UNDERSTANDING INTERNATIONAL LAWPDF电子书下载

CHAPTER 1. WHAT IS “INTERNATIONAL LAW”？ 1

1.01 Introduction 1

1.02 General Definition 3

[A] International Law 3

[B] Publc vs. Private International Law 4

[C] The Blurring of Distinctions 5

1.03 Is International Law “Law”？ 6

1.04 A Bit of History 10

CHAPTER 2. HOW DOES INTERNATIONAL LAW RELATE TO NATIONAL （“MUNICIPAL”） LAW？ 15

2.01 Introduction 15

[A] International Law in National Law 15

[1] The Applicability of International Law in National Law 16

[2] The Use of International and Comparative Law to Inform National Court Decisions 22

[B] National Law in International Law 23

2.02 “Monism” vs. “Dualism” 23

2.03 International Law as Law of the United States 25

2.04 The Effect of Actions of the President or Congress that Violate International Law 27

2.05 Self-Executing Treaties 28

CHAPTER 3. THE SOURCES OF INTERNATIONAL LAW 33

3.01 Introduction 33

3.02 What Gives the “Sources” of International Law Legal Force？ 34

3.03 Article 38 of the Statute of the International Court of Justice 38

[A] Treaties 40

[B] Customary International Law 44

[1] “A General Practice” 45

[2] “Accepted as Law” 51

[3] Recent Challenges to Custom as a Source of Law 55

[C] General Principles of National Law 56

[D] “Subsidiary Means”： Judicial Decisions and Writings 61

[1] Courts and Tribunals 62

[2] Publicists 63

[E] Decisions ex aequo et bono 66

[1] The Unutilized Power 67

[2] “Equity” Distinguished 68

CHAPTER 4. THE LAW OF TREATIES 71

4.01 Introduction 72

4.02 Treaties as International “Legislation” 73

4.03 Treaties as International “Contracts” 75

4.04 Treaties and Customary International Law 76

4.05 The Vienna Convention on the Law of Treaties 78

[A] What Is a “Treaty”？ 79

[B] The Making of Treaties 82

[1] General 82

[a] Overview of the Treaty-Making Process 83

[b] Obligations Prior to Entry Into Force 85

[c] Consent to be Bound 86

[2] Reservations 90

[a] Multilateral Treaties 91

[b] Bilateral Treaties 92

[c] “Reservation” Defined 93

[d] Permissibility of Reservations 94

[e] Acceptance of and Objection to Reservations 98

[C] The Legal Effect and Interpretation of Treaties 102

[1] Pacta Sunt Seruanda 103

[2] Non-retroactivity and Territorial Scope 104

[3] Successive Treaties Relating to the Same Subject Matter 104

[4] Interpretation 105

[a] The General Rule 106

[b] Supplementary Means of Interpretation 110

[c] Treaties in More than One Language 111

[5] Treaties and Third States 112

[D] Amendment and Modification of Treaties 113

[E] Invalidity and Termination of Treaties 115

[1] Invalidity 116

[a] Lack of Competence 116

[b] Error 117

[c] Fraud 117

[d] Corruption 117

[e] Coercion 117

[f] Jus Cogens 118

[2] Termination 118

[a] Material Breach 120

[b] Impossibility 122

[c] Fundamental Change of Circumstances 123

[d] Jus Cogeus 125

4.06 The Relationship Between Treaties and State Responsibility 125

4.07 The Law of Treaties and United States Law 127

[A] The Position of the United States on the Vienna Convention 127

[B] The Meaning of the Term “Treaty” in U.S.Domestic Law 129

[C] Authority to Make International AgreementsUnder U.S. Law 130

[1] Article Ⅱ Treaties 131

[2] Executive Agreements 133

[a] Congressional-Executive Agreements 133

[b] Agreements Made Pursuant to Other Treaties 134

[c] Sole Executive Agreements 134

[D] Authority to Interpret Treaties and Other International Agreements under U.S. Law 136

[E] Authority to Suspend or Terminate Treaties and Other International Agreements Under U.S. Law 137

