国际法考试大纲.doc

国际法（双语课）考试大纲一、课程教学目的和要求讲授这门课程的目的是使学生了解国际法是国家进行国际交往的行为规范，是国家必须遵守的法律原则和规则。国家只有严格遵守国际公法，才能与别国建立和发展友好关系，促进本国与别国的交流与合作，以利于本国的政治。经济、文化和科学的建设与发展，更好地保护本国和本国人民在外国的合法权益。在此基础上学习和掌握国际公法的基本理论和基础知识，并在以后的工作中能运用它们维护我国的权益，服务于我国的现代化建设。本课程教学的基本要求有： 1、正确理解课程的性质。任务和研究对象，全面了解课程的体系。结构，对国际法学有一个整体的认识。 2、掌握国际法的基本概念、基本理论和主要的原则、制度和规则，以及国际法发展的最新动态。 3、牢固树立维护国家主权和权益观念，并以此为指导去研究国际公法的基本理论和实际问题。 4、密切联系实际，通过分析研究案例和国际事件，加深对国际公法专业知识的理解和掌握；能把国际公法的基本原理和规则的学习融入到对国际实践的研究和认识中，以提高分析问题和解决问题的能力。切实掌握课程的核心内容，在实际工作中为维护国家的权益，促进我国的国际交流与合作做出贡献。 二、目前使用的教材：英TIM HILLIER著：国际公法，中国人民大学出版社2005年3月第一版可供参考的教材包括：1、王铁崖主编：国际法，法律出版社1995年8月第一版2、邵津主编：国际法，北京大学出版社、高等教育出版社2000年第一版3、程晓霞主编：国际法，中国人民大学出版社1999年11月第一版4、英伊恩布朗利：国际公法原理，法律出版社2003年版 5、英奥本海著，詹宁斯、瓦茨修订：奥本海国际法，中国大百科全书出版社1995年版；6、奥阿菲德罗斯等：国际法（李浩培译），商务印书馆1981年版。7、美汉斯凯尔森：国际法原理（王铁崖译），华夏出版社1989年版。8、英J.G.斯塔克：国际法导论（赵维田译），法律出版社1984年版。9、英M.阿库斯特：现代国际法概论（汪暄等译），中国社会科学出版社1981年版。10、韩柳炳华著：国际法上下卷（朴国哲译），中国政法大学出版社1997年版。11、寺泽一等主编：国际法基础（朱奇武等译），中国人民大学出版社1983年版。三、各章节知识要点和考核要求Chapter 1 INTRODUCTION.Historical developmentThroughout history, rules have existed to govern the conduct of international relations but the modern system of international law is usually tracked back to the Peace of Westphalia 1648,which heralded the beginning of the nation State system. The rules which developed drew on doctrines of ecclesiastical law and of Roman law but also owned much to the work of legal theorists, the best known of whom is probably Hugo Grotius, whose main work, De Jure Belli acpacis, was completed in 1625.The main body of international law is to be found in agreement entered into by States (treaties) and in the practice of States (custom).Over-reliance on rules of custom has often been criticized by those states which have come into existence during the 20th century, who argue that they should not automatically be bound by rules based on the practice of Western States which they had no part in creating.The nature of international lawInternational law should be distinguished from municipal, internal or domestic law and also from the rules of private international law (conflict of laws rules).Within international law, it is useful to note the distinctions between universal, particular, and general international law. The nature of international law has been an area of considerable controversy. The traditional view is that international law is exclusively concerned with governing the relations between, and the conduct of, States. This view has been increasingly doubted, especially since the establishment of the United Nations in 1945. A crude outline of the varying views is provided by the table at the end of the summary. Is international law really law?Some writers, particularly those adopting a positivist theory of law, have questioned whether international law can be regarded as law. The question has received less debate in recent times and most theorists now point to the fact that it is sufficient that States, as principal subjects of international law, themselves recognize a system of legal rules, which they refer to as international law. The enforcement of international law International law differs from most systems of municipal law in that there is no international legislature and no uniform enforcement machinery. This is not to say that international law cannot be, or is not, enforced. International law is enforced through the United Nations and the International Court of Justice. The role of self-help, either through diplomatic means or the use of armed force in self- defence, should not be underestimated.Chapter 2 THE SOURCES OF INTERNATIONAL LAW.Article 38 of the Statute of the International Court of Justice states:1. The court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply :(a)international conventions, whether general or particular, establishing rulesexpressly recognized by the contesting States;(b) international custom, as evidence of a general practice accepted as law;(c) the general principles of law recognized by civilized nations;(d) subject to the provisions of art 59,judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.TreatiesTreaties may be bilateral or multilateral and a further distinction is often drawn between law making or normative treaties and treaty contracts. Normative treaties are more akin to municipal legislation, although the general rule that treaties cannot bind third parties must always be remembered. Treaty contracts usually only involve a few States and create particular obligation which are capable of fulfillment.CustomCustom in international law is a practice followed by those concerned because they feel legally obliged to behave in such a way. A rule of customary international law needs to be distinguished from a general practice, which carries no legal obligation. To establish a rule of customary international law, it is necessary to demonstrate both a material element and a psychological element.The material element refers to the practice of States. States practice includes treaties, legislation, diplomatic correspondence and the decisions of municipal courts. State practice should be extensive. This will usually mean widespread, although not necessary universal, adherence to the rule. There is no specific time over which the practice must have occurred, although the shorter the time, the more extensive the practice would have to be.The psychological element, often referred to as the opinio juris, refers to the distinction between custom and mere usage. The general practice must be one accepted as law and international tribunals will usually require some evidence of opinion juris together with the proof of States practice.In general, rules of custom will be binding on all States although, exceptionally, it is possible for States, which have consistently objected to a rule since its