Public International Law - UL - TentamenTest (2018)

True or false questions

Question 1

If used for military purposes during an international armed conflict, this exam room qualifies as a military object.
Is this statement true or false?

Question 2

Any dispute between the Netherlands and Zimbabwe relating to the interpretation or application of the Bilateral Investment Treaty they concluded in 1996 (entry force in 1998) may be submitted to the International Centre of the Settlement of Investment Disputes.
Is this statement true or false?

Question 3

The application of Art. 6(1) of the European Convention on Human Rights may be subject to limitations.
Is this statement true or false?

Question 4

The International Criminal Court cannot exercise jurisdiction over nationals from a state that is not a party to the Rome Statute.
Is this statement true or false?

Question 5

The obligation to prevent transboundary harm qualifies as an obligation of result.
Is this statement true or false?

Problem questions

Question 1

Assume that a recent outbreak of chicken flu in South-East Asia has left affected countries with problems to get rid of millions of dead chickens. For various reasons, burning of the corpses is not an option. Australia has become aware of foreign states
dumping dead chicken in the ocean over the last few weeks. International organizations have warned against this practice because chicken flu is highly contagious and can spread from chicken to other animal species, including fish.

Assume that on Monday 7 March 2018, an Australian Navy ship spots several small boats dumping white sack into the ocean north of Australia. The ship captain estimates the small boats are 199 nm from the Australian mainland. The small boats appear to be traveling back and forth to a larger ship, which is positioned about 210 nm from the Australian coast and which sails under the flag of Vietnam.

When the Australian Navy ship sends an order to stop the larger ship, it sails away at full speed. The captain seeks advice on how to proceed.

Assume you are a junior legal officer at the Australian Navy. Your senior legal officer has asked for a short memorandum setting out the enforcement options have available under the United Nations Convention on the Law of the Sea (UNCLOS).

Draft your memorandum of about 500 words in accordance with the prescribed methodology.

Question 2

Assume that on 23 March 2018 the government of the United States decides to impose a ban on the importation of tulip flowers from the Netherlands. According to the government of the United States, tulip bulbs pose a threat to animal life in the United States. Pets, especially cats and dogs, have died after eating tulip bulbs. The decision will have a significant impact on the Dutch flower industry.

Assume you are working as a junior associate at the Ministry of Foreign Affairs of the Netherlands and one of your colleagues at the International Trade Policy department requests a brief memorandum on the legality of the decision of the United States.

Draft your memorandum of about 500 words in accordance with the prescribed methodology.

Question 3

On 4 March 2018, Sergei Skripal and his daughter Yulla were found unconscious in a park in Salisbury in the United Kingdom. Skripal is a former Russian intelligence officer who used to leak intelligence information to the United Kingdom. Both Skirpal and his daughter are still alive but their condition remains critical.

Investigation of the crime scene has indicated that both Skirpal and his daughter have been exposed to a military type of nerve gas. The United Kingdom holds the Russian Federation responsible for the use of nerve gas against Skirpal and his daughter, which amounted, according to Prime Minister May as ‘an unlawful use of force by the Russian state against the United Kingdom’.

Assume that you work as a journalist for a major newspaper and you are requested by the editor – in – chief to write a short memorandum for him/her about the question whether public international law permits the United Kingdom to use force against Russia.

Draft your memorandum of about 500 words in accordance with the prescribed methodology.

Answer indication True or false questions

Question 1

True.

The principle of distinction (Article 48 AP I) obliges the parties to international armed conflicts to distinguish between civilian objects and military objects. Belligerents may only attack combatants and military objects.

A civilian object is defined by Article 52 AP I as an object that is not a military object. A military object is defined in Article 52(2) AP I as an object that makes an effective contribution to military action.

In case of doubt, an object shall be presumed to be a civilian object (Article 52(3) AP I).

The exam room is a prima facie a civilian object but since it is use for military purposes and therefore contributes to military action, it qualifies as a military object.

Question 2

False.

Art 13 BIT regulates the settlement of disputes between the two contracting parties and article 13 provides for arbitration if a dispute arises between both states.

