international law
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Description
Book Introduction
In the 4th edition, Chapter 10, ‘Extradition and Mutual Assistance in Criminal Matters under the Statute of the International Criminal Court (ICC)’, and Chapter 18, ‘International Environmental Law’ were added.
With the International Criminal Court (ICC) recently issuing arrest warrants for top leaders of several countries, extradition and criminal judicial cooperation between the ICC and its member states have become very important topics.
In addition, recent concerns about climate change and other climate change-related abnormalities and environmental pollution are making it necessary to further understand international environmental law.
In this respect, the fourth edition of this book adds explanations on the ICC's extradition system and international environmental law.
We have also added a brief introduction to how states acquire territory, and have revised some of the content to reflect changes in international law since the publication of the third edition.
With the International Criminal Court (ICC) recently issuing arrest warrants for top leaders of several countries, extradition and criminal judicial cooperation between the ICC and its member states have become very important topics.
In addition, recent concerns about climate change and other climate change-related abnormalities and environmental pollution are making it necessary to further understand international environmental law.
In this respect, the fourth edition of this book adds explanations on the ICC's extradition system and international environmental law.
We have also added a brief introduction to how states acquire territory, and have revised some of the content to reflect changes in international law since the publication of the third edition.
index
Chapter 1: The Lawyer's Approach to International Relations
Ⅰ.
Concept of International Law 2
1.
Definition 2
2.
Name 3
3.
Distinction from other norms 4
4.
Functions of International Law 6
5.
Three Types of International Law 7
(1) The Law of Power／7
(2) The Law of Reciprocity／8
(3) The Law of Coordination／8
Ⅱ.
The Legal Nature of International Law 8
1.
Is international law law? 8
2.
Theory of International Law 10
(1) Political Realism／10
(2) International Natural Law／11
(3) International Legal Positivism／13
3.
Sanctions under International Law 14
4.
Principle 16 of Sovereign Consent
5.
Legalism and Realism 17
6.
International Lawyer's War Prevention Plan 17
7.
The Legal Approach and the Modern International Legal Order 19
8.
Vital interests of the state and international law 20
(1) Pearl Harbor／20 (2) Cuban Missile Crisis／21
(3) Legal-moral imperatives／22
Chapter 2 Courts of International Law
Ⅰ.
24 of the of
Ⅱ.
Article 25
1.
25 of the of
2.
Type 27
3.
Treaty on Treaties 28
4.
Requirements for the formation of a treaty 29
5.
Treaty Conclusion Procedures (Focusing on the Case of Korea) 29
(1) Negotiation／30 (2) Initial／30
(3) Signature／31 (4) Ratification／31
(5) National Assembly consent／32 (6) Promulgation and entry into force of the treaty／33
(7) Registration of Treaties／33
Ⅲ.
Customary International Law 34
1.
34 of the of the of
2.
Uniform and Consistent State Practice—Objective Requirements 35
(1) Scope of national practice／35 (2) Duration of national practice／36
(3) Regional International Customary Law／36 (4) Evidence of State Practice／37
3.
Opinio Juris - Subjective Requirement 37
4.
Scope of International Customary Law 38
5.
Burden of Proof in International Customary Law 39
Ⅳ.
Case Study 39: Codification of International Customary Law
1.
Codification of Land Warfare Laws 39
2.
Codification and the World Court 41
3.
International Prize Court (IPC) 41
4.
Individuals as Subjects of International Law 42
5.
US Constitutional Issues 42
6.
London Declaration 43
7.
Marine Capture Bill 44
8.
American intervention in World War 44
9.
Conclusion 45
V.
General Principle of Law 45
1.
45 of the of
2.
The Legality of General Principles of Law 47
3.
Order of Application of General Principles of Law 48
4.
Application of General Principles of Law 49
(1) Principle of interest on overdue payments／49 (2) Principle of subrogation／49
(3) Principle of Good Faith／50 (4) Principle of Estoppel／50
(5) Principles for Determining a Company's Nationality／51
(6) Principle of res judicata／52
(7) Principle of compliance with contract (pacta sunt servanda)／53
(8) Other principles／53
Ⅵ.
Court Auxiliary Measures 54
1.
Judicial Decisions 54
2.
Theory 55
Ⅶ.
Resolutions of international organizations, soft law, equity and good 56
1.
Resolution 56 of the International Organization
(1) Resolutions on internal organization／56 (2) Resolutions with legal binding force／56
(3) Resolution to establish the Soft Law／57
2.
Soft Law 59
3.
Equity and Goodness (aequum et bonum) 60
Ⅷ.
Court Rank 61
1.
Ranking of Treaties and Customary International Law 61
(1) Principle 61 (2) Article 103 of the UN Charter 61
(3) Combination of Treaties and International Customary Law／62
2.
General Principles of Law and the Ranking of Treaties and International Customary Law 62
Ⅸ.
Jus cogens, peremptory norm 63
1.
63 of the of the of
2.
Contents of mandatory regulations 63
3.
The Problem of Universal Jurisdiction 64
(1) The Eichmann Incident / 64 (2) The Eichmann Incident / 64
(3) Domestic trials in Belgium／65 (4) Statute of the International Criminal Court／65
(5) The U.S. Alien Tort Compensation Act／65
Chapter 3: The Relationship Between International Law and Domestic Law
Ⅰ.
70 of the of
Ⅱ.
Theory on the Relationship between International Law and Domestic Law 72
1.
Dualism 72
2.
Monism 73
(1) Theory of the Supremacy of Domestic Law／74 (2) Theory of the Supremacy of International Law／74
(3) Equivalence theory／74
3.
Transformation and Incorporation Theory 75
Ⅲ.
Practice on the Relationship Between International Law and Domestic Law 75
1.
The International Court of Justice in Practice 75
2.
British Run 77
(1) International customary law／77 (2) Treaties／77
(3) Presumption of Compatibility Theory／77
3.
American Execution 78
(1) International customary law／78 (2) Status of treaties under domestic law／78
(3) Theory of Political Questions／81
(4) Act of State Doctrine／81
(5) Sovereign immunity doctrine／82
(6) Estimation of agreement／84
4.
Our country's implementation 85
(1) International customary law／85 (2) Treaties／85
(3) Estimation of agreement／85
5.
French Run 88
6.
Germany's Run 88
7.
Japan's Execution 89
8.
90
Ⅳ.
Treaties and Administrative Agreements 91
1.
91 of the of the of
2.
Types of Administrative Agreements 92
(1) Congressional-Executive agreement approved by Congress／92
(2) Sole Executive Agreement／93
3.
U.S. Supreme Court Case Law No. 94 on Administrative Agreements
(1) Belmont (United States v.
Belmont) incident／94
(2) Pink (United States v.
Pink) Incident／95
(3) Dames & Moore v.
Regan) case／95
4.
The Domestic Legal Effects of Executive Agreements 96
5.
Limitations of Administrative Agreement 97
6.
Comparison of the Conclusion Procedures for the Status of Forces Agreement (SOFA) between the Republic of Korea and the United States (ROK-US) 98
V.
Self-Executing and Non-Self-Executing Treaties 99
1.
99 of the of the of
2.
Type 99 of Non-Self-Executing Treaties
(1) Treaty requiring the execution of the expenditure budget／100
(2) Treaties imposing an obligation to criminally punish certain acts／100
(3) Treaties imposing an obligation to participate in war／100
(4) Treaty stipulating the obligation to protect human rights／102
3.
Effect of Non-Self-Executing Treaties 102
Chapter 4 Subjects of International Law
Ⅰ.
The concept of the subject of international law 104
1.
The Meaning of the Subject of International Law 104
2.
Central American Court of Justice 105
3.
Theory on the Subject of International Law 107
(1) Theory that regards only states as subjects of international law and denies the international legal status of individuals／107
(2) A doctrine that denies the international legal status of states and regards only individuals as subjects of international law／107
(3) A doctrine that broadly recognizes the international legal subjectivity of individuals, especially in addition to states／108
(4) The theory that individuals can also become subjects of international law within a limited scope／109
Ⅱ.
The State's Subjectivity in International Law 110
1.
Temperament 110
2.
National Qualification Requirements 111
(1) People／111 (2) Defined territory／112
(3) Effective government／112
(4) Sovereignty (diplomatic ability)／113
3.
Rights and Capabilities of a State with Limited Sovereignty (Diplomatic Capacity) 113
(1) Dependent States／113 (2) Protected States／114
(3) Federal constituent states／114
4.
Treaty-Based Cooperation and Diplomatic Capabilities 115
(1) Customs Union／115 (2) Permanent Neutrality／115
(3) Vatican (The Holy See)／117
5.
Methods of Acquiring Territory 117
(1) Occupation／118 (2) Cessation／120
(3) Conquest (subjugation)／121
(4) Prescription／122 (5) Accretion／123
Ⅲ.
Legal Capacity of Quasi-State Entities 123
(1) Warring groups／123 (2) Government in exile／124
(3) National liberation movement／124
Ⅳ.
Individual Rights Capacity 126
1.
Dominant Attitudes of the Late 19th and Early 20th Centuries 126
2.
Developments from the early 20th century to before World War II 126
(1) Development of an individual's international legal capacity (right to sue or petition)／126
(2) Pursuit of individual criminal responsibility／127
3.
128
4.
The Development of the Principle of Individual Criminal Responsibility after World War II 128
(1) Development of the Treaty Recognizing the Individual Complaint／128
(2) The Nuremberg and Tokyo Trials／129
Chapter 5 International Organization Law
Ⅰ.
Legal Capacity of International Organizations 132
1.
Definition and Classification of International Organizations 132
(1) Definition／132 (2) Classification／132
2.
The international legal subjectivity of international organizations and their legal basis 133
(1) Theory of the basis of the establishment treaty or the will theory／133
(2) Theory of Purpose or Presumptive Personality／134
(3) Objective theory／134
(4) Evaluation／135
3.
International Organizations' Legal Capacity 135
(1) Treaty-concluding authority／135
(2) Privileges and Immunities (UN Privileges and Immunities Agreement, ICC Privileges and Immunities Agreement)／136
(3) International Responsibility／136 (4) Right to Job Protection／137
(5) Other legal capacity／138
4.
Capacity under domestic law 138
Ⅱ.
Privileges and Immunities of International Organization Staff 139
Ⅲ.
The United Nations (UN) 141
1. Establishment of the UN 141
2. Purpose of the UN 142
3.
Principles of Conduct for the United Nations and its Member States 142
4.
UN Organs and Key Functions 144
(1) General Assembly (Constitution, Chapter 4, Articles 9-22)／144
(2) Security Council (Charter, Chapter 5, Articles 23-32)／145
(3) Economic and Social Council／148 (4) Trusteeship Council／148
(5) International Court of Justice (ICJ)／149 (6) Secretariat／149
5.
UN Specialized Agencies 150
Chapter 6 Recognition under International Law
Ⅰ.
State approval 154
1.
154 of the of
(1) Declaratory Theory of Recognition／155
(2) Constitutive Theory of Recognition／156
(3) Conclusion／156
2.
Basic Rules for Approval 157
3.
Requirements for Approval 157
(1) Establishment of the State／158 (2) Will and Ability to Comply with International Law／158
(3) Premature recognition／158
4.
Method of Approval 159
(1) Explicit and implicit consent／159
(2) De facto approval and legal approval／160
(3) Individual and collective approval／161
(4) Conditional and unconditional approval／162
5.
Effects of State Approval 162
6.
Status of unrecognized countries 163
7.
Withdrawal of approval 163
8.
Our country's implementation 164
Ⅱ.
Government approval 165
1.
165 of the of
2.
Requirements for Government Approval 166
3.
Method 167
4.
Effects of Government Approval 167
5.
Case 168 of government approval
Ⅲ.
Approval of the warring groups 169
1.
169 of the of the of
2.
Requirements for Approval 169
3.
Method of Approval 170
4.
Effect of Approval 170
(1) In case of approval by a third country／170 (2) In case of approval by the home government／170
5.
