Public International Law - UL - TentamenTest (2016)

Open Questions of practice exam

Open Question 1a

Earlier this year, the Italian authorities banned a planned demonstration in protest against the migrant camp in the Italian port of Sicily. Despite the ban, more than 150 persons turned up for the demonstration. Various persons were arrested by the police, including Raoden, a 27-year old French student. While released the next day, Raoden claims that the Italian police has violated several of his rights.

Italy is a party to the International Covenant on Civil and Political Rights (ICCPR) and its Optional Protocol.

Which procedure on the international level would be open to Raoden to address the alleged violations of human rights protected under the ICCPR? Discuss the main characteristics of this procedure and explain the criteria that have to be met before Raoden can utilize this mechanism. Substantiate your answer with reference to relevant legal provision. (10 points).

Open Question 1b

Which generations of human rights are covered by the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social an Cultural Rights (ICESCR) respectively? In addition, what is the difference in the nature of the obligations for States with respect to the realization of the rights protected under these two conventions? Explain and substantiate your answer with reference to the relevant legal provisions and/or case law (10 points).

Open Question 2

The Secretary General of the United Nations requests you, as his legal advisor, to prepare a legal analysis. You are asked to set out the conditions for a successful call on the right to self-defense within the ambit of the UN charter system. Substantiate your analysis with reference to relevant legal provisions and/or case law (20 points).

Answersuggestions of practice exam 

Open Question 1a

• As a party to the ICCPR and Optional Protocol, Italy has accepted the jurisdiction of the Human Rights Committee. As a result, Raoden can utilize the individual complaints procedure provided for in art. 1/art. 2 Optional Protocol to the ICCPR (3 points).

• This procedure implies that individuals can file a complaint with the Human Rights Committee that will consider the complaint and issue legally non-binding views (2 points).

• The admissibility criteria that have to be met before Raoden can utilize this mechanism are listed in art. 5(2) Optional Protocol (1 point):

  • Sub a stipulates that ‘the same matter is not being examined under another procedure of international investigation or settlement’, which means that a complaint may not simultaneously be under examination by another court or committee (2 points).

  • Sub b requires that all domestic remedies must have been exhausted. This implies that Raoden should institute proceedings before the Italian judge first and proceed until the highest level (2 points).

Open Question 1b

• The ICCPR covers first generation rights (1 point).

  • These rights are primarily phrased as negative obligations for States: they require States to abstain/refrain from action (1 point).

  • Moreover, the rights involve an obligation of result: the immediate realization of the rights enshrined in the Covenant is required (1 point).

  • This can be deduced from art. 2(1) ICCPR, which stipulates that States are obliged to respect and ensure the rights enshrined in the Covenant (2 points)

• The ICESCR covers second generation rights (1 point).

  • These rights generally include positive obligations for States: they require States to undertake action (1 point).

  • Moreover, the rights imply an obligation of conduct rather than of result: the progressive realization of the rights enshrined in the Covenant is required (1 point).

  • This can be deduced from art. 2(1) ICESCR, which stipulates that States should ‘undertake to take steps [..] with a view to achieving progressively the full realization of the rights’ (2 points).

1 bonus point for correctly explaining the blurred distinction between the two generations of rights (i.e. the reference to both the positive obligations under the ICCPR and the negative obligations under the ICESCR).

Open Question 2

The point of departure as regards the use of force are art. 2(3) and (4) of the UN Charter. This means, that the two principal rules under international law request that disputes should be peacefully settled an that the use of force, including the threat, is clearly forbidden (2 points).

However, there are two exceptions to this principal rule. These exceptions can be found in art. 39 in conjunction with art. 42 of the UN Charter, and art. 51 of the UN Charter. 1^st exception: art. 39 in conjunction with art. 42 of the UN Charter is not at issue in the present case (2 points).

The following conditions are to be met in order to successfully rely on art. 51 of the UN Charter; the rights to self-defence:

• There has to be an armed attack against a State (thus, a state has been the victim, see Nicaragua) 2 points.

  • The attack must have occurred (see DRC-Uganda) 1 point.

  • Furthermore, not every use of force may qualify as an armed attack. Instead, the force used has to reach a certain gravity. The court held in the Nicaragua case that, the most grave forms of the use of force are understood to fulfil this requirement (2 points).

  • The ICJ also made clear in the Wall Opinion that an armed attack may not be carried out from within the territory of the injured state (2 points).

• Attribution of the armed attack to a state.

  • In principle, an armed attack has to be carried out by a state or on behalf of a state (meaning that the attack should be attributed to a state). See Nicaragua, Wall Opinion, DRC-Uganda (2 points).

• The measures taken in order to defend the state have to be

  • Necessary (1 point).

    • This means that the State which acts in self-defence had no other means available and had to act immediately, thus, as long as there are peaceful means available which could settle the dispute, the latter have to be used instead of the use of force (Nicaragua, Oil Platforms, 2 points).

  • Proportionate (1 point)

    • This means that the measures taken have to be proportionate in relation to the harm suffered as result of the armed attack (Nicaragua, Oil Platforms, 2 points).

• Obligation to report to the UN SC (1 point)

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