[F] Conflict between Treaty and Federal Statute：The Last-in-Time Rule 137

CHAPTER 5. TO WHOM IS INTERNATIONAL LAW ADDRESSED？ STATES AND OTHER SUBJECTS OF INTERNATIONAL LAW 139

5.01 Introduction 139

5.02 States 141

[A] Statehood： Objective Requirements 141

[1] Permanent Population 142

[2] Defined Territory 143

[3] Government 143

[4] Capacity to Enter into Relations with Other States 145

[5] Summation 145

[B] Recognition of States and Governments 146

[1] Recognition of States 146

[2] Recognition of Governments 148

[C] State Succession 150

[D] Self-Determination 155

5.03 Other “Subjects” of International Law 160

[A] Territorial Entities Other than States 160

[B] International Organizations 161

[C] Natural and Legal Persons 165

[1] Natural Persons 165

[a] Individuals 165

[Ⅰ] The Individual as an “Object” of International Law 165

[Ⅱ] The Individual as a Subject of International Law 166

[Ⅲ] International Human Rights Law 167

[Ⅳ] Terrorists and Terrorism 168

[b] “Peoples” 170

[2] Legal Persons 170

CHAPTER 6. THE ALLOCATION OF COMPETENCE AMONG STATES： JURISDICTION 173

6.01 Introduction 173

6.02 Jurisdiction of States： General Considerations 174

6.03 Bases of State Jurisdiction 176

[A] Introduction 176

[B] Territoriality and the Effects Principle 176

[1] Conduct and Other Matters Within a State’s Territory 176

[2] Effects Within a State’s Territory 179

[C] Nationality 180

[D] The Protective Principle 182

[E] The Universality Principle 184

[F] Other Possible Bases 188

6.04 Immunity from Jurisdiction 189

[A] Introduction 189

[B] Historical Development 189

[C] The United States Foreign Sovereign Immunities Act of1976 194

[1] Introduction 194

[2] The Commercial Activities Exception 195

[3] The Non-Commercial Tort Exception 197

[4] Enforcement of Judgments 200

6.05 The Act of State Doctrine 202

CHAPTER 7. REMEDIES： INTERNATIONAL RESPONSIBILITY 211

7.01 Introduction 211

7.02 General Principles 215

[A] Attribution 216

[B] “Defenses” — Circumstances Precluding Wrongfulness 217

7.03 Obligations of the Wrongdoing State 222

[A] Introduction 222

[B] Reparation 222

[1] Restitution 223

[2] Compensation 224

[3] Satisfaction 225

7.04 Countermeasures 226

7.05 Alternatives to the Traditional Approach：Accountability and Compliance 229

CHAPTER 8. THE USE OF FORCE BY STATES 233

8.01 Introduction 233

[A] Historical Development 233

[B] This Chapter 235

8.02 The Basic Prohibition： Article 2（4） 235

8.03 Self-Defense： Article 51 240

8.04 Collective Use of Force 246

[A] Collective Self-Defense 246

[B] Action Under the Authority of the Security Council 246

[C] Regional Arrangements 248

CHAPTER 9. INTERNATIONAL HUMAN RIGHTS LAW 251

9.01 Introduction 251

[A] Background 251

[B] State Responsibility for Injuries to Aliens 253

[C] International Humanitarian Law 256

[D] This Chapter 259

9.02 The Universal System 260

[A] The “International Bill of Human Rights” 261

[1] The Universal Declaration 262

[2] The Civil and Political Covenant 265

[3] The Economic， Social and Cultural Covenant 267

[4] Compliance Mechanisms 269

[a] United Nations and Treaty-Based Systems 269

[b] Enforcement of Human Rights Law in Domestic and International Tribunals 273

[B] Customary International Human Rights Law 276

9.03 Regional Systems 278

CHAPTER 10. THE SETTLEMENT OF DISPUTES BETWEEN STATES 283

10.01 Introduction 283

10.02 The Basic Obligation： Peaceful Settlement 284

10.03 Forms of Dispute Settlement 286

10.04 The International Court of Justice 289

[A] General 289

[B] Jurisdiction 290

[C] The Effect of the Court’s Judgments and Orders 292