Recognition of Insurgency and Recognition of Warring Groups 171
Chapter 7 National Jurisdiction
Ⅰ.
The Meaning and Types of National Jurisdiction 174
1.
174 of the of
2.
Forms of Jurisdiction 174
(1) Jurisdiction to prescribe, legislative jurisdiction／174
(2) Jurisdiction to adjudicate, judicial jurisdiction／174
(3) Jurisdiction to enforce, administrative jurisdiction／175
3.
Relationship with Territorial Rights 176
4.
The Relationship Between Terminology and Humanism 176
Ⅱ.
Rule 176 for Determining National Jurisdiction
1.
territorial principle 176
2.
Effectiveness Theory 178
3.
Active personality principle (nationality principle or active personality principle) 179
4.
Passive personality principle 180
5.
Protectionism (protective principle) 180
6.
Universalism (universality principle) 180
Ⅲ.
The International Criminal Court's Jurisdiction System 181
1.
181 of the of the of
2.
Temporal jurisdiction (Jurisdiction ratione temporis) 182
3.
Preconditions to the exercise of jurisdiction 182
(1) of the ／182
(2) Automatic Jurisdiction／183
(3) Korea's significant contribution to the formation of Article 12 of the Rome Statute／183
(4) Acceptance of jurisdiction by non-regulating parties／185
4.
Exercise of Jurisdiction 187
5.
Referral of the situation by the parties 188
6.
The Prosecutor 188
7.
Postponement of investigation or prosecution 188
8.
Issue of Judicial Admissibility 190
(1) of the ／190
(2) The Principle of Complementarity／190
9.
Rome Statute, Articles 18 to 21, 192
(1) Preliminary decision procedure／192 (2) Objection／194
(3) Absence of double jeopardy／195 (4) Applicable laws／196
Chapter 8: International Responsibilities of States
Ⅰ.
The Nature of State Responsibility 198
Ⅱ.
Basic Principle 199
1.
Principle of Individual Responsibility 199
2.
Principle 200 of Civil Liability
3.
Principle of Accountability 201
Ⅲ.
Establishment of State Responsibility 201
1.
Establishment Requirements 201
(1) Objective requirements／201 (2) Subjective requirements／201
(3) Occurrence of damage / 202 (4) Conclusion / 202
2.
The possibility of establishing objective requirements 202
(1) Acts of state agencies／202 (2) State liability due to acts of private individuals／203
3.
Possibility of establishing subjective requirements 205
Ⅳ.
Reason for exclusion of illegality 206
1.
Consent 206
(1) Clear consent／206 (2) Consent of an authorized person／207
(3) Consent by free will／207
(4) Timing of consent／208
2.
Exercise of the right to self-defense 208
3.
Countermeasures in respect of an internationally wrongful act 209
4.
Force majeure 211
5.
distress 213
6.
Necessity 213
7.
Implementation of Peremptory Norms 215
8.
The Problem of Compensation 215
V.
Release of State Responsibility 215
1.
Requirements for International Claims 216
(1) Subject of the International Claim／216 (2) Specificity and Individualization of the Infringed Legal Interest／217
2.
Diplomatic Protection and Its Limitations 218
(1) Principle of exhaustion of local remedies／218
(2) Continuous nationality rule／220
3.
Calvo Clause 221
(1) The meaning of / 221 (2) Calbodoctrin / 221
(3) Drago Doctrine／221
(4) Porter Convention／222
4.
Method of Release from State Liability 222
(1) Countermeasures of the victim country／222
(2) Restitution／223 (3) Compensation／223
(4) Satisfaction／224
Chapter 9 International Criminal Law
Ⅰ.
226 of the of the of
Ⅱ.
The Historical Development of the International Criminal Court 228
1.
The International Criminal Court before World War II 228
2.
The International Criminal Court after World War II 229
(1) Nuremberg Trials／229 (2) Tokyo Trials／229
(3) Delay in the establishment of the International Criminal Court／230
(4) The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)／230
3.
Establishment of the International Criminal Court 231
(1) Convening of the Diplomatic Conference of Rome／231 (2) Significance of the Adoption of the Rome Statute／231
(3) Current Status of the International Criminal Court after the Adoption of the Rome Statute／232
Ⅲ.
Understanding International Crime? Focusing on Crimes Under the Jurisdiction of the International Criminal Court (233)
1.
The process of adopting crimes under the jurisdiction of the International Criminal Court 233
2.
Genocide 235
(1) The meaning of the crime／235 (2) The elements of the crime of mass murder／236
3.
Crimes against India 237
(1) of the meaning／237
(2) Definition of crimes against humanity under the Statute of the International Criminal Court／237
4.
War Crimes 238
(1) of the meaning／238
(2) The issue of prohibiting the use of nuclear weapons, etc.／239
5.
Crime of Aggression 241
(1) of the ／241
(2) Definition of Crime of Aggression／241
(3) Requirements for the ICC to Exercise Jurisdiction Over the Crime of Aggression／242
(4) Amendments to the Crime of Aggression Adopted at the Kampala Review Conference／243
Ⅳ.
General Principles of Criminal Law in the Statute of the International Criminal Court 251
1.
Introduction 251
2.
Principle of Legality 252
(1) Principle of Legality (Article 22)／252
(2) Principle of Legality (Article 23)／253
(3) The Significance of the Principle of Legality in International Criminal Law／253
3.
Non-retroactivity ratione personae (Article 24) 254
(1) The problem of ／254 (2) The problem of continuous crimes／255
(3) Article 24 of the Regulations and Article 11/255 of the Regulations
4.
Individual Criminal Responsibility under the Statute of the International Criminal Court 256
5.
Rome Statute and Customary International Law on Individual Criminal Responsibility 256
(1) Opinio juris (legal conviction under international customary law regarding individual criminal responsibility)／256
(2) International practice of states under international customary law regarding individual criminal responsibility／257
(3) Domestic practice of countries under international customary law regarding individual criminal responsibility／258
(4) Conclusion／258
6.
Types of Individual Criminal Liability 258
7.
Individual Criminal Responsibility and State International Responsibility 259
8.
Exclusion of Jurisdiction over Persons Under 18 Years of Age (Article 26) 260
9.
Irrelevance to public position (Article 27) 260
(1) Irrelevance of public position／260
(2) Possibility of Compliance with Article 27 of the Constitution of the Republic of Korea and the Statute of the International Criminal Court／261
10.
Responsibilities of Commanders and Other Superiors (Article 28) 264
11.
Non-application of the statute of limitations (Article 29) 265
12.
Mental element (mens rea, Article 30) 268
(1) Mental requirement／268 (2) Material requirement (actus reus)／269
13.
Grounds for excluding criminal responsibility (Article 31) 270
(1) Meaning and types／270 (2) Mental illness or mental defect／270
(3) Intoxication／271 (4) Self-defense／271
(5) Duress／272 (6) Application of grounds for exemption from criminal liability／273
(7) Other reasons for excluding criminal liability／273
14.
Mistake of fact or mistake of law (Article 32) 273
(1) Mistake of fact／273 (2) Mistake of law／274
15.
Article 33 of the Rules of the Superior and the Provisions of the Law (Article 275)
16.
Conclusion 276
V.
The Composition and Administration of the International Criminal Court 276
1.
Court of Justice Organ 276
2.
Qualifications, Nominations, and Election of Judges 277
(1) The meaning of the law／277 (2) Qualifications of judges／277
(3) Judge recommendation process, election, and term of office／277
(4) Privileges and Immunities of the Court／279
Ⅵ.
International Criminal Court Investigation and Prosecution Procedures 280
1.
Initiation of the Investigation 280
2.
Individual Rights During Investigation 280
3.
Confirmation of facts of indictment before trial (indictment) 282
Ⅶ.
International Criminal Court Trial 283
1.
Trial venue and trial in the presence of the defendant 283
2.
Trial Procedure 283
3.
Presumption of Innocence 283
4.
Defendant's Rights 284
Ⅷ.
International Criminal Court Sentences, Appeals, and Enforcement 286
1.
Punishment 286
2.
Compensation for victims 286
3.
Petition 287
4.
House Execution 287
Ⅸ.
Extradition of criminals 288
1.
288 of the of
2.
Crimes against India and the Extradition Requesting Authority 289
(1) Extraditable offense／289
(2) Indian Claims Office／289
3.
Restrictions on Extradition 289
(1) Minor crimes are excluded／289
(2) Principle of double criminality／290
(3) Rule of Speciality／290
(4) Principle of non-extradition of nationals／291
(5) Principle of non-extradition of political offenders／291
(6) Extradition System under the Statute of the International Criminal Court／292
Chapter 10 Extradition and Criminal Judicial Assistance under the Statute of the International Criminal Court (ICC)
Ⅰ.
296 of the of the of
Ⅱ.
General obligation to cooperate (Article 86) 298
Ⅲ.
General Provisions on Requests for Cooperation (Article 87) 298
1.
Request path 298
2.
Translation 299
3.
Confidentiality of Cooperation Requests 299
4.
Protection of Victims or Witnesses 299
5.
300 invitations to cooperation from non-parties
6.
Measures in case a non-regulating party does not cooperate 300
7.
Request to Intergovernmental Organizations 301
8.
Measures to be taken if the Contracting Party does not comply with the request for cooperation 301
Ⅳ.
Availability of domestic legal procedures (Article 88) 302
V.
Surrender to the Court (Article 89) 302
1.
Use of Terms 302
2.
Article 89, Paragraph 1, Clause 303
3.
Objections in Domestic Courts 304
4.
Passage of the Leading Person 304
5.
Consultation with the Court 305
6.
Reasons for Refusal of India in the Unified Draft 306
(1) Crimes for which the Requested State does not recognize the jurisdiction of the ICC／306
(2) Regulations on Non-Extradition of Nationals／306
(3) The principle of double jeopardy (Ne Bis in Idem)／307
(4) Evidential Requirements in the Respondent State／307
(5) Violation of existing international obligations／307
7.
Other reasons for refusal of delivery 308
(1) The principle of specificity／308 (2) The principle of specificity／308
(3) Statutory Limitation／309
(4) Amnesty／309 (5) Humanitarian Reasons／309
(6) Principle of Non-Extradition of Political Prisoners／310 (7) Principle of Non-Extradition of Military Prisoners／311
(8) The Principle of Dual Criminality／311
(9) The Difference Between Surrender to the ICC and Extradition Between States／312
Ⅵ.
Competing requests for extradition (Article 90) 312
1.
312 of the of the of
2.
Competing extradition claims based on the same act against the same person 313
(1) Notice of Competing Claims／313
(2) If the claimant is a party to the statute and is determined to have jurisdiction／313
(3) When the competing claimant is a party to the statute and a determination of admissibility is in progress／314
(4) When the competing claimant is a non-statutory party and the respondent has no international obligations／314
(5) When the claimant is a non-statutory party and the respondent has an international obligation／314
3.
315. When there is a conflicting request for extradition based on different acts against the same person.
4. If the ICC decides that the person is inadmissible and extradition to the competing claimant is refused, 315
Ⅶ.
Contents of the Arrest and Extradition Request (Article 91) 315
1.
Common Requirements 315
2.
316 In the case of requesting extradition of a person before conviction
3.
316 In the case of requesting extradition of a convicted person
4.
317 The State Party's Duty to Advise the ICC
Ⅷ.
Provisional arrest (Article 92) 317
1.
The Need for Emergency Detention 317
2.
Contents and Procedures for Emergency Detention Requests 317
3.
318 for invoices received after the expiration of the period
Ⅸ.
Other forms of cooperation (mutual assistance in criminal matters) (Article 93) 319
1.
319 of the of the of
2.
Forms of Cooperation (Judicial Assistance) 319
3.
Protection of Witnesses or Experts 320
4.
321 If assistance is prohibited under “established fundamental legal principles generally applicable in the Requested State”
5.
Reasons for Refusal of Cooperation (Judicial Assistance) 321
(1) If the requested State does not accept the jurisdiction of the Court／322
(2) When the domestic law of the requested country prohibits cooperation／322
(3) National security, public order, and other essential interests／322
(4) When the request for cooperation affects an ongoing investigation or prosecution／323
(5) If the performance of the request violates existing international law or treaty obligations／323
(6) Conclusion／324
6.
