Examtests with the 2nd edition of International Law by Henriksen

What are the foundations and structure of international law? - ExamTests 1
What are the sources of international law? - ExamTests 2
How does the law of treaties work? - ExamTests 3
Who are the actors in the international legal system? - ExamTests 4
How is the issue of Jurisdiction organized under international law? - ExamTests 5
What is the role of immunity from national jurisdiction and diplomatic protection in international law? - ExamTests 6
What is the state's responsibility under international law? - ExamTests 7
What is the international law of the sea? - ExamTests 8
What is the role of international human rights? - ExamTests 9
What is the role of international environmental law? - ExamTests 10
What is international economic law? - ExamTests 11
What are the international regulations on the use of force? - ExamTests 13
What are the laws on armed conflicts? - ExamTests 14
What is international criminal law? - ExamTests 15

What are the foundations and structure of international law? - ExamTests 1

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 2

There are a number of functions of international law. Name and shortly describe three functions of international law.

Question 3

When we talk about ‘international law’ we actually mean ‘public international law’ which must be distinct from ‘private international law’. Explain the difference between public international law and private international law.

Question 4

The field of public international law consists of many more specific fields. Name and describe at least three of these fields.

Question 5

As a law student, you will follow courses on European Law, being the law of the European Union. Does this field of law fall under public international law? Explain why or why not.

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 2

Order and stability, justice and dispute-settlement. Peace has to do with all these three things. The main purpose of international law is peaceful coexisting of States.

Question 3

Public international law regulates relations between states, private international law regulates relations between individuals or legal persons (in different countries). The laws of more than one country may be applied. Private international law is actually part of the domestic system, every state has their own private international law system.

Question 4

General international law applies to a greater majority of States in all regions of the world, for example the UN Charter on the Rights of a Child. Regional international law may also apply to a considerable number of States, but the States are usually located within a single region of the world. Particular international law refers mainly to rules that are accepted by only a few States, but which are not confined to a particular region of the world, for example the European Union.

Question 5

European law does fall under public international law, because one part of it regulates relations between States, but in one region of the world, so it is regional international law. On the other hand, European law is not only relations between States, but also relations between individuals and legal persons, so it is also private international law. The EU is based on treaties. The fields are human rights, international trade, the law of the sea, criminal law, refugee law, climate/environmental law.

What are the sources of international law? - ExamTests 2

Questions

Question 1

Read the ICJ’s North Sea Continental Shelf Case and answer the following questions on customary international law. Which elements determine whether a rule of customary international law exists?

Question 2

See the case of question 1 of this chapter.

What did the ICJ say about establishing these elements? Also mention the relevant paragraphs of the case.

Question 3

See the case of question 1 and 2 of this chapter.

If a state disagrees with a certain practice and makes this clear from the moment the practice starts developing into a customary norm, what would be the effect on the existence of that customary norm? Involve two perspectives in your answer: what would be the effect on the existence of that customary norm in general and what would be the effect for the state that disagrees with the norm?

Question 4

What is a peremptory norm (ius cogens)? Give an example

Question 5

Read article 27 of the UN Charter. Explain in your own words when a Resolution of the Security Council is adopted.

Question 6

In October 1997, a draft-Resolution (on a non-procedural matter) was put to vote in the Security Council. Ten of the states in the Security Council voted in favour of the draft-Resolution. China, France, the Russian Federation and two other states abstained from voting. The conclusion of the chairperson was as follows: with ten votes in favour, none against, and five abstentions, the Resolution is adopted. Before this particular vote and afterwards as well, it happened more often that a Resolution was adopted while some of the Council’s permanent members abstained from voting.

Did the chairperson apply article 27 UN Charter correctly?

Answers

Question 1

General practice and the acceptance of this practice of law.

Question 2

"An indispensable requirement would be that within the period in question, short thought it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved."

Question 3

For the existence of that customary norm in general it would not have any effect. For the existence of that customary norm for the state that disagrees with the norm, it would mean that this customary norm is no longer applicable to this state. The customary norm cannot be applied if one the countries does not agree with it as said in Nicaragua case. The question in this case was: Are we going to apply treaty law, even if not all the parties have recognized this treaty? In this case, the Court accepted that treaty provisions can become rules of customary international law that will be binding on non-parties to the treaty. The only condition to be met, is that the treaty must be fundamentally norm-creating in character, such as could be regarded as forming the basis of a general rule of law. If a State does not agree with a norm from the beginning, it is called the persistent objector, it isn't bound to the customary international law.

Question 4

A peremptory norm is the most fundamental norm in the hierarchy of norms. For example, Article 26 of the International Law Articles on State Responsibility for Internationally Wrongful Acts, 2001, which says that there must be no genocide, no slavery. No derogation is allowed. States do not have to agree with a peremptory norm, no consent is needed, all States are bound by it anyway. It's basically State practice, but State first have to agree with this norm, so in some way consent is needed to become State practice.

Question 5

Each member of the Security Council has one vote when they have to vote on a Resolution of the Security Council. So in total there are fifteen votes, since there are fifteen members. Decisions on procedural matters are adopted if at least nine members of the Security Council have voted in favour of the decision. These nine votes include the votes of the permanent members. Decisions on all other matters are also adopted if at least nine members vote in favour of the decision. A party by a dispute shall abstain from voting, so if one of the members is party in a conflict, this party will not vote.

Question 6

No, the chairperson did not apply article 27 correctly. Only if a State is a party in a dispute they shall abstain from voting. A State will not abstain for another reason.

Question 1

Read the ICJ’s North Sea Continental Shelf Case and answer the following questions on customary international law. Which elements determine whether a rule of customary international law exists?

How does the law of treaties work? - ExamTests 3

Questions

Question 1

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 2

See the case of question 1 of this chapter.

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

Question 3

After negotiating a treaty text, the VCLT provides several ways in which a state can consent to be bound by the treaty.