Question 3

True.

According to the ECtHR in the Mothers of Srebrenica case, the right to a court, of which the right to have access to a court is only one aspect (para. 139) is not absolute. The implementation of this right requires regulation and for that purpose states enjoy a margin of appreciation.

A limitation to Article 6(1) may not affect the very essence of the right to have access to a court. Further a limitation must have a legitimate aim and proportionate to achieve that aim.

Question 4

False.

The ICC can extend its jurisdiction over nationals from States not party to the Rome Statute in three instances.

The ICC can exercise jurisdiction over conduct committed on the territory of a State party to the Rome Statute (Article 12(2)(a)) Rome Statute).

Secondly, a non-party State may lodge a declaration with ICC Registrar accepting the jurisdiction of the ICC for a particular crime (Article 12(3) Rome Statute).

Finally, the UNSC can refer situations to the ICC, acting under Chapter VII of the UN Charter, including where crimes were committed on the territory of non-party States or by nationals of non-party States (13(b) Rome Statute).

Question 5

False.

According to the ICJ in the Pulp Mills case, the obligation to prevent transboundary harm requires due diligence (para. 204), which includes the obligation to carry out an environmental impact assessment. This obligation therefore qualifies as an obligation of conduct.

This is confirmed by Article 2 Rio Declaration (responsibility to ensure that activities do not cause damage to the environment of other states) and Article 3 of the 2001 Articles on the Prevention of Transboundary Harm, which provides that states must take all appropriate measures to prevent transboundary harm.

Answer indication Problem questions

Question 1

Introduction

Background.

Can the Australian ship legally exercise enforcement powers over the suspected ships?

Rules

• A coastal state may exercise sovereign rights in its EEZ up to 200 nm from its coast.
• Jurisdiction over exploring, exploiting, conserving and managing living and non-living natural resources AND protection and preservation of the marine environment (56(1)(a) + (b)(iii) UNCLOS).
• A coastal state only has limited enforcement powers in its EEZ. Article 73 allows coastal States to take enforcement measures, such as boarding, inspection, arrest and judicial proceedings, to ensure compliance its laws in relation to the exploration, exploitation, conservation and management of the living resources in its EEZ.
• Further, coastal states have the right of hot pursuit pursuant to Article 111 UNCLOS, if there is good reason to believe the foreign ship has violated EEZ laws (art 111(1) + (2)); at least one of the boats working as a team must be in the EEZ when the pursuit commences – allowing pursuit of mother ship as well (art 111(1) + (4)) and Arctic Sunrise); the coastal state has given a visual or auditory signal to stop at a distance that enables it to be seen or heard by the foreign ship (art 111(4)), which includes radio signals (Arctic Sunrise (paras 258-260)). The pursuit must be continuous and uninterrupted (art 111(1)). The right of hot pursuit ceases once foreign ship reaches territorial waters of another State.

Application

• Australia enjoys sovereign rights in its EEZ extending up to 200 nm from its coastline. These rights include the protection and preservation of the marine environment and conservation of living resources.
• Australia has the right to enforce its regulations relating to the conservation of living resources and the protection and preservation of the marine environment. Dumping of infected animal corpses would be damaging to living resources and the marine environment.
• Australia has therefore the right to undertake enforcement actions against the small boats and the mother ship where it suspects a violation has occurred (Article 73 UNCLOS, including arresting the offending ships).
• Although the mother ship is located outside Australia’s EEZ, the small boats dumping white sacks are located in Australia’s EEZ and since they are fleeing the EEZ towards the mother ship, Australia may pursue these small boats and arrest the mother ship on the basis of the right of hot pursuit (Article 111(1) and (2) UNCLOS). The coast guard’s pursuit must be uninterrupted, and it must signal the small boats and the mother ship that it is pursuing them while the small boats are still in the EEZ.

Conclusion

Australia can lawfully intercept the boat for dumping infected animal carcasses in its EEZ. This can be done under Article 73 UNCLOS in the EEZ, or via hot pursuit (Article 111 UNCLOS) if the small boats flee to the mother ship in the high seas. All the criteria for hot pursuit must be fulfilled for the arrest to be legal.

