Open question 1 (New Style)
The fight against terrorism might make it necessary to derogate from provisions of international human rights law. Please explain whether it is permissible to combat terrorist attacks by introducing measures which derogate from the prohibition of torture and the right to peaceful assembly in the International Covenant on Civil and Political Rights (ICCPR). If derogation from these rights is permissible, elaborate upon the legal requirements that any measures derogating from the ICCPR would need to meet. Substantiate your answer with reference to relevant legal provisions and/or case law. (20 points)
Open question 1 (Old Style)
You are the student assistant of your professor of public international law. As he is currently very busy, he asked you to support him in preparing the next lecture. He asked in particular for a comprehensive overview of the subjects of public international law. Address in detail the subjects-doctrine and describe the principal characteristics of three subjects under public international law. Substantiate your answer with reference to relevant legal provisions and/or case law. (20 points)
Open question 2
For twenty years, Elantris has been governed by a military dictator, General Iadon. Iadon has enjoyed increasing popularity for the past two years. In early 2016, he announced that he was determined to democratize Elantris and he wished to have his position confirmed and legitimized through fair and transparent presidential elections. However, Iadon’s rival Mr. Raoden emerged as the winner of the 15 March 2017 elections.
Iadon was outraged. He refused to accept the outcome and had hundreds of Raoden’s supporters expelled, killed or tortured. Raoden fled the country. Large-scale unrest followed, primarily in the Western part of the country where Raoden enjoys the most widespread support. General Iadon responded by ordering the Elantris army to “clean up that rebel nest”. Elantris’s Western neighbor and archrival Fjorden has followed these developments with concern and considers that the situation in Elantris forms a threat to the stability of the entire region.
Fjorden announced its readiness to conduct a military intervention in Elantris to end violence thereand to oust General Iadon from power (and thereby to enable Raoden’s inauguration as president), contributing to democratization of Elantris and to stability. Fjorden and Elantris are both UN members.
Now consider the following scenario. The SC fails to deal with the situation and does not adopt a resolution. Fjorden still wishes to intervene in relation to the violence by the Elantris’ Government against civilians and/or the evolving humanitarian crisis. However, Fjorden is not willing to risk violating international law. You are asked to provide a legal advise on a generally accepted alternative legal basis for military intervention in light of the evolving humanitarian crisis. Under what conditions does international law allow States to intervene to protect civilians and have these conditions been satisfied in the current circumstances? Limit the discussion to one legal basis. (8 points)
Open question 1 (New Style)
As a principal rule, the ICCPR does provide for the possibility to derogate from the provisions of the ICCPR. This derogation is, however, only possible under strict conditions. (2 POINTS) Article 4 of the ICCPR contains the so-called derogation clause. It lists a number of conditions, which need to be met in order to be allowed to derogate. (1 POINT) Firstly, there must be a situation of public emergency which threatens the life of the nation. (1 POINT) Secondly, this situation must officially be proclaimed. (1 POINT) Furthermore, derogation is only permitted to the extent strictly required by the exigencies of the situation. (1 POINT) In addition, Article 4 requests that the measures are not inconsistent with other obligations under international law and do not involve discrimination on the ground of race, colour, sex, language, religion or social origin. (1 POINT) Paragraph 2 of Article 4 determines also, that derogation from specific rights is not allowed (2 POINTS). These rights are contained in articles 6, 7, 8, 11, 15, 16 and 18 of the ICCPR. (2 POINTS) The final condition to be met is that the State that wishes to derogate has to inform the other States Parties to the ICCPR through the intermediary of the Secretary General of the United Nations about its derogation(s). (1 POINT) It can thus be argued, that article 4 ICCPR permits States Parties to the ICCPR to derogate from provisions contained in the Convention. ( 1 POINT) States Parties are, however, obliged to derogate within the clearly prescribed limits of article 4 paragraphs 1 and 2. Derogation from the prohibition of torture, cruel, inhuman and degrading treatment is prohibited under article 4 (2) jo. Article 7. (2 POINTS) Other measures not constituting a violation of article 4(2) would thus be permitted. (1 POINT) Article 21 ICCPR provides for the right to peaceful assembly. (1 POINT) Since it is not listed in article 4 (2) ICCPR derogation from article 21 is possible if the conditions of article 4 (1) are met. ( 1 POINT)
It can thus be concluded, that it is indeed possible to derogate from provisions under the ICCPR. Article 4 ICCPR sets out the requirements. Derogation from the prohibition of torture is prohibited under article 4(2) ICCPR. (1 POINT) As regards article 21 ICCPR and the right to peaceful assembly, it is concluded that derogation is permitted within the prescribed limits of article 4 (1) ICCPR. (1 POINT)
Open question 1 (Old Style)
According to the subjects doctrine, subjects under international law are those who bear rights and obligations under public international law. (3 POINTS)
The principal subjects of international law are states. (2 POINTS) According to article 1 of the Montevideo Convention, states are those entities who fulfill four requirements of statehood (1 POINT): States need to have a population (1 POINT), a territory. (1 POINT), an effective government. (1 POINT) and they should have the capacity to enter into international relations (1 POINT). Finally, there is the question of the function of recognition (constitutive or declaratory). (1 POINT) In addition to states, international organizations are also recognized to be subjects under international law (2 POINTS). International organizations are those entities, which are created by states (1 POINT) in order to pursue a specific task, such as the protection of human rights. ( 1 POINT)
Finally, individuals are to be mentioned as another subject of international law. (2 POINTS) Individuals are, however, to be distinguished from states and international organizations as they do not possess full legal personality under international law. (1 POINT) They can, for instance, not conclude an international treaty. (1 POINT) It can thus be concluded that states and international organizations are the primary subjects of international law. In addition, individuals possess limited legal personality under international law. (1 POINT)
Alternative answers:
Credits were also given for a discussion of multinational companies and peoples as subjects of international law.
