HeQihan

Noun Explanation#

1. Territory

   • Definition: Territory refers to a specific part of the Earth under the sovereign jurisdiction of a country, including land, territorial waters (such as territorial seas and internal waters), subsoil (underground land and resources), and airspace. It is one of the fundamental elements constituting a country and also the geographical scope within which a country exercises its sovereignty.

   • Key Points:

     • Sovereignty: Territory is closely linked to sovereignty, as a country has exclusive jurisdiction and control over its territory.
     • Element: Territory is the foundation of a country's existence; without clearly defined territory, it is difficult for a country to exercise sovereignty.
     • Scope: Territory does not only refer to land but also includes water bodies, underground areas, and airspace, forming a three-dimensional geographical space.

2. Innocent Passage

   • Definition: Innocent passage refers to the right of foreign vessels to pass continuously and without interruption through a country's territorial sea, provided it does not harm the peace, good order, or security of the coastal state. It is a right under international law that allows foreign vessels to navigate in the territorial sea of a coastal state.
   • Key Points:
     • Right of Navigation: Innocent passage emphasizes the right of navigation, not other activities such as fishing or exploration.
     • Innocuousness: Navigation must be innocent and cannot pose a threat to the security of the coastal state. For example, foreign vessels are not allowed to conduct military exercises, gather intelligence, or engage in illegal fishing within the territorial sea.
     • Applicable Objects: The right of innocent passage applies to all types of vessels, including commercial ships and warships, but submarines must navigate on the surface and display their flag.
     • Distinction from Transit Passage: The right of innocent passage applies to territorial seas, while transit passage applies to straits used for international navigation, which does not have the requirement of being innocent.

3. State Immunity

   • Definition: State immunity refers to the extent to which a state and its property are immune from the jurisdiction of the courts of another state. This is a fundamental principle of international law, stemming from the equality of state sovereignty.
   • Key Points:
     • Sovereign Equality: States are equal in sovereignty and cannot exercise jurisdiction over one another.
     • Limitations: With the development of international relations, the traditional principle of absolute immunity has been limited, leading to the emergence of the principle of limited immunity. Under the principle of limited immunity, state immunity is confined to sovereign acts (such as national defense, diplomacy, etc.) and does not include commercial activities.
     • Judicial Jurisdiction Immunity: State immunity primarily refers to judicial jurisdiction immunity, not enforcement immunity; generally, courts can only enforce against foreign state property with consent.
     • Nature: State immunity is procedural; it does not equate to recognition of illegal acts by foreign states but merely limits the power of courts to adjudicate.

4. Asylum

   • Definition: Asylum refers to a country's allowance for foreign individuals who are persecuted or threatened for political reasons to enter its territory and receive protection, without being returned to a country where they may face persecution.
   • Key Points:
     • Humanitarianism: Asylum is a protective measure based on humanitarian principles.
     • Discretionary Authority: Granting asylum is a right of state sovereignty, not an obligation.
     • International Law: Although international law has provisions regarding refugee protection, there is no universally recognized right for individuals to seek asylum.
     • Territorial Asylum: Protection provided within the territorial jurisdiction of a state, usually granted by the state.
     • Diplomatic Asylum: Protection provided in foreign embassies or on foreign vessels, which is rarer than territorial asylum.

5. Interpretation of Treaties

   • Definition: The interpretation of treaties refers to determining the true meaning of treaty provisions to clarify the treaty's purpose, scope, rights, and obligations. This is typically a process of analysis and understanding of the treaty text by subjects of international law.
   • Key Points:
     • Rules: Treaty interpretation must follow rules of international law, including literal interpretation, purposive interpretation, and contextual interpretation.
     • Subjective and Objective: Interpretation must consider the intentions of the contracting states and the objective meaning of the treaty.
     • Legal Effect: The authority to interpret is generally held by the treaty parties or competent institutions, and the results of the interpretation are binding on the relevant parties.
     • Different Subjects: The subjects of treaty interpretation can vary; states, courts, international organizations, etc., all have the power to interpret treaties.
     • Types of Interpretation: There are various methods of interpretation, such as literal interpretation, purposive interpretation, and contextual interpretation.

Short Answer Questions#

1. Explain state jurisdiction.

• Definition: State jurisdiction refers to a state's ability, under international law and domestic law, to exercise legal authority over persons, property, and events within its territory, and in certain cases, over persons, property, and events outside its territory. This authority includes the power to make laws, enforce laws, and adjudicate legal disputes.
• Core: State jurisdiction is an important manifestation of state sovereignty, granting states the power to implement their laws and policies within a certain scope.