The United States (US) participated in the negotiations of the Treaty of Rome (the Statute of the International Criminal Court). The text of the Treaty of Rome was adopted by the ‘Rome Conference’ (officially: the United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court) in 1998. After the text was adopted, each individual state can – if it wishes to do so – sign the text. The US signed the Treaty of Rome on 31 December 2000. Consider the VCLT and the Treaty of Rome. What is the legal implication for the US of signing the Treaty of Rome?

Question 4

On 6 May 2002, the Secretary-General of the UN received the following declaration from the US:

"This is to inform you, in connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary’s status lists relating to this treaty.”

Do you think this declaration changes your answer given under a?

Question 5

Tajikistan and Mexico are parties in the Convention on the Rights of the Child. What is the difference between the ways in which these states have become state parties? Mention the relevant provisions of the VCLT and the Convention of the Rights of the Child.

Question 6

States can make reservations or declarations when becoming a party to a treaty. The United Arab Emirates (UAE) made the following declaration upon becoming a party to the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT):

The United Arab Emirates (…) confirms that the lawful sanctions applicable under national law, or pain or suffering arising from or associated with or incidental to these lawful sanctions, do not fall under the concept of ‘torture’ defined in article 1 of the Convention or under the concept of cruel, inhuman or degrading treatment or punishment mentioned in this Convention.

Where in the VCLT can you find the rules on reservations to treaties? Consider these rules in the VCLT and look into the CAT: is this reservation by UAE allowed? Why or why not?

Question 7

See the case of question 6 of this chapter.

The Netherlands responded to the reservation by UAE with the following statement:

The Government of the Kingdom of the Netherlands considers that reservations of this kind must be regarded as incompatible with the object and purpose of the Convention and would recall that, according to customary international law, as codified in the Vienna Convention on the Law of Treaties, reservations incompatible with the object and purpose of a treaty shall not be permitted. The Government of the Kingdom of the Netherlands therefore objects to the reservation of the United Arab Emirates to Article 1 of the Convention. This objection does not preclude the entry into force of the Convention between the Kingdom of the Netherlands and the United Arab Emirates.

What can you say about the applicability of the treaty:

i. For the UAE (is it a party to the full Convention)?

ii. Between the Netherlands and the UAE?

iii. Between the UAE and other state parties who did not respond to the reservation?

iv. Between the UAE and non-party states?

Question 8

See the case of question 6 and 7 of this chapter.

In its declaration the Netherlands refers to customary law and not merely to the relevant VCLT provision. Why would the Netherlands have done so?

Question 9

The VCLT provides some general rules on the termination of treaties.

In which ways can a state end its obligations stemming from a certain treaty according to the VCLT?

Question 10

The ICJ case of Hungary v. Slovakia (the Gabcikovo-Nagymaros Project Case) deals with (a) particular way(s) of termination of a treaty by one of the parties. What was the dispute in the case and what did the Court rule on the termination of the treaty?

Question 11

Read the newspaper article titled ‘Indonesia to Australia: ‘You Signed the UN Convention on Refugees. Act on it’. Voices are increasingly heard arguing that a state must withdraw from the Refugee Convention, especially since the increase in refugee streams in Europe and South East Asia. In Australia, the Prime Minister Tony Abbott prompted the idea that Australia should withdraw (see the newspaper article ‘Should Australia withdraw from the Refugee Convention?’). If Australia really wishes to withdraw from the Refugee Convention, what must it do to achieve this and at what point would Australia be no longer a party to the Convention?

Question 12

Calls are increasingly heard (e.g. in Australia, the Netherlands, Denmark and other European states) to adjust the Refugee Convention in such a way that state parties are only obliged to receive refugees from their own region. Consider the rules on amending treaties in the VCLT and in the Refugee Convention. How can the treaty be amended and would there be any chance that the Refugee Convention is adjusted in this way?

Question 13

On 24 December 2014 the Arms Trade Treaty has entered into force.

I. When was the treaty was adopted, signed, or ratified by the Netherlands?

II. Where was the treaty adopted, signed or ratified by the Netherlands?

III. When entered the treaty into force for the Netherlands?

Question 14

See the case of question 13 of this chapter.

Did the Netherlands have to make any adjustments in its national laws before it was able to become a party to the ATT?

Answers

Question 1

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 2

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 3

Lex specialis: Rome Statute art. 125.
Lex generalis: VCLT. Can the VCLT be used? -> article 1-4 VCLT. US is no party to the VCLT, but the VCLT is codified customary law, so you can still use it using the customary law.

Question 4

Yes, when the US said they wanted to sign the treaty, they would become a party to the treaty, which is obviously not the case. The US doesn't want to be bound by the treaty, with this declaration they make clear they want to violate the object and purpose of the Statute. They say the signature has no meaning and they kind of withdrew from the Statute.

Question 5

Mexico has signed and ratified the Convention on the Rights of the Child, while Tajikistan accessed the Convention later. Mexico was present at the negotiations, Tajikistan did not. Tajikistan later decided they wanted to be party of the Convention, so they acceded. Articles: 14, 15 VCLT; 46,47,48 CRC.

Question 6

Part II section 2 of the VCLT deals with the rules on reservations to treaties. According to article 2, a reservation is a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State. There is no article in the CAT that deals with reservations. Article 19 VCLT states three ways in which a reservation may not be formulated: when the treaty prohibits reservations, when the treaty provides only specific reservations or when the reservations are incompatible with the object and purpose of the treaty. Since there are no articles dealing with reservations in the CAT, you must use the third sentence of article 19 VCLT. The reservation of the UAE falls under the third point, because in their reservation they say the same thing as stated in the last sentence of article 1 CAT, namely that pain or suffering arising from lawful actions does not fall under the concept of torture. "It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions." Therefore, the reservation by the UAE is not allowed, because the reservation is incompatible with the object and purpose of the Convention. Reservations incompatible with the object and purpose of a treaty shall not be permitted according to article 19 of the VCLT. The UAE have some sanctions that do inflict pain, they say these things do not fall under the concept of torture. The UAE is not a party of the Convention. The VCLT entered into force in 1980, the CAT in 1987.