Open question 2
The “responsibility to protect” [or R2P] (1 point) is such a generally accepted ground (1 point - as I could not give 0.5 points, I also accepted “right to protect” although this is not really correct). It has been formulated in the World Summit Outcome/General Assembly Resolution A/60/1 (2005) (1 point). R2P may be invoked to protect the population against genocide, crimes against humanity, ethnic cleansing and war crimes (1 point - also granted if you referred to core crimes) subject to SC authorization [alternatively: as a collective measure] (1 point).
In the present case, the circumstances (attacks on civilians) may justify invocation of R2P (1 point – I granted this point also if you considered that there was not enough information available to judge this) but there is no SC authorization (1 point). In conclusion, Fjorden cannot intervene based on R2P, since the conditions (SC authorization) have not been met (1 point).
It was possible to earn a bonus point for a comparison with humanitarian intervention, i.e. that R2P is applicable in stricter circumstances (core crimes rather than flagrant violations human rights) and/or that HI is not generally accepted. (1 bonus point)
Frequent mistakes
I have not withheld points for this issue (you were left free to argue whether you found that the factual circumstances in Elantris justified R2P) but it is very difficult to argue that the order to “cleanup that rebel nest” could qualify as an incitement to commit genocide (only certain specific types of groups are protected by the definition of genocide – see Genocide Convention).
In general, Question 2 proved to be more difficult than expected, possibly due to the fact that it was clarified at the outset that there is no SC authorization. However, if you had read the question carefully, it would have become clear that this is not a problem. After all, you were not only to identify a generally accepted legal basis to respond militarily to the humanitarian crisis and attacks on civilians, but also to discuss whether its conditions have been fulfilled. R2P thus clearly remained an option – and indeed it was the only correct option.
Still, this question was graded very leniently. You did not automatically loose all 8 points for having taken the wrong path. The maximum number of points you could get depended on the legal basis you opted for (more or less relevant/valid/credible option). Your answer was then graded mainly based on the quality of arguments, but reference to some specific criteria was also taken into account. As any answer other than R2P was incorrect, the criteria were only used as a guidance (so you cannot claim extra points on this basis!) and the most important factor determining your score was the degree of knowledge of the possibilities to use force (within and outside the UN Charter) that your answer demonstrated.
Alternative answers for which a number of points have been granted
Humanitarian intervention - the only other legal basis specifically aiming to form a military response to a humanitarian crisis, but not a generally accepted one. Here you could earn a maximum of 5 points (6 if your answer clearly indicated that you opted for this legal basis due to your correct conviction that R2P requires SC authorization) Some factors taken into account: most importantly, that HI is not generally accepted. In addition: name, circumstances (flagrant violations of HR rather than genocide, war crimes, crimes against humanity, ethnic cleansing which may justify R2P), no requirement of SC authorization, applicability.
Uniting for Peace – this procedure is not specifically tailored to respond to a humanitarian crisis. Here you could earn a maximum of 4 points. Some factors taken into account: name, source, SC inactivity, veto (i.e. by a permanent member) in the SC as reason for its failure to deal with the situation, applicability.
Finally, (individual or collective) self-defense. This option was the least credible/relevant one, so you could only earn maximum 3 points. Factors taken into account: name, constituting the sole exception under the UN Charter to the prohibition on the use of force, applicability.
There were a number of other creative solutions. However, you really cannot justify military intervention based on the ICCPR, ICC Statute, universal jurisdiction or under ius in bello (the Geneva and Hague Conventions). As the question explicitly asked you to advise on such a legal basis, you could not earn any points for these or other alternatives.
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