324 Requests for cooperation may be rejected for reasons of national security.
7.
Conditional or alternative support 325
8.
Obligation to notify reasons for refusal of support request 326
9.
Cooperation in the temporary transfer of detainees 327
10.
Confidentiality of Documents and Information 327
11.
328 Competing requests other than surrender or extradition
12.
329 Providing assistance by the courts
Ⅹ.
Postponement of performance of requests related to ongoing investigations or prosecutions (Article 94) 329
?.
Postponement of Execution of Requests Related to Objections to Admissibility (Article 95) 330
?.
Contents of the request for other forms of support (judicial assistance) pursuant to Article 93 (Article 96) 331
ⅩⅢ.
Consultation (Article 97) 333
ⅩⅣ.
Waiver of Immunity and Cooperation in Receiving Extradition Consent (Article 98) 334
1.
Article 98 Negotiation Process 334
2.
Article 98, Section 335
3.
US Efforts to Conclude Bilateral Agreements Related to Article 98, Paragraph 2 335
4.
Whether or not our country needs to conclude an Article 98 agreement with the United States 337
ⅩⅤ.
Execution of requests (requests for judicial assistance) under Articles 93 and 96 (Article 99) 338
1.
Implementation method 339
2.
Urgent Request 339
3.
Reply Language and Format 339
4.
Direct implementation of non-mandatory measures 340
5.
341 Secret Information Related to National Security
ⅩⅥ.
Costs (Article 100) 341
ⅩⅦ.
Rules of Speciality (Article 101) 342
1.
Relaxation of the principle of specificity 342
2.
Waiver of the Principle of Specificity 343
Chapter 11 Maritime Law
Ⅰ.
346 of the of
1.
The Structure of Maritime Law before the 1950s 346
2.
Changes in the Maritime Law Order since the 1950s 347
(1) The United Nations Conference on the Law of the Sea and the Convention on the Law of the Sea／347 (2) Characteristics of the United Nations Convention on the Law of the Sea／348
Ⅱ.
Inland and archipelago waters 349
1.
Definition of internal waters 349
2.
Baseline of territorial waters 349
(1) Normal baseline／349 (2) Straight baseline／349
3.
Bay 350
(1) Definition／350 (2) Historic Bay／350
4.
Inland Sea and Port 351
(1) Port／351 (2) Inland Sea／351
5.
Domestic demand status 351
(1) Status of foreign private ships／352 (2) Status of foreign public ships／352
6.
archipelagic waters 353
Ⅲ.
territorial sea 354
1.
Breadth and Legal Status of Territorial Waters 354
2.
State Powers over Territorial Waters 355
3.
Limitations on Coastal State Powers 355
4.
Right of innocent passage for foreign vessels 355
5.
Right of innocent passage for warships 358
(1) Theory／358 (2) State Practice／359
6.
Jurisdiction over foreign vessels (merchant vessels and commercial government vessels) 359
(1) Criminal jurisdiction／359 (2) Civil jurisdiction／359
7.
Warships and non-commercial government vessels 360
Ⅳ.
Contiguous Zone 360
V.
Transit passage rights through international straits 361
1.
Straits 361
(1) Article 36/361 of the Convention (2) Article 38/362 of the Convention
(3) Article 45 of the Convention / 363 (4) Methods of passage / 363
2.
Transit Passage 363
3.
Obligations of ships and aircraft in transit 363
4.
Rights and Obligations of Coastal States 364
Ⅵ.
Exclusive Economic Zone (EEZ) 364
1.
Justice 364
2.
Legal Status 365
3.
Major Powers of Coastal States 365
(1) Management of fishery resources／365
(2) Rights to other activities for economic development and exploration／366
(3) Exercise of jurisdiction over specific matters／366
4.
Foreign Language Obligations 366
5.
Foreign Rights and Obligations 366
(1) Freedom of navigation and overflight／367
(2) Freedom to lay submarine cables and pipelines／367
(3) Foreign Obligations／367
6.
Boundary planning 368
(1) Principles of delimitation under the UN Convention on the Law of the Sea／368
(2) North Sea Continental Shelf Case／368
(3) Black Sea Maritime Boundary Delimitation Case／369
(4) Maritime Dispute Case between Peru and Chile／369
(5) Evaluation of the three-step approach／370
Ⅶ.
Continental Shelf 370
1.
Justice 370
(1) When the outer edge of the continental margin is less than 200 nautical miles／370
(2) When the outer edge of the continental margin exceeds 200 nautical miles／371
2.
Rights and Obligations of Coastal States 371
(1) Rights of coastal states／371 (2) Obligations of coastal states／372
(3) Boundary planning／372
Ⅷ.
High seas 372
1.
372 of the of the of
2.
Principle of Freedom of the Seas 372
(1) Freedom from Attribution／372 (2) Freedom of Use／373
3.
Jurisdiction of Domestic Vessels on the High Seas: Flag State Principle 373
4.
Jurisdiction over foreign vessels on the high seas 375
(1) Piracy／375 (2) Illegal trafficking of drugs, etc.／376
(3) Unlicensed broadcasting / 378 (4) National flag inspection / 378
(5) Collision of ships／378 (6) Right of hot pursuit／379
5.
Island Status 380
6.
Deep Seabed and the International Seabed Authority 380
(1) Deep Seabed／380
(2) International Seabed Authority／381
7.
Protection of the Marine Environment 381
(1) Prevention of pollution by oil, etc.／381 (2) Prevention of pollution from ships／382
(3) Prevention of pollution caused by ocean dumping／382
(4) Environmental protection provisions under the UN Convention on the Law of the Sea／384
(5) The London Protocol System and Climate Change and Marine Environmental Protection／385
Ⅸ.
Dispute Resolution 386
1.
Dispute Resolution Methods and Procedures 386
2.
International Tribunal for the Law of the Sea (ITLOS) 387
Chapter 12 Treaty
Ⅰ.
Reservation 390
1.
390 of the of the of
2.
Types of Reservations 391
3.
Pros and Cons of Reservation 391
4.
Validity of Reservation 391
(1) League of Nations method／391 (2) Pan American Union method／391
(3) ICJ Advisory Opinion／392
5.
Article 393 of the Vienna Convention on the Law of Treaties, 1969
(1) Formation of a reservation／393 (2) Acceptance of a reservation and objection to a reservation／393
(3) Legal Effects of Reservations and Objections to Reservations／394
(4) Reservation Procedure／394 (5) Withdrawal of Reservation／395
6.
Implementation Guidelines on Treaty Reservations 395
Ⅱ.
Effect of the Treaty 396
1.
Effect between the Parties 396
2.
Effect on Third Countries 397
(1) Treaties imposing obligations on third countries／397
(2) Treaties granting rights to third countries／397
(3) When a treaty stipulates international customary law／398
Ⅲ.
Invalidity of the Treaty 398
1.
398 Reasons for the nullity of the treaty
2.
Lack of True Agreement 398
(1) Violation of domestic laws and regulations regarding the conclusion of treaties／398
(2) Failure to comply with restrictions on the representative's authority／399
(3) Error／399 (4) Fraud and Corruption／399
(5) Consent by coercion／400
3.
peremptory norm (jus cogens, peremptory norm) 400
4.
Treaty Nullification Procedure 401
5.
Absolute and Relative Nullity of Treaties 401
(1) Effect of invalidity／401 (2) Cause of invalidity／402
(3) State claiming invalidity／402 (4) Whether to approve／402
(5) Possibility of Partial Validity of the Treaty／402
Ⅳ.
Termination, Suspension, Amendment, and Succession of Treaties 403
1.
Termination and Suspension of the Treaty 403
2.
403 if there is a termination or suspension provision
3.
403 in case of cancellation or withdrawal
4.
Termination or suspension by the conclusion of a new treaty 404
5.
Termination 404 due to serious violation
6.
Subsequent Impossibility of Performance 404
7.
Principle 405 of Change of Circumstances
8.
The Emergence of New Coercive Norms 405
9.
Severance of diplomatic and consular relations 405
10.
In the case of an aggressor nation, 405
11.
peaceful change 406
12.
Succession of the Treaty 406
V.
Interpretation of the Treaty 407
1.
Treaty Interpretation Theory 407
(1) Objective interpretation (textual approach)／407
(2) Subjective interpretation (intentional approach)／407
(3) Teleological interpretation (teleological approach, rule of effectiveness, functional effectiveness theory)／407
2.
Treaty Interpretation Standards 408
(1) General Principles (Article 31)／408 (2) Context of the Treaty (Article 31, Paragraph 2)／408
(3) Consideration of ‘follow-up agreements’ after the treaty (Article 31, Paragraph 3)／409
(4) Special meaning (Article 31, Paragraph 4)／410
(5) Supplementary Interpretation Means (Article 32)／410
(6) Status of International Customary Law／410
Chapter 13 Peaceful Resolution of International Disputes
Ⅰ.
Arbitration of International Disputes 412
1.
412 of the of
2.
Early Precedents 412
(1) Jay Treaty of 1794 between the United States and Great Britain／412
(2) The Alabama Claims／413
(3) Treaty of Olney-Ponsfort (1897)／413
3.
First Hague Peace Conference (1899) 414
4.
Permanent Court of Arbitration (PCA) 415
5.
International Bureau for Arrangements and Mediation 416
6.
Hay's Arbitration Agreements 417
7.
The Second Hague Peace Conference and the 1907 Convention for the Peaceful Settlement of International Disputes 418
8.
Root's Arbitration Agreements 418
9.
Failed Plan for Compulsory Jurisdiction Agreement 420
10.
The Golden Age of Modern International Arbitration 421
11.
Conclusion 423
Ⅱ.
International Court of Justice 424
1.
424 of the of
2.
Arbitration vs. Judicial Review 425
3.
Plan for the Court of Arbitral Justice 426
4. CAJ v. PCA 427
5.
The Deadlock on the Selection of Judges for the World Court and the US Efforts 428
6.
Creation of the Permanent Court of International Justice 429
7. Election of PCIJ Judges 430
8.
Great Power Veto 432
9.
The Origin of the Optional Clause 432
10.
US Opposition to the Permanent Court of International Justice (PCIJ) 435
11.
Comparison of the Permanent Court of International Justice (PCIJ) and the International Court of Justice (ICJ) 436
12.
International Court of Justice 437
(1) Composition／437 (2) Installation of chambers／438
(3) Mandatory international tribunal (compulsory jurisdiction)／440
(4) Parties to international trials (personal jurisdiction)／444
(5) The ICJ's Material Jurisdiction／444 (6) International Trial Procedure／444
(7) Judicial Principles／447 (8) Effect of Judgment／447
13.
Other Peaceful Means of Settling Disputes 447
(1) Article 2, Paragraph 3 and Article 33/447 of the UN Charter
(2) Negotiation／448
(3) Arrangement and Mediation／448 (4) Review and Mediation／449
Chapter 14 Regulation of the Use of Force and Disarmament
Ⅰ.
International Law Regarding the Regulation of the Use of Force 452
1.
452 of the of
2. Collective security and the principled prohibition of the use of force under the UN Charter 452
(1) Definition of Security／452 (2) General Prohibition of the Use of Force／453
3.
The Outlawing of War 454
(1) Wars before World War I／454
(2) Genealogy of War Illegalization／454
4.
Criminalization of War 455
5.
Collective Security and Coercive Measures 456
(1) Covenant of the League of Nations／456 (2) Charter of the United Nations／456
(3) Definition of Aggression／461
(4) Peacekeeping Operations (PKO)／461
6.
Regional Security (UN Charter, Chapter VIII, Articles 52-54) 462
(1) UN and regional agreements (OAS, AU, etc.)／462
(2) Case 462
7. Forced actions not requiring UN authorization 463
(1) Measures against the hostile state under Article 53, Paragraph 1, Subparagraph 2／463
(2) Article 51 Right to Self-Defense／463
8. UN Authorization for the Use of Force 463
Ⅱ.
