part of German legal system.
d. China:
There are no provisions in Constitution of China regarding the relationship between the international law and Chinese domestic law.
Some important domestic laws of China provide that treaties entered or accepted by China have the prevailing power over domestic law of
China. But there can be found some conflictions between this provision and the provisions in Legislative Act of China. In addition, no all domestic laws contain this kind of provision, so we can not tell the uniform relationship between treaty and domestic law in China.
According to provisions of some laws of China, customary international law can only be applied when treaties entered or accepted by China and the domestic laws of China both failed to provide relevant rules. Seen from the judicial perspective, customary international law can be directly applied by courts of China.
INTERNATIONAL LAW TEST II
1. Interpretation of terms (8 points for each)
(1)Criteria of Statehood
Criteria for statehood (as identified in 1933 Montevideo Convention on the Rights and Duties of States) are as follows:
a.Permanent Population
b.Defined Territory
ernment (with actual control over the territory)
d.Capacity to Enter into Relations with other States
The criterion d is closely tied with law of recognition. There are some different opinions as to whether the capacity to enter into relations with other states is a prerequisite to statehood or in fact flows from statehood. Independence is sometimes listed as a separate requirement, but can also be seen as implicit in the requirement of having the capacity to enter into inter-state relations.
(2) Generations of Human Rights
According to theory of Human Rights, there are three “generations”of rights. Civil and political rights are called as “first generation rights”. Economic, social and cultural rights as “second generation rights”. A “third generation”of rights, variously referred to as collective rights or solidarity rights, was the subject debate in the 1970s and 1980s. Third generation rights usually include the following rights:
a. Right to environment
b. Right to peace
c. Right to development
(3) Treaty Reservation
Treaty reservation is defined as a “unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving, or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.” There are two separate issues arising out of treaty reservation: issue of “permissibility” and issue of “opposability”.
Treaty reservation has legal effects, for example, it can modifies for the reserving party in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation, it can also modifies those provisions to the same extent for that other party in its relations with the reserving State.
(4) Right of Self-Defense
Right of Self-Defense is an inherent right of a State.
U.N. Charter Article 51 states that nothing in the Charter impairs the “(inherent) right of ind ividual or collective self-defense if an armed attack occurs... until the Security Council has taken measures necessary to maintain international peace and security.”
At customary international law, the exercise of right of self-defense is subject to requirements of necessity and proportionality.
(5) International Tribunal for the Former Yugoslavia
The International Tribunal for the Former Yugoslavia was established by the Security Council of the United Nations pursuant to its powers under Chapter VII of the U.N. Charter.
In May 1993, the Security Council of the United States, basing on the Secretary General’s report, made Security Council Resolution 827 adopting the Statute of International Tribunal for the Former Yugoslavia which was proposed by Secretary General in the report, and setting up the “International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991”.
According to the Statute, International Tribunal for Yugoslavia has jurisdiction over:
a. Grave breaches of the 1949 Geneva Conventions
b. Violations of the laws and customs of war
c. Genocide
d. Crimes against humanity.
2. Answering the following questions briefly (10 points for each)
(1) What does Exclusive Economic Zone mean?
Exclusive Economic Zone (EEZ) is a special maritime zone adopted by the United Nations Convention on Law of Sea (UNCLOS).
Relevant UNCLOS provisions can be said to reflect customary international law, i.e. customary law that crystallized from treaty. According to UNCLOS, EEZ has a specific legal regime beyond territorial sea, and EEZ overlaps with contiguous zone and does not extending beyond 200 nautical miles from baseline.
In EEZ, the Coastal State of EEZ has limited sovereign rights, mainly over natural resources, and can exercise regulatory powers of coastal state over construction of artificial islands, conservation of living resources and utilization of living resources. In EEZ, other States enjoy freedom of over-flight, navigation, laying of cables and pipelines, and other lawful uses compatible with other provisions of the UNCLOS.
(2) What are bases for Criminal Jurisdiction?
Criminal jurisdiction is a basic function of a State. Why a State can exercise jurisdiction over a specific crime? This question concerns the bases for criminal jurisdiction.