Question 7

i. The UAE is a party to the full Convention including the reservation.

ii. The Netherlands do not accept the reservation, because it is prohibited. According to the ICJ there is no treaty if you make a reservation that is prohibited. The ECtHR ignores the reservation if it is prohibited, there is still a reservation. The Netherlands choose the route of the ECtHR.

iii. If you do not reject, you accept the reservation. So the CAT enters into force including the reservation for the States that did not rejected the reservation and the UAE.

iv. If you are outside the treaty, you have nothing to do with the treaty, so you can't reject or accept the reservation.

Question 8

The UAE is not a party of the VCLT, so they can't apply the VCLT, only customary law.

Question 9

The termination of a treaty or the withdrawal of a party may take place in conformity with the provisions of the treaty or at any time by consent of all the parties after consultation with the other contracting States, according article 54 VCLT.

Question 10

The dispute was that Hungary and Slovakia worked together to prevent floods, improving the river navigability and producing clean energy near the Danube. This was initiated by the Budapest Treaty of 16 September 1977 between the Czechoslovak Socialist Republic and the People's Republic of Hungary. A part of the project has been finished in Slovakia, because Hungary suspended and tried to terminate the project due to environmental and economic concerns. Slovakia continued the project with an alternative solution, Variant C, which involved diverting the Danube. Both countries went to the International Court of Justice in The Hague. The Court found that both countries has breached their legal obligations, thus each party must compensate the other Party for the damage caused by its conduct.

Question 11

According to article 54 VCLT, the termination of a treaty or the withdrawal of a party may take place in conformity with the provisions of the treaty or at any time by consent of all the parties after consultation with the other contracting States. According to article 56, a treaty, which contains no provision regarding its termination and which does not provide for denunciation or withdrawal, is not subject to denunciation or withdrawal, unless it is established that the parties intended to admit the possibility of denunciation or withdrawal of a right of denunciation or withdrawal may be implied by the nature of the treaty. A party shall give not less than twelve months' notice of its intention to denounce or withdraw from a treaty. The Refugee Convention does not deal with a withdrawal, which means that article 56 VCLT must be applied. Australia shall give not less than twelve months' notice of its intention to withdraw from the Refugee Convention. After these twelve months, Australia is no longer party of the Convention.

Question 12

According to article 39 VCLT, a treaty may be amended by agreement between the parties. A proposal must be sent to all the contracting States, each one of which shall have the right to take part in the decision as to the action to be taken in regard to such proposal and the negotiation and conclusion of any agreement for the amendment of the treaty. Every State entitled to become a part to the treaty shall also be entitled to become a party to the treaty as amended. The amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement. The Refugee Convention does not deal with amendments. Since the Convention does not deal with any amendment, there is a chance that the Refugee Convention is adjusted by an amendment.

Question 13

i. The treaty was signed by the Netherlands on the 3th of June 2013. The Netherlands ratified the treaty on 18 December 2014.

ii. The treaty was signed in New York, ratified in Wassenaar

iii. The treaty entered into force on 24 December 2014 for the Netherlands.

Question 14

Yes, the Wet Strategische Diensten, Besluit strategische goederen en het Uitvoeringsbesluit Douane- en Accijnswet Bes had to be changed before it was able to become a party to the ATT.

Question 1

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:

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.

Who are the actors in the international legal system? - ExamTests 4

Questions

Question 1

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)

Question 2

California – one of the states of the United States of America (US) – strongly opposes the new President’ s policies and rules. In a referendum, the people of California can express their will to become independent from the US and also express who they think must be the first President of California. From the referendum it follows that 95% of the people of California wish to become independent and 83% of the people would like to see former Governor Arnold Schwarzenegger as the first President of California. After taking some time to prepare the transition, the Republic of California is declared independent by the new President of California, Mr Schwarzenegger. Already in the first week of the independence, around 100 States express their congratulations to the newest State in the world and communicate their wishes to enter into all kinds of commercially interesting agreements and treaties.

Argue, by applying the relevant criteria, whether you think the Republic of California can be considered a State or not.

Question 3

See the case of question 2 of this chapter.

Do you think that the unilateral declaration of independence by California was a violation of international law? Motivate your answer.

Question 4

The relationship between Israel and the territories usually referred to as Palestina (also sometimes referred to as Occupied Palestinian Territories, OPT) is very complex and subject of long-lasting conflict and dispute. Recently, Palestina is aiming for international recognition as a state. Argue whether you think Palestina is a state or not.

Answers

Question 1

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.

Question 2

This question asks for the application of the Montevideo criteria on statehood. The division of points:

Mentioning the Montevideo Convention: 0.5 points;
Territory: 1.5 points when mentioned and described and/or applied – 1 point when only mentioning the element;
Population: 1.5 points when mentioned and described and/or applied – 1 point when only mentioning the element;
Effective government: 1.5 points when mentioned and described and/or applied – 1 point when only mentioning the element;
Capacity to enter into relations: 1.5 points when mentioned and described and/or applied – 1 point when only mentioning the element;
Reference to the theory of recognition – name the declaratory and constitutive theories: 1 point per theory;
Applying a theory correctly: 0.5 points;
Clear conclusion to the question: 1 point.

Question 3

There is no explicit prohibition of unilateral declaration under international law: 5 points. This has been clearly established in the ICJ Kosovo Advisory Opinion. For merely mentioning this case: 2 points. Explaining in more detail what has been decided in the case: 5 points.

Question 4

The criteria for statehood are: defined territory, permanent population, effective government, capacity to enter into international relations and recognition (not necessary) according to the Montevideo Convention. Palestine has a permanent population. There is some discussion about the territory of Palestine, since the border between Palestine and Israel is disputed, but the territorial integrity has been recognised and confirmed in UN Security Councils, the General Assembly and the ICJ. The Palestinian government only has control over parts of their territories. However, in some other countries, like Kosovo, the government doesn't have power over the full territory, but is recognised as an effective government. So, Palestine has a government, Palestine has signed and ratified quite some international agreements, but the Oslo Accords excluded basic functions of statehood from the Palestinian government. They are a member to the Rome Statute, so they have to ability to enter into relations with other states. 136 states have recognised Palestine. On the basis of these statements, Palestine could be considered a state.

