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9/19/2009 开心 拿到大2学年的二等综合奖学金了~
奖励自己,OCT.22nd飞回上海看爸爸妈妈~~~~想念上海>.<~~
妈妈说等我回来叫外婆天天给我蒸河鱼吃...还有我最爱的南瓜~~~百合~~~银耳~~~
还有一个月恩.虽然只能在上海呆4天.. 12/26/2008 第2篇国际公法作业.........The international statue of HKFACTS: Under the Sino--British Joint Declaration signed in 1984, the Government of the People's Republic of China (PRC) resumed the exercise of sovereignty over Hong Kong with effect from 1 July 1997 and Hong Kong became the Hong Kong Special Administrative Region (HKSAR) of the PRC. The Declaration embodies Deng's “one country, two systems” philosophy, whereby Hong Kong is allowed to maintain most of its current economic and social system in force before the reversion. The Basic Law of the HKSAR, Hong Kong's “mini-constitution”, also came into effect on the same day. The HKSAR is special not only because it enjoys a degree of autonomy higher than that of other local governments of the PRC, but also because of its special status in the international community. Under the Basic Law, the HKSAR may enter into international agreements and participate in certain international organizations on its own. Moreover, the HKSAR also have international rights and obligations because of the HKSAR”s entry into international agreements and participation in international organizations. ISSUE: Is the HKSAR a subject of international law? What is the international status of the HKSAR? CONCISE RULE: Article 31 of Constitution of the People’s Republic of China: "The state may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People s Congress in the light of the specific conditions." Sino-British Joint Declaration on the Question of Hong Kong also provides the basis of the establishment of the international status of HK. "Basic Law" from the Art.150-Art.157 clearly defines Hong Kong's external exchanges, which can be summarized into four main areas: participation in diplomatic negotiations, international conferences and international rights organizations; the conclusion of international treaties; and foreign exchange official, Quasi-government institutions; the issue of SAR passports and travel documents. However it cannot involve national sovereignty issues, including foreign affairs, national defense, territory, a declaration of war and peace, and so on; has nothing to do with Hong Kong's foreign affairs, it is not involved. CONCLUSION: The HKSAR enjoys a certain degree of the subject of the international law. And the HKSAR can be regarded as having international legal personality to some extent. That is to say that the HKSAR is a limited subject of international law and it will never fully enjoys as an international personality as a state. REASON: An international person can be briefly defined in international law as an entity capable of possessing international rights and duties and having the capacity to maintain its rights by bringing international claims. According to this definition, not only states and international organizations have been generally regarded as the normal types of international legal persons, but also a variety of other historical and current entities have been recognized as international persons to varying extents. The test is that, as long as an entity's international capacity has been accepted and significant international legal relations between the entity and existing international legal persons maintained, such an entity may be recognized as a person under international law to the extent that its personality exists only in the relations between the entity and those international legal persons who recognize the entity's personality. In other words, the key element to establish a new international person is the existence of international legal relations, which are the result of a particular entity's international legal capacities, as recognized and accepted by existing international persons. Such being the case, the HKSAR can be quite readily identified as an international legal person. Under British colonial rule, Hong Kong had developed considerable external autonomy in its economic relations with other parts of the world. In general, however, the existence of such external autonomy in its recent colonial history, especially before the transition period (May 27, 1985 through June 30, 1997), was arguably insufficient to support a separate international legal personality for Hong Kong, even though the substantial development of autonomous features in implementing the Joint Declaration during the transition period, such as the signing of several bilateral treaties with foreign states, might have been. Since the handover, the continuation of Hong Kong's pre-handover international rights and obligations, the practice of the HKSAR's expanded and unprecedented external autonomy in accordance with the Basic Law, and the solemn guarantee of such autonomy under the Joint Declaration, as well as general recognition and tremendous support throughout the world, all point to the establishment of a limited international legal personality for the HKSAR as a non-state entity. Today, among the HKSAR's key international legal relations are a number of