Work group practice questions 1 16/17 - Public International Law - UU

These questions are based on workgroups from 2016/2017

Questions

Question 1

The international legal order is decentralized. Explain what this decentralized nature means. How is this reflected in the way law is made, enforced and disputes are settled? Make a comparison with the situation in the Dutch Legal order.

Question 2a

For many years, North Korea has been testing long-distance missiles. Tests have shown that these missiles could hit the territory of the United States. North Korea also conducts nuclear tests, and it continuously makes aggresive speeches directed against the US. Leader Kim Jong Un was present at the most recent long-distance missiles test, and said the missiles would help 'strike great horror and terror into the hearts of the US'. The US does not decide to wait for an actual attack, but decides to attack North Korea as a means of self-defence. The US bombards the basis in North Korea from which the long-distance missiles can be fired. The base is destroyed, and twenty soldiers operating the base are killed. The next day, the US notifies the Security Council of the bombardment.

Which requirements must be met before a state can invoke self-defence? Mention relevant articles and/or case law.

Question 2b

In your opinion, did the US rightfully invoke self-defence in this case?

Question 3a

Midkemia issued the following statement when acceding to the Convention on the Rights of the Child (CRC):

Declaration by Midkemia

The Government of Midkemia reserves the right not to apply any provision or articles of the Convention that are incompatible with religious laws applicable in Midkemia.

Article 51 of the CRC states that 'a reservation incompatible with the object and purpose of the present Convention shall not be permitted.' Kelewan responded with the following statement:

The Government of Kelewan considers that the reservation made by the Government of Midkemia, due to its very broad scope and unidentified character, is incompatible with the object and purpose of the Convention and thus not permitted under article 51 paragraph 2 of the Convention. The Government of Kelewan does not consider this objection to preclude the entry into force of the Convention between the Kingdom of Kelewan and Midkemia.

Is the statement by Midkemia an interpretative declaration or a reservation? Is it valid? Explain your answer and refer to the relevant sources of international law.

Question 3b

What exactly is the treaty relationship between Midkemia and Kelewan when it comes to the CRC?

Question 4a

Rather controversial means of intrusive action by states are the humanitarian intervention and the Responsibility to Protect. Describe in your own words what a humanitarian intervention is. Try to define it in legal terms by placing the concept in the entire framework of peace and security and give two arguments in favour of humanitarian interventions and two arguments against it. You can use past humanitarian interventions as examples.

Question 4b

Paragraph 138 and 139 of the General Assembly World Summit Outcome Document of 2004 read as follows:

Responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity

138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.

139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.

Would you argue that the concept of RtoP is different than that of humanitarian intervention or not? Why?

Question 4c

In Libya, RtoP was used as the basis for international action against the regime of Khadaffi. In the case of Syria, voices were heard arguing that the same basis should be invoked to put a stop to the violence there. Why has RtoP not (yet) been invoked in Syria?

Question 5

Look up General Assembly Resolution 3314 (1974) on the definition of ‘aggression’. How does this Resolution contribute to the entire set of rules and principles on peace and security? And what are the weaknesses of the Resolution?

Question 6a

The Colombian government has been battling the armed group Fuerzas Armadas Revolucionarias de Colombia (FARC) for years now. This is happening mainly on Colombian territory but the FARC also has camps in Ecuador from which it conducts attacks on Colombian territory. On the 1^stof March, 2008, the Colombian military counter-attacks a FARC-camp on Ecuadorian territory. During this attack, Raul Reyes, one of the main leaders of FARC, is being killed.

Does international law allow for such an armed intervention?

Question 6b

During the attack on the FARC-camp in Ecuador, the Colombian military confiscates the computer of Raul Reyes. In May 2008, Interpol confirms that the many e-mails and other documents found on the computer are authentic. These e-mails and documents appeared to demonstrate that Venezuelan President (at the time) Hugo Chavez offered the FARC up to 300 million US dollars and oil that the FARC could sell with a profit. The documents also suggested that the Venezuelan military helped the FARC to obtain small arms and that it facilitated meetings with arms dealers. If these allegations are true: in what way(s) was Venezuela violating international law by giving such support to FARC?

Question 6c

Would the support given by Venezuela to the FARC give Colombia the right to use force against Venezuela? Explain your answer.