inception, not to be bound by a particular rule. The burden of proving the exceptional position is on the persistent objector and the leading case on this point is the Anglo-Norwegian Fisheries case (1951).Customary law and treaty law have equal authority although, if there is a conflict between the two, it is the treaty which prevails. Treaties should be interpreted to avoid such conflicts wherever possible. General principles of lawThe preferred view is that general principles of law refers to principles of municipal law which may be applied by international tribunals where treaties or custom cannot resolve a particular problem. In a number of cases, the ICJ has made use of principles of equity and has stated them to be an integral part of international law.Judicial decisions and the teachings of publicistsJudicial decisions, both of international and municipal tribunals, and the writings of publicists may be used by the ICJ as a subsidiary source of international law. Although there is no stare decisis in international law, the ICJ does make use of its own earlier decisions and has also referred to decisions of higher municipal courts. Less express use has been made of publicists, although States themselves will often make considerable use of them when arguing a particular position.Other sourcesArticle 38 of the statute is the usual starting point of discussion of the sources of international law but many argue today that it should not be seen as a comprehensive list. In particular, there is considerable weight in the argument that certain UN resolutions do not constitute a source of international law. Much depends on the nature of the resolution and the manner in which it was adopted. Certainly, UN resolutions do not constitute a form of international legislation but clearly they have an important role to play in international law. The ICJ, in the Nicaragua case (1986), expressed the view that UN resolutions might constitute opinion juris which could, with evidence of State practice, constitute a rule of custom. Other writers have suggested that UN resolutions may be capable of constituting soft law which can later harden into a legally binding rule.Chapter 3 THE LAW OF TREATIESThe main source of the law of treaties is the Vienna Convention on the Law of Treaties (VIC) 1969.Although the provisions of the VCT 1969 broadly reflect customary international law, the treaty itself only applies to written agreements concluded between States after 27 January 1980 and all other treaties are governed by the rules of customary international law.It is worth remembering Reuters broad definition of a treaty as an expression of concurring wills attributable to two or more subjects of international law and intended to have legal effects under the rules of international law. Treaties may, therefore, be unwritten and concluded by international law subjects other than States, for example, international organizations.The various stages in treaty making and observance may be summarized as follows:(a)accreditation of negotiators. Do representatives have the authority to conduct and conclude negotiations? Note the implied powers of heads of State, heads of government and foreign ministers-Article7 of the VCT1969;(b)negotiation, through pourparlers (bilateral treaties)or at diplomatic conference(multilateral treaties);(c)adoption and authentication of final text. Multilateral treaties require a two-thirds majority in favor of adoption. Authentication is usually achieved by signature;(d)signature/exchange. Where a treaty is not subject to ratification, the treaty will become binding as from the date of signature or, in the case of treaties concluded by exchange of instruments, on the date of exchange;(e)ratification. If ratification is required, the text of the treaty is referred back to the governments of the parties to the treaty. Where ratification is required, parties who have signed the treaty are under an obligation to do nothing to defeat the object of the treaty until such time as a firm decision has been made on ratification-Article18 of the VCT 1969;(f)reservations and entry into force(see Articles 19-23 of the VCT1969).In the case of multilateral treaties, it is usual to make express provision for the entry into force of the treaty;(g)registration, publication and application of treaty (see Article102 of the UN Chater; pacta sunt servanda);(h)adhesion and accession; State succession; interpretation (see Article 31 of the VCT 1969 and note the three approaches: subjective, objective and teleological);(i)is the treaty valid? A treaty may be invalid on the following grounds:manifest non-compliance with municipal law;(j)error , fraud and corruption;coercion; andviolation of jus congens.Chapter 4 THE SUBJECTS OF INTERNATIONAL LAW AND THEIR RECOGNITION To whom does international law applyHistorically, States were considered to be the only subjects of international law but, since the end of the First World War, this view has become increasingly untenable, although independent States continue to remain the most important subjects. An important point to grasp is that international personality is a flexible concept and may exist in varying degrees. The requirements of statehoodArticle 1 of the Montevideo Convention on the Rights and Duties of States 1933 provides: The State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) a government; (d) a capacity to enter into relations with other States.There are no limits as to the size of population or territory, nor is it necessary for the territory of a State to be undisputed. Together with territory and population, a State must possess degree of effective, independent government, although the degree of effectiveness and independence necessary is not always clear. More recently, the