Question 1

How is the issue of Jurisdiction organized under international law? - ExamTests 5

Questions

Question 1

One of the steps Palestina took in its quest is to ratify the Rome Statute of the International Criminal Court (ICC).

Read the newspaper article ‘Palestinians Join International Criminal Court, But Tread Cautiously at First’. Here, first the suggestion is made that Palestina may refer war crimes and crimes against humanity committed by Israel during the 50-day war of 2014 (last week, you have also read Human Rights Council Resolution S-21/1 that was adopted in reaction to this conflict). Would it indeed be possible to do this? In other words, would the ICC have jurisdiction in this case?

Question 2

See the case of question 1 of this chapter.

Another issue raised in the article is that it is now possible to bring the war crimes committed by Hamas during the same war before the Court. Would the ICC have jurisdiction in that case and who can bring the case before the Court?

Question 3

Read the newspaper article ‘Abbas Threatens to take Israel to ICC over Tax Payment’ (the abbreviation ‘PA’ in this article stands for Palestinian Authorities). In the Rome Statute, the material jurisdiction (what crimes may be brought before the court) of the ICC is clearly defined. Do you think that Abbas will have any chance of success in bringing this case before the ICC? In your answer, involve the crimes that may be brought before the court.

Answers

Question 1

According to Article 5 of the Rome Statute, the ICC has jurisdiction in respect to the following crimes: the crime of genocide, crimes against humanity, war crimes and the crime of aggression. Article 11 says the ICC only has jurisdiction with respect to crimes committed after the entry into force of the Rome Statute, article 12 and 17. The ICC has jurisdiction in this case. Palestine became member of the ICC in 2015, so the ICC has no jurisdiction because the war was in 2014, however, Palestine accepted the jurisdiction of the ICC. The war happened on the territory of Palestine. In this case the ICC would investigate the story and then come out with some people who did it, not Israel, because the ICC can only accuse individuals. The ICC has jurisdiction.

Question 2

The ICC would have jurisdiction in that case, if Palestine brings the case before the Court. However, Hamas is not a State, but a group of people. This means that the ICC would have to investigate different persons from Hamas. They cannot try Hamas as a group, but they can try the individual members of Hamas. Article 13 shows the ways how someone can ask the Prosecutor to investigate something. A State party can do this, as well as the Security Council (state doesn't have to be a member of the ICC) and the Prosecutor can start an investigation for a State party himself.

Question 3

Abass does not have any chance of success in bringing this case before the ICC, because only the crime of genocide, crimes against humanity, war crimes and the crime of aggression can be brought before the ICC, according to Article 5 of the Rome Statute. In these crimes, nothing is mentioned about not paying enough money.

Question 1

One of the steps Palestina took in its quest is to ratify the Rome Statute of the International Criminal Court (ICC).

What is the role of immunity from national jurisdiction and diplomatic protection in international law? - ExamTests 6

Questions

Question 1

In the International Court of Justice Arrest Warrant Case (Democratic Republic of Congo (DRC) v. Belgium), Belgium issued an arrest warrant for the arrest of Mr Yerodia, the Minister of Foreign Affairs of the DRC at the time. The reason for this was incitement of racial hatred by Mr Yerodia against Tutsi’s in Eastern DRC. Belgium was not allowed to prosecute Mr Yerodia. Determine whether Mr Yerodia could possibly be tried by the International Criminal Court for these acts by considering whether the Court has personal jurisdiction and material jurisdiction (so there is no need to go into temporal jurisdiction). Mention relevant treaty provisions. The DRC ratified the Rome Statute in April 2002.

Question 2

What are the facts of the Arrest Warrant-case? Who started the case before the ICJ against whom and why?

Question 3

See the case of question 2 of this chapter.

What did the Court say about the immunity of Mr Yerodia?

Question 4

See the case of question 2 and 3 of this question.

How did the Court come to this conclusion?

Answers

Question 1

Personal jurisdiction (total 10 points):

Mentioning Art. 12(2) under a and b Rome Statute: 2 points;
Applying art. 12(2) under a and b Rome Statute (mentioning whether the act was committed on the territory of a state party or committed by a national of one of the state parties): 6 points (3 points per element);
Conclusion - the ICC has personal jurisdiction: 2 points.

Material jurisdiction (total 10 points):

Mentioning the basis of art. 5 Rome Statute: 2 points;
Checking genocide: art. 6 Rome Statute – It is doubtful that this would be genocide as the intent to destroy part of a population must be proven. Nonetheless the immediate context was the Rwandan genocide so if it is argued that this is an act of genocide and supported with sound arguments, it can be plausible: 2 points;
Checking crime against humanity: art. 7 Rome Statute – there must be a widespread and systematic attack against the civilian population with knowledge from the state. Next, there must be one of the acts mentioned in the article. From DRC perspective, there is doubt that there is a widespread and systematic attack, although again, the Tutsi’s are targeted quite heavily in Eastern DRC. If a crime against humanity, it could be art. 7(1) under h; persecution of a group: 2 points;
Checking war crimes: art. 8 Rome Statute – at the time of these acts an armed conflict was off and on, making it possible to argue that there was a war-situation. At the same time, it is also easy to argue that there was not a full-fledged armed conflict going on. If a war situation was in place, there is still the question what the crime would be, possibly art. 8(2) b(i): 2 points;
Conclusion: the ICC does/might/does not have material jurisdiction, based on how the points mentioned here are argued: 2 points.

