国际法试题二及答案.doc

ANSWERS TO QUESTIONS IN TERNATIONAL LAW TEXT(FOR REFERENCE)1. Interpretation of terms (8 points for each)(1) Criteria of StatehoodCriteria for statehood (as identified in 1933 Montevideo Convention on the Rights and Duties of States) are as follows:a. Permanent Populationb. Defined Territoryc. Government (with actual control over the territory)d. Capacity to Enter into Relations with other StatesThe 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 RightsAccording 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 environmentb.Right to peacec.Right to development(3) Treaty ReservationTreaty 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 individual 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 YugoslaviaThe 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 Generals 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 Conventionsb.Violations of the laws and customs of warc.Genocided.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.Territorial Principleb.Nationality Principlec.Passive Personality Principled. Protective Principlee.Universal Principle f.By Agreement3. 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 decisionsb. 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 dispute. 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.9