Mohammad alnoaby
Define the following legal
terms:-
1-
Territorial Sovereignty:
-
It is the right to exercise on the territory with the exception of
others,
the functions of a state.
2-
Prescription:
-
It is the acquisition of the title of territory based on public,
peaceful and continuous use of the territory.
3-
Conquest:
-
It is taking possession of enemy territory by military force in time of
war.
4-
Cession:
-
It is the transfer of territory by one sovereign state to another by an
agreement.
5-
Accretion and Avulsion:
-
Accretion : Is the gradual
increase in the territory through the operation of nature. Example; shifting
in rivers course.
-
Avulsion: refers to a violent change in the territory. Example;
emergence of an island in territory water due to volcanic action.
6-
State responsibility.
-
It refers to liability incurred by one state towards another, as a
result of non fulfillment of its international obligation.
7-
Erga omnes.
-
It refers to obligations owed by every state to the international
community as a whole.
8-
Reservation.
-
Defined as a unilateral statement whether named, made by a state when signing,
ratifying, accepting, approving or acceding to a treaty, whereby it purports to
modify the legal effect of certain provisions of the treaty in their
application to that state.
9-
Pacta sunt servanta
-
It means agreement must be kept, Where state shall fulfill their treaty
obligation in good faith.
10- Rebus sic stantibus
-
It means things thus standing is an exception to the general rule pacta
sun servanta, it allows a state to terminate a treaty on the assumption that
circumstances have seriously changed from the one prevailing at the time of the
treaty's conclusion.
-
Mention which of the
following is True OR False, by giving reasons and examples (if possible) for
your answer:
1-
State can only exercise its territorial sovereignty on
the land mass within its territory.
-
(False), state can exercise its territorial sovereignty on the land
mass, the sub soil, the water enclosed, the land under the water, the airspace
over it and territorial sea.
2-
Discovery of a territory does not by itself create a
decisive title to such territory.
-
(True), discovery per se does not establish a complete title, only
inchoate title. However inchoate title doesn't prevail over a continues and
peaceful use of authority by another state.
3-
A state must publicly exercise its authority, in order
to acquire title to land by means of prescription.
-
(True), exercise of authority must be public, as it implies
acquiescence of any other interested state in the territory. Protest by other
interested state can possibly bar the establishment of title by prescription.
4-
Conquest remains a valid mean of acquiring title to
territory.
-
(False), in the past, use of
force was not prohibited. However at the beginning of twentieth century, use of
force become illegal is no longer a valid mean of acquiring title to territory. Example article 2(4)of the UN
5-
A state can evade responsibility by claiming lack of
capacity.
-
(False), all states are equally responsible for their international
acts, it's an absolute rule. So no state can plead lack of capacity.
6-
In federal government, each member state is
responsible for it illegal acts on the international level.
-
(False), the federal government is responsible on the international
plane for illegal acts committed by the member states.
7-
In order for a state to be deemed responsible for a
wrongful act, damage must result from
such act.
-
(False), every internationally wrongful act of the state entails the
international responsibility of that state, even if there is no damage result
from this wrongful act. Ex :- Chorzow factory case
8-
A state may be held liable for the conduct of an
official done outside the scope of his
competence.
-
(True), provided the official acted with apparent authority as the
competent officer. Ex :- youmans case
9-
A state is only responsible for illegal acts committed
by its officials who are decision
makers.
-
(True), state is responsible for the act of its officials irrespective of
their rank, even those working in the security service. Ex: rainbow warrior case
10-
As an absolute rule, a state is not responsible for the acts of its insurrectionary.
- (False), the state is not
responsible for the insurrectionaries, but if they succeeded to become the subsequent government, they will be held liable for any act
committed during their struggle for power.
11-
A state is under obligation to admit foreign nationals.
- (False), a state is not required to
admit foreign nationals, as immigration control is a matter of national policy.
12-
In the national treatment standard, foreigners enjoy the same rights as
nationals without exclusions.
- (False), according to this standard, aliens are to be treated in the same
way as nationals of the state concerned, but there is an exceptions: they can
not vote or serve in the military.
13-
A person could sign a contract including a clause that deprive his state of
nationality from exercising
diplomatic protection.
- (False), this called the calvo clause
that an individual is not competent to restrict his state in such a way
and that the right of exercising
diplomatic
protection belongs exclusively to the state.
14-
If a foreigner is expelled from the state where he resides, his state of
nationality may refuse to receive
him.
- (False), in case a national is expelled from another state, his state of
nationality is obliged to
receive him, unless he is willing to go to another state of such states accept him.
15-
In case a refugee committed an act which endangers the public policy of the
state granting asylum, the latter
is free to expel him anywhere.
- (False), no refugee may be expelled to territory where his life or freedom
would be questioned .
16-
In case of an injury that is inflicted upon a stateless person, any country of
the international community may
intervene to protect him.
- (False), that means a state which inflicts injury on a stateless person
will not be internationally responsible and no other state is competent to
intervene on his behalf.
17- It is possible for the
state to exercise diplomatic protection on one of its nationals, even if the requirement of exhaustion of local remedies
is not satisfied.
- (true), it is possible for the state to exercise diplomatic protection on
one of its nationals without the exhaustion of local remedies if :
A) it is evident that there is no justice to exhaust or that all attempts to
seek justice will be impeded.
B) The alleged wrong is a direct injury by one state against another state.
C) Maybe waived by a treaty.
18-
Oral agreements between states lack any legal effect.
- (False), oral agreements are not
devoid of any legal significance, as long as it was internationally established
that oral statement have legal effect.
19-
A state cannot claim breach of its constitutional provisions to be released
from its treaty-making competence.
- (True), it is not legally acceptable that a state after concluding as
agreement to plead that the treaty making competence constitutes a breach to
its constitutional provisions unless such breach is manifest and objectively evident to any state conducting itself in the matter
in according with normal practice and in good faith.
20-
A treaty, concluded by a person who does not possess full power to act on
behalf of his state, shall be devoid
of any legal consequences.
- (True), an act concluding a treaty
by a person who can not be considered as possessing full power will not have
any legal effect unless it is subsequently approved by the state concerned.
21-
Reservations play the same role as interpretative declarations.
- (False), reservation differs from interpretive declaration in that the latter refers to the position
which the state adopts regarding certain aspects of the treaty.
22- It is conceivable that
reservations could be applied in bipartite treaties.
- (False), reservation apply only with respect to multipartite treaties, a
reservation in bipartite treaty means a refusal of the offer made by other
party which needs further negotiation.
23-
In case of reservation on a treaty that establishes international organization,
it is required that all parties to the treaty accepts such reservation.
- (False), in that case a reservation
must be accepted by the competent organ of the organization, unless otherwise
provided in the terms of the treaty.
24- Vienna Convention depends on teleological approach as a basic mean of
interpretation.
- (False), Article 31 of the Vienna
Convention adopts the teleological approach, but only as an ancillary
aid.
25-
As an absolute rule, a treaty does not create obligations or rights for third
states without its consent.
- (False), it's not an absolute rule,
but a general rule; there are 2 exceptions to this rule.
A) Treaties established special international regime.
B) Article 2(6) of UN which provides that " the organization shall ensure
that state which are not members of the UN's act in accordance with these
principles so far as may be necessary for the maintenance of international
peace and security.
26-
The express consent of a third state is required with regard to a treaty that
creates rights for such state.
- (False), in that case the consent
of such state shall be
presumed as long as there is no indication to the contrary, unless the treaty
provided otherwise.
27- Political coercion is a
legitimate ground for invalidation of treaty.
- (False), coercion will lead to the invalidation of treaty if it
was through the threat or use of force, in the meaning of article 52 of Vienna
Convention, as this article does not refer to political an economical coercion.
28-
A state is entitled to terminate the treaty on the assumption that the
circumstances have changed from the one prevailing at the time of concluding
the contract.
- (False), in order for change of
circumstances to terminate the treaty, There must be a radical change to the
extent of obligations to be performed in
A manner that will make performance something essentially different from that
originally undertaken.
29-
Severance of diplomatic or consular relations does not affect treaties standing
between parties.
- (True), that is a general rule,
unless the existence of diplomatic or consular relations is essential for the
treaty's application.
30- If termination relates
to certain provisions of the treaty, it is always possible to apply partial termination to save the remainder of the
treaty.
- (False),it is not possible to apply partial termination if the acceptance
of such provisions form an essential base of the consent of the other parties to be bound .
Answer the following
question:
1-
What do we mean by occupation, as a methodology of acquiring title to
territory?
-it
means giving a state original title to territory, when we say original title we
mean that it was not owned by an one before and haven’t been known with any
previous title. It is also preceded by discovery.
2-
There is no definite period of time that must pass in order to acquire title to
territory by prescription. Give your comment on this statement.
-unlike
the national law, no definite period of time must pass in order to acquire
title by means of prescription it depends on other factors as geographical
nature, and existence or absence of claims on the territory.
3-
What are the possible defenses for a state to refute responsibility?
-possible
defenses are: consent, reprisal, force Majeure, distress,
necessity and self defense.
4-
A state is only responsible for acts or omissions which can be attributed to it
as its own. Explain.
-that
means that the state is responsible for the actions of its representatives as:
A)
government
B)
any political subdivision of the state.
C)any
agency official employee or other agent of its government acting within the
scope of their employment.
5-
Diplomatic negotiations may provide an adequate remedy for the breach of
international obligation. However, if such breach results in a material loss to
the state or its nationals, reparation is inevitable. Discuss by answering the
following:
a)
How to provide a remedy by resorting to diplomatic negotiations?
b)
What is reparation within the scope of international responsibility?
A)remedy
can be in to different forms, example: as apology from a state to another an
assurance that the violation will not recur this mostly in cases of actions
made in good faith.
B)reparation
is intended to restore previous condition if possible (restitution in kind) ,
and if not possible it can be through payment of money.
6-
What is the disadvantage of the national treatment standard?
-when
a state provide an inhumane treatment to aliens on the grounds that nationals
are treated the same way.
7-
Which state will exercise diplomatic protection in respect of a person holding
more than one nationality.
-the state which the person has a genuine connection
(link) is entitled to exercise the diplomatic protection .
8-
Exhaustion of local remedies is required in order for the state to exercise
diplomatic protection.
-A)To
allow the state concerned to afford redress within its legal system for the
alleged wrong.
B)To
reduce the number of international claims.
C)To
respect the sovereignty of state.
9-
What are the forms of adopting the text of a treaty?
-there
are 3 way of adopting :
A)
Unanimously: which requires the consent of all
the states participating in the drafting.
B)Two-third
majority of states present and voting.
C)Different
procedure if the two-third majority
agree, i.e. simple majority, three-fourth majority, the ratification by certain
number of states.
10-
How could a state express its consent to be bound by a treaty?
-It
can be bound in 4 ways :
A)
Signature:: may be sufficient by itself to bind parties.
B) Signature
and referendum:: Signature by itself is not enough, because it needs to
be referred to the competent authorities for ratification.
C)
Ratification:: it is the
subsequent formal confirmation by a state that it is bound by a treaty, which
mostly takes place through certain parliamentary process.
D)
Accession:: a non-signatory state may accede to a treaty after
its entry into force and become bound by its provisions.
11-
Vienna Convention authorized reservations save for certain cases. Please
mention these cases.
Exceptions
for the reservation :
-A)The
reservation is prohibited by treaty, ex: European Convention on Human Rights.
B)The
treaty provides that only specified reservations may be made.
C)The
reservation is incompatible with the object and purpose of the treaty
12- State (A) made a
reservation to treaty (X) on January 2012. State (B) expressed its consent to
be bound by the treaty on July 2012. State (B) was then informed of the
reservation on February 2013. When do you think state
(B)
was bound by the treaty without the ability to express its objection to the
reservation made by state (A)?
-Befor
February 2014.
13-
What are the main approaches in treaty interpretation?
-there
are 3 main approaches:
A)The
objective approach :: interpretation in accordance with the ordinary use of the
words of the treaty.
B)The
subjective approach :: interpretation in accordance with the intention of the
parties of the treaty.
C)The
teleological approach :: interpretation in accordance with the treaty aims and
objectives.
14-
How to interpret a treaty authorized in two or more languages?
-in that case we would use the one with more limited
interpretation and which includes the least restrictions to state's
sovereignty.
15-
Without details, mention the five grounds that challenges the validity of
treaty.
-A)Non-compliance with municipal law requirements
B)Error
C)Fraud
and corruption
D)Coercion
E)Jus cogens
16- What is material breach
as a ground of terminating the treaty
-Material breach can be one of
either:
A)Repudiation of the treaty in
a manner not allowed by the Vienna Convention.
B)Violation of a provision
essential to the accomplishment of the object or purpose of the treaty.
