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Research On International Law Issues Of Protective Jurisdiction

Posted on:2013-01-30Degree:DoctorType:Dissertation
Country:ChinaCandidate:S F YuFull Text:PDF
GTID:1116330374974345Subject:International law
Abstract/Summary:PDF Full Text Request
The jurisdiction is a fundamental concept under international laws, for it refers tothe core issue, that is, who will control, adjudicate or execute cases. And thejurisdictions are categorized into territorial, nationality, universal and protectivejurisdictions in the common theories of international law. Meanwhile, the first threeare fully studied in the academic circles but the protective jurisdiction still lacksinadequate understandings in this theoretical system of jurisdictions. However, thecorresponding reasons to this phenomenon is varied, among which the state hardlytransfers its state power to the others on the basis of the sovereignty principle and theexecution measures difficult to realize also restrict the development of law institutionsrelated to protective jurisdiction.The paper reviews protective jurisdiction from a new view. And its main contentrefers to the criminal statutes so the author establishes the theoretical frames ofprotective jurisdiction on the basis of well-known criminal laws and international lawtheory. Furthermore, the protective jurisdiction is analyzed and described from subtlelegal elements with a new perspective in the paper.The paper starts with the fundamental theory of protective jurisdiction and themain content includes its basic concept and features. The protective jurisdiction in brief means that the sovereign state has jurisdiction over foreigners' criminal actsoverseas if these acts directly or severely threatens the national or public's interests inorder to protect the national rights such as politics, economy and society. Furthermore,the protective jurisdiction especially requires special conditions if applicable. Thus,generally speaking, the applicable territorial and nationality jurisdictions are usuallytaken into account before the protective one is considered.Moreover, it is found from the historical evolution of the protective jurisdictionthat though there are no specific international conventions provided for protectivejurisdiction at present, several articles under certain international conventions do referto this jurisdiction through the consideration of relevant development trend and thecombination with legal provisions under international laws and legislative normsamong the internal laws. However, the protective jurisdiction presents scraps withoutexpress system on the whole. But opposite to the conditions foresaid, the internal law,especially the domestic criminal law system usually takes a specific chapter undergeneral provisions for description of jurisdiction system where the protectivejurisdiction and the rest are all stipulated. Therefore, the form of protectivejurisdiction in the source of laws is believed to be an international customary law withspecific features.Next, the paper describes the basic elements of the protective jurisdiction. In thissection, the authors re-analyzes the basic elements integrating the basic theory ofcriminal law and establishes the relevant theoretical system of these elements from thediscussion on the requirements of guilty place, criminal consequences, criminalsubject&object, specific target and criminal acts so as to give certain theoreticalbasis for future application of protective jurisdiction. Furthermore, the authoremphasizes the analysis of two connecting factors, including act occurrence place andresult occurrence place as the guilty places are categorized into these two places.Therefore, the corresponding legal relations are concluded in this section between thetwo factors. And the nationality issue of the criminal subject is demonstrated in this section and the relevant roles in the protective jurisdiction, such as injuring andinjured parties, foreigner and countryman, are integrated together after multi-angledifferentiation and analysis. Moreover, the author also describes the solution to thecase as the criminal subject boasts dual or multiple nationalities. In addition, theimportant legal concept of "foreigner" is extended in the paper and the relevant scopealso covers the legal bodies with foreign nationalities. And the other elements such asthe requirements on the criminal acts are also described in this section. The authordissertates on the specific requirements of criminal object and prison term andintegrates the basic elements mentioned above in order to provide a solid theoreticalbasis for final execution of protective jurisdiction.And then the detailed analysis is performed on the protective jurisdiction inspecial fields and the relevant demonstration is unfolded from two special aspects ofguilty places and criminal subjects. The former mainly includes the guilty in theaircrafts extended to the aviation ground in addition to the sea, while the main contentstresses the execution issues of protective jurisdiction in the contiguous zone outsidethe territorial sea, exclusive economic zone or open sea. Beside the above, the initialexploration is performed for claiming the protective jurisdiction when the crime takesplace in the Polar Regions and outer space.The following two chapters describe the practical fulfillment of protectivejurisdiction and the execution under international law system. And the content isdeveloped from the two aspects of extradition measures and international kidnapping.First, the author describes the current implementation difficulties of traditionalextradition measures. The extradition measures are chosen mainly due to too manyuncertainties, such as political factor resulting in the requested state's unwillingness ofhanding over the criminal to the requesting state for trial while the requested statemay claim territorial jurisdiction on receipt, trial and execution of the relevant case.However, this form goes against the requirement of transnational criminal offense because the relevant direct result is numerous involved states and it is impracticablefor entering into bilateral extradition treaty among the involved countries, or this maylead to high judicial cost. The no-extradition principle of nationals is challengednowadays in this section. For the case in which the foreigner constitutes the criminaloffense abroad but this foreigner rightly boasts that state's nationality, the paperexplores the relevant solutions to such cases. But the original traditional practice isthat foreigner cannot be extradited to the requesting state due to his nationality of therequested state, and this condition directly restricts the applicable scope of protectivejurisdiction. Therefore, the author proposes to introduce the new mechanism andresolve the above issues.The last chapter describes the international kidnapping conduct usually appliedby USA government during exercise of protective jurisdiction. And the author drawslessons from this new American implementation mode of protective jurisdiction.Moreover, the author analyzes the common and basic legal issues behind theinternational kidnapping acts from American Ker Rules and emphasizes theintroduction and analysis of several famous cases after Ker case and these cases shapethe three applicable exceptions for Ker Rules, including specialty principle, expresstreaty provisions and shocking conduct, followed by the analysis on the legitimacy ofinternational kidnapping. Moreover, the illegality of international kidnapping isindirectly confessed on the basis of objection right by asylum states. In addition, theauthor also analyzes whether the international kidnapping constitutes the internationalcustomary law as an implementation method of protective jurisdiction. As a result,this international kidnapping act is regarded as illegal act concealed by legal coatthough America usually applies such acts. Though American law grants legitimacyreasons for exercising international kidnapping acts, the international society opposessuch American acts from the aspect of current international legitimacydocumentations, because this act severely damage the territorial and nationalityjurisdictions and national sovereignty principle of other states. If such acts areallowed to be legalized, the legal order of international society may be disturbed and the relevant legal mechanism is shaken for international laws.The paper is written under the background of very frequent transfer of personnelbetween countries and increasingly common transnational crime in the society withrampant transnational crime. Since the sovereign state is equipped with its ownterritory and people, the state will build a solid barrier to protect their own interestsand for effective jurisdiction of its citizens. However, in case that a foreigner commitscrime in countries except for his motherland, the territorial and nationality jurisdictionwill not be able to protect its own national interest and the rights of the person andproperty rights of the national people in an actual sense. Therefore, the protectivejurisdiction will be effective beyond the country. Even though in the opinion of somejurists, there may be some problems in the protective jurisdiction or jurists may beworried that the abuse of the jurisdiction will result in more sharp conflicts ofjurisdiction or even bad impact on international legal order. The paper aims to makean analysis of the theories and implementation mechanism of jurisdiction and theimportance of an appropriate implementation level of jurisdiction from the elementaryto profound aspect and from a side to a comprehensive aspect. Now there areprotective jurisdiction systems in the international legal documents and relatedChinese criminal laws and regulations, symbolizing that the base for putting thejurisdiction into practice. The author believes that the protective jurisdiction will beapplied to a larger degree in the future.
Keywords/Search Tags:Protective Jurisdiction, Essential Elements, Extradition, International Kidnapping
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