Types of State Jurisdiction

State jurisdiction can primarily be divided into the following types:

1. Territorial Jurisdiction:

   • Definition: Refers to a state's power to exercise jurisdiction over all persons, property, and events within its territorial boundaries. This is the most fundamental form of state jurisdiction.
   • Characteristics:
     • Territoriality: Jurisdiction is based on territory; as long as events occur within the territory, the state generally has jurisdiction.
     • Universality: In principle, territorial jurisdiction applies to all persons within the territorial boundaries, including citizens and foreigners, regardless of nationality.
     • Exceptions: There are exceptions, such as diplomatic immunity, where diplomatic personnel in the host country enjoy immunity from that country's judicial jurisdiction.

2. Personal Jurisdiction:

   • Definition: Refers to a state's power to exercise jurisdiction over its citizens, regardless of where those citizens are located.
   • Characteristics:
     • Nationality Connection: Jurisdiction is based on nationality, emphasizing the state's responsibility and protection of its citizens.
     • Proactivity: A state can exercise jurisdiction over its citizens who commit crimes abroad but typically does not interfere with other states' jurisdiction over their territory.
     • Passive Nationality Principle: In certain cases, a state may also exercise jurisdiction over foreigners who harm its citizens abroad.

3. Protective Jurisdiction:

   • Definition: Refers to a state's power to exercise jurisdiction over actions occurring outside its territorial boundaries that harm its national interests or the safety of its citizens.
   • Characteristics:
     • National Interest: Jurisdiction is not based on territory or nationality but on specific interests that are harmed, such as national security or currency issuance.
     • Limitations: This jurisdiction is typically limited to serious actions that involve national interests.

4. Universal Jurisdiction:

   • Definition: Refers to a state's power to exercise jurisdiction over certain international crimes considered extremely serious, regardless of where the crime occurred, the nationality of the perpetrator, or the nationality of the victim.
   • Characteristics:
     • International Crimes: Primarily applies to serious violations of common human interests, such as war crimes, crimes against humanity, genocide, and torture.

Summary

State jurisdiction is an important aspect of state sovereignty, ensuring that states can exercise legal authority and maintain social order within a certain scope. However, state jurisdiction is also limited by international and domestic law and must be exercised in the context of international cooperation and respect for the sovereignty of other states. Different types of jurisdiction apply in different situations, aiming to protect national interests, promote international cooperation, and combat international crime.

2. Explain the limitations of diplomatic protection.

Diplomatic protection refers to the right of a state (the nationality state) to claim responsibility from another state (the responsible state) for damages suffered by its nationals due to the international unlawful acts of the responsible state, through diplomatic actions or other peaceful means.

Main Limitations of Diplomatic Protection

Although diplomatic protection is an important international law institution, its exercise is not without limitations, mainly reflected in the following aspects:

1. Continuous Nationality:

   • Requirement: The victim must be a national of the requesting state at the time of suffering damage, and this nationality relationship must continue until the requesting state asserts diplomatic protection.
   • Purpose: To prevent individuals from temporarily changing nationality to obtain diplomatic protection and avoid abuse.
   • Exceptions: There may be exceptions in cases of inheritance or changes in nationality due to state changes.

2. Exhaustion of Local Remedies:

   • Requirement: Before the requesting state exercises its right to diplomatic protection, the victim must exhaust all effective and available domestic remedies provided by the responsible state.
   • Purpose: This is to respect the judicial sovereignty of the responsible state and give it the opportunity to resolve disputes on its own.
   • Remedies: Includes judicial litigation, administrative review, appeals, and all effective means.
   • Exceptions: If domestic remedies are evidently ineffective, unavailable, or excessively delayed, the requirement to exhaust local remedies may be waived.

The premise for the establishment of diplomatic protection is the existence of international unlawful acts by the responsible state. If the damage is not caused by the unlawful acts of that state, the nationality state has no right to claim diplomatic protection.

3. Jurisdiction of Coastal States in Exclusive Economic Zones (EEZ)

The exclusive economic zone is a special maritime area established by the United Nations Convention on the Law of the Sea, located beyond and adjacent to the territorial sea, extending no more than 200 nautical miles from the baseline used to measure the breadth of the territorial sea. In this area, coastal states enjoy specific rights and jurisdiction, while other states also enjoy certain rights and freedoms.

I. Sovereign Rights of Coastal States

According to the United Nations Convention on the Law of the Sea, coastal states enjoy the following sovereign rights in the exclusive economic zone:

1. Resource Jurisdiction:

   • Coastal states have exclusive rights to explore, develop, conserve, and manage biological and non-biological resources within the exclusive economic zone.
   • This includes fishery resources, mineral resources (including seabed minerals), oil and gas resources, and other natural resources.
   • Coastal states have the right to decide whether to allow foreign entities to develop these resources and have the authority to set conditions and procedures for foreign fishing in their exclusive economic zone.
   • This right is intended to protect the economic interests of coastal states.

