国际商法(英)第一章答案和解析1_testbank

e. Both a. and b. : e9. Law is:a. a rule established by authority, society, or custom.b. a body or system the control or authority imposed by a system of rules.d. All of None of the : dB. THE MAKING OF INTERNATIONAL LAW10. Despite the lack of international law-making machinery, states function informally asboth lobbyists and : True 11. International law exists when there is a consensus of the international : True 12. Unratified treaties and reports of international agencies are sometimes cited asevidence of a trend toward the development of a rule of international : True 13. Case law derived from the decisions of arbitration tribunals hearing disputes betweenprivate parties is never used as a source of international law : False 14. Evidence of the general consent of the international community to the existence of a rule of internationallaw can be found in:a. decisions of the International Court of Justice.b. resolutions passed by the UN the conduct and practices of states in their dealings between themselves.d. All of Both a. and : dC. SOURCES OF INTERNATIONAL LAW15. The sources of international law which Article 38(1) of the Statute of the International Court of Justice states that the courtis permitted to use in settling disputes are:a. general principles of law.b. the case law of municipal courts.d. All of Both a. and b. above

Answer: d 16. In determining whether a practice has become a rule of international customary law, Article 38(1) of the Statuteof the International Court of Justice states that the court is permitted to look to:a. economic trends.b. teachings of legal writers.d. All of Both a. and b. : c 17. Which of the following sources of international law does the International Court of Justice normally regard asthe most authoritative?a. Customary international law.b. General principles International conventions.d. Teachings of legal : c 1. Treaties and Conventions18. The customary rules that govern treaties are now codified in the Vienna Conventionon the Law of : True19. Treaties and conventions have binding effect because:a. one country fears that if it does not respect its promises, other countries will notrespect their promises.b. states that fail to observe them may be fined or otherwise punished by theInternational Court states that fail to observe them will lose their membership in the United Nations.d. All of the : a20. The Vienna Convention on the Law of Treaties applies to treaties and conventions that:a. are governed by municipal law.b. are are made orally.d. relate to All of the : b 2. Custom21. Once adopted, customary rules of international law are seldom changed.

Answer: False 22. To establish the existence of a customary rule of international law, one must showthat the international community has observed the rule for a long period of : False 23. To establish the existence of a customary rule of international law, one must showthat the entire international community has given its consent to the : False24. To establish the existence of a customary rule of international law, one must show:a. opinio juris et necessitatis.b. pacta rebus sic standibus.d. None of the : a 25. In The Lotus Case, Turkey had begun prosecution of the officers on a French ship who had been involved in acollision with a Turkish ship. France brought suit in the Permanent Court of International Justice (PCIJ) claiming thatcustomary international law allowed only the state whose ship the officers were aboard to prosecute them. The PCIJ ruledagainst France because:a. in previous similar cases, the states which had acted as France suggested had notdone so because they thought they were obliged to do so.b. the rule which France suggested had become custom had only been observed bya the rule which France suggested had become custom had only been observed fora few years.d. All of the above were reasons given by None of the above is a correct : a26. Which of the following states is not required to observe a particular rule of customary international law?a. A persistent objector.b. A state that has recently acquired its independence following the division of A superpower.d. All of the : a 3. General Principles27. General principles of international law are based on legal rules that are common toboth (or all) the state parties to a : TrueD. THE SCOPE OF INTERNATIONAL LAW IN ACTUAL PRACTICE1. The Practice in International Tribunals

28. In international tribunals, municipal law is regarded as being correlative withinternational : False 29. International tribunals generally regard states as having an obligation to bring theirmunicipal law into compliance with international : True30. In international tribunals,a. municipal laws are treated as “mere facts.”b. municipal laws will not be declared either void municipal laws will not be interpreted.d. the parties must prove what the municipal All of the : e 2. The Practice in Municipal Courts31. In municipal courts, international law is generally treated as being : False 32. According to the doctrine of incorporation, customary international laws are treatedas adopted by a municipal court to the extent that they are not inconsistent with prior municipal legislation or judicialdecisions of final : True33. According to the doctrine of transformation, customary international laws are notapplicable in a municipal court until they are clearly adopted by legislative action,judicial decision, or established local : True 34. A self-executing treaty is one that contains a provision that says the treaty will applyin the parties’ municipal courts once the parties have adopted domestic : False 35. Once a municipal court determines that a particular rule of international law isapplicable in a particular case, that law will be treated as law and not as a : True 36. When a municipal court acts to determine if a particular rule of international law has been received into thelocal jurisprudence, it will (in most countries) apply the doctrine of:a. immaculate conception.b. resuscitation.d. : b 37. In the United States, a treaty adopted by authority of the President alone (i.e., without the consent of theSenate) is known as a/an:a. constitutional convention.b. presidential treaty.

d. None of the : b38. In the United Kingdom, treaties are made by:a. the Crown (i.e., the executive).b. the prime minister with the approval of the the prime minister with the approval of the queen.d. None of the : aE. INTERNATIONAL PERSONS1. States39. Recognition of a government is usually made in a bilateral : False 40. Recognition implies that the recognized state or government is entitled to all of therights and privileges granted by international : True 41. To avoid any possible connotation that recognition also means approval, manygovernments have adopted the Estrada Doctrine of never formally recognizing other : True 42. Territorial sovereignty is the absolute and unqualified right of a state to exercise itsfunctions within a : False 43. Title to newly acquired territory may be confirmed by : True 44. A successor state is not bound by the “dispositive” treaties made by its : False 45. When State A and State B merge to form State C, State C and the other state partiesto a treaty made by State A can agree either to terminate the treaty or extend it to the whole territory of the new : True46. When State A and State B merge to form State C, State C will no longer be bound bya treaty made by State A if its object and purpose can no longer be : True 47. When a part of the territory of State X shifts and becomes part of the territory ofState Y, the treaties made by State X continue to apply to that : False 48. Nationals of a territory that is acquired by a successor state will keep the nationalityof the predecessor state unless a different result is agreed to in a treaty of cession or by municipal : True49. State A disintegrates into States B and State C. The public property of State Alocated in State D becomes the property of : False 50. Private property rights of individuals do not lapse because of a change in : True 51. A successor state is not bound by the private contractual obligations of its

: False 52. State Q disintegrates into State R and State S. State R and State S are bothresponsible for State Q’s national : True53. A state is an international person with:a. a government.b. a territory.d. All of Both a. and : d 54. A state that lacks some attribute (i.e., territory, population, or government) required for it to be treated as a fullyindependent state is known as a/an:a. dependent state.b. inchoate state.d. underdeveloped : c 55. “The legal existence of a government happens automatically by operation of law whenever a government iscapable of controlling a territory and its people.” This is a statement of the:a. constitutive doctrine.b. Estrada doctrine.d. None of the : b56. “A government does not truly come into existence until such time as it is recognized by other states and participates in theinternati onal arena.” This is a statement of the:a. constitutive doctrine.b. Estrada doctrine.d. None of the : a

57. The right of all states to transit the Suez and Panama canals is an example of a/an:a. easement.b. negative servitude.d. profit a : d58. States may lawfully acquire territory by:a. force from another state.b. occupying land not claimed by the mutually agreed to transfer from another sovereign.d. All of Both b. and c. : e 59. State A and State B merge to form new State C. As to the treaties that had been in force in State A,a. only those that were dispositive treaties continue to be in force.b. they are in force throughout they are no longer in force.d. they continue to be in force in that part of State C that used to be None of the : d 60. “When a new state comes into being through decolonization, the ex-colony starts with no obligation to succeedto the treaties of its former colonial power.” This is known as the:a. clean slate doctrine.b. ex parte doctrine.d. fresh None of the : a61. State Q disintegrated into State R and State S. As to the treaties that had been in force in State Q,a. only those that were dispositive treaties continue to be in force.b. they are no longer they are no longer in force if State Q was a colonial power.d. they continue to be in force in both State R and State S to the extent they areapplicable.

e. None of the : d2. International Organizationsa. Intergovernmental Organizations62. An intergovernmental organization is a permanent organization set up by two ormore states to carry on activities of common : True 63. The capacity of an intergovernmental organization to carry on diplomatic relationswith a state or to sue or be sued in an international or municipal court is acquired by : True 64. According to most authorities, an intergovernmental organization is not to berecognized as having the capacity of an international person by one of its member states until the government of that statecertifies that it has such : False 65. According to most authorities, an intergovernmental organization is not to berecognized as having the capacity of an international person by a non-member state until the government of that statecertifies that it has such : True 66. Which of the following is NOT a characteristic common to intergovernmental organizations?a. They are created by two or more states.b. They are meant to pursue interests common to They function autonomously as independent international persons.d. They operate through branches and subsidiaries around None of the above is a correct : d1) United Nations67. The general philosophy underlying the Charter of the United Nations is that therelationships of the nations of the world are to be governed by the rule of : True 68. The phrase “United Nations System” refers to the rules of international law enactedby the General Assembly of the United : False69. Which of the following are goals of the United Nations?a. Maintenance of peace and security in the world.b. Promotion of economic and Protection of human rights.d. All of Both a. and c. : d 70. Which of the following organs of the United Nations may authorize the use of armed force?a. Economic and Social Council.

b. International Court of Justice.d. Security : e 71. Which of the following organs of the United Nations is primarily responsible for promoting respect for humanrights?a. Economic and Social Council.b. International Court of Justice.d. Security : a2) European Union72. The Council of the European Union is the principal European Union rule : True 73. The Council of the European Union may enact rules without consulting the : False74. The Council of the European Union may only act on proposals brought to it by theEuropean : True 75. The European Parliament must approve all of the international treaties that theEuropean Union enters : True 76. The European Parliament lacks true legislative : True 77. The European Committee of Regions must be consulted on matters dealing withdefense, internal security, and public : False 78. The European Economic and Social Council can adopt rules and issue directivesindependently of the Council of the European Union and European : True 79. The European Court of Justice can hear appeals from the European Court of : True 80. The European Central B ank is responsible for carrying out the European Union’smonetary : True 81. The European Court of Auditors hears disputes involving the amount of taxes owedby private : False82. Which of the following is not a member state of the European Union?a. Austria.b. Belgium.

c. Greece.d. : d83. Which of the following is a constituent treaty of the European Union?a. European Atomic Energy Community Treaty of 1957.b. European Coal and Steel Community Treaty European Economic Community Treaty of 1957.d. All of Both b. and c. : d84. When one speaks of the “supernational powers” of the European Union, one means that:a. within its scope of applicability, EU law is superior to the laws of the memberstates.b. member states are required to bring their internal laws into compliance EU law may be directly effective within the member states.d. All of Both a. and : d85. The European Union’s European Commission:a. proposes measures to the European Council.b. is a consultative body made up of representatives from local is located in Strasbourg, France.d. All of None of the : a86. The European Court of First Instance may hear disputes:a. brought by the European Union Commission against European Union memberstates.b. brought by European Union member states against the European Union

brought by private persons against European Union institutions.d. All of None of the : e 87. The European Court of Justice may hear requests to annul European Union legislation brought by:a. the European Union Commission.b. a private persons.d. All of Both a. and b. : eb. Other Intergovernmental Organizations88. Which of the following intergovernmental organizations has a parliament whose representatives are directly elected bythe national parliaments of its member states?a. African Union (AU).b. Council of Europe.d. Organization of American States (OAS).e. Organization for Economic Cooperation and Development (OECD).Answer: c 89. Which of the following intergovernmental organizations has established regional human rights systems thatare supervised and enforced by both judicial and quasi-judicial organs?a. Arab League.b. British Commonwealth Council of Europe.d. Warsaw Organization for Economic Cooperation and Development (OECD).Answer: cF. THE RIGHTS OF INDIVIDUALS UNDER INTERNATIONAL LAW90. Traditionally, an individual’s rights under international law are only protected by hisstate of : True 91. Traditionally, the decision whether or not to take any action to enforce anindividual’s rights under international law is left entirely up to the individual’snational : True

G. COMPARISON OF MUNICIPAL LEGAL SYSTEMS1. The Romano-Germanic Civil Law System92. The Roman law was first codified in the Corpus Juris Civilis around the year : True93. The law followed in much of Europe at the end of the medieval period was known asthe jus : True 94. The pepou drous (or “piepowder”) courts were the courts of the medieval guilds andmerchants’ : True 95. The law created by the pepoudrous (or “piepowder”) courts evolved into the “lawmerchant.”Answer: True 96. The goals of the national codes that replaced the jus commune were to establishlegal unity within a single kingdom and to codify the political and philosophicalideals of the : True 97. The French Civil Code (the Code Napoleon) of 1804 attempted to break up the oldfeudal estates of the aristocracy by prohibiting restraints on the sale of land as well as restraints on its transfer in a : True 98. The German Pandectists studied the text of jus commune with the aim ofdiscovering its “latent” or underlying princip les and : False 99. The German Civil Code of 1896 is noted for being precise and : True 100. Which of the following used historical analysis and philology (i.e., the tracing out of the development of theusage of word s) to “desanctify” the study of law?a. Commentators.b. Humanists.d. : c 101. The jus commune was replaced by national codes that first appeared in:a. Austria.b. Prussia.d. : e102. Which of the following ideas of the French Revolution was/were incorporated into the French Civil Code (the CodeNapoleon) of 1804?a. The autonomy of the patriarchal family.

b. The freedom The right to possess private property.d. All of Both b. and c. : d 103. Which of the following were influential in the drafting of the French Civil Code (the Code Napoleon) of 1804?a. Academic writings.b. French French royal ordinances.d. All of the : e 104. Which of the following were most influential in the development of the German Civil Code of 1896?a. Academic writers.b. Humanists.d. : e 105. Which of the following legal subjects are not found in the French or German civil codes?a. Administrative regulations.b. Crimes.d. : a 2. The Anglo-American Common Law System106. The name “common law” (as it is used in England) is derived from the theory that the king’s courts represented thecommon custom of the realm, as opposed to thelocal customary law practiced in the county and manorial : True 107. Equitable remedies are available only when legal remedies are unavailable or : True108. The Statute of Westminster of 1285 encouraged the English law courts to create new writs, including writs in : False 109. New York’s “Field Code” of 1848 merged law and equity into one jurisdiction and required law suits to betried in a single class of courts using a single : True 110. Which of these medieval English courts handled cases of direct royal interest?a. Common Pleas.b. Equity.

c. Exchequer.d. King’ : d 111. Which of these medieval English courts assumed jurisdiction to control the abuses of the King himself (andthereby established the doctrine of the supremacy of the law)?a. Common Pleas.b. Exchequer.d. King’ : d 112. Which of the following is not a remedy available from a court of equity?a. Damages.b. Restitution.d. None of the above is a correct : a 113. The common law’s adoption in other countries was primarily facilitated by:a. a historical linkage between the country and England.b. its its use of both case law and statutes.d. its use of the doctrine of the supremacy of the law to limit the actions andpowers of its use of the jury : a3. The Islamic Law System114. The closing of the door of ijtihad (independent reasoning) refers to contemporary efforts of Islamic fundamentalists toreturn to the original principles of law laiddown by the Prophet : False 115. The Shari’a is primarily a moral and ethical : True 116. Which of the following is the most important source of Islamic law?a. The consensus of the legal community.b. The Sunnah.d. Writings of None is more important - they are all equally important.

Answer: b ESSA YS1. Compare and contrast the three major municipal law : Students should discuss the Romano-German civil law, the Anglo-American common law, and Islamic law brief: the first two are secular, the last is religious. The civil law is primarily based on codified rules while the common lawis based on precedent. Both are flexible and undergoing continuous change, as compared to Islamic law which stoppeddeveloping in the tenth century A.D.2. Evaluate the adequacy in contemporary international law of the definition of the sources of international law that is given inArticle 38 of the Statute of the International Court of : It is probably quite adequate. Its ranking of conventions, then customs, and then general principles as sources thecourt should look at reflects actual practice. It also allows the court to use both case law and academic writings as sources,which also reflects contemporary practice. In addition, the court is allowed to turn to equity in appropriate definition may be somewhat inadequate when it comes to defining general principles. It speaks of the general principlesof “civilized nations,” which may be somewhat insulting to Third World states who often feel that international law is overlyEuropean. These two words might best be deleted if the Statute is ever revised.3. After a civil war in State A, approximately half of the territory breaks away and forms State B.(a) Before the war, State A had lent money to Cee Company. State B now claims that it is entitled to half of that money.(b) Before the war, State A had granted a mining concession to Dee Company for a 50-year period on land that is now withinthe territory of State B. That concession still has20 years to run. State B claims that it is no longer valid.(c) Before the war, State X had concluded a treaty with State A in which State X granted State A “most favored nation” tradestatus. State B now claims that it is entitled to the same State B correct in each of its contentions? :(a) No, a successor state may not interfere with contractual rights. Moreover, the contracting parties were State A and CeeCompany. State B was not a party (it could not have been since it did not exist at the time). Also, neither State A nor Cee ed for State B to be a beneficiary. State B has no rights in the contractual rights of State A.(b) Again, a successor state may not interfere with preexisting contractual rights. However, all states may nationalize orexpropriate property. Assuming State B does so and Dee Co. has recourse to an international tribunal to settle the dispute,State B will probably have to provide prompt, adequate, and effective recourse (i.e., fair market value) for the concession ithas taken from Dee Co.(c) When a state divides, the existing treaties of the predecessor states bind both successor states. When the treaties areneither dispositive nor descriptive of international law, they are only valid to the extent that third party states (e.g., State X)wish to continue to be bound by , also, that if State B claims that it is a colony having achieved its independence from a colonial power (a likelypossibility), then the clean slate doctrine applies. This means that State B is not bound by any of the treaties of the colonialpower (State A) unless both State A and the third party states (e.g., State X) agree to keep them in force. (The result, in anyevent, is the same.)4. You are a foreign student studying abroad in the State of Ecstasy. Ecstasy is a member of the United Nations, but of noother international organizations. It has not signed nor ratified any international human rights you arrived in Ecstasy, you bought a small house on a small piece of land near the university where you are nowabout to graduate. Recently, as you planned to return home, you put your property up for sale. At that time, you discoveredthat Ecstasy has a law that makes it illegal for aliens to own real property (i.e., houses and land) and that any such propertyescheats (i.e., is automatically forfeited) to the state. No one, of course, would buy your property (since your title is defective)and now the state has taken it from you. You have brought suit in a local Ecstasy court. You claim that Ecstasy's law makingit illegal for aliens to own land is discriminatory and a violation of the provisions of the UN Charter. You seek to have theCourt order that the state's seizure of your property was improper and that you do have good title. Will you be successful?Explain.