Further clarifications:

The term ‘personal jurisidiction’ is used as Klabbers uses it and we have used this in class as well. If someone mentioned art. 12 Rome Statute as territorial jurisdiction, this has not been considered incorrect.
Personal jurisdiction means having jurisdiction over the person before the court, not whether a person is a natural person or whether a person enjoys immunity (the Rome Statute excludes immunity for state officials anyway).
Points were granted for merely mentioning the crimes in art. 5 Rome Statute even with little clarification.
The crime of aggression is difficult to apply as it is typically a crime that is committed by states.
Temporal jurisdiction was excluded from the question yet many went into this (the fact that the crimes were committed before entry into force of the Rome Statute).

Question 2

Belgium accused the Minister of Foreign Affairs of the Democratic Republic of Congo of having committed war crimes and crimes against humanity. Therefore, they issued an arrest warrant on the 11^th of April 2000 under the domestic law of Belgium called "law of universal jurisdiction", which allowed Belgium to judge people accused of war crimes, crimes against humanity or genocide. Congo stated that the Minister had immunity from criminal process being absolute or complete, that means they are subject to no exception. Congo started the case before the ICJ against Belgium, because they thought Belgium was not right about accusing the Minister, who could not have been accused because of his immunity.

Question 3

The Court would observe at the outset that in international law it is firmly established that a Minister of Foreign Affairs enjoys immunity from jurisdiction in other States, both civil and criminal. The Court concludes that the function of a Minister of Foreign Affairs are such that, he or she, when abroad, enjoys full immunity from criminal jurisdiction and inviolability.

Question 4

The Court looked to customary international law, because there are no provisions specifically defining the immunities enjoyed by Ministers of Foreign Affairs.

Question 1

What is the state's responsibility under international law? - ExamTests 7

Questions

Question 1

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^s^tof 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.

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 2

Read the newspaper article titled ‘US Official Dies in Libya Consulate Attack Benghazi’. A US-made film criticising Islam released on the internet caused much civil unrest in the MENA (Middle East and North Africa)-region, presumably also triggering the attack on the consulate in Benghazi.

In this case, is the state of Libya responsible for the attack and therefore for the resulting death of the US official (which was the US ambassador in Libya) and for the damage to the consulate in Benghazi? Apply the rules of the ARSIWA and motivate your answers (give arguments to support your answers and choices).

Question 3

See the case of question 2 of this chapter.

Imagine that the situation was different than the real situation as described in the newspaper article: there were very clear signals that an attack on the consulate was planned and on its way of being executed. The US warned Libya that the consulate would be attacked soon and that more security is essential. Despite these warnings and Libya’s own intelligence basically confirming that the attack will take place soon, the state does not increase the security. Then the attack takes place, resulting in the death of the ambassador and damage to the building.

In question 13a you have applied the rules of the ARSIWA to determine whether Libya is responsible for the attack and/or the death of the US official. Apply the same rules on the situation described above and argue whether in this situation Libya is responsible for the death of the ambassador and damage to the building or not, so whether these different circumstance will change the answer given under question 13a.

Question 4

See the case of question 2 and 3 of this chapter.

If Libya could be held responsible for the attack on the consulate, what would be the most appropriate form(s) of reparation for (i) the death of the ambassador and (ii) the damage to the consulate? And what if (iii) the consulate building was completely destroyed?

Question 5

See the case of question 2, 3 and 4 of this chapter.

What if Libya did not know, and could not have known, about the attack on the consulate and had all the security in place that would have been sufficient for an ordinary situation, would it then be responsible for the attack? Why or why not? Do you think – based on the newspaper article – that Libya could use this excuse in this case?

Question 6

In the Hostage Case by the ICJ Iran was held responsible for not putting an end to the hostage situation at the US embassy. Why did the Court come to the conclusion that the act (or omission) of not ending the hostage situation was attributable to the state in this case? Mention the relevant articles of the ARSIWA.

Question 7

See the case of question 6 of this chapter.

What was the main difference between the ICJ Hostage case and the Benghazi attack when looking at the question of state responsibility?

Answers

Question 1

Question 2

Art. 2: there is an action in this case, namely an attack that resulted in damage. This act is not attributable to the State, because the action did not have governmental authority. The act does constitute a breach of an international obligation of the State. The death of an ambassador is a breach under article 29 of the Vienna Convention on Diplomatic Relations. This article says that the receiving State shall prevent attacks on diplomats, so there is a breach of international law. The attacks and damage of the consulate is regulated in the Vienna Convention on Consular Relations, under article 31(3) to be precise. This says that the receiving State shall protect the consular premises against damage. Libya is not responsible for the attack and therefore the resulting death of the US official and for the damage to the consulate in Benghazi, because the acts are not attributable to Libya, even though they are a breach of international law.

Question 3

There is an omission, because Libya fails to do anything. The omission is attributable to the State, because the government fails to act. The State was supposed to act, but they fail to act, art. 4. The omission does constitute a breach of international law. The same articles apply as mentioned above. Libya is responsible for the attack and therefore the resulting death of the US official and for the damage to the consulate in Benghazi, because the omission is attributable to Libya and they constitute a breach of international law.

Question 4

Article 28 says that there are legal consequences of an internationally wrongful act. Article 31 says that there is the possibility of reparation. There are three forms of reparation: restitution, compensation and satisfaction. Libya could compensate the family of the death ambassador by compensation. The damage to the building could be done by restitution and compensation. The consulate building could be done by compensation. Satisfaction can be done almost always.

Question 5

Libya used as excuse that they were overwhelmed, they could use the force majeure, which means that there was an unforeseen action. Libya didn't increase the security measures etc.

Question 6

The Court distinguishes two different situations. The first one is the armed attack on the United States Embassy by militants on 4 November 1979. The second situation is everything happened after the attack. Situation 1: there was an action, namely an attack. This action was not attributable to the State, because it was done by militants and students.

With regard to the first situation, the Court regards the "action" of the Iranian authorities as an omission, because they didn't do anything to prevent it. There is an omission, this omission is attributable to the State, because they were supposed to act and they didn't. There is a breach of international obligation by the omission (67).