Disarmament 464
1.
Disarmament provisions of the Statute of the League and the UN Charter 464
2.
Principle 464 of Disarmament
3.
Agency for Disarmament 465
(1) UN Disarmament Commission／465
(2) Geneva Conference on Disarmament／465
Ⅲ.
Regulation of Nuclear Weapons Systems 465
1.
Regulation of Nuclear Testing 465
2.
Nuclear Non-Proliferation Treaty Article 466
(1) Three Principles／466 (2) Analysis of Articles 1, 2, and 3 of the NPT／467
3.
North Korea's Nuclear Issue 468
4.
Nuclear Arms Reduction Treaty 468 between the United States and the Soviet Union
Ⅳ.
Regulation of Terrorism under International Law 470
1.
A Historical Review of the International Community's Discussion on Regulating Terrorism 470
2.
International Norms for the Regulation of Terrorism 471
(1) The problem of defining terrorism／471
(2) Universal International Convention for the Regulation of Certain Forms of Terrorism／472
(3) Regional International Conventions for the Control of Terrorism／481
(4) Efforts toward a Comprehensive Convention on Terrorism／481
(5) International Humanitarian Law and Terrorism／483
(6) International Criminal Court (ICC) Statute／484
Chapter 15 Diplomatic Privileges and Immunities
Ⅰ.
Diplomatic Envoy 488
1.
488 of the of
2.
Establishment of Diplomatic Relations 488
3.
Types of Diplomatic Envoys, Dispatch, and Termination of Duties 489
(1) Type／489 (2) Dispatch of diplomatic envoys／489
(3) Termination of duty／490
Ⅱ.
Privileges and Immunities of Diplomatic Envoys 490
1.
Theory of the Basis of Privilege Immunity 490
(1) Functional necessity theory／490
(2) Theory of Representation／490 (3) Theory of Extraterritoriality／490
2.
Vienna Convention on Diplomatic Relations 491
3.
Waiver of diplomatic privileges and immunities 491
4.
Types and Contents of Immunity from Diplomatic Privileges 491
(1) Exemption from diplomatic privileges／491
(2) Diplomatic Immunity／492
Ⅲ.
Consul's Privileges and Immunities 493
Chapter 16 International Human Rights Law
Ⅰ.
Introduction 498
1.
Definition of Human Rights 498
2.
Human Rights and International Human Rights Law 499
Ⅱ.
The Development of International Human Rights Law 499
1.
The Development of International Human Rights Law Before World War II 499
(1) Individuals as Objects of International Law／499
(2) Human Rights Issues and Humanitarian Intervention as Domestic Issues／500
(3) Emergence of human rights protection treaties／500
2.
Post-World War II Developments 501
Ⅲ.
International Human Rights Law Norm 502, which applies globally
1. UN Charter Human Rights Article 502
(1) San Francisco Conference and Human Rights／502
(2) Contents of the UN Charter's Human Rights Provisions／503
(3) The Significance of the Human Rights Provisions of the UN Charter／504
2.
The International Bill of Human Rights 506
(1) Introduction／506 (2) Universal Declaration of Human Rights／507
(3) International Covenant on Human Rights: Introduction／510
(4) International Covenant on Civil and Political Rights (ICCPR, Covenant B)／511
(5) International Covenant on Economic, Social and Cultural Rights (Covenant A)／515
3.
Other major human rights treaties 516
(1) Convention on the Prevention and Punishment of the Crime of Genocide／516
(2) International Convention on the Elimination of All Forms of Racial Discrimination／517
(3) International Convention for the Suppression and Punishment of the Crime of Racial Discrimination (Apartheid)／520
(4) Convention on the Elimination of All Forms of Discrimination against Women／521
(5) Convention against Torture and Cruel, Inhuman or Degrading Treatment／522
(6) Convention on the Rights of the Child／524
IV. Human Rights Protection System Based on the UN Charter 525
1. UN General Assembly and Economic and Social Council 525
2.
Human Rights Council and Advisory Committee 525
3. UN High Commissioner for Human Rights 526
4.
Procedure 1235 and Procedure 1503 527
V.
Human Rights Monitoring Body 528 under the Human Rights Treaty
1.
Human Rights Committee 528 of the International Covenant on Human Rights
2.
Other Major Treaty Bodies 528
Ⅵ.
Refugees, Asylees, and Asylum 529
1.
Definition of Refugee and Asylum Seeker 529
2.
Refugee Protection 529
3.
Rain Protection Rights 530
(1) Territorial asylum／530
(2) Extraterritorial asylum／530
(3) The Aya de la Torre Incident／530
Chapter 17 International Trade Law
Ⅰ.
Introduction 534
II. GATT and the WTO System 535
1.
Key Principle 535
(1) Principle of Free Trade／536
(2) Fair Trade Principle／537
(3) Multilateralism and the Most Favored Nation Principle／537
(4) National Treatment Principle／539
(5) Prohibition of quantity restrictions／541
2.
Major Exception 541
(1) General exceptions to Article XX of GATT／541 (2) Security exceptions／542
(3) Exceptions to Customs Unions and Free Trade Areas／542
(4) Restrictions for the protection of the balance of payments／542 (5) Exceptions due to emergency measures／543
(6) Waiver／543
III. Dispute Resolution in the WTO System 544
1.
Dispute Resolution Bodies and Courts 544
2.
Dispute Resolution Procedure 545
(1) Consultation／545 (2) Establishment, investigation, and reporting of the panel／546
(3) Appeal review of panel report／547
(4) Adoption of panel report or appellate body decision／548
(5) Implementation of recommendations and judgments／548
Chapter 18 International Environmental Law
Ⅰ.
552 of the of
Ⅱ.
The Development of International Environmental Law 553
1.
Stockholm Conference 553
2.
From Stockholm to Rio 554
(1) Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention), 1971／554
(2) 1972 UNESCO World Cultural and Natural Heritage Convention (World Heritage Convention)／555
(3) Convention for the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (London Dumping Convention or London Convention)／556
(4) Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 1973／557
(5) Convention on Long-Range Transboundary Air Pollution, 1979／557
(6) 1982 UN Convention on the Law of the Sea／558 (7) 1989 Basel Convention／559
3.
Rio Conference 559
(1) Adoption of the Climate Change Convention, the Convention on Biological Diversity, and the Forest Principles／560
(2) Adoption of the Rio Declaration on Environment and Development／560
(3) Adoption of Agenda 21／561
4.
Developments Since the Rio Summit 561
(1) Major environmental treaties concluded after the Rio Summit／561
(2) Major international precedents related to international environmental law／562
Ⅲ.
Key Principles of International Environmental Law 564
1.
Principles of the Common Heritage of Humankind and the Common Concern of Humankind 564
2.
Principle 564 of Preventing Menstrual Pollution
3.
Precautionary Principle 566
4.
Polluter Pays Principle 567
5.
Principle of Non-Discrimination 567
6.
Principle of Common but Differentiated Responsibilities (CBDR) 567
7.
Principle of Intergenerational Equity 568
Ⅳ.
Key Fields of International Environmental Law 568
1.
Biodiversity Conservation 568
(1) 568
(2) 1992 Convention on Biological Diversity／569
(3) Cartagena Protocol on Biosafety, 2000／571
(4) Additional Protocol on Liability and Redress to the Cartagena Protocol on Biosafety, Nagoya-Kuala Lumpur, 2010／574
(5) Aichi Biodiversity Targets and the Post-2020 Biodiversity Framework／574
(6) Implementation Agreement on the Conservation and Sustainable Use of Marine Biodiversity in Areas Beyond National Jurisdiction (BBNJ Agreement)／574
2.
Global Climate Change 575
(1) The meaning of / 575 (2) The United Nations Framework Convention on Climate Change (UNFCCC) / 576
(3) Kyoto Protocol／576 (4) 2015 Paris Agreement／577
(5) Carbon capture and storage (CCS) as a response to climate change／578
3.
Air pollution 579
4.
Nuclear Energy and the Environment 580
5.
Protection of the Polar Regions 581
(1) The Arctic／581 (2) Antarctica／582
Appendix 585
1.
Final Draft on State Responsibility for Internationally Wrongful Acts
2.
Vienna Convention on the Law of Treaties
3.
Rome Statute of the International Criminal Court (Key Provisions)
4.
United Nations Charter
5.
Statute of the International Court of Justice
6.
Convention for the Peaceful Settlement of International Disputes
7.
Vienna Convention on Diplomatic Relations
8.
Vienna Convention on Consular Relations
8-1. Optional Protocol to the Vienna Convention on Consular Relations Relating to the Acquisition of Nationality
9.
Treaty on the Non-Proliferation of Nuclear Weapons
10.
Convention on the Prevention and Punishment of the Crime of Genocide
11.
Treaty stipulating the denial of war as a means of national policy (Non-War Treaty)
12.
Universal Declaration of Human Rights
13.
International Covenant on Economic, Social and Cultural Rights
13-1.
Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
14.
International Covenant on Civil and Political Rights
14-1.
Optional Protocol to the International Covenant on Civil and Political Rights
14-2.
Second Optional Protocol to the International Covenant on Civil and Political Rights
15.
Agreement Establishing the World Trade Organization (WTO)
16.
General Agreement on Tariffs and Trade, 1947 (main provisions)
17.
Act on the Appointment and Authority of Government Representatives and Special Envoys
18.
Act on the Punishment, etc. of Crimes under the Jurisdiction of the International Criminal Court
19.
Draft on Diplomatic Protection
20.
Implementation Guidelines on Treaty Reservations
Reference 669
Biographical Index 673
Item Index 674
Ⅰ.
Concept of International Law 2
1.
Definition 2
2.
Name 3
3.
Distinction from other norms 4
4.
Functions of International Law 6
5.
Three Types of International Law 7
(1) The Law of Power／7
(2) The Law of Reciprocity／8
(3) The Law of Coordination／8
Ⅱ.
The Legal Nature of International Law 8
1.
Is international law law? 8
2.
Theory of International Law 10
(1) Political Realism／10
(2) International Natural Law／11
(3) International Legal Positivism／13
3.
Sanctions under International Law 14
4.
Principle 16 of Sovereign Consent
5.
Legalism and Realism 17
6.
International Lawyer's War Prevention Plan 17
7.
The Legal Approach and the Modern International Legal Order 19
8.
Vital interests of the state and international law 20
(1) Pearl Harbor／20 (2) Cuban Missile Crisis／21
(3) Legal-moral imperatives／22
Chapter 2 Courts of International Law
Ⅰ.
24 of the of
Ⅱ.
Article 25
1.
25 of the of
2.
Type 27
3.
Treaty on Treaties 28
4.
Requirements for the formation of a treaty 29
5.
Treaty Conclusion Procedures (Focusing on the Case of Korea) 29
(1) Negotiation／30 (2) Initial／30
(3) Signature／31 (4) Ratification／31
(5) National Assembly consent／32 (6) Promulgation and entry into force of the treaty／33
(7) Registration of Treaties／33
Ⅲ.
Customary International Law 34
1.
34 of the of the of
2.
Uniform and Consistent State Practice—Objective Requirements 35
(1) Scope of national practice／35 (2) Duration of national practice／36
(3) Regional International Customary Law／36 (4) Evidence of State Practice／37
3.
Opinio Juris - Subjective Requirement 37
4.
Scope of International Customary Law 38
5.
Burden of Proof in International Customary Law 39
Ⅳ.
Case Study 39: Codification of International Customary Law
1.
Codification of Land Warfare Laws 39
2.
Codification and the World Court 41
3.
International Prize Court (IPC) 41
4.
Individuals as Subjects of International Law 42
5.
US Constitutional Issues 42
6.
London Declaration 43
7.
Marine Capture Bill 44
8.
American intervention in World War 44
9.
Conclusion 45
V.
General Principle of Law 45
1.
45 of the of
2.
The Legality of General Principles of Law 47
3.
Order of Application of General Principles of Law 48
4.
