Public International Law - UL - TentamenTest (2016)

Questions

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).

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).

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).

Question 3a

From 1 Septemer - 30 November 2015, The State Alphaland conducted military operations against its neighboring State, Betaland. The military leadership of Alphaland ordered the armed forces to wear the UN embelm to confuse the armed forces of Betaland. This tactic has proved successful as Alphaland killed a large number of Betaland armed forces, precisely because of the confusion. Alphaland and Betaland are parties to all the 1949 Geneva Conventions and both 1977 Additonal Protocols. Betaland is party to the 1998 Rome Statute of the International Criminal Court (ICC Statute) You are requested to provide a legal analysis on the following two questions. Did members of the amred forces of Alphaland comit a crime under the ICC Statute (10 points)

Question 3b

Assuming members of the armed forces of Alphaland violated the ICC Statute, would the ICC be able to exercise jurisdiction if Betaland referred the situation to the prosecutor of the ICC in accordance with Article 14 of the ICC Statute (10 points)

Question 4a

The State Arcadia intends to build a nuclear power plant near the border with its neighboring State Vilnius. Which procedrual obligation does international environmental law prescribe Arcadia in these circumstances? Have the relevant conditions for this obligation been met? (11 points)

Question 4b

Discuss the principal oblgiations under UNCLOS Part XII for coastal States relating to the protection of the marine environment against pollution caused by the exploitation of oil in their EEZ. In addition, how would you characterize these oblgiations: would the occurrence of pollution to the marine environment automatically imply a breach of these obiglations? Substantiate your answer with reference to the legal provisions (9 points)

Question 5a

In November 2015, the State Zembla invaded its neighbouring State Ambrosia and occupied part of its territory. In response to these events, on 1 January 2016, the Security Council adopted a resolution under CHapter VII of the UN Charter imposing a ban on the export of weapons to Zembla. The Republic of Narnia is home to a large arms manufacturer and has since long provided weapons to the army of Zembla. However, on 2 January 2016 the Republic of Narnia decided to prohibit the export of weapons to Zembla. Narna and Zembla are Member States of the World Trade Organization (WTO). Is the ban on the export of weapons imposed by Narnia consistent with the GATT? Provide for a legal analysis and substantiate your answer with reference to the relevant legal provisions (14 points)

Question 5b

Whatare the three institutional pillars of the Bretton Woods order and what is the main aim of each of these international institutions? (6 points)

Answers

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).

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).

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)

Question 3a

The relevant rules are:

• Article 5: jurisdiction over crimes (1 point)
• Article 8(2)(b)(vii): it is a war crime in an international armed conflict to make improper use of the UN emblem, resulting in death or serious injurt. There must be a connection/nexus to the armed conflict (2 points)

As this crime only exists in an international armed conflict, the situation between Alphaland and Betaland has to be classified as an international armed conflict on the basis of Article 2(1) of the 1949 Geneva Conventions that applies to 'all cases of declared war or of any other armed conflict which may arise betwee ntwo or more of the High Contracting Parties (2 points)

Alphaland and Betaland are High Contracting Parties to the GCs (and AP I) and there is an armed conflict, it is thus an international armed conflict to which the GCs (and AP I) are applicable in accordance with Common Article 2 (1 point)

The ICC has jurisdiction over war crimes (Article 8), according to Article 5 (1 point). Ther eis a violation of Article 8(2)(b)(vii) ICC Statute as the UN emblem was used and resulted in death (1 point). Ther eis a connection/nexus to the armed conflict as Alphaland combatants fought against Betaland combatants (1 point).

Members of the armed forces of Alphaland violated the ICC Statute, Article 8(2)(vii) (1 point).