Situation 2: The Court argues that the government approved the action and actually took over the operation. There is an action, because the government makes it seem like they did it by themselves. This is attributable to the government, because the government says that the hostages need to stay in the embassy etc. It was a breach of international obligation (77). The Iranian government is responsible for the omission and the action, because they approved and continued it. The government acknowledges and adopts the conduct of the entity as its own (art. 11 ARSIWA). This article was included in the ARSIWA, because if this case. The articles, however, were not written down yet when this case was relevant.

Question 7

Libya was not responsible for the Benghazi attack, because it was not attributable. In the Hostage Case, Iran was responsible, it was not only attributable to Iran, but the government actually took over the whole case.

Question 1

What is the international law of the sea? - ExamTests 8

Questions

Question 1

South Africa has claimed an Exclusive Economic Zone (EEZ) to the fullest extent possible. Suppose that neighbouring Namibia is constructing an artificial island that lies within South Africa’s EEZ. This artificial island is meant for a Namibian research centre intended to do research on the role of climate in the change of water currents around the Cape. South Africa informs Namibia of its mistake in placing this island in South Africa’s EEZ and tells Namibia that it has no right to do this without South Africa’s permission. Namibia responds by saying that within the EEZ, other states enjoy the freedoms of the high seas, including building artificial islands. Which country is right and why? Both states are party to UNCLOS.

Answers

Question 1

South Africa claims that Namibia should have asked for South Africa’s permission and South Africa is right in this:

Reference to Article 60 UNCLOS: 6 points;
Article 60 UNCLOS says that, in the exclusive economic zone, the coastal State (South Africa) shall have the exclusive right to authorize others (in this case Namibia) to construct artificial islands. Authorization (= permission) was thus required: 6 points.
Namibia claims that within the EEZ, other states enjoy the freedoms of the high seas, including building artificial islands. This argument is based on:
- Article 58 UNCLOS giving a list of rights and duties of other States (like Namibia in this case) in the exclusive economic zone of a State (South Africa in this case): 3 points;
- This list includes most of the freedoms referred to in article 87 UNCLOS (high seas freedoms): 2 points;
Yet the list does not include freedom of other States (Namibia) to construct artificial islands, because Article 60 UNCLOS says that, in the exclusive economic zone, the coastal State (South Africa) shall have the exclusive right to construct and to authorize and regulate the construction, operation and use of artificial islands: 3 points.

Further clarifications:

Mentioning art. 56 UNCLOS is incomplete. While it says that in the exclusive economic zone, the coastal State (South-Africa) has jurisdiction with regard to the establishment and use of artificial islands, this provision does not exclude right of other States (Namibia) to establish artificial islands; Article 60 does so.
Merely mentioning art. 87 UNCLOS is an incomplete answer as it only establishes that freedom of the high seas comprises, inter alia, freedom to construct artificial islands and other installations permitted under international law, subject to Part VI.
Also, merely relying on art. 80 UNCLOS leads to an incomplete answer. It merely indicates that Article 60 UNCLOS applies mutatis mutandis to artificial islands, installations and structures on the continental shelf, situated in the high seas.

Question 1

What is the role of international human rights? - ExamTests 9

Questions

Question 1

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)

Question 2

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 3

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 4

In the case of Handyside v. United Kingdom, the European Court of Human Rights (ECtHR) concluded that although the UK had interfered with Mr Handyside’s right to freedom of expression, the UK was not in violation of Article 10 of the European Convention on Human Rights (ECHR). In this case, the Court developed the doctrine of the margin of appreciation. Explain what function this margin of appreciation has in deciding whether an infringement in a right constitutes a violation of that right. Refer to paragraphs of the Handyside Case where necessary and/or helpful.

Question 5

Read the article titled ‘Turkey Putting Syrian Refugees ‘at Serious Risk of Human Rights Abuse’’. Which international instrument would you think is the main instrument on refugees?

Question 6

See the case of question 5 of this chapter.

According to this instrument, are all people fleeing Syria ‘refugees’, so falling under the definition of ‘refugee’?

Question 7

See the case of question 5 and 6 of this chapter.

If a person is recognized as a refugee, what is he or she entitled to?

Question 8

See the case of question 5, 6 and 7 of this chapter.

In the article it is claimed that the principle of non-refoulement is violated. Where in the instrument found under question 6a is this principle established and what is provided in that article? Do you think that Turkey violated this principle?

Question 9

See the case of question 5, 6, 7 and 8 of this chapter.

Would you argue that refugee law forms apart of human rights law? Why or why not?

Answers

Question 1

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)

Question 2

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 3

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 4

Minimum understanding of the ‘margin of appreciation’ (leaving some interpretative space for domestic authorities): 5 points.
Rationale of the margin of appreciation (i.e. lack of uniform conception in Europe, advantages of knowledge that domestic authorities have): 10 points max.
Additional aspects (precision (para 48-49), structure, and the relationships between the margin of appreciation and the ECtHR (“hand in hand with a European supervision” – para 49)): 5 points max.

Further clarifications:

Students who did very well (scoring 18-20 points) were able to identify that although states have a margin to interpret both the content (in this case “morals”) of the law as well as the means used to protect it (i.e. necessity of measures etc), European supervision applied to both of these aspects and they were thus able to describe the relationship between the margin of appreciation and Art. 10 (2) ECHR. With the margin of appreciation, it must be clear that when there is little regional consensus, there is a wider margin of appreciation. When there is broad regional consensus, there is a smaller margin of appreciation.

A common mistake made was to confuse art. 10(2) ECHR with the margin of appreciation. Art. 10(2) ECHR contains a test and when applying this test, the ECtHR uses the margin of appreciation. An argument based on balancing of rights (non-discrimination versus freedom of expression) is not correct.

Question 5

Convention relating to the Status of Refugees, 1951.

Question 6

No, some people are fleeing from Syria or other countries, just to get a better life. This does not fall under the definition of refugee in the Convention, so these people actually are no refugees according to the Convention. Definition of refugee in paragraph 2, article 1 Convention relating to the Status of Refugees. "fear of being persecuted".