Application of General Principles of Law 49
(1) Principle of interest on overdue payments／49 (2) Principle of subrogation／49
(3) Principle of Good Faith／50 (4) Principle of Estoppel／50
(5) Principles for Determining a Company's Nationality／51
(6) Principle of res judicata／52
(7) Principle of compliance with contract (pacta sunt servanda)／53
(8) Other principles／53
Ⅵ.
Court Auxiliary Measures 54
1.
Judicial Decisions 54
2.
Theory 55
Ⅶ.
Resolutions of international organizations, soft law, equity and good 56
1.
Resolution 56 of the International Organization
(1) Resolutions on internal organization／56 (2) Resolutions with legal binding force／56
(3) Resolution to establish the Soft Law／57
2.
Soft Law 59
3.
Equity and Goodness (aequum et bonum) 60
Ⅷ.
Court Rank 61
1.
Ranking of Treaties and Customary International Law 61
(1) Principle 61 (2) Article 103 of the UN Charter 61
(3) Combination of Treaties and International Customary Law／62
2.
General Principles of Law and the Ranking of Treaties and International Customary Law 62
Ⅸ.
Jus cogens, peremptory norm 63
1.
63 of the of the of
2.
Contents of mandatory regulations 63
3.
The Problem of Universal Jurisdiction 64
(1) The Eichmann Incident / 64 (2) The Eichmann Incident / 64
(3) Domestic trials in Belgium／65 (4) Statute of the International Criminal Court／65
(5) The U.S. Alien Tort Compensation Act／65
Chapter 3: The Relationship Between International Law and Domestic Law
Ⅰ.
70 of the of
Ⅱ.
Theory on the Relationship between International Law and Domestic Law 72
1.
Dualism 72
2.
Monism 73
(1) Theory of the Supremacy of Domestic Law／74 (2) Theory of the Supremacy of International Law／74
(3) Equivalence theory／74
3.
Transformation and Incorporation Theory 75
Ⅲ.
Practice on the Relationship Between International Law and Domestic Law 75
1.
The International Court of Justice in Practice 75
2.
British Run 77
(1) International customary law／77 (2) Treaties／77
(3) Presumption of Compatibility Theory／77
3.
American Execution 78
(1) International customary law／78 (2) Status of treaties under domestic law／78
(3) Theory of Political Questions／81
(4) Act of State Doctrine／81
(5) Sovereign immunity doctrine／82
(6) Estimation of agreement／84
4.
Our country's implementation 85
(1) International customary law／85 (2) Treaties／85
(3) Estimation of agreement／85
5.
French Run 88
6.
Germany's Run 88
7.
Japan's Execution 89
8.
90
Ⅳ.
Treaties and Administrative Agreements 91
1.
91 of the of the of
2.
Types of Administrative Agreements 92
(1) Congressional-Executive agreement approved by Congress／92
(2) Sole Executive Agreement／93
3.
U.S. Supreme Court Case Law No. 94 on Administrative Agreements
(1) Belmont (United States v.
Belmont) incident／94
(2) Pink (United States v.
Pink) Incident／95
(3) Dames & Moore v.
Regan) case／95
4.
The Domestic Legal Effects of Executive Agreements 96
5.
Limitations of Administrative Agreement 97
6.
Comparison of the Conclusion Procedures for the Status of Forces Agreement (SOFA) between the Republic of Korea and the United States (ROK-US) 98
V.
Self-Executing and Non-Self-Executing Treaties 99
1.
99 of the of the of
2.
Type 99 of Non-Self-Executing Treaties
(1) Treaty requiring the execution of the expenditure budget／100
(2) Treaties imposing an obligation to criminally punish certain acts／100
(3) Treaties imposing an obligation to participate in war／100
(4) Treaty stipulating the obligation to protect human rights／102
3.
Effect of Non-Self-Executing Treaties 102
Chapter 4 Subjects of International Law
Ⅰ.
The concept of the subject of international law 104
1.
The Meaning of the Subject of International Law 104
2.
Central American Court of Justice 105
3.
Theory on the Subject of International Law 107
(1) Theory that regards only states as subjects of international law and denies the international legal status of individuals／107
(2) A doctrine that denies the international legal status of states and regards only individuals as subjects of international law／107
(3) A doctrine that broadly recognizes the international legal subjectivity of individuals, especially in addition to states／108
(4) The theory that individuals can also become subjects of international law within a limited scope／109
Ⅱ.
The State's Subjectivity in International Law 110
1.
Temperament 110
2.
National Qualification Requirements 111
(1) People／111 (2) Defined territory／112
(3) Effective government／112
(4) Sovereignty (diplomatic ability)／113
3.
Rights and Capabilities of a State with Limited Sovereignty (Diplomatic Capacity) 113
(1) Dependent States／113 (2) Protected States／114
(3) Federal constituent states／114
4.
Treaty-Based Cooperation and Diplomatic Capabilities 115
(1) Customs Union／115 (2) Permanent Neutrality／115
(3) Vatican (The Holy See)／117
5.
Methods of Acquiring Territory 117
(1) Occupation／118 (2) Cessation／120
(3) Conquest (subjugation)／121
(4) Prescription／122 (5) Accretion／123
Ⅲ.
Legal Capacity of Quasi-State Entities 123
(1) Warring groups／123 (2) Government in exile／124
(3) National liberation movement／124
Ⅳ.
Individual Rights Capacity 126
1.
Dominant Attitudes of the Late 19th and Early 20th Centuries 126
2.
Developments from the early 20th century to before World War II 126
(1) Development of an individual's international legal capacity (right to sue or petition)／126
(2) Pursuit of individual criminal responsibility／127
3.
128
4.
The Development of the Principle of Individual Criminal Responsibility after World War II 128
(1) Development of the Treaty Recognizing the Individual Complaint／128
(2) The Nuremberg and Tokyo Trials／129
Chapter 5 International Organization Law
Ⅰ.
Legal Capacity of International Organizations 132
1.
Definition and Classification of International Organizations 132
(1) Definition／132 (2) Classification／132
2.
The international legal subjectivity of international organizations and their legal basis 133
(1) Theory of the basis of the establishment treaty or the will theory／133
(2) Theory of Purpose or Presumptive Personality／134
(3) Objective theory／134
(4) Evaluation／135
3.
International Organizations' Legal Capacity 135
(1) Treaty-concluding authority／135
(2) Privileges and Immunities (UN Privileges and Immunities Agreement, ICC Privileges and Immunities Agreement)／136
(3) International Responsibility／136 (4) Right to Job Protection／137
(5) Other legal capacity／138
4.
Capacity under domestic law 138
Ⅱ.
Privileges and Immunities of International Organization Staff 139
Ⅲ.
The United Nations (UN) 141
1. Establishment of the UN 141
2. Purpose of the UN 142
3.
Principles of Conduct for the United Nations and its Member States 142
4.
UN Organs and Key Functions 144
(1) General Assembly (Constitution, Chapter 4, Articles 9-22)／144
(2) Security Council (Charter, Chapter 5, Articles 23-32)／145
(3) Economic and Social Council／148 (4) Trusteeship Council／148
(5) International Court of Justice (ICJ)／149 (6) Secretariat／149
5.
UN Specialized Agencies 150
Chapter 6 Recognition under International Law
Ⅰ.
State approval 154
1.
154 of the of
(1) Declaratory Theory of Recognition／155
(2) Constitutive Theory of Recognition／156
(3) Conclusion／156
2.
Basic Rules for Approval 157
3.
Requirements for Approval 157
(1) Establishment of the State／158 (2) Will and Ability to Comply with International Law／158
(3) Premature recognition／158
4.
Method of Approval 159
(1) Explicit and implicit consent／159
(2) De facto approval and legal approval／160
(3) Individual and collective approval／161
(4) Conditional and unconditional approval／162
5.
Effects of State Approval 162
6.
Status of unrecognized countries 163
7.
Withdrawal of approval 163
8.
Our country's implementation 164
Ⅱ.
Government approval 165
1.
165 of the of
2.
Requirements for Government Approval 166
3.
Method 167
4.
Effects of Government Approval 167
5.
Case 168 of government approval
Ⅲ.
Approval of the warring groups 169
1.
169 of the of the of
2.
Requirements for Approval 169
3.
Method of Approval 170
4.
Effect of Approval 170
(1) In case of approval by a third country／170 (2) In case of approval by the home government／170
5.
Recognition of Insurgency and Recognition of Warring Groups 171
Chapter 7 National Jurisdiction
Ⅰ.
The Meaning and Types of National Jurisdiction 174
1.
174 of the of
2.
Forms of Jurisdiction 174
(1) Jurisdiction to prescribe, legislative jurisdiction／174
(2) Jurisdiction to adjudicate, judicial jurisdiction／174
(3) Jurisdiction to enforce, administrative jurisdiction／175
3.
Relationship with Territorial Rights 176
4.
The Relationship Between Terminology and Humanism 176
Ⅱ.
Rule 176 for Determining National Jurisdiction
1.
territorial principle 176
2.
Effectiveness Theory 178
3.
Active personality principle (nationality principle or active personality principle) 179
4.
Passive personality principle 180
5.
Protectionism (protective principle) 180
6.
Universalism (universality principle) 180
Ⅲ.
The International Criminal Court's Jurisdiction System 181
1.
181 of the of the of
2.
Temporal jurisdiction (Jurisdiction ratione temporis) 182
3.
Preconditions to the exercise of jurisdiction 182
(1) of the ／182
(2) Automatic Jurisdiction／183
(3) Korea's significant contribution to the formation of Article 12 of the Rome Statute／183
(4) Acceptance of jurisdiction by non-regulating parties／185
4.
Exercise of Jurisdiction 187
5.
Referral of the situation by the parties 188
6.
The Prosecutor 188
7.
Postponement of investigation or prosecution 188
8.
Issue of Judicial Admissibility 190
(1) of the ／190
(2) The Principle of Complementarity／190
9.
Rome Statute, Articles 18 to 21, 192
(1) Preliminary decision procedure／192 (2) Objection／194
(3) Absence of double jeopardy／195 (4) Applicable laws／196
Chapter 8: International Responsibilities of States
Ⅰ.
The Nature of State Responsibility 198
Ⅱ.
Basic Principle 199
1.
Principle of Individual Responsibility 199
2.
Principle 200 of Civil Liability
3.
Principle of Accountability 201
Ⅲ.
Establishment of State Responsibility 201
1.
Establishment Requirements 201
(1) Objective requirements／201 (2) Subjective requirements／201
(3) Occurrence of damage / 202 (4) Conclusion / 202
2.
The possibility of establishing objective requirements 202
(1) Acts of state agencies／202 (2) State liability due to acts of private individuals／203
3.
Possibility of establishing subjective requirements 205
Ⅳ.
Reason for exclusion of illegality 206
1.
Consent 206
(1) Clear consent／206 (2) Consent of an authorized person／207
(3) Consent by free will／207
(4) Timing of consent／208
2.
Exercise of the right to self-defense 208
3.
Countermeasures in respect of an internationally wrongful act 209
4.
Force majeure 211
5.
distress 213
6.
Necessity 213
7.
Implementation of Peremptory Norms 215
8.
The Problem of Compensation 215
V.
Release of State Responsibility 215
1.
Requirements for International Claims 216
(1) Subject of the International Claim／216 (2) Specificity and Individualization of the Infringed Legal Interest／217
2.
Diplomatic Protection and Its Limitations 218
(1) Principle of exhaustion of local remedies／218
(2) Continuous nationality rule／220
3.
Calvo Clause 221
(1) The meaning of / 221 (2) Calbodoctrin / 221
(3) Drago Doctrine／221
(4) Porter Convention／222
4.
Method of Release from State Liability 222
(1) Countermeasures of the victim country／222
(2) Restitution／223 (3) Compensation／223
(4) Satisfaction／224
Chapter 9 International Criminal Law
Ⅰ.
226 of the of the of
Ⅱ.
The Historical Development of the International Criminal Court 228
1.
The International Criminal Court before World War II 228
2.