Question 3b

The jurisdiction of the ICC under the ICC statute has to be determined on the basis of the following provisions:

• Article 13: exercise of jurisdiction, in case of a State party referral (sub a), Security Council referral (sub b) and proprio motu investigation by the Prosecutor (sub c) (2 points)
• Article 12(2): In the case of Article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more States are parties to this Statute: the State party on whose territory the violations have been committed (Para 2(a)), The State Party of which the person accused of the crime is a national (Para 2(b)) (3 points)
• The events occured on the territory of Alphaland (Article 12(2)(a)) (1 point), Alphaland is not party to the Statute as required under Article 12(2)(b) (1 point). These preconditions are alternative, not cumulative, so fulfillment of one conditions satisfies the precondition for exercise of jurisdiction under Article 13(a) or (c) ICC Statute (1 point). In casu, it concerns a State party referral (Article 13(a)) (1 point).
• The ICC would be able to exercise jurisdiction if Betaland referred the situation to the Prosecutor of the ICC in accordance with Article 14 of the ICC Statute (1 point).

Question 4a

In the Pul Mills case (1 point), the International Court of Justice determined that States are obliged to carry out an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context (2 points). This obligation is part of customary international law/general international law (1 point). Furtermore, an EIA must be conducted prior to the start of a project (1 point), but the obligation does not stop once the plant has been built: States are obliged to monitor the impacts throughout the project (1 point). It is however up to the State to decide on the contents of the assessment (1 point). In the current circumstances, there is certainly a risk (a nuclear power plant is known to pose risks) (1 point), the adverse impact would be significant (if something would go wrong with the nuclear power plant, this would result in serious damage to the environment) (1 point) and this adverse impact would have an impact on the environment of Vilnius (the plant is built near the border) (1 point).

Arcadia is under an obligation to carry out an EIA - both before and during the project - to assess the risks of the power plant on the environment of Vilnius (1 point).

Question 4b

In relation to pollution caused by the exploitation of oil within national jurisdiction, the following two provisions are of particular importance. Thie first is Art. 194 UNCLOS (1 point), which contains an obligation for States to take all measures that are necessary to prevent, reduce and control pollution of the marine environment no matter what the source is (1 point) and an obligation to take all measures that are necessary to ensure that activities under their jurisdiction or control, such as oil exploitation projects in their EZZ (1 point), are so conducted as not to cause damage by pollution to the environment of other States (1 point). Specifically relevant for pollution caused by the exploitation of oils is also Art. 208 UNCLOS (1 point), which contains an obligation for coastal States to adopt laws and regulations and to take other necessary measures to prevent, reduce and control pollution from seabed activitiesm including oil driling, under their jurisdiction (2 points). The obligations under both provisions are obligations of care (to take all measures that are necessary) not of result (1 point). This means that if damage occurs after States have taken all necessary measures, they are not liable for the damage (1 point).

Question 5a

Article XI GATT prohibits WTO members to impose quantitative restrictions on the import an export of goods to and from another WTO member (2 points).

However, a state can take measures which are inconsistent with the GATT rules, if those measures are justifiable under one of the exceptions listed in Articles XX to XXI GATT (1 point). This article contains exceptons for security reasons, the most relevant exception is the one contained in paragraph (c) (1 point). A state can take any action to comply with its oligations under the UN Charter for the maintenance of peace and security (1 point). This includes most importantly measures imposed by the Security Council under chapter VII of the UN Charter (1 point). These measures are binding on UN member states following article 25 of the UN Charter (1 point).

In these circumstances, the decicion of the Republic of Narnia to stop exporting weapons to Zembla constitutes a violation of article XI Gatt (1 point). The action of Narnia is nonetheless allowed if it is justified under article XII (c). The 1 January 2016 resolution of the Security Council imposed an arms embargo against Zembla. This is an economic sanction under article 41 of the UN Charter (2 points). This decisions is binding on Narnia following article 25 of the UN Charter and thus constitutes an obligation for Narnia under the United Nations Charter for the maintenance of international peace and security in the sense of article XII (c) (2 points). The weapons embargo is therefore justified by the exception in article XII (c) (1 point). 

The ban on the export of weapons imposed by Narnia is consistent with the GATT as it is justified by article XII (c) (1 point)

Question 5b

• The International Monetary Fund (1 point)
  • Principle aim: to ensure stability of the international monetary system (1 point).
• The World Bank (1 point)
  • Principle aim: reconstruction and development (1 point).
• The International Trade Organisation/GATT/WTO (1 point)
  • Principle aim: to liberalize trade (1 point)