view has emerged that an entity established in violation of fundamental principles of international law will not obtain statehood for the purpose of international law. Most importantly, statehood will be denied to those entities established in violation of principles of self-determination or created by the illegal use of force. Non-self-governing territoriesThere are a number of territories which do not possess full independence but are, nevertheless, of significance to international law. The main examples are colonies, protectorates and, of historical interest, mandate or trust territories. The manner in which international law will apply to and affect such territories varies from case to case. A particular aspect of the law relating to self-determination has been according certain elements of international personality to liberation movements, most notably in the case of the PLO. International organizationsInternational organizations have had an ever increasing importance in international law and it is clear that they are capable of possessing international personality. The consequences of such personality will usually depend on the details of the documents establishing the organization and the purpose and context of the organization. The United NationsThe most important and best known international organization is the United Nations, which was established under the UN Charter in 1945.Membership of the UN is open to all peace loving states. The work of the UN is carried out through the six principal organs; these are:(a)the General Assembly- the plenary organ of the UN, in which each Member State has one vote;(b)the Security Council- primarily responsible for peace and security and consisting of five permanent members (China, Russia, France, US and UK ) and other 10 elected members;(c)ECOSOC- the Economic and Social Council, comprising 54 elected members;(d)the Trusteeship Council;(e)the Secretariat; and (f)the International Court of Justice( ICJ). Since the Second World War, individuals have come to enjoy a limited degree of personality in international law, particularly in the areas of human rights law and humanitarian law, which are dealt with in more detail in Chapters 13 and 14. RecognitionIn international law, much depends upon the extent to which a particular State of affairs is recognized by the international community. Much has therefore been written about the recognition of States and there have developed two competing theories.The constitutive theory provides that every legal system requires that the subjects of the system are determined with certainty. In international law, it is argued that the determination is by States acting severally or collectively. On this basis, it is the act of recognition which constitutes a new State.The declaratory theory suggests that the formation of a new subject of international law is a matter of fact not law. A new State can, therefore, come into existence irrespective of whether it has been recognized by existing States.The majority of writers support the declaratory theory and it would seem to accord more with present State practice. However, although recognition may have limited consequences in the international sphere, it remains important at the municipal level, when questions of whether or not an entity is entitled to the rights and privileges of a state are to be decided. In this context, it is important to distinguish between the recognition of States and the recognition of governments. Many States, while continuing to accord official recognition to new States, have ceased to formally recognize governments.Chapter 5 TERRITORIAL RIGHTSTerritory is a basic requirement of statehood and, within its territory, a State enjoys and exercises sovereignty. Territorial sovereignty extends over the designated land mass, sub-soil, inland waters, territorial sea and the airspace above the land, internal waters and territorial sea. Although, historically, States were considered to have absolute and exclusive sovereignty over their territory, more recently, there has developed a body of rules, particularly in the fields of human rights and environmental protection, which have placed limits on such sovereignty.Title to territoryTraditionally，there have been five means of acquiring title to territory:occupation of terra nullius-discovery alone is insufficient to establish title and it must be accompanied by effective occupation will depend on the nature of the territory concerned(East Greenland case(1933);prescription;conquest-this method, although of historical interest ,is no longer a permitted way of obtaining title to territory;accretion and avulsion; andcession .The creation of title is to be judged according to the contemporary rules of law and not according to the law in force at the time of the dispute. The traditional means of acquisition should not be thought of as mutually exclusive nor as a comprehensive list. Other factors, such as tribunal decisions and continuity or contiguity, may be significant. BoundariesA potential cause of dispute between neighboring States is determination of territorial boundaries. Ultimately, this will have to be achieved by agreement and such agreement may often provide for free movement of officials across the border and joint exploitation of borderland resources. As far as the boundaries of former colonial territories are concerned, the presumption is that the colonial borders will continue to be respected and this principle has more recently been applied in the case of break up of federal States, as in the case of former Yugoslavia. There are a number of accepted principles which apply in situations where a boundary follows the course of a river. The normal rule is that the boundary will follow the median line. Rights of fo