Question 7

He or she can move from the country they used to live in and go to another country to seek protection.

Question 8

Article 33: prohibition of expulsion or return (refoulement). No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. Turkey violated this principle.

Question 9

Yes, because most of the time human rights are being assaulted in the case of refugees. So refugees and human rights have a lot to do with each other.

Question 1

What is the role of international environmental law? - ExamTests 10

Questions

Question 1

In her well-known book Silent Spring (1962), Rachel Carson writes the following: We stand now where two roads diverge. But [...] they are not equally fair. The road we have long been traveling is deceptively easy, a smooth superhighway on which we progress with great speed, but at its end lies disaster. The other fork of the road — the one less traveled by — offers our last, our only chance to reach a destination that assures the preservation of the earth.

Discuss how this quote relates to the principle of sustainable development within the field of international environmental law, identifying the origins of the principle and its constitutive elements (6 points).

Question 2

An important principle within the field of international environmental law is the obligation to conduct a so-called ‘environmental impact assessment’. Describe the content, nature and legal status of this obligation, based on relevant legal provisions and/or case law. Distinguish in your answer between the obligation of States to conduct an environmental impact assessment under general environmental law, and their obligation to do so under the law of the sea (14 points).

Question 3

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 4

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)

Answers

Question 1

The principle of sustainable development was first authoritatively defined by the so- called Brundtland Commission (World Commission on Environment and Development) as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs” (1 point, for the identification of the origin of the principle in the work of the Brundtland Commission).

It was later reformulated in the Rio Declaration, in, inter alia, Principles 3 (“The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations”) and 4 (“in order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it”) (1 point, for naming the location of the principle in the Rio Declaration).

The content of the principle is as follows:

Taking into account the needs of the present, including the specific needs of developing states (1 point, for the taking into account of developmental needs)o In a manner that also takes into account the needs of future generations, in particular the need to protect the environment for the enjoyment of these future generations (1 point, for the taking into account of environmental needs)

Comparison between the quote and the principle

The quote by Rachel Carson most clearly relates to the principle of sustainable development as it identifies that humanity has two options for the future: to continue traveling down the ‘smooth superhighway’, with all the incumbent technological advances this brings, but resulting in the ultimate destruction of our environment; or to adapt the actions taken by humanity, to prevent environmental disaster . This is a clear illustration of the principle of sustainable development, as sustainable development entails that the actions humans take in the present must take into account the impact these actions will have on the environmental quality of the world in the future (1 point, for identification similarity).

However, Carson’s quote focuses more on the ‘sustainability’ element of the principle, and less so on the element of ‘development’, thus distinguishing it from the formulation of the principle as we can find it in the Rio Declaration (1 point, for identification difference).

Frequent mistakes

Many students seemed somewhat at a loss as to how to answer this question. Many mentioned articles from the Paris Agreement, the Convention on Biological Diversity, etc. – unfortunately, this was often not done in a manner that provided a clear answer to the question that was posed. As such, points were not awarded.
Very few students recalled the origin of the principle of sustainable development, as was explicitly asked in the question. Points were awarded for those who mentioned the work of the Brundtland Commission; alternatively, points were also awarded for those who discussed the relevance of the Stockholm Declaration. Points were also awarded to those who discussed the evolution of environmental law from so-called ‘disaster law’ to the current incarnation of environmental law – provided that this explanation was argued in a convincing manner and was linked to the question.
Most students were able to identify the constitutive elements of the principle of sustainable development, albeit not always in an explicit manner. Points were awarded if it became clear from your answer that there are indeed two elements to the definition of the principle.
Similarly, most students were also able to identify the similarity between Carson’s quote and the principle of sustainable development. Some students discussed elements of fairness or equity; points were also awarded for this, as this is also an element of the definition of sustainable development in environmental law.
Very few students identified the difference between the quote and the principle – note that the quote originates from before the formulation of the principle of sustainable development (1962), and as such is missing a crucial element: the importance of development in order to achieve sustainability. Points were awarded to those students who demonstrated in their answers that they understood the clear difference between this developmental element and the sustainability element.

Question 2

The obligation to conduct an environmental impact assessment can be located in Principle 17 of the Rio Declaration, which states that such assessments, “as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment” (1 point, for relevant provision general international law). The purpose of such an EIA is to conduct an assessment into the potentially harmful environmental effects of a planned project, in order to be able to make a decision on whether or not the project should be authorised, in light of the (potential) environmental risk (1 point, for explanation of what an EIA is). The conducting of an EIA by a State is one way in which it fulfils its due diligence obligations (1 point, for identifying nature of obligation).

International law does not specify the shape of an EIA (1 point). The obligation to conduct an environmental impact assessment was discussed by the International Court of Justice in the Pulp Mills case (1 point, for relevant case law). The Court held that the obligation has become part of general international law, which means that it is an obligation under customary international law (1 point, for identification of legal status). It further held that “where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource” (para. 204) it would be necessary to conduct an EIA. In other words, there must be a 1) risk (1 point) of a 2) significant adverse impact (significant excluding minor damage) (1 point) 3) on the environment of other States (1 point).

States must conduct an EIA at least prior to the initiation of the project (1 point), but also during the project itself (1 point) (Pulp Mills, para. 205: “The Court ... considers that an environmental impact assessment must be conducted prior to the implementation of a project. Moreover, once operations have started and, where necessary, throughout the life of the project, continuous monitoring of its effects on the environment shall be undertaken”).

The law of the sea contains its own specific obligations determining when States are required to conduct an environmental impact assessment in relation to planned activities in any of the maritime zones. All States have obligations under Part XII of UNCLOS to protect and preserve the marine environment; Article 206 of UNCLOS specifically provides that States have an obligation to conduct EIAs when there are “reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant or harmful changes to the marine environment” (1 point, for identification relevant provision law of the sea). As such, there is a general obligation under the law of the sea to conduct an EIA when there are ‘reasonable grounds’(as compared to ‘risk’ under general international law) (1 point), in relation to planned activities ‘undertheir jurisdiction or control’ (as compared to merely in a transboundary context under general international law) (1 point).