separate memberships in international organizations which do not require statehood as the condition for membership and a net of bilateral treaties and agreements between Hong Kong on the one hand and foreign nations and international organizations on the other. Nevertheless, while the HKSAR's international legal status may be strong with unprecedented external autonomy as an autonomous region, its international personality is necessarily limited. Despite the fact that states, international organizations, and entities like the HKSAR are all deemed international persons, the extent of their personality varies significantly. It is perhaps in this sense that defining Hong Kong is an entity which is not a ‘state’, yet possessing ‘stately attributes'; not ‘sovereign’ yet ‘highly autonomous'; not a conventional’ member of the international community, yet a most respectable ‘actor’ on the international stage.” Compared with those of the principal international persons (states) Hong Kong's international legal relations are largely limited to non-political and non-military areas, as the Basic Law clearly provides that China is responsible for the HKSAR's foreign affairs and defense. Thus, only to the extent that the HKSAR is allowed to have autonomous legal relations with foreign states and international organizations are Hong Kong and China two separate legal persons. Beyond the HKSAR's external autonomy, there is only one legal person representing China namely, the PRC. One such problem in the Statute of the ICJ is that, since the HKSAR has the capacity to bear international responsibility, then it should be able to become a party to the ICJ statute and bring international claims before the ICJ. Yet, by whatever international law standard, and in spite of any factual arguments about size of population, territorial area, etc., the HKSAR is not a sovereignty sate. Until the ICJ statute is modified, only states may be parties to that statute, as well as “in cases before the Court.” Another questionable analogy is that, since “neither the British Nationality (Overseas) nor the Chinese nationality to be conferred on the inhabitants of the HKSAR could be regarded as providing real and effective nationality,” then, according to the criterion of the “genuine link,” the HKSAR government should be able to provide diplomatic or equivalent protection to its people traveling overseas or in China. However, leaving aside the questionable premise that neither the BN(O) nor the Chinese nationality for HKSAR residents confer any real and effective nationality, and bearing in mind that it is a general rule of international law that nationality is a prerequisite for diplomatic protection, it is clear that the criterion of the genuine link simply cannot be used to argue that an autonomous region (the HKSAR) is competent to challenge or bypass its sovereign (the PRC) and provide its own “diplomatic” protection to the Chinese nationals residing in Hong Kong - an inalienable part of the PRC as proclaimed in the Joint Declaration, consistent with the fact of the July 1997 handover, and pursuant to the Basic Law. The boundary between the PRC's sovereignty and the HKSAR's autonomy also raises questions with respect to the assertion that HKSAR should be given legal personality by the international community. Although the international legal personality of HKSAR depends on the recognition and acceptance of the international community, in the final analysis Hong Kong needed, and will again need after fifty years of guaranteed existence, a sovereign's, i.e. China's, authorization for its international capacities. Regarding all these facts, the HKSAR enjoys the limited rights and obligations under international law. So the HKSAR can be regarded as having international legal personality to some extent. In conclusion the HKSAR is a limited subject of international law and it will never fully enjoys as an international personality as a state. 0723班 0703015005 邱梦赟 10/6/2008 纪念我的第一份国际公法Case reportNorth Sea Continental Shelf Cases ----Case Report 1. Facts The Federal Republic of Germany (FRG) and Denmark, The Netherlands submitted a dispute over the delimitation of their shared Continental Shelf to the International Court of Justice. Although there are two bilateral treaties, one of which has been made by the FRG and The Netherlands in 1964, the other of which has been made by the FRG and Denmark in 1965, these treaties can only apply to the delimitations between opposite states according to the equidistance principle, not between adjacent states. Denmark and The Netherlands stated that the FRG should have the obligation to accept the equidistance principle to delimitate the North Sea Continental Shelf according to the 1958 Convention whether the FRG was one of the parties in this convention. Because they thought this principle was not only an obligation of the treaty but also a mandatory rule of customary law. On the other hand, the FRG stated that the equidistance principle was not a mandatory rule of customary law. Furthermore, it was unfair for the FRG to delimitate the continental shelf in accordance with such principle.
