This summary was written in the year 2012-2013.
The prohibition of genocide is considered to be a jus cogens norm.
- Explain what jus cogens means.
- Explain at least two legal effects of the fact that the prohibition of genocide is a jus cogens norm.
Since the second half of the twentieth century international courts and tribunals have proliferated. One of the often-mentioned consequences of this process is fragmentation of international law.
- Explain, with the help of at least one concrete example, what fragmentation of international law means in the light of proliferation of courts and tribunals.
The International Court of Justice (ICJ) has no so-called compulsory jurisdiction.
- Explain under what circumstances the ICJ has jurisdiction to settle an inter-state dispute.
- Explain whether or not in the view of the ICJ its “provisional measures” are binding.
Aspatria, a UN member state and a state party to the International Covenant on Civil and Political Rights (ICCPR), is accused by several human rights NGOs of breaching the prohibition of torture. The government of Aspatria denies these accusations and states that: (i) the interrogation techniques used by the Aspatrian authorities do not amount to torture within the meaning of the ICCPR; and (ii) Aspatria is presently at war with a neighbouring state and has proclaimed a state of emergency, accordingly it is line with the ICCPR temporarily not obliged to uphold the prohibition of torture.
- The Government’s first argument regards the precise meaning of torture and the scope of the torture prohibition. Explain what rules of public international law apply to questions of interpretation of treaty provisions. (5 pts)
- Assess the legal validity of the Government’s second argument regarding the state of emergency. (5 pts)
Adova and Rotania have a legal dispute concerning the border between the two countries. At one point the situation escalates and Rotania threatens to enforce its rights through bombing parts of Adova. As a response, Adova decides to bomb military strategic targets in Rotania.
Discuss the attack of Adova on Rotania in the light of public international law. (10 pts)
Mr Zelaya was removed from office as President of Honduras by the army and judiciary of Honduras. Subsequently, elections were held and President Porfirio Lobo was elected. A large Honduran community lives in Nicaragua supporting Zelaya. This community disagrees with the removal of Mr. Zelaya from office and with the outcome of the recent election. As a response, they have been demonstrating peacefully in front of the Honduran Embassy for 5 days. The police have been monitoring the demonstrations. However, at one point the crowd becomes more violent and they manage to enter the premises and cause substantial damage. The day after the Nicaraguan authorities decide to send extra forces to the Embassy to stop the violence and arrest the protesters.
Can Nicaragua be held accountable under international law for the damages caused to the Honduran Embassy?
It has been argued that former heads of state or government as well as certain former high-ranking ministers should be more careful when they travel abroad as a result of the rulings by the House of Lords in the Pinochet case and the International Court of Justice in the Arrest Warrant case. Discuss the potential difficulties that such persons might encounter during their travels as exemplified by these two cases.
States are considered the original and principal legal subjects of public international law.
Provide and discuss 2 examples illustrating the fact that states possess the most full-blown form of legal personality under international law.
Discuss the advantages and disadvantages of the fact that states are still the primary subjects in the field of international law-creation.
Recently, a Chinese ship lost oil in the area known as the Great Barrier Reef. The Great Barrier Reef, a marine park, is situated in the territorial sea of Australia. Australia wants to prohibit ships carrying potentially polluting substances such as oil from passing through its marine park. Is Australia allowed to take these measures according to the United Nations Convention on the Law of the Sea? (10 pts)
On 31 May 2010 Israel stormed a Turkish ship which carried aid for Gaza. At an emergency session, the United Nations Security Council called for a prompt, impartial, credible and transparent investigation conforming to international standards. Israel responded by stating that 'Israel is a democratic nation. Israel has the ability and the right to investigate itself, not to be investigated by any international board.' Explain whether or not the UN Security Council is allowed to take up this matter. (10 pts)
- Jus cogens norms constitute a special class of general rules made by custom. They have been endowed with a special legal force, i.e. they are peremptory norms so that they may not be derogated from by treaty or by ordinary customary rules. They have a rank and status superior to those of all the other rules of the international community.
- A treaty contrary to a jus cogens norm is null and void ab initio.Jus cogens norms can also have effect on making reservations: inconsistency with a peremptory norm makes a reservation inadmissible.
Students need to explain the concept of fragmentation of international law and thereafter clarify its meaning in the context of proliferation of courts and tribunals.
E.g. International law has been developed in a fragmented manner for certain policy areas as problems were identified. This development entails that international law has developed to address certain problems, or in a functional manner. Examples of relevant areas of law are human rights law, the law on the use of force, humanitarian law, international trade law, international environmental law, international economic law and the law of the sea. The distinct bodies of law that emerged as a result of the development of functional areas of law, in response to identified problems, not only provide substantive rules of law but also led to the establishment of international courts and tribunals with competences to decide cases within a distinct body of law.
A problem which arises in the context of the proliferation of courts is that a case or related cases may be brought before different courts or tribunals, which may come to different decisions as to which of the parties violated international law or to different interpretations of the law, thereby contributing to the fragmentation of international law.
Additionally, students need to exemplify their answer with at least one concrete example. See e.g. ICJ Nicaragua case vs ICTY Tadic case; Swordfish case, Mox plant cases and the cases as discussed in the seminar on proliferation.
- The answer is to be found in Article 36 (paras. 1 & 2) ICJ Statute. The following states can be parties to a dispute: States Members of the United Nations and other States which have become parties to the Statute of the Court or which have accepted its jurisdiction under certain conditions. The Court is competent to entertain a dispute only if the States concerned have accepted its jurisdiction.
- Based on Article 36 ICJ Statute, there are the following ways of accepting the jurisdiction:
- by entering into a special agreement (a ‘compromis’) to submit the dispute to the Court;
- by virtue of a jurisdictional clause (the optional clause, Art. 36 para. 2);
- through the reciprocal effect of declarations made by them under the Statute whereby each has accepted the jurisdiction of the Court as compulsory in the event of a dispute with another State having made a similar declaration (see Art. 36 paras. 2 & 3).
In addition, the Court has developed in its case law another method of accepting the Court’s jurisdiction, based, as much as the other modes, on consent: the so-called forum prorogatum. A State institutes proceedings before the Court against another State that has not previously accepted the Court’s jurisdiction. If, by some acts the respondent state shows that it accepts the Court’s jurisdiction, the Court is empowered to pronounce on the merits of the case.
- In order to answer this question one has to look at Article 41 ICJ Statute, which has been interpreted in the LaGrand case. The problem is that the French and the English versions of Article 41 ICJ Statute are not identical in terms of whether provisional measures of the Court are binding (indicate vs d’indiquer). In order to find an answer, the Court in the LaGrand case relied on the Vienna Convention, Article 31 of which is also part of customary international law. According to this rule a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of the treaty’s object and purpose (para 99). In para 102 the Court lays down that “[t]he object and purpose of the Statute is to enable the Court to fulfil the functions provided for therein, and in particular, the basic function of judicial settlement of international disputes by binding decisions in accordance with Article 59 of the Statute. The context in which Article 41 has to be seen within the Statute is to prevent the Court from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. If follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court. The contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of that Article.”
In sum, the object and purpose of the Statute is to enable the Court to settle disputes by binding decisions, which implies that provisional measures are binding.
- Artt. 31–32 of the Vienna Convention on the Law of Treaties (1969).
- The general rule of interpretation (Art. 31) provides that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
- Art. 31 (2) on the ‘context’ for the purpose of the interpretation (any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty)
- Art. 31( 3) on the role of any ‘subsequent agreement’ between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any ‘subsequent practice’ in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties.
- The preparatory work of the treaty and the circumstances of its conclusion may only be used as so-called ‘supplementary means of interpretation” (art. 32).
- (NB: Most of the provisions of the VCLT entail customary international law).
- This argument is legally invalid. Article 4, paragraph 2, of the ICCPR provides that the prohibition of torture may never be derogated from – not even in times of emergency (e.g. war).
This question is about the use of force. Article 2(4) of the UN Charter prohibits states to use (or to threat with the use of) force against other states. There are only two exceptions to the prohibition. Firstly, a state is allowed to use force against another state when the state is authorized by the UN Security Council (article 39 jo. 42 UN Charter). Secondly, a state is allowed to use force against another state in light of self-defence (article 51 UN Charter).
In this case there is no authorization by the UN Security Council. Furthermore, a self-defense claim can only be justified if it meets the criteria of article 51 UN Charter and the criteria of customary law. There needs to be an armed attack, the response should be proportional and necessary and the Security Council should be informed. Students need to evaluate the criteria and realize the problem is that Rotania has not attacked Adova but merely treated to attack Adova. This concerns the debatable concept of anticipatory self-defense. It will depend on the argumentation of the students how many points they will receive for this line of argument.
6 This question is about the application of the Tehran Hostages case of the ICJ to the facts of the case. Within the Tehran Hostages case the ICJ established two different phases for state responsibility. The first phase refers to the inaction of the Iranian government with regard to their obligations to protect the embassy of the United States. Iran was held responsible for its omission to protect the embassy of the United States, seeing the fact that they were fully aware of their obligations, they had the means at their disposal to perform their obligations and failed completely to comply with these obligations (para. 68). The second phase of the Tehran Hostages case refers to the acknowledgement and approval of the Iranian authorities of the acts exercised by the students. This lead to the conclusion of the ICJ that the actions taken by the students were now translated into acts of that State, Iran was held responsible for its own actions. The students had become agents of the Iranian State for whose acts the State itself was internationally responsible. (para. 74).
In this case it concerns the first phase. Applying this to the case, one can conclude that Nicaragua omitted to protect the premises of the embassy. The police was present at the demonstrations when they deterred. Only the day after the Nicaraguan authorities decided to send extra forces. Students reasonably discussing that Nicaragua cannot be held responsible that they have done everything within their power to protect the premises could also get full points.
Students should also explain which legal obligation is breached. In this regard reference should be made to the Vienna Convention on Diplomatic Relations (1961).
7: Heads of States, prime ministers and foreign Ministers on official mission abroad enjoy, in addition to immunity for official acts (functional immunity), privileges and immunities with regard both to the premises where they perform their official transactions or live, and also to their private acts (personal or absolute immunity).
After leaving office, heads of state or government cease to enjoy personal immunity, but continue to enjoy functional immunity. This means that s/he can be held responsible for acts committed in private capacity.
The Arrest Warrant case concerns an incumbent head of state, nevertheless, some conclusions can still be drawn from it in order to answer the question. First of all, former heads of state can be held responsible for act committed in private capacity while in office. Second, they ‘may be subject to criminal proceedings before certain international criminal courts for international crimes’. The question in this respect raises whether the acts amounting to international crimes are or can be committed in private capacity. This specific question was addressed to some extent in the Pinochet case. According to the House of Lords the immunity (functional) of a former head of state did not prevent his extradition for torture. Nevertheless, it remains unclear what this exactly means: did he commit torture in private capacity, is torture not a kind of conduct that attracts functional immunity?
Based on these two cases one can conclude though that former heads of state or government can ‘encounter difficulties’ while abroad if they are accused of having committed a crime in private capacity while in office and/or if they committed international crimes while in office.
a. Several possible answers can be imagined. As the question already indicates the answer should include some comparison between states and non-state actors.
In the Reparation for Injuries case the ICJ concluded that the UN as an international organization has legal personality, which is, however, it “is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State. […] It does not even imply that all its rights and duties must be upon the international plane, any more than all the rights and duties of a State must be upon that plane.”
In the Legality of Nuclear Weapons (WHO) case the Court laid down that “international organizations are subjects of international law, which do not, unlike States, possess a general competence.” (Para 25.)
These two judgments can also be used as examples:
- States undoubtedly have the capacity to bring an international claim.
- States have general competence: unlike international organizations which rely on their constituent instruments and functions indicated therein, states possess general competence beyond any doubts.
b. Several possible answers can be imagined. In any event, the answer should somehow focus on or reflect a comparison between state and non-state actors.
An important advantage of the fact that states are the primary subjects in the field of international law-creation is that states need to apply and enforce the international rules at the domestic level. So if they make the law, the chance is higher that they will comply with these rules.
A remarkable disadvantage of this primary role of the states is related to the changing structure of international law; namely, the proliferation and the increasing importance of non-state actors in international law. The international legal system regulating the role of and the relationship between the different actors does not reflect these changes by, for instance, endowing non-state actors with the appropriate form of power in the field of international law-making.
9: In principle ships of all States enjoy the right of innocent passage throughout the territorial sea (Art. 17 UNCLOS).
Any act of willful and serious pollution is considered as prejudicing the peace, good order or security of the costal state and consequently cannot be considered ‘innocent’ within the meaning of the convention (Art. 19 (1) and (2)(h) UNCLOS; see also art. 25 (1)). NB: the latter clauses pertain to willful pollution/non-innocent passage, the question remains whether states may take measures to prevent unintentional, accidental pollution.
The right to innocent passage enjoyed by third states vessels does not prevent coastal states from adopting laws and regulations in respect of the conservation of the living resources of the sea (Art. 21 (1)(d) UNCLOS); and the preservation of the environment of the coastal state and the prevention, reduction and control of pollution thereof (Art. 21 (1) (f) UNCLOS).
Moreover, Part. XII (Protection and Preservation of the Marine Environment), particularly articles 192 and 194, actually oblige states to take certain protective measures.
In conclusion, Australia is permitted if not obliged to take measures to ensure the protection of its marine park.
It is clear at the same time (see Article 21 UNCLOS, first sentence; and Article 24 (1) (a) more explicitly) that the adopted laws and regulations must be in conformity with the provisions of UNCLOS itself and may not come down to an indirect, outright denial of the right to innocent passage through Australia’s territorial sea.
10: UN Member States have conferred to the Security Council the primary responsibility for the “maintenance of international peace and security” (Art. 24 UN Charter). The specific powers granted to the UN SC for the discharge of this role are laid down in Chapters VI, VII, VIII and XII of the UN Charter.
The UN SC is certainly authorized to take up this matter:
(i) in as far as this dispute may give rise to friction or to an international dispute: Art. 34 UN Charter; alternatively:
(ii) in as far as this instance in itself amounts to a ‘threat to the peace’ or ‘aggression’: Chapter VII UN Charter.
(i) Under Article 34 of the UN Charter, the Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.
(ii) Chapter VII of the UN Charter provides which powers the UN SC has with respect to “threats to the peace, breaches of the peace, and acts of aggression”. NB: it is the UN SC itself (Art. 39) that determines the existence of any threat to the peace.
Under this chapter, the UN SC may make recommendations or decide which measures shall be taken to maintain or restore international peace or security (Art. 39).
The call for a prompt, impartial, credible and transparent investigations falls under measures without force, as referred to in article 41 (as this list in non-exhaustive).
Measures taken by the UN SC are binding (art. 25 UN Charter).
(For the purposes of determining the existence of a threat to the peace it is immaterial whether the incident occurred in the open sea or within the territorial sea of Israel).