Frequent mistakes

This question was answered remarkably well by most students. The majority were able to identify the applicable situation in which states are obligated to conduct an EIA, as well as the other elements of this obligation (e.g. the nature, the timing, etc.).
Very few students recalled the relevant provision in the Rio Declaration.
Few students explicitly identified that the ICJ’s identification of the obligation as part of ‘general international law’ actually entails that it is indeed part of customary international law. The answers were graded leniently here – points were also awarded if students simply recalled that the obligation is part of general international law.
The majority of students successfully identified the relevant provision in UNCLOS requiring states to conduct an EIA. Unfortunately, less students took the time to explain the elements of this obligation under the law of the sea. This element was once again graded leniently: points were awarded to those students who discussed the elements, even if these students did not explicitly compare/contrast these elements to the obligation sketched under general international law by the ICJ in Pulp Mills.

Question 3

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 4

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 1

Discuss how this quote relates to the principle of sustainable development within the field of international environmental law, identifying the origins of the principle and its constitutive elements

What is international economic law? - ExamTests 11

Questions

Question 1

On 1 January 2017, the Republic of Sendaria adopted an act that bans the production and sale of all flavoured cigarettes within the Republic of Sendaria. The act does not apply to apple flavoured cigarettes, which are exclusively produced within Sendaria. Sendaria justifies the ban on the basis of health concerns. It argues that flavoured cigarettes induce adolescents to start smoking and, as a result, to become addicted to cigarettes. A large survey among the Sendarian population shows that 80% of adolescents who experimented with cigarettes in 2016 opted for the flavoured varieties.

The State of Riva, the leading producer of strawberry flavoured cigarettes globally, decides to bring a case before the WTO to challenge the act adopted by Sendaria. It claims that the act is discriminatory, since apple flavoured cigarettes are just as harmful to human health as other flavoured cigarettes. Both States are members of the WTO. You are invited to become a member of the panel that will decide the dispute.

How would you assess the compatibility of the Sendarian act with the basic principles of the GATT?

Question 2

See the case of question 1 of this chapter.

Would Sendaria be able to successfully invoke any of the general exceptions to these principles? Limit your discussion to one exception.

Question 3

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 4

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 1

The GATT contains three basic principles which seek to prevent member States from discriminating between products: most-favoured nations treatment under Art. I, national treatment under Art. III and a prohibition on quantative restrictions under Art. XI (1 point). The most relevant provision is Article III:4 of the GATT (1 point). This provision determines that imported products shall receive treatment no less favourable than that accorded to like products of national origin with regard to all laws, regulations and requirements affecting (amongst others) their internal sale (1 point). For this provision to apply, we must first assess whether apple flavoured and strawberry flavoured cigarettes are ‘like products’ (1 point). Apple flavoured and strawberry flavoured cigarettes appeal to the same public and are therefore in a competitive relationship (1 point). By prohibiting all flavoured cigarettes except the locally produced apple flavoured cigarettes, the act treats imported products less favourable than domestic products (1 point). There is therefore a violation of one of the basic principles of the GATT (1 point).

Frequent mistakes

The ban would be a violation of Art. I on most-favoured-nation treatment. This answer is based on an incorrect understanding of Art. I. This provision applies to discrimination between trading partners (granting favours to one foreign State and not to the others). Sendaria itself is not a trading partner, so this provision has not been violated.
The ban would be a violation of Art. XI on quantitative restrictions. This is not correct, since the ban does not relate to imports as such; it prohibits the production and sale of flavoured cigarettes. Hence, technically, other States could still export their cigarettes to Sendaria, but these cannot be sold.
Some of you experienced difficulties with the Roman numbering. If the mistake was obvious, you were given the benefit of the doubt.

Question 2

The general exceptions are listed in Art. XX of the GATT (1 point). Art. XX(b) allows State to adopt measures that are necessary to protect human, animal or plant life or health (1 point). The objective of the act is to prevent adolescents to start smoking (1 point) and therefore is designed to protect human health (1 point). The question is whether the act is ‘necessary’ to achieve this purpose (1 point). Measures are considered necessary when there is no reasonable less trade restrictive option to achieve a legitimate objective (1 point). It may be argued that the act is necessary in this sense, since preventing youth smoking is an important objective (1 point) and – based on the high number of adolescents who experiment with flavoured cigarettes – there doesn’t seem to be a reasonable alternative to banning those cigarettes (1 point). The act would therefore fall within the ambit of Art. XX(b) GATT (1 point). In order to be justified, the act must however also satisfy the requirements of the chapeau of Art. XX GATT (1 point). To satisfy the chapeau, measures should not be applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade (1 point). The fact that the act applies to all flavoured cigarettes except to locally produced apple flavoured cigarettes, while these are equally harmful to human health, indicates that the act constitutes unjustifiable discrimination/is a disguised restriction on international trade in the sense of Art. XX chapeau (1 point). Sendaria would therefore not be able tosuccessfully invoke Art. XX(b) GATT (1 point).

Frequent mistakes

You should distinguish between the design of the measure and its application. When assessing whether the measure would be justified under the relevant exception, you should have assessed whether the measure was designed in a way to contribute to the objective and whether it was necessary for this purpose. When assessing whether the measure satisfies the chapeau, you should have assessed the way the measure was applied by Sendaria.
You should distinguish between discrimination and discrimination that is arbitrary or unjustifiable. A measure can be discriminatory (on the basis of Art. 1 or 3), but cannevertheless be justified pursuant to Art. XX as long as the discrimination is done for a good reason (such as the protection of human health). Art. XX chapeau sees to situations in which a measure that protects a genuine interest is applied in a way that unduly affects other States.

Alternative answers

Points were also granted for reasoning that the ban was not necessary, based on the availability of alternative measures. The allocