حلول أسئلة د.أحمد المهتدي في القانون الدولي العام - إعداد علي العريان - نموذج حلول مختصرة جدا

Public International Law

Define the following legal terms:

1- Public International law.

The law that regulates the conduct of the persons of international law (States, international organizations, multinational companies)

2- Customs.

a practice followed continuously over a considerable period of time, with a feeling that such practice is obligatory

3- Opinion Juris sive necessitates.

the subjective belief allegedly maintained by states that a particular practice is legally required of them (psychological element)

4- Jus Cogens.

It is the technical term given to those norms of general international law which are of peremptory force  قاطع ، حاسم ، نهائيand from which, as a consequence, no derogation may be made except by another norm of equal weight. e.g. genocide, crimes against humanity

5- International personality.

The possession of international personality means an entity is a subject of international law, is capable of possessing international rights

6- States.

It is an entity which has a defined territory, a permanent population, is under the control of a government and engages in, or has the capacity to engage in, formal relations with other entities.

7- International Organizations.

•      Definition: entity established by agreement in which states form its membership.

•      In order for the international organization to perform its function, it must have an international personality.

Mention which of the following is True OR False, by giving reasons and examples (if possible) for your answer:

1-    Public international law lacks effectiveness, therefore, it is not considered a law in the legal sense (wrong)

•      Absence of effectiveness does not negate the fact that it is really a law à it shall not be compared to national law (law is obligatory and there is a penalty to be imposed on individuals in case of violation)

2-    Sources of public international law are of the same rank, in a manner that the International Court of Justice in deciding a dispute may apply any of them. (wrong)

ž     Article 38 does not stipulate that it is establishing a hierarchy but it is self-evident that there is a procedural hierarchy

3-    It is required for the practice that form customary international law to be continuous over a long period of time. (wrong)

·        Duration of practice: there is not set limit of time

·        The fact that a practice has been engaged in for only a brief period of time will not in itself be a bar to the formation of a customary rule, provided that the other requirements of custom are met (the north sea continental shelf cases)

·        The length of time required to establish a rule of customary international law will depend upon other factors (is there another previously established rule? The development of communication .. etc)

4-    Number of states following the practice is of major importance in the establishment of customary international law. (wrong)

·        The identity of the state is much more important than their numbers e.g. space law is relevant to a few states such as the USA and the soviet union, but other states had no role in such a law.

5-    Practice forming customary international law must be constant and uniform (wrong)

·        Extent of state practice: should  be constant and uniform usage of practice are required to from a customary rule (Asylum case)

·        Frequent usage does not necessarily indicate that the psychological element presents

·        The importance of frequency depends on the circumstances surrounding each alleged rule

·        Consistency of practice is more significant than frequency

6-    Multilateral treaties are capable of creating law per se. (true)

•      Law-making treaty is concluded by many parties, so it creates law per se à has a wider effect.

7-    Due to the nature of bilateral treaty, it only creates law between its parties, and is not competent to create customary international law. (wrong)

•      Provisions frequently repeated in bilateral treaties may provide an evidence that the rules contained are part of customary international law.

8-    States are the primary and exclusive subjects of international law. (wrong)

States are the primary subjects of international law, but they are not the exclusive subjects. Other entities are afforded a degree of international legal personality. Of these entities, international organizations are undoubtedly the most important.

9-    Territory as an essential element of the state shall be decisively defined. (wrong)

•      The requirement of territory may be satisfied even if the entity's territorial boundaries are not precisely defined or are to some extent in dispute à even if there is a dispute about it. (Israel 1948 and Kuwait 1963)

10-       In case of occupation that throws away the government, the state will no longer exist. (wrong)

•      An established state's statehood is not nullified if it is without an effective government for a period of time, for example during an a civil war e.g Somalia or and occupation e.g. Germany occupation of the European states during the second world war.

11- An entity which has defined territory, permanent population, and effective government must be recognized by other states in order to be considered a state (wrong)

Capacity is one of the elements of a state, the fulfillment of this criterion depends on the recognition. The political existence of the state is independent of  recognition by other states.

12- International organizations enjoy a legal personality of the same degree. (wrong)

•      The extent of international personality varies from one organization to another, depending on the rights and duties of each organization (This is in contrary to the legal personality of states).

13- International organization that have international personality, can inevitably conclude international agreements (wrong)

It is not inevitable. Any organization that is capable of concluding international agreements must have an international personality, but the opposite is not always true. it depends in the foundational charter or document. It may/or may not state that the organization is capable of concluding treaties.

Answer the following question:

1-    Public international law cannot be implemented because it lacks enforcement mechanisms. Write your legal opinion about the following statements

Enforceability:

•      There is no enforcement mechanism (there is no international police and no international court with compulsory jurisdiction. Is this a weakness of international law?

•      Others ways to enforce international law à sanctions include suspension and termination of membership in international organizations, seizure of assents, imposing economic sanctions or even use of force through the UN security council, public pressure of the international community can be also a pressure.

2-    What are the primary, subsidiary and voluntary sources of public international law?

•      According to article 38, there are three categories of sources:

1-    Primary sources à International treaties, Customs and general principles of law.

2-    Subsidiary sources المصادر الإضافية أو الجانبية à Judicial decisions and teachings of publicists.

3-    Voluntary sources à parties agree that the court may settle dispute without the strict application of law, but by applying other principles like fairness and equity.

4-How customs differ from courtesy or mere usage?

Custom if distinguished from mere usage by the fact that it is composed of two elements: (i) a material and; (ii) psychological elements. The material element refers to the practice and the behavior of the states, whereas the psychological element is the subjective conviction held by states that the behavior in question is compulsory and not discretionary.

Mere usage lacks the psychological element, which means that the sense of obligation does not exist.

5-Speak about the relationship between international treaties and customs.

·        Customary law and law made by treaty have equal authority as international law, but, if a treaty and a customary rule exist simultaneously on the issue in dispute, then the treaty provisions take precedence, as is illustrated by the Wimbledon case

5- What is political self-determination?

·        Political self determination à allowing colonies and self-governing state to be independent based on the wishes of its population (recognized since 1960).

·         The principle has evolved from a "formative principle of great potency" to "a rule of international law"

·        "The declaration on the granting of independence to colonial territories and peoples" characterized the principle.