2. Jurisdiction over Artificial Installations and Structures:

   • Coastal states have the right to construct, use, and manage artificial islands, installations, and structures in the exclusive economic zone.
   • Coastal states have the right to decide whether to allow foreign entities to construct these facilities in their exclusive economic zone and have jurisdiction over safety, environmental protection, and other aspects.
   • This right ensures the autonomy of coastal states to carry out necessary construction in their exclusive economic zone.

3. Marine Scientific Research Jurisdiction:

   • Coastal states have the right to control, manage, and regulate foreign marine scientific research activities in the exclusive economic zone.
   • Foreign entities must obtain permission from the coastal state before conducting scientific research activities in its exclusive economic zone and are obligated to comply with the coastal state's regulations and disclose relevant research data.
   • This reflects the protection of the coastal state's research rights and intellectual property.

4. Environmental Protection Jurisdiction:

   • Coastal states have the right to take measures to protect the marine environment within their exclusive economic zone, including preventing and controlling pollution.
   • Foreign vessels must comply with the environmental protection regulations established by the coastal state; otherwise, they may face corresponding penalties.
   • This reflects the coastal state's responsibility for protecting the marine environment in its exclusive economic zone.

II. Jurisdiction of Coastal States

In addition to sovereign rights, coastal states also possess the following jurisdictions in the exclusive economic zone:

1. Jurisdiction to Maintain Legal Order in the Exclusive Economic Zone:

   • Coastal states have the right to implement laws in their exclusive economic zone, maintain their sovereign rights, and penalize violations of their rights, such as expelling or detaining foreign fishing vessels engaged in illegal fishing.
   • This right ensures effective management of the exercise of rights by coastal states in their exclusive economic zone.

2. Jurisdiction for Resource Protection and Management:

   • Coastal states have the right to take necessary measures to conserve and manage biological resources within their exclusive economic zone, including determining catch limits and implementing licensing systems.
   • This right ensures that coastal states can sustainably utilize the resources within their exclusive economic zone.

3. Jurisdiction for Marine Environmental Protection:

• Coastal states have the right to establish and enforce marine environmental protection regulations in their exclusive economic zone to prevent pollution and environmental degradation.
• This right is aimed at ensuring the health of the marine environment in the exclusive economic zone.

III. Summary

The jurisdiction of coastal states in the exclusive economic zone is a limited sovereign right, distinct from the complete sovereignty of territorial seas and the freedoms of the high seas, representing a hybrid between the two. The establishment of the exclusive economic zone system primarily aims to balance the interests of coastal states and the international community in the utilization and management of marine resources, ensuring the exclusive rights of coastal states while also guaranteeing the freedoms of other states in specific areas.

Briefly Discuss International Responsibility for Wrongful Acts

• Definition: International responsibility refers to the legal responsibility that an international law subject (primarily states, but also other entities like international organizations) bears for its actions that violate international legal obligations.
• Key Points:
  • Unlawful Acts: The basis of international responsibility is that the international law subject has committed an "international wrongful act."
  • Legal Consequences: The establishment of responsibility means that the actor must bear corresponding legal consequences, including ceasing the unlawful act, compensating for damages, and providing guarantees.
  • Subjects of Responsibility: Typically, states are the subjects of responsibility, but it may also include international organizations and, in specific cases, individuals.
  • Objects of Responsibility: Primarily concerns obligations between states.

Elements of International Wrongful Acts:

To constitute an international wrongful act, both of the following elements must be satisfied:

1. Subjective Element (Attribution)

   • Definition: Refers to the act being attributable to a specific international law subject.
   • Constituting Subjects:
     • State organs: Refers to the actions of legislative, administrative, judicial, and other departments of the state, regardless of their level and function.
     • Authorized entities: Refers to individuals or entities authorized to act on behalf of the state, even if they are not state organs.
     • Controlled actions: Refers to actions taken by persons or entities acting under the direction or control of the state.
   • Significance: Distinguishes between state actions and private actions.

2. Objective Element (Breach of International Obligation)

   • Definition: Refers to the act violating an effective international legal obligation borne by the acting subject.
   • Sources of Obligation:
     • Treaty obligations: Obligations explicitly stated in treaties.
     • Customary law obligations: Obligations established by international customary law.
     • General legal principles: Legal principles widely accepted by civilized nations.
   • Significance: Clearly identifies the specific obligation violated by the subject.

Legal Consequences of International Wrongful Acts:

Once an international wrongful act is established, the acting subject (usually a state) must bear the following responsibilities:

1. Cessation:

   • The acting subject must immediately cease the ongoing international wrongful act.

2. Non-repetition

   • The acting subject must guarantee that the same or similar international wrongful acts will not occur again.

3. Reparation:

• The acting subject must provide compensation for damages caused by the international wrongful act, including:
  • Restitution: Restoring the situation to the state before the wrongful act occurred as much as possible.
  • Compensation: If restitution is not possible, compensating the actual losses of the victim.
  • Satisfaction: Apologizing for non-material or moral damages, acknowledging the wrongful act, or taking other forms of compensation.

4. Countermeasures:

• Under certain conditions, the injured state may take countermeasures to compel the responsible state to cease its unlawful acts and fulfill its responsibilities.
• Countermeasures must be limited to non-armed, reasonable means and should correspond to the severity of the unlawful act.

Nature and Purpose of Responsibility

• Compensatory: The primary purpose of international responsibility is to compensate the victim for losses rather than to punish the responsible party.
• Restorative: Restitution is the primary method of fulfilling responsibility.
• Preventive: International responsibility also has a preventive effect, aiming to encourage international law subjects to comply with their international legal obligations.

Circumstances Precluding Wrongfulness

International law does not consider all violations of international obligations as absolute wrongful acts. In certain exceptional circumstances, even if an international obligation is violated, the acting subject may be exempted or have its responsibility mitigated. These exceptional circumstances are known as circumstances precluding wrongfulness, mainly including the following:

1. Consent:

   • Definition: Refers to a situation where one state explicitly agrees in advance to another state taking specific actions, which, if those actions constitute wrongful acts, may exclude their wrongfulness.

   • Requirements:

     • Must be valid consent, meaning it must be voluntary and explicit.

     • Consent must be given before or simultaneously with the relevant action.

     • The scope of consent must not exceed the actual consent given.

   • Example: For instance, if one state consents to another state conducting military exercises on its territory, then if those exercises constitute a wrongful act, they may be exempt from wrongfulness due to consent.

• Exception: Cannot exempt actions that violate peremptory norms of international law.

1. Self-defense:

   • Definition: Refers to a state's use of force to resist an armed attack by another state, in accordance with the right of self-defense as stipulated in Article 51 of the United Nations Charter.

   • Requirements:

     • Must be exercised only when subjected to an armed attack.

     • Self-defense actions must be necessary and proportionate, meaning the measures taken to resist the attack must not exceed what is necessary to stop the attack.

     • Must promptly report to the United Nations Security Council.

   • Key Points: The right of self-defense is an inherent right of states, allowing them to take necessary military action to protect their sovereignty and security when under attack.

• Exception: Cannot exempt actions that violate international humanitarian law.

1. Countermeasures:

   • Definition: Refers to measures taken by one state in response to the unlawful acts of another state, which are retaliatory in nature but do not involve the use of force.

   • Requirements:

     • Must target the international wrongful acts of another state.

     • Must be temporary and reversible.

     • Must correspond to the damage suffered.

     • Must involve prior negotiations before taking measures.

     • Must avoid infringing on human rights and international humanitarian law.

     • Must avoid using means that violate peremptory norms.

   • Key Points: Countermeasures aim to compel the wrongdoer to cease its actions and fulfill its compensation obligations.

2. Force Majeure:

   • Definition: Refers to an irresistible force or unforeseen event beyond a state's control that makes it impossible to fulfill international obligations.

   • Requirements:

     • The event must be irresistible or unforeseen.

     • The event must render the fulfillment of obligations objectively impossible.

     • The occurrence of the event must not be caused unilaterally or jointly by the acting state.

   • Example: For instance, a major earthquake that paralyzes a port, making it impossible for the state to fulfill its obligation to open the port.

• Exception: Cannot invoke force majeure in cases where the risk is self-assumed.

1. Distress:

   • Definition: Refers to actions taken by a state's agent to save their own life or the life of others under their guardianship, in circumstances where there are no other reasonable choices, even if it violates international obligations.

   • Requirements:

     • The purpose of the action must be to save lives.

     • There must be no other reasonable options available.

• Exception: Cannot invoke distress if the distress was self-caused.

1. Necessity:

   • Definition: Refers to actions taken by a state to protect its fundamental interests in the face of serious and imminent danger, where there are no other reasonable choices, even if it violates international obligations.

   • Requirements:

     • Must be aimed at protecting fundamental state interests (such as the right to survival, independence, etc.).

     • Must be to counter serious and imminent danger.

     • Must be the only feasible option.

     • Must not seriously harm the interests of the object of the obligation.

   • Key Points: The applicability of necessity is quite narrow and must meet strict conditions.

   • Exception: A state's violation of obligations excludes the applicability of necessity.

Summary

International responsibility outlines the legal consequences that international law subjects (primarily states) must bear for violating international legal obligations. This set of rules aims to ensure the effectiveness of international law and regulate international behavior. It is not merely a system for holding parties accountable but also serves to promote compliance with legal obligations among international law subjects, thereby laying the foundation for a peaceful and orderly world.

Discussion Topic#

China's Position on Resolving International Disputes

① Consistently insists on peaceful resolution of international disputes

② Insists that consultation and negotiation are the preferred methods

③ Does not exclude legal or quasi-judicial methods