法学 国际法 考试要点 8

名词解释：

一、law-making treaty 课本14页

二、recognition de facto 课本49页

三、universal jurisdiction 课本69页

四、Restrictive immunity 课本78页

五、reservation 课本103页

六、right of pursuit 课本131页

七、the continental shelf 课本127

八、right of derogation克检权

1、In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2、No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

3、Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

九、two-tier liability system双梯度责任制

1、strict liability：For damages arising not exceeding 113,000 Special Drawing Rights(1SDR ＝0.888671g ) for each passenger, the carrier shall not be able to exclude or limit its liability.

2、Presumption of fault：The carrier shall not be liable for damages arising exceed for each passenger 113,000 Special Drawing Rights if the carrier proves that:

(a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or

(b) such damage was solely due to the negligence or other wrongful act or omission of a third party

论述：

一、contents of diplomatic privileges and immunities外交特权与豁免的内容

1、diplomatic privileges and immunities entitled to the diplomatic mission

(1) Use of the flag and emblem

(2) The premises of the mission shall be inviolable

(3)archives and documents of the mission shall be inviolable

(4)free communication

(5) Exemption from all dues and taxes

(6) Free movement and travel

2、diplomatic privileges and immunities entitled to diplomatic agents

(1) The person of a diplomatic agent shall be inviolable .

(2) Inviolability of residence and properties

(3) Exemption from jurisdiction of the receiving state

(4) Exemption from all customs duties, taxes, and related charges and inspection

(5) Exemption from all dues and taxes

(6) Other privileges and immunities

二、the legal status of territorial sea

The coastal state enjoys full territorial sovereignty over its territorial sea :

(1). An exclusive right to fish, and to exploit the resources of the seabed and subsoil of the territorial sea.

(2). Exclusive enjoyment of the air space above the territorial sea; unlike ships, foreign aircraft have no right of innocent passage.

(3.) The coastal state’s ships have the exclusive right to transport goods and passengers from one port of the coastal state to another.

(4.) If the coastal state is neutral in a time of war, belligerent states may not engage in combat, or capture merchant ships in the coastal state’s territorial sea.

(5.) The coastal state may enact regulations concerning navigation, health, customs duties and immigration, which foreign ships must obey.

(6)The coastal state has certain powers of arrest over merchant ships exercising a right of innocent passage, and over persons on board such ships Jurisdiction

(7)Marine scientific research

(8)The protection and preservation of the marine environment

The criminal jurisdiction of the coastal State

1.coastal state should exercise criminal jurisdiction on board a foreign ships which failed to conform with the innocent passage.

2.coastal state should exercise criminal jurisdiction on board a foreign ships passing through the territorial sea under certain circumstance.. (a) if the consequences of the crime extend to the

coastal State;(b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea;(c) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or(d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances 3.The above provisions do not affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or investigation on board a foreign ship passing through the territorial sea after leaving internal waters.

4. the coastal State may take any steps on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed before the ship entered the territorial sea accord to the regulations of the exclusive economic zone and the regulation related to conservation of the living resources of the high seas,if the ship, proceeding from a foreign port, is only passing through the territorial sea without entering internal waters

三、the sources of international law课本13页

四、conditions of extradition

Under certain treaties or reciprocity practice a state may surrender to another state suspects , alleged offenders or convicted criminals who committed against laws of the requesting state and fled abroad. It is based upon bilateral treaty law and does not exist as an obligation upon states in customary law

double criminality Extraditable offences:Double criminality means the act of the person who is requested for extradition should be a punishable crime in both requesting and requested states.

1. For the purposes of the present Treaty, extraditable offences are offences that are punishable under the laws of both Parties by imprisonment or other deprivation of liberty for a maximum period of at least one/two year(s), or by a more severe penalty. Where the request for extradition relates to a person who is wanted for the enforcement of a sentence of imprisonment or other deprivation of liberty imposed for such an offence, extradition shall be granted only if a period of at least four/six months of such sentence remains to be served.

2. In determining whether an offence is an offence punishable under the laws of both Parties, it shall not matter whether: (a) The laws of the Parties place the acts or omissions constituting the offence within the same category of offence or denominate the offence by the same terminology;

(b) Under the laws of the Parties the constituent elements of the offence differ, it being understood that the totality of the acts or omissions as presented by the requesting State shall be taken into account.

3. Where extradition of a person is sought for an offence against a law relating to taxation, customs duties, exchange control or other revenue matters, extradition may not be refused on the ground that the law of the requested State does not impose the same kind of tax or duty or does not contain a tax, customs duty or exchange regulation of the same kind as the law of the

requesting State.

4. If the request for extradition includes several separate offences each of which is punishable under the laws of both Parties, but some of which do not fulfill the other conditions set out in paragraph 1 of the present article, the requested Party may grant extradition for the latter offences provided that the person is to be extradited for at least one extraditable offence Mandatory grounds for refusal ：

Extradition shall not be granted in any of the following circumstances: (a) If the offence for which extradition is requested is regarded by the requested State as an offence of a political nature; (b) If the requested State has substantial grounds for believing that the request for extradition has been made for the purpose of prosecuting or punishing a person on account of that person's race, religion, nationality, ethnic origin, political opinions, sex or status, or that that person's position may be prejudiced for any of those reasons; (c) If the offence for which extradition is requested is an offence under military law, which is not also an offence under ordinary criminal law; (d) If there has been a final judgment rendered against the person in the requested State in respect of the offence for which the person's extradition is requested; (e) If the person whose extradition is requested has, under the law of either Party, become immune from prosecution or punishment for any reason, including lapse of time or amnesty; (f) If the person whose extradition is requested has been or would be subjected in the requesting State to torture or cruel, inhuman or degrading treatment or punishment or if that person has not received or would not receive the minimum guarantees in criminal proceedings, as contained in the International Covenant on Civil and Political Rights, article 14; (g) If the judgment of the requesting State has been rendered in absentia, the convicted person has not had sufficient notice of the trial or the opportunity to arrange for his or her defense and he has not had or will not have the opportunity to have the case retried in his or her presence

五、categories of jurisdiction课本64-69

六、the legal effect of de jure jurisdiction

Legal effects of Recognition de jure

1.full diplomatic relations could be establishes between the recognizing state and the recognized entity. treaties on a general topic could be concluded.

2. enjoy locus standi in the recognizing state enjoy immunity from suit in the recognizing state and cannot be sued without it consent.

3.its legislative and administrative acts will be given effect to within the recognizing state. De jure authority remain competent for matters arising outside that territory

4recognition once granted is retroactive. It is backdated to the establishment of the entity in question and it does not related the time recognition is accorded.