Answers

Question 1

• The international legal system is characterized as decentralized because of the absence of a concentration of power, or a central authority responsible for establishing, applying and enforcing rules of international law.

• International law consist of a community of equal parties (States), that make the rules themselves (by treaty and custom), settle their own disputes (arbitration and jurisdiction only with the consent of the States concerned), and impose sanctions on each other (countermeasures).

• In the Dutch legal order, the rules are made by the legislater, disputes are settled by the courts, and sanctions are imposed by the authorities.

Question 2a

• See art. 51 UN Charter and the ICJ's Nicaragua case.

• Self-defence must be a reaction to an actual or imminent armed attack.

• Self-defence must be necessary (no other option available).

• The use of force must be proportional to the armed attack.

• The use of force as self-defence must be reported to the Security Council.

• And the right to use force ends when the Security Council takes appropriate measures.

Question 2b

• There was no actual armed attack, so you need to look at criteria for anticipatory self-defence.

• Argue whether the attack was imminent, i.e. 'instant, overwhelming, leaving no choice of means and deliberation' (Caroline criteria). Since North Korea has been conducting tests and threatening the US for decades, it is hard to argue that an attack is now imminent.

• The self-defence was necessary, as negotations and other peaceful means to respond have proved futile.

• The use of force was proportional: only the base destroyed, no civilians killed.

• The use of force as self-defence was reported to the Security Council, and the US only carried out this one military strike.

Question 3a

• Midkemia does not call its statement a 'reservation', but that is not decisive.

• What matters is whether the statement purports to modify the legal effect of the provisions of the CRC. See art. 2, paragraph 1 (d) VCLT.

• From the text of the reservation, it appears that Midkemia wants to exclude the application of all provisions of the CRC if those provisions are incompatible with the religious laws that apply in Midkemia. Its intended purpose is thus modification, and thus it is a reservation.

• The reservation made by Midkemia may be considered incompatible with the object and purpose of the Treaty because it can exclude the application of all provisions of the Convention. As a result, the objective of the Convention cannot be realized. It is thus an invalid reservation; see 19 (c)  VCLT.

Question 3b

• Kelewan considers the reservation - rightly - as a forbidden one, because it is not consistent with the object and purpose of the Convention on the Rights of the Child.

• Kelewan regards Midkemia as a full party to the Convention; in Kelewans view, Midkemia cannot rely on the reservation (Kelewan regards the reservation as non-existent).

• Midkemia can choose to withdraw the reservation, or withdraw from the Convention.

• If Midkemia takes no action, Midkemia is a party to the whole treaty, and the reservation is automatically void because it is contrary to the object and purpose of the Treaty.

Question 4a

Humanitarian intervention is the threat or use of force by one or more States acting without authorization from the Security Council. States will use this to prevent attacks on their own territory and to prevent attacks on their civilians. They could also use it to help a friend or neighbour who is suffering from attacks. However, since the Security Council has not given authorization, it is actually illegal what they do and it could violate more people than it would if there wasn't an intervention. Examples are Kosovo and Iraq.

Question 4b

This responsibility to protect is different from humanitarian intervention, since this is with authorization of the Security Council (through the Security Council), where there is no authorization in the case of humanitarian intervention.

Question 4c

In the case of Syria, it was not the regime itself that committed genocide, war crimes, ethnic cleansing and/or crimes against humanity. It is IS that commits these, or some of these, crimes, not the government. The regime of al Assad is even helping with fighting IS.

Question 5

In most cases where the principles on peace and security are being violated, there has been an aggression. This resolution says aggression can only be committed by States, while there are also armed groups, such as IS, that also commit aggression. According to this resolution, that is not possible.

Question 6a

There is one State using force on the territory of another State. International law does allow such an armed intervention, if this is an act of self-defence (article 51 of the UN Charter), if an armed attack occurs. In this case there has been several armed attacks (the FARC also has camps in Ecuador from which it conducts attacks on Columbian territory). Columbia could use its right to anticipatory self-defence. The Caroline principle must be applied here, which says that there has to be an instant, overwhelming attack which leaves no time for deliberation. Columbia could not fight against Ecuador, only the rebels, check if the rebels have something to do with the State.

Question 6b

There is probably an existence of any threat to the peace, breach of the peace or act of aggression.

Question 6c

Columbia could not use its right of self-defence, since there has been no armed attack by Venezuela.