According to international law, a State can exercise its jurisdiction over crimes on the following basis:
a. T erritorial Principle
b. Nationality Principle
c. P assive Personality Principle
d. Protective Principle
e. U niversal Principle
f. By Agreement
3. Analyze the following international law issues in details.
(1)Sources of International Law (20 points)
Source of law is a very important issue in international law. It refers to what rules of international law are and how to determine them.
Article 38 of the Statute of International Court of Justice, strictly speaking, constitutes a standing directive to the court as to what to apply in deciding cases brought before it. However, this Article 38 has exercised an enormous influence in the sources field, and frequently cited as an authoritative enumeration of the sources of international law.
According to Article 38, International Court of Justice shall apply:
a. international conventions [38(1)(a)] establishing rules expressly recognized by the contesting states.
b. international custom: [38(1)(b)] as evidence of a general practice accepted as law.
c. general principles of law recognized by civilized nations: [38(1)(c)]
International Court of Justice can also use following subsidiary means to determine rules of law [38(1)(d)]:
a. judicial decisions
b. writings of most highly qualified publicists (i.e. scholarly writings)
In situations that exist no rules or the rules can not be identified, Article 38 states that, at the request of the parties to a dispute, International Court of Justice may decide a case ex aequo et bono (“in justice and fairness”, or “according to what is just and good”).
It is held by most international jurists that Article 38 of Statute of the International Court of Justice reflects a distinction between law-creating and law-determining processes.
It is also broadly accepted that the sources of international law enumerated by Article 38 of Statute of International Court of Justice are not exhausted and that there exists no hierarchy between the three sources. In addition, UN General Assembly Resolutions can also play import role in determining rules of international law.
(2)Mechanism for international dispute settlement (20 points)
International disputes occur among international subjects or persons frequently. According to traditional view, States could resort to force in order to uphold their rights.
But development of international norms and institutions has led to view that States should settle their disputes by peaceful means, although the choice of the means of resolution is left to the parties. This is reflected in Article 2, paragraph 3 of the U.N. Charter. Chapter VI of the UN Charter deals with Pacific Settlement of Disputes.
According to U.N. Charter, there is a range of mechanisms available for States to choose in settling their disputes. Article 33 of U.N. Charter lists number of alternatives means of peaceful dispute settlement.
These mechanisms can be seen as lying at different points along a continuum of third-party involvement and “binding” character.
Distinction can be drawn between “diplomatic” means of peaceful settlement of disputes, which include negotiation, good offices, mediation, inquiry and conciliation, on the one hand, and “adjudicative” means of dispute settlement, which include arbitration and judicial settlement, on the other. However, all forms of international dispute settlement involve a
significant legal component, and all take place within a broader political context that tends to influence the legal outcome.
Non-adjudicative procedures are tremendously important at the international level. Typically, the parties will at least initially give preeminence to the political elements of their dispute and will try to seek a settlement by diplomacy. Non-adjudicative procedure can take place between parties themselves, or involve third party intervention aimed not at deciding the dispute, but at inducing the parties to decide it for themselves.
a. NEGOTIATION: only involves the parties themselves; aimed at
achieving mutually acceptable outcome.
b. GOOD OFFICES: third party (frequently an influential
individual) encourages parties to negotiate and acts as a conduit
for the parties' proposals to each other, e.g. UN Secretary
General.
c. MEDIATION: mediator assists the parties' negotiations and
makes independent proposals for the resolution of a dispute, but
usually on the basis of information the parties have made
available.
d. INQUIRY: set up only to determine the facts of the disput
e.
e. CONCILIATION: involves an investigation of the dispute and
the presentation of a formal, albeit non-binding, proposal for its
solution.
Adjudicative means are sometimes resorted when the dispute can not be settled through non-adjudicative procedures. There are also cases where the contesting parties directly submit the dispute to arbitration and international courts.
a. ARBITRATION: leading to binding settlement of a dispute on
the basis of law. It differs from judicial settlement in that, as a
rule, parties have competence to appoint arbitrators, determine
the procedure, and indicate the applicable law as they see fit. b. JUDICIAL SETTLEMENT: recourse to International Court of
Justice or other courts of international nature.。