2. The issue in this case was whether state practice in the matter of continental shelf delimitation was a custom and which principle should be applied to delimitate the continental shelf of the adjacent countries.
3. Article 38-1(b), which of the Statue of the International Court of Justice 1945, can apply to this case, the provision clearly stated, “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 rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; ……” 4 .The application of the rule First of all, the issue we should consider is whether state practice in the matter of continental shelf delimitation was a custom. As far as we know, the sources of international law are taken to be those listed in Article 38 of the Statue of the International Court of Justice. According to Article 38(1) (b), the court who decides international disputes shall apply international custom, as evidence of a general practice accepted as a law. So international custom is one of the sources of the International Law and is supposed be a direction to the Court when they decide such disputes. In this case, there is no evidence to prove that Article 6 in the 1958 Convention has become the custom in this case. If an act becomes a custom, there are two progresses. One of them is the objective element that the act should become a general practice at first. The court considered that if an act becomes a general practice, it should be participated by many countries. Hence, it is difficult to become a general practice for an act in the condition that only part of countries overlap this act whilst others are against it. That is to say that Article 6 in the 1958 Convention was not a general practice because that the FRG opposed to this act even though Germany and Denmark submitted to it. The other one is the subjective element that the general practice should be accepted as a law, which is called opinio juris. Even if an act is accepted by a large amount of countries, it will not become an international custom. The frequency or even habitual character of the acts is not in itself enough. The reason is that lots of countries do such acts not because their legal obligation but because considerations of courtesy, convenience or tradition. These acts are only called general practices not international customs. In the North Sea continental shelf case, the court made a difference between international customs and international protocols. The key point is that international customs will give rise to legal duties while international protocols may be only some kind of traditions. That is to say that frequency and widespread acts are supported to be accepted as laws. Then they become international customs which are the sources of international law. And they can bind every country. Then the court can judge the case based on this custom. In this case, there was no evidence to prove that the equidistance method in Article 6 was accepted as a law. It was the reason why the equidistance method was not customary law. So the FRG had no obligation to apply to it. Second, pay attention to the relationship of custom and treaty law .The difference between a treaty and a custom law is that a treaty only binds the parties to it, whilst a rule of customary international law binds every state. Not every treaty can become customary law. But this case shows us the possibility that new rules of customary international law may be formed by four recognized methods. There exits 4 conditions. It would in the first place be necessary that the provision concerned should be of a fundamentally norm-creating character. That is to say that it should be normative. There are two kinds of treaties, law-making treaties and contractual treaties. The most important difference between them is that law-making treaties apply in every country, while contractual treaties only apply to the countries that made the treaties. According to Article 38(1) (a), only law-making treaties are the sources of international law. If treaties become customary laws, they must be normative. Secondly, a widespread and representative participation in the convention might be sufficient, provided it included that of states whose interests were specially affected. There is no doubt that it should be a large number of countries to comply the treaties which want to be customary laws. Then the third element is the time which will be cost to form a customary law. The period depends on what kind of things such as areas of International relations. With the development of technology, the time may be shorter and shorter. In this case, the court pointed that the length of the time has not a great impact on the form of customary law. That was to say that a short period would not be a reason to deny forming a new customary law. So the time is not necessary. The last element is that the formation of a new rule of customary international law should have been extensive and virtually uniform in the sense of the provision invoked and it also should have occurred in such a way as a to show a general recognition that a rule of law or legal obligation is involved.
5. The conclusion made by the court The Court concluded that the parties were under no obligation to apply either the 1958 Convention or the equidistance method as a mandatory rule of customary law. However, there are still principles to apply to this case. The court decided to delimitate the continental shelf according to equitable principles which have an impact on the development of the delimitation of the continental shelf.
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