The International Criminal Court after World War II 229
(1) Nuremberg Trials／229 (2) Tokyo Trials／229
(3) Delay in the establishment of the International Criminal Court／230
(4) The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)／230
3.
Establishment of the International Criminal Court 231
(1) Convening of the Diplomatic Conference of Rome／231 (2) Significance of the Adoption of the Rome Statute／231
(3) Current Status of the International Criminal Court after the Adoption of the Rome Statute／232
Ⅲ.
Understanding International Crime? Focusing on Crimes Under the Jurisdiction of the International Criminal Court (233)
1.
The process of adopting crimes under the jurisdiction of the International Criminal Court 233
2.
Genocide 235
(1) The meaning of the crime／235 (2) The elements of the crime of mass murder／236
3.
Crimes against India 237
(1) of the meaning／237
(2) Definition of crimes against humanity under the Statute of the International Criminal Court／237
4.
War Crimes 238
(1) of the meaning／238
(2) The issue of prohibiting the use of nuclear weapons, etc.／239
5.
Crime of Aggression 241
(1) of the ／241
(2) Definition of Crime of Aggression／241
(3) Requirements for the ICC to Exercise Jurisdiction Over the Crime of Aggression／242
(4) Amendments to the Crime of Aggression Adopted at the Kampala Review Conference／243
Ⅳ.
General Principles of Criminal Law in the Statute of the International Criminal Court 251
1.
Introduction 251
2.
Principle of Legality 252
(1) Principle of Legality (Article 22)／252
(2) Principle of Legality (Article 23)／253
(3) The Significance of the Principle of Legality in International Criminal Law／253
3.
Non-retroactivity ratione personae (Article 24) 254
(1) The problem of ／254 (2) The problem of continuous crimes／255
(3) Article 24 of the Regulations and Article 11/255 of the Regulations
4.
Individual Criminal Responsibility under the Statute of the International Criminal Court 256
5.
Rome Statute and Customary International Law on Individual Criminal Responsibility 256
(1) Opinio juris (legal conviction under international customary law regarding individual criminal responsibility)／256
(2) International practice of states under international customary law regarding individual criminal responsibility／257
(3) Domestic practice of countries under international customary law regarding individual criminal responsibility／258
(4) Conclusion／258
6.
Types of Individual Criminal Liability 258
7.
Individual Criminal Responsibility and State International Responsibility 259
8.
Exclusion of Jurisdiction over Persons Under 18 Years of Age (Article 26) 260
9.
Irrelevance to public position (Article 27) 260
(1) Irrelevance of public position／260
(2) Possibility of Compliance with Article 27 of the Constitution of the Republic of Korea and the Statute of the International Criminal Court／261
10.
Responsibilities of Commanders and Other Superiors (Article 28) 264
11.
Non-application of the statute of limitations (Article 29) 265
12.
Mental element (mens rea, Article 30) 268
(1) Mental requirement／268 (2) Material requirement (actus reus)／269
13.
Grounds for excluding criminal responsibility (Article 31) 270
(1) Meaning and types／270 (2) Mental illness or mental defect／270
(3) Intoxication／271 (4) Self-defense／271
(5) Duress／272 (6) Application of grounds for exemption from criminal liability／273
(7) Other reasons for excluding criminal liability／273
14.
Mistake of fact or mistake of law (Article 32) 273
(1) Mistake of fact／273 (2) Mistake of law／274
15.
Article 33 of the Rules of the Superior and the Provisions of the Law (Article 275)
16.
Conclusion 276
V.
The Composition and Administration of the International Criminal Court 276
1.
Court of Justice Organ 276
2.
Qualifications, Nominations, and Election of Judges 277
(1) The meaning of the law／277 (2) Qualifications of judges／277
(3) Judge recommendation process, election, and term of office／277
(4) Privileges and Immunities of the Court／279
Ⅵ.
International Criminal Court Investigation and Prosecution Procedures 280
1.
Initiation of the Investigation 280
2.
Individual Rights During Investigation 280
3.
Confirmation of facts of indictment before trial (indictment) 282
Ⅶ.
International Criminal Court Trial 283
1.
Trial venue and trial in the presence of the defendant 283
2.
Trial Procedure 283
3.
Presumption of Innocence 283
4.
Defendant's Rights 284
Ⅷ.
International Criminal Court Sentences, Appeals, and Enforcement 286
1.
Punishment 286
2.
Compensation for victims 286
3.
Petition 287
4.
House Execution 287
Ⅸ.
Extradition of criminals 288
1.
288 of the of
2.
Crimes against India and the Extradition Requesting Authority 289
(1) Extraditable offense／289
(2) Indian Claims Office／289
3.
Restrictions on Extradition 289
(1) Minor crimes are excluded／289
(2) Principle of double criminality／290
(3) Rule of Speciality／290
(4) Principle of non-extradition of nationals／291
(5) Principle of non-extradition of political offenders／291
(6) Extradition System under the Statute of the International Criminal Court／292
Chapter 10 Extradition and Criminal Judicial Assistance under the Statute of the International Criminal Court (ICC)
Ⅰ.
296 of the of the of
Ⅱ.
General obligation to cooperate (Article 86) 298
Ⅲ.
General Provisions on Requests for Cooperation (Article 87) 298
1.
Request path 298
2.
Translation 299
3.
Confidentiality of Cooperation Requests 299
4.
Protection of Victims or Witnesses 299
5.
300 invitations to cooperation from non-parties
6.
Measures in case a non-regulating party does not cooperate 300
7.
Request to Intergovernmental Organizations 301
8.
Measures to be taken if the Contracting Party does not comply with the request for cooperation 301
Ⅳ.
Availability of domestic legal procedures (Article 88) 302
V.
Surrender to the Court (Article 89) 302
1.
Use of Terms 302
2.
Article 89, Paragraph 1, Clause 303
3.
Objections in Domestic Courts 304
4.
Passage of the Leading Person 304
5.
Consultation with the Court 305
6.
Reasons for Refusal of India in the Unified Draft 306
(1) Crimes for which the Requested State does not recognize the jurisdiction of the ICC／306
(2) Regulations on Non-Extradition of Nationals／306
(3) The principle of double jeopardy (Ne Bis in Idem)／307
(4) Evidential Requirements in the Respondent State／307
(5) Violation of existing international obligations／307
7.
Other reasons for refusal of delivery 308
(1) The principle of specificity／308 (2) The principle of specificity／308
(3) Statutory Limitation／309
(4) Amnesty／309 (5) Humanitarian Reasons／309
(6) Principle of Non-Extradition of Political Prisoners／310 (7) Principle of Non-Extradition of Military Prisoners／311
(8) The Principle of Dual Criminality／311
(9) The Difference Between Surrender to the ICC and Extradition Between States／312
Ⅵ.
Competing requests for extradition (Article 90) 312
1.
312 of the of the of
2.
Competing extradition claims based on the same act against the same person 313
(1) Notice of Competing Claims／313
(2) If the claimant is a party to the statute and is determined to have jurisdiction／313
(3) When the competing claimant is a party to the statute and a determination of admissibility is in progress／314
(4) When the competing claimant is a non-statutory party and the respondent has no international obligations／314
(5) When the claimant is a non-statutory party and the respondent has an international obligation／314
3.
315. When there is a conflicting request for extradition based on different acts against the same person.
4. If the ICC decides that the person is inadmissible and extradition to the competing claimant is refused, 315
Ⅶ.
Contents of the Arrest and Extradition Request (Article 91) 315
1.
Common Requirements 315
2.
316 In the case of requesting extradition of a person before conviction
3.
316 In the case of requesting extradition of a convicted person
4.
317 The State Party's Duty to Advise the ICC
Ⅷ.
Provisional arrest (Article 92) 317
1.
The Need for Emergency Detention 317
2.
Contents and Procedures for Emergency Detention Requests 317
3.
318 for invoices received after the expiration of the period
Ⅸ.
Other forms of cooperation (mutual assistance in criminal matters) (Article 93) 319
1.
319 of the of the of
2.
Forms of Cooperation (Judicial Assistance) 319
3.
Protection of Witnesses or Experts 320
4.
321 If assistance is prohibited under “established fundamental legal principles generally applicable in the Requested State”
5.
Reasons for Refusal of Cooperation (Judicial Assistance) 321
(1) If the requested State does not accept the jurisdiction of the Court／322
(2) When the domestic law of the requested country prohibits cooperation／322
(3) National security, public order, and other essential interests／322
(4) When the request for cooperation affects an ongoing investigation or prosecution／323
(5) If the performance of the request violates existing international law or treaty obligations／323
(6) Conclusion／324
6.
324 Requests for cooperation may be rejected for reasons of national security.
7.
Conditional or alternative support 325
8.
Obligation to notify reasons for refusal of support request 326
9.
Cooperation in the temporary transfer of detainees 327
10.
Confidentiality of Documents and Information 327
11.
328 Competing requests other than surrender or extradition
12.
329 Providing assistance by the courts
Ⅹ.
Postponement of performance of requests related to ongoing investigations or prosecutions (Article 94) 329
?.
Postponement of Execution of Requests Related to Objections to Admissibility (Article 95) 330
?.
Contents of the request for other forms of support (judicial assistance) pursuant to Article 93 (Article 96) 331
ⅩⅢ.
Consultation (Article 97) 333
ⅩⅣ.
Waiver of Immunity and Cooperation in Receiving Extradition Consent (Article 98) 334
1.
Article 98 Negotiation Process 334
2.
Article 98, Section 335
3.
US Efforts to Conclude Bilateral Agreements Related to Article 98, Paragraph 2 335
4.
Whether or not our country needs to conclude an Article 98 agreement with the United States 337
ⅩⅤ.
Execution of requests (requests for judicial assistance) under Articles 93 and 96 (Article 99) 338
1.
Implementation method 339
2.
Urgent Request 339
3.
Reply Language and Format 339
4.
Direct implementation of non-mandatory measures 340
5.
341 Secret Information Related to National Security
ⅩⅥ.
Costs (Article 100) 341
ⅩⅦ.
Rules of Speciality (Article 101) 342
1.
Relaxation of the principle of specificity 342
2.
Waiver of the Principle of Specificity 343
Chapter 11 Maritime Law
Ⅰ.
346 of the of
1.
The Structure of Maritime Law before the 1950s 346
2.
Changes in the Maritime Law Order since the 1950s 347
(1) The United Nations Conference on the Law of the Sea and the Convention on the Law of the Sea／347 (2) Characteristics of the United Nations Convention on the Law of the Sea／348
Ⅱ.
Inland and archipelago waters 349
1.
Definition of internal waters 349
2.
Baseline of territorial waters 349
(1) Normal baseline／349 (2) Straight baseline／349
3.
Bay 350
(1) Definition／350 (2) Historic Bay／350
4.
Inland Sea and Port 351
(1) Port／351 (2) Inland Sea／351
5.
Domestic demand status 351
(1) Status of foreign private ships／352 (2) Status of foreign public ships／352
6.
archipelagic waters 353
Ⅲ.
territorial sea 354
1.
Breadth and Legal Status of Territorial Waters 354
2.
State Powers over Territorial Waters 355
3.
Limitations on Coastal State Powers 355
4.
Right of innocent passage for foreign vessels 355
5.
Right of innocent passage for warships 358
(1) Theory／358 (2) State Practice／359
6.
Jurisdiction over foreign vessels (merchant vessels and commercial government vessels) 359
(1) Criminal jurisdiction／359 (2) Civil jurisdiction／359
7.
Warships and non-commercial government vessels 360
Ⅳ.
Contiguous Zone 360
V.
Transit passage rights through international straits 361
1.
Straits 361
(1) Article 36/361 of the Convention (2) Article 38/362 of the Convention
(3) Article 45 of the Convention / 363 (4) Methods of passage / 363
2.
Transit Passage 363
3.
Obligations of ships and aircraft in transit 363
4.
Rights and Obligations of Coastal States 364
Ⅵ.
Exclusive Economic Zone (EEZ) 364
1.
Justice 364
2.
Legal Status 365
3.