Question 2

Introduction

Background.

Discussion if the decision of the United States to ban tulip flowers from the Netherlands is in conformity with public international law.

Rules

• The legality of the decision of the United States must be determined by reference to international trade law which is currently primarily regulated within the framework of the WTO. The GATT regulates the trade in goods and prohibits, among other things, quantitative restrictions, such as quota (Article XI(1)).
• Article XX allows states to derogate from their GATT obligations under exceptional circumstances, including the protection of animal life or health (Article XX(b)). Measures undertaken on the basis of these exceptional circumstances must also comply with the chapeau of article XX (US-Shrimp). These measures cannot entail arbitrary or unjustifiable discrimination between countries where the same conditions prevail and may not be a disguised restriction of international trade.

Application

• A ban on the importation of tulip flowers qualifies as a quorum and is prohibited under Article XI GATT.
• In order to rely on the general exceptions as laid down in Article XX(b) GATT, the US must establish that the measure is intended to protect animal life and health and does not entail arbitrary or unjustifiable discrimination or qualifies as a disguised restriction of international trade. Although the measure at first sight appears to be intended to protect pets, in particular cats and dogs.
• The measure appears to entail arbitrary and unjustifiable discrimination as required by the chapeau. It is suggested that tulip bulbs are harmful for pets but the ban is aimed at tulip flowers. Further only tulips from the Netherlands are banned and not tulips from any other state. It may even be qualified as a disguised restriction of international trade. It appears therefore that the measures cannot be justified under Article XX GATT.

Conclusion

The ban on the importation of tulip flowers appears to be prohibited under Article XI GATT and cannot be justified under Article XX(b) to protect animal life/health because the measure appears to entail arbitrary and unjustifiable discrimination.

Question 3

Introduction

Background.

The UK holds Russia responsible for the attack. According to the UK Russia used force against the UK. Does public international law permit the UK to use force against Russia?

Rules

• Main rule: Article 2(4) UN Charter prohibits the use of force against other states. This rule qualifies as a rule of customary international law (Nicaragua Judgment, para. 188 and 190).
• Exception 1: A state may only use force against another state if the UN Security Council authorizes member states to use all necessary means on the basis of Article 39 and 42 UN Charter (see also S/RES/678).
• Exception 2: A state may also use force against another state if it is entitled to invoke the right of self-defense pursuant to Article 51 UN Charter, which reflects customary international law.
• A state is entitled to invoke self-defense if it is subject to an armed attack, which qualifies as the most grave form of the use of force (Nicaragua Judgment, para. 191), which includes the action of regular armed forces but also the sending of irregular forces which carry out acts of armed force against another state (Nicaragua Judgment, para. 195). The armed attack must also be attributed to another state (Wall Opinion, para. 139).
• Further a state using force in self-defense must meet the unwritten requirements of necessity and proportionality (Nicaragua Judgment, para. 194).
• Finally, the victim state must report the armed attack to the Security Council (Article 51 UN Charter).

Application

• The UK may only use force against Russia if the Security Council has authorized all necessary measures or if it is entitled to self-defense. The Security Council has not given such authorization, which means that the UK may only use force against Russia if it is entitled to use force in self-defense.
• The UK is entitled to use force in self-defense if it establishes that the attack in Salisbury against Skripal and his daughter can be attributed to Russia and amounts to the most grave form of the use of force and can be attributed to Russia. The UK holds Russia responsible for the attack in Salisbury but it has refrained from qualifying the attack as an armed attack. Instead, the UK stated that Russia used force against the UK. This means that the UK may not use force against Russia. Even if the UK would later establish that the attack did amount to an armed attack, the UK will have to establish necessity to defend itself.

Conclusion

The use of force is generally prohibited under public international law. The UK may only use force against Russia if it is entitled to the right of self-defense. In view of the character and qualification of the attack by Russia in Salisbury as a use of force, the UK is not entitled to use force in self-defense.