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MindMap Gallery Public International Law International Legal Subjects

Public International Law International Legal Subjects

Public International Law The main chapter of international law, combined with MA Engineering textbooks, taught by university teachers, law exam teaching, a must-have guide for law students before the final exam!

Edited at 2024-01-18 00:01:09

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Public International Law International Legal Subjects

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international legal subject

subject of international law

Sovereign state

The constituent elements of a country: settled residents, defined territory, certain political organization or government, sovereignty

type

Permanent neutral country:

Voluntarily assume the obligation of permanent neutrality (not be involved in wars and battles)

Permanent neutral status guaranteed by international treaties: Switzerland, Austria, Turkmenistan

(Gone) Subject country: The right to communicate with foreign countries is controlled by other countries

Vassal state: surrenders diplomacy to other countries and retains management of the country's internal affairs

Protected country: handed over to another country for protection

Basic rights: right to independence, right to equality, right to jurisdiction, right to self-preservation

The right to independence: to be independent and free from interference

Internally: self-managed country

External: Implement foreign policies independently

Right to equality: the right to equal status (representation, voting, use of national language, diplomatic etiquette, judicial immunity, equal treatment of aliens)

right of self-defense

condition

Prerequisite: Being attacked by force

Time: Before the Security Council takes the necessary measures to maintain international peace and security

Procedure: Take action to report to the Security Council

Limits: Necessity and Proportionality

Subject: Sovereign state (international organizations have no right to self-defense)

jurisdiction

Territorial jurisdiction: priority jurisdiction

Subjective territoriality: preparation for crime, execution of crime, etc.

Objective territoriality: the result of the crime occurs or is completed in this country

Restrictions: Diplomatic immunity (heads of state and diplomatic representatives); sovereign immunity; does not affect the innocent passage of foreign ships in territorial waters; restrictions on foreign personal jurisdiction

personal jurisdiction

Positive personal jurisdiction (active): nationality of defendant

Passive personal jurisdiction (passive): nationality of victim

protective jurisdiction

Meaning: personal security, territorial integrity, major economic interests

Target: foreigners, domestic citizens, extraterritorial infringement

Crime: Penal Code for more than three years, specific crimes, double guilt principle

universal jurisdiction

Applicable: Specific international crimes (war crimes, crimes against peace, crimes against humanity, piracy (recognized), genocide, drug trafficking, slave trade, apartheid, torture, aircraft hijacking, etc.)

Scope: within the jurisdiction of this country and not within the jurisdiction of any country

Nature: Supplementary

Three major systems

state sovereign immunity system

Nature: customary law rules

Concept: A country cannot exercise jurisdiction over foreign heads of state, heads of government, diplomatic representatives, and foreign state actions and state property (the jurisdiction of the International Court of Justice is not excluded)

status quo

Absolute immunity of state sovereignty: state actions and state property (all actions and properties) are not subject to the domestic jurisdiction of other countries (already in effect)

Relative immunity (not in effect)

Rule, sovereignty, (public law act) State enjoys immunity from jurisdiction

There is no jurisdictional immunity for business management, commercial transactions, and private law activities (commercial activities)

What is waived is the right to sue rather than the immunity from execution

Judgment criteria: nature purpose

Subjects of immunity: the state and government agencies; organizations with sovereign rights; state representatives (with state rights, Chinese state-owned enterprises do not enjoy sovereign immunity and cannot resort to claims against the state to enforce the property of the state-owned enterprise)

State immunity rules: You are not a defendant without consent; you can be a defendant in a counterclaim when you are a plaintiff; consent to jurisdiction does not mean consent to execution

Situations in which state immunity cannot be invoked: commercial activities, labor service contracts, compensation for personal injury and property damage, related property matters, intellectual property matters, arbitration awards

Waiver of state immunity (the waiver is jurisdictional immunity, not execution immunity)

Characteristics: voluntary, specific, clear

Express: Statement in formal documents such as treaties and contracts

Implication: (litigation behavior) Take the initiative to sue, appear in court to respond, file a counterclaim, and participate as an interested party

Waiver: What is waived is the right to sue rather than the immunity from execution (only the form of waiver is expressly stated, and a separate waiver is required)

Actions that shall not be considered a waiver of immunity:

Agree to the application of the laws of another country

Intervening in a lawsuit solely to invoke or contest a specific property right to be adjudicated in the lawsuit

A representative of one country testifies in a court of another country

Failure of one State to appear in proceedings before the courts of another State

Foreign state property does not enjoy immunity from judicial coercive measures

expressly give up

To set aside or earmark property for enforcement purposes

Effective judgment and ruling: Foreign state property located within the territory of China and used for commercial activities and related to litigation

If a foreign country violates China's immunity, China has the right to take reciprocal measures

recognition system

admit

Subject: States and intergovernmental international organizations

Situation: merger, separation, separation, independence

object

recognize the government

Reason: Social change or military coup (change of government through non-constitutional procedures)

Principle of recognition: effective rule (regardless of the origin of the regime or the provisions of domestic law)

Recognize the country: vice versa

Situation: Merger, spin-off, separation, independence

State element: a country that complies with the principles of international law (premature recognition without recognition, the possibility of interfering in internal affairs, and an internationally wrongful act)

Difference: Whether there is a territorial change

Recognition method

Express: statement, correspondence

Implied: formal establishment of diplomatic relations (symbolized by the establishment of embassies in each other's country), consular relations, conclusion of political treaties, voting to join international organizations open only to countries

Legal recognition (political, mainly between countries)

formal, complete

permanent, irrevocable

Legal basis for comprehensively establishing diplomatic relations

de facto recognition (e.g. commercial relationship)

informal, restrictive

temporary, revocable

Note: Factual recognition is not a necessary prerequisite for legal recognition.

Effect

Retrospective: traceable to the time of its establishment

legally recognized legal effects

Legal recognition and establishment of diplomatic relations: recognition is usually a prerequisite for the establishment of diplomatic relations; legal recognition is irrevocable but the establishment of diplomatic relations can be revoked

Recognition of a new state is in principle irreversible; recognition of a new government implies the removal of the old government within the territory

Nature: Unilateral act

China Practice

Is recognition of the government (the territory remains unchanged)

The theory of reverse conditional recognition: Countries that recognize and establish diplomatic relations must recognize that there is only one China (different from conditional recognition)

inheritance system

Concept: the subject of international law or the government and international organization representing the subject, the transfer of rights and obligations under international law

content

State succession (legitimacy, territoriality)

Reason: The fact that a country’s territory has changed (transfer, merger, separation, separation, independence, disintegration)

Object: Specific rights and obligations under international law related to the inherited territory (the basic rights and obligations of the state are inherent and no issue of succession arises)

Contents: treaties, property, archives, debts

treaty succession

Personal treaties, political treaties, will not be inherited (peace and friendship treaties, alliance treaties, etc.)

Disposal treaties, which should be inherited (treaties related to land use, territorial delimitation (exclusion of personality), and beneficial to local life, delimitation treaties) eg. borders, rivers and roads system

Transfer of Territory: Successor State Treaty Enters into Force

Merger: The original treaty is only valid for the territory of the inherited ancient country.

Separation: Scope of Succession Treaty

Independence (blank slate principle): freedom to decide whether to inherit treaties of the original country (exceptions: general international law conventions, boundary treaties)

inheritance

a standard

Real property: principle of transfer with territory

Movable property: principle of actual subsistence (territorial activities involved)

two principles

Unless there is an agreement, all transfers to the successor state or on a proportional basis

Newly Independent States: Permanent sovereignty of peoples over their wealth and natural resources, first and foremost on the basis of actual subsistence principles and not by treaty

Debt inheritance: strictly speaking, the state is not an odious debt

Elements

Subject: the central government of a country (excluding local governments)

Content: Treaty of equality (not odious debt)

Object: Debts to other international law subjects (excluding commercial banks, etc.)

Way

Merge: Inherit all

Separation, separation (one country derives other countries), division (one country becomes several countries): proportional inheritance

Independence (only refers to colonial independence from colonial rule): no inheritance unless otherwise agreed

content

Two inheritances (in the name of the state)

National debt, borrowed in the name of the country

Localized debts are borne in the name of the state

Two do not inherit

Odd debts that violate the interests of the people or the basic principles of international law

local debt, local name

File inheritance

Principles: Principles related to the territory involved (whoever has the closest relationship inherits the territory)

Compensation: generally no compensation

Obligations of the predecessor State: to take all measures to protect archives

Legal effect: Retroactive to the date of establishment of the new country

government succession

Definition: A change of regime due to a revolution or coup

basic rules

No inheritance: any treaty that is unequal, predatory, or contrary to national interests

Inheritance: All other treaties and property interests shall be inherited (excluding odious debts)

Differences from state inheritance

Reasons for succession: revolution or coup; territorial change

Participants: political power; subject of international law

Degree of inheritance: full inheritance; full or partial

Succession of the People's Republic of China

Treaty: review, cleanup, differentiated treatment

State property: all property is inherited

National debt: odious debts are not inherited; legal debts are inherited (odd debts: debts borne by the government or in the context of war that are against the interests of the people of the country)

Right to represent international organizations: inherit the right to represent all international organizations. In 1971, the United Nations General Assembly passed Resolution 2758, which restored all seats and legitimate rights of China in the United Nations.

Intergovernmental International Organization (United Nations)

Certain National Liberation Organizations (Palestine)