Major Powers of Coastal States 365
(1) Management of fishery resources／365
(2) Rights to other activities for economic development and exploration／366
(3) Exercise of jurisdiction over specific matters／366
4.
Foreign Language Obligations 366
5.
Foreign Rights and Obligations 366
(1) Freedom of navigation and overflight／367
(2) Freedom to lay submarine cables and pipelines／367
(3) Foreign Obligations／367
6.
Boundary planning 368
(1) Principles of delimitation under the UN Convention on the Law of the Sea／368
(2) North Sea Continental Shelf Case／368
(3) Black Sea Maritime Boundary Delimitation Case／369
(4) Maritime Dispute Case between Peru and Chile／369
(5) Evaluation of the three-step approach／370
Ⅶ.
Continental Shelf 370
1.
Justice 370
(1) When the outer edge of the continental margin is less than 200 nautical miles／370
(2) When the outer edge of the continental margin exceeds 200 nautical miles／371
2.
Rights and Obligations of Coastal States 371
(1) Rights of coastal states／371 (2) Obligations of coastal states／372
(3) Boundary planning／372
Ⅷ.
High seas 372
1.
372 of the of the of
2.
Principle of Freedom of the Seas 372
(1) Freedom from Attribution／372 (2) Freedom of Use／373
3.
Jurisdiction of Domestic Vessels on the High Seas: Flag State Principle 373
4.
Jurisdiction over foreign vessels on the high seas 375
(1) Piracy／375 (2) Illegal trafficking of drugs, etc.／376
(3) Unlicensed broadcasting / 378 (4) National flag inspection / 378
(5) Collision of ships／378 (6) Right of hot pursuit／379
5.
Island Status 380
6.
Deep Seabed and the International Seabed Authority 380
(1) Deep Seabed／380
(2) International Seabed Authority／381
7.
Protection of the Marine Environment 381
(1) Prevention of pollution by oil, etc.／381 (2) Prevention of pollution from ships／382
(3) Prevention of pollution caused by ocean dumping／382
(4) Environmental protection provisions under the UN Convention on the Law of the Sea／384
(5) The London Protocol System and Climate Change and Marine Environmental Protection／385
Ⅸ.
Dispute Resolution 386
1.
Dispute Resolution Methods and Procedures 386
2.
International Tribunal for the Law of the Sea (ITLOS) 387
Chapter 12 Treaty
Ⅰ.
Reservation 390
1.
390 of the of the of
2.
Types of Reservations 391
3.
Pros and Cons of Reservation 391
4.
Validity of Reservation 391
(1) League of Nations method／391 (2) Pan American Union method／391
(3) ICJ Advisory Opinion／392
5.
Article 393 of the Vienna Convention on the Law of Treaties, 1969
(1) Formation of a reservation／393 (2) Acceptance of a reservation and objection to a reservation／393
(3) Legal Effects of Reservations and Objections to Reservations／394
(4) Reservation Procedure／394 (5) Withdrawal of Reservation／395
6.
Implementation Guidelines on Treaty Reservations 395
Ⅱ.
Effect of the Treaty 396
1.
Effect between the Parties 396
2.
Effect on Third Countries 397
(1) Treaties imposing obligations on third countries／397
(2) Treaties granting rights to third countries／397
(3) When a treaty stipulates international customary law／398
Ⅲ.
Invalidity of the Treaty 398
1.
398 Reasons for the nullity of the treaty
2.
Lack of True Agreement 398
(1) Violation of domestic laws and regulations regarding the conclusion of treaties／398
(2) Failure to comply with restrictions on the representative's authority／399
(3) Error／399 (4) Fraud and Corruption／399
(5) Consent by coercion／400
3.
peremptory norm (jus cogens, peremptory norm) 400
4.
Treaty Nullification Procedure 401
5.
Absolute and Relative Nullity of Treaties 401
(1) Effect of invalidity／401 (2) Cause of invalidity／402
(3) State claiming invalidity／402 (4) Whether to approve／402
(5) Possibility of Partial Validity of the Treaty／402
Ⅳ.
Termination, Suspension, Amendment, and Succession of Treaties 403
1.
Termination and Suspension of the Treaty 403
2.
403 if there is a termination or suspension provision
3.
403 in case of cancellation or withdrawal
4.
Termination or suspension by the conclusion of a new treaty 404
5.
Termination 404 due to serious violation
6.
Subsequent Impossibility of Performance 404
7.
Principle 405 of Change of Circumstances
8.
The Emergence of New Coercive Norms 405
9.
Severance of diplomatic and consular relations 405
10.
In the case of an aggressor nation, 405
11.
peaceful change 406
12.
Succession of the Treaty 406
V.
Interpretation of the Treaty 407
1.
Treaty Interpretation Theory 407
(1) Objective interpretation (textual approach)／407
(2) Subjective interpretation (intentional approach)／407
(3) Teleological interpretation (teleological approach, rule of effectiveness, functional effectiveness theory)／407
2.
Treaty Interpretation Standards 408
(1) General Principles (Article 31)／408 (2) Context of the Treaty (Article 31, Paragraph 2)／408
(3) Consideration of ‘follow-up agreements’ after the treaty (Article 31, Paragraph 3)／409
(4) Special meaning (Article 31, Paragraph 4)／410
(5) Supplementary Interpretation Means (Article 32)／410
(6) Status of International Customary Law／410
Chapter 13 Peaceful Resolution of International Disputes
Ⅰ.
Arbitration of International Disputes 412
1.
412 of the of
2.
Early Precedents 412
(1) Jay Treaty of 1794 between the United States and Great Britain／412
(2) The Alabama Claims／413
(3) Treaty of Olney-Ponsfort (1897)／413
3.
First Hague Peace Conference (1899) 414
4.
Permanent Court of Arbitration (PCA) 415
5.
International Bureau for Arrangements and Mediation 416
6.
Hay's Arbitration Agreements 417
7.
The Second Hague Peace Conference and the 1907 Convention for the Peaceful Settlement of International Disputes 418
8.
Root's Arbitration Agreements 418
9.
Failed Plan for Compulsory Jurisdiction Agreement 420
10.
The Golden Age of Modern International Arbitration 421
11.
Conclusion 423
Ⅱ.
International Court of Justice 424
1.
424 of the of
2.
Arbitration vs. Judicial Review 425
3.
Plan for the Court of Arbitral Justice 426
4. CAJ v. PCA 427
5.
The Deadlock on the Selection of Judges for the World Court and the US Efforts 428
6.
Creation of the Permanent Court of International Justice 429
7. Election of PCIJ Judges 430
8.
Great Power Veto 432
9.
The Origin of the Optional Clause 432
10.
US Opposition to the Permanent Court of International Justice (PCIJ) 435
11.
Comparison of the Permanent Court of International Justice (PCIJ) and the International Court of Justice (ICJ) 436
12.
International Court of Justice 437
(1) Composition／437 (2) Installation of chambers／438
(3) Mandatory international tribunal (compulsory jurisdiction)／440
(4) Parties to international trials (personal jurisdiction)／444
(5) The ICJ's Material Jurisdiction／444 (6) International Trial Procedure／444
(7) Judicial Principles／447 (8) Effect of Judgment／447
13.
Other Peaceful Means of Settling Disputes 447
(1) Article 2, Paragraph 3 and Article 33/447 of the UN Charter
(2) Negotiation／448
(3) Arrangement and Mediation／448 (4) Review and Mediation／449
Chapter 14 Regulation of the Use of Force and Disarmament
Ⅰ.
International Law Regarding the Regulation of the Use of Force 452
1.
452 of the of
2. Collective security and the principled prohibition of the use of force under the UN Charter 452
(1) Definition of Security／452 (2) General Prohibition of the Use of Force／453
3.
The Outlawing of War 454
(1) Wars before World War I／454
(2) Genealogy of War Illegalization／454
4.
Criminalization of War 455
5.
Collective Security and Coercive Measures 456
(1) Covenant of the League of Nations／456 (2) Charter of the United Nations／456
(3) Definition of Aggression／461
(4) Peacekeeping Operations (PKO)／461
6.
Regional Security (UN Charter, Chapter VIII, Articles 52-54) 462
(1) UN and regional agreements (OAS, AU, etc.)／462
(2) Case 462
7. Forced actions not requiring UN authorization 463
(1) Measures against the hostile state under Article 53, Paragraph 1, Subparagraph 2／463
(2) Article 51 Right to Self-Defense／463
8. UN Authorization for the Use of Force 463
Ⅱ.
Disarmament 464
1.
Disarmament provisions of the Statute of the League and the UN Charter 464
2.
Principle 464 of Disarmament
3.
Agency for Disarmament 465
(1) UN Disarmament Commission／465
(2) Geneva Conference on Disarmament／465
Ⅲ.
Regulation of Nuclear Weapons Systems 465
1.
Regulation of Nuclear Testing 465
2.
Nuclear Non-Proliferation Treaty Article 466
(1) Three Principles／466 (2) Analysis of Articles 1, 2, and 3 of the NPT／467
3.
North Korea's Nuclear Issue 468
4.
Nuclear Arms Reduction Treaty 468 between the United States and the Soviet Union
Ⅳ.
Regulation of Terrorism under International Law 470
1.
A Historical Review of the International Community's Discussion on Regulating Terrorism 470
2.
International Norms for the Regulation of Terrorism 471
(1) The problem of defining terrorism／471
(2) Universal International Convention for the Regulation of Certain Forms of Terrorism／472
(3) Regional International Conventions for the Control of Terrorism／481
(4) Efforts toward a Comprehensive Convention on Terrorism／481
(5) International Humanitarian Law and Terrorism／483
(6) International Criminal Court (ICC) Statute／484
Chapter 15 Diplomatic Privileges and Immunities
Ⅰ.
Diplomatic Envoy 488
1.
488 of the of
2.
Establishment of Diplomatic Relations 488
3.
Types of Diplomatic Envoys, Dispatch, and Termination of Duties 489
(1) Type／489 (2) Dispatch of diplomatic envoys／489
(3) Termination of duty／490
Ⅱ.
Privileges and Immunities of Diplomatic Envoys 490
1.
Theory of the Basis of Privilege Immunity 490
(1) Functional necessity theory／490
(2) Theory of Representation／490 (3) Theory of Extraterritoriality／490
2.
Vienna Convention on Diplomatic Relations 491
3.
Waiver of diplomatic privileges and immunities 491
4.
Types and Contents of Immunity from Diplomatic Privileges 491
(1) Exemption from diplomatic privileges／491
(2) Diplomatic Immunity／492
Ⅲ.
Consul's Privileges and Immunities 493
Chapter 16 International Human Rights Law
Ⅰ.
Introduction 498
1.
Definition of Human Rights 498
2.
Human Rights and International Human Rights Law 499
Ⅱ.
The Development of International Human Rights Law 499
1.
The Development of International Human Rights Law Before World War II 499
(1) Individuals as Objects of International Law／499
(2) Human Rights Issues and Humanitarian Intervention as Domestic Issues／500
(3) Emergence of human rights protection treaties／500
2.
Post-World War II Developments 501
Ⅲ.
International Human Rights Law Norm 502, which applies globally
1. UN Charter Human Rights Article 502
(1) San Francisco Conference and Human Rights／502
(2) Contents of the UN Charter's Human Rights Provisions／503
(3) The Significance of the Human Rights Provisions of the UN Charter／504
2.
The International Bill of Human Rights 506
(1) Introduction／506 (2) Universal Declaration of Human Rights／507
(3) International Covenant on Human Rights: Introduction／510
(4) International Covenant on Civil and Political Rights (ICCPR, Covenant B)／511
(5) International Covenant on Economic, Social and Cultural Rights (Covenant A)／515
3.
Other major human rights treaties 516
(1) Convention on the Prevention and Punishment of the Crime of Genocide／516
(2) International Convention on the Elimination of All Forms of Racial Discrimination／517
(3) International Convention for the Suppression and Punishment of the Crime of Racial Discrimination (Apartheid)／520
(4) Convention on the Elimination of All Forms of Discrimination against Women／521
(5) Convention against Torture and Cruel, Inhuman or Degrading Treatment／522
(6) Convention on the Rights of the Child／524
IV. Human Rights Protection System Based on the UN Charter 525
1. UN General Assembly and Economic and Social Council 525
2.
Human Rights Council and Advisory Committee 525
3. UN High Commissioner for Human Rights 526
4.
Procedure 1235 and Procedure 1503 527
V.
Human Rights Monitoring Body 528 under the Human Rights Treaty
1.
Human Rights Committee 528 of the International Covenant on Human Rights
2.
Other Major Treaty Bodies 528
Ⅵ.
Refugees, Asylees, and Asylum 529
1.
Definition of Refugee and Asylum Seeker 529
2.
Refugee Protection 529
3.
Rain Protection Rights 530
(1) Territorial asylum／530
(2) Extraterritorial asylum／530
(3) The Aya de la Torre Incident／530
Chapter 17 International Trade Law
Ⅰ.
Introduction 534
II. GATT and the WTO System 535
1.
Key Principle 535
(1) Principle of Free Trade／536
(2) Fair Trade Principle／537
(3) Multilateralism and the Most Favored Nation Principle／537
(4) National Treatment Principle／539
(5) Prohibition of quantity restrictions／541
2.
Major Exception 541
(1) General exceptions to Article XX of GATT／541 (2) Security exceptions／542
(3) Exceptions to Customs Unions and Free Trade Areas／542
(4) Restrictions for the protection of the balance of payments／542 (5) Exceptions due to emergency measures／543
(6) Waiver／543
III. Dispute Resolution in the WTO System 544
1.
Dispute Resolution Bodies and Courts 544
2.
Dispute Resolution Procedure 545
(1) Consultation／545 (2) Establishment, investigation, and reporting of the panel／546
(3) Appeal review of panel report／547
(4) Adoption of panel report or appellate body decision／548
(5) Implementation of recommendations and judgments／548
Chapter 18 International Environmental Law
Ⅰ.
552 of the of
Ⅱ.
The Development of International Environmental Law 553
1.
Stockholm Conference 553
2.
From Stockholm to Rio 554
(1) Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention), 1971／554
(2) 1972 UNESCO World Cultural and Natural Heritage Convention (World Heritage Convention)／555
(3) Convention for the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (London Dumping Convention or London Convention)／556
(4) Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 1973／557
(5) Convention on Long-Range Transboundary Air Pollution, 1979／557
(6) 1982 UN Convention on the Law of the Sea／558 (7) 1989 Basel Convention／559
3.
Rio Conference 559
(1) Adoption of the Climate Change Convention, the Convention on Biological Diversity, and the Forest Principles／560
(2) Adoption of the Rio Declaration on Environment and Development／560
(3) Adoption of Agenda 21／561
4.
Developments Since the Rio Summit 561
(1) Major environmental treaties concluded after the Rio Summit／561
(2) Major international precedents related to international environmental law／562
Ⅲ.
Key Principles of International Environmental Law 564
1.
Principles of the Common Heritage of Humankind and the Common Concern of Humankind 564
2.
Principle 564 of Preventing Menstrual Pollution
3.
Precautionary Principle 566
4.
Polluter Pays Principle 567
5.
Principle of Non-Discrimination 567
6.
Principle of Common but Differentiated Responsibilities (CBDR) 567
7.
Principle of Intergenerational Equity 568
Ⅳ.
Key Fields of International Environmental Law 568
1.
Biodiversity Conservation 568
(1) 568
(2) 1992 Convention on Biological Diversity／569
(3) Cartagena Protocol on Biosafety, 2000／571
(4) Additional Protocol on Liability and Redress to the Cartagena Protocol on Biosafety, Nagoya-Kuala Lumpur, 2010／574
(5) Aichi Biodiversity Targets and the Post-2020 Biodiversity Framework／574
(6) Implementation Agreement on the Conservation and Sustainable Use of Marine Biodiversity in Areas Beyond National Jurisdiction (BBNJ Agreement)／574
2.
Global Climate Change 575
(1) The meaning of / 575 (2) The United Nations Framework Convention on Climate Change (UNFCCC) / 576
(3) Kyoto Protocol／576 (4) 2015 Paris Agreement／577
(5) Carbon capture and storage (CCS) as a response to climate change／578
3.
Air pollution 579
4.
Nuclear Energy and the Environment 580
5.
Protection of the Polar Regions 581
(1) The Arctic／581 (2) Antarctica／582
Appendix 585
1.
Final Draft on State Responsibility for Internationally Wrongful Acts
2.
Vienna Convention on the Law of Treaties
3.
Rome Statute of the International Criminal Court (Key Provisions)
4.
United Nations Charter
5.
Statute of the International Court of Justice
6.
Convention for the Peaceful Settlement of International Disputes
7.
Vienna Convention on Diplomatic Relations
8.
Vienna Convention on Consular Relations
8-1. Optional Protocol to the Vienna Convention on Consular Relations Relating to the Acquisition of Nationality
9.
Treaty on the Non-Proliferation of Nuclear Weapons
10.
Convention on the Prevention and Punishment of the Crime of Genocide
11.
Treaty stipulating the denial of war as a means of national policy (Non-War Treaty)
12.
Universal Declaration of Human Rights
13.
International Covenant on Economic, Social and Cultural Rights
13-1.
Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
14.
International Covenant on Civil and Political Rights
14-1.
Optional Protocol to the International Covenant on Civil and Political Rights
14-2.
Second Optional Protocol to the International Covenant on Civil and Political Rights
15.
Agreement Establishing the World Trade Organization (WTO)
16.
General Agreement on Tariffs and Trade, 1947 (main provisions)
17.
Act on the Appointment and Authority of Government Representatives and Special Envoys
18.
Act on the Punishment, etc. of Crimes under the Jurisdiction of the International Criminal Court
19.
Draft on Diplomatic Protection
20.
Implementation Guidelines on Treaty Reservations
Reference 669
Biographical Index 673
Item Index 674
Publisher's Review
Preface to the Fourth Edition
I am delighted and grateful to have published this fourth edition of this book.
In the 4th edition, Chapter 10, ‘Extradition and Mutual Assistance in Criminal Matters under the Statute of the International Criminal Court (ICC)’, and Chapter 18, ‘International Environmental Law’ were added.
With the International Criminal Court (ICC) recently issuing arrest warrants for top leaders of several countries, extradition and criminal judicial cooperation between the ICC and its member states have become very important topics.
In addition, recent concerns about climate change and other climate change-related abnormalities and environmental pollution are making it necessary to further understand international environmental law.
In this respect, the fourth edition of this book adds explanations on the ICC's extradition system and international environmental law.
We have also added a brief introduction to how states acquire territory, and have revised some of the content to reflect changes in international law since the publication of the third edition.
There are many people I would like to thank for publishing this fourth edition.
I would like to express my deepest gratitude to the professors of Ewha Womans University Law School, including former Dean Kang Dong-beom, former Dean Jeong Hyeon-mi, Dean Kim Hyeon-cheol, and Professor Choi Hee-kyung, for their help and generosity.
The author was deeply saddened by the passing of Professor Francis Anthony Boyle of the University of Illinois, who was the author's teacher and mentor, in January.
We pray that Professor Boyle, a great international law scholar and practitioner, may rest in heaven.
I would also like to thank the late Professor Lee Han-ki, the late Professor Bae Jae-sik, the late Professor Baek Chung-hyun, and Professor Lee Sang-myeon, who taught me international law at Seoul National University.
I would also like to express my gratitude to former President of the International Criminal Court Song Sang-hyun, former Vice President of the Tribunal for the Former Yugoslavia Kwon O-gon, former Vice Minister of Foreign Affairs Shin Kak-soo, former Ambassador to the Netherlands Kim Young-won, and Professor Emeritus Jeong In-seop, Professor Lee Geun-gwan, and Professor Lee Jae-min of Seoul National University.
I would also like to express my gratitude to former Judge Baek Jin-hyeon of the International Tribunal for the Law of the Sea, former President Hong Ki-hoon of the Korea Institute of Ocean Science and Technology, Professor Emeritus Choi Tae-hyeon of Hanyang University, Judge Lee Ja-hyeong of the International Tribunal for the Law of the Sea, and Judge Baek Ki-bong of the International Criminal Court.
Next, I would like to express my gratitude to Chairman Jong-man Ahn, CEO Sang-jun Ahn, and Director Seong-ho Cho of Park Young-sa for their help and hard work in producing this book, as well as to Vice President Seung-hyeon Lee, Manager Seong-hyeok Jeong, and all the staff.
I thank my father, father-in-law, and mother-in-law, and wish them good health.
I am grateful to my wife and children for always understanding and supporting me.
“Follow only what is right, so that you may live and occupy the land the Lord your God is giving you.”
(Deuteronomy 16:20)
August 11, 2025
In the research lab of the Law Building at Ewha Womans University
author
I am delighted and grateful to have published this fourth edition of this book.
In the 4th edition, Chapter 10, ‘Extradition and Mutual Assistance in Criminal Matters under the Statute of the International Criminal Court (ICC)’, and Chapter 18, ‘International Environmental Law’ were added.
With the International Criminal Court (ICC) recently issuing arrest warrants for top leaders of several countries, extradition and criminal judicial cooperation between the ICC and its member states have become very important topics.
In addition, recent concerns about climate change and other climate change-related abnormalities and environmental pollution are making it necessary to further understand international environmental law.
In this respect, the fourth edition of this book adds explanations on the ICC's extradition system and international environmental law.
We have also added a brief introduction to how states acquire territory, and have revised some of the content to reflect changes in international law since the publication of the third edition.
There are many people I would like to thank for publishing this fourth edition.
I would like to express my deepest gratitude to the professors of Ewha Womans University Law School, including former Dean Kang Dong-beom, former Dean Jeong Hyeon-mi, Dean Kim Hyeon-cheol, and Professor Choi Hee-kyung, for their help and generosity.
The author was deeply saddened by the passing of Professor Francis Anthony Boyle of the University of Illinois, who was the author's teacher and mentor, in January.
We pray that Professor Boyle, a great international law scholar and practitioner, may rest in heaven.
I would also like to thank the late Professor Lee Han-ki, the late Professor Bae Jae-sik, the late Professor Baek Chung-hyun, and Professor Lee Sang-myeon, who taught me international law at Seoul National University.
I would also like to express my gratitude to former President of the International Criminal Court Song Sang-hyun, former Vice President of the Tribunal for the Former Yugoslavia Kwon O-gon, former Vice Minister of Foreign Affairs Shin Kak-soo, former Ambassador to the Netherlands Kim Young-won, and Professor Emeritus Jeong In-seop, Professor Lee Geun-gwan, and Professor Lee Jae-min of Seoul National University.
I would also like to express my gratitude to former Judge Baek Jin-hyeon of the International Tribunal for the Law of the Sea, former President Hong Ki-hoon of the Korea Institute of Ocean Science and Technology, Professor Emeritus Choi Tae-hyeon of Hanyang University, Judge Lee Ja-hyeong of the International Tribunal for the Law of the Sea, and Judge Baek Ki-bong of the International Criminal Court.
Next, I would like to express my gratitude to Chairman Jong-man Ahn, CEO Sang-jun Ahn, and Director Seong-ho Cho of Park Young-sa for their help and hard work in producing this book, as well as to Vice President Seung-hyeon Lee, Manager Seong-hyeok Jeong, and all the staff.
I thank my father, father-in-law, and mother-in-law, and wish them good health.
I am grateful to my wife and children for always understanding and supporting me.
“Follow only what is right, so that you may live and occupy the land the Lord your God is giving you.”
(Deuteronomy 16:20)
August 11, 2025
In the research lab of the Law Building at Ewha Womans University
author
GOODS SPECIFICS
- Date of issue: August 30, 2025
- Format: Hardcover book binding method guide
- Page count, weight, size: 728 pages | 180*253*40mm
- ISBN13: 9791130324234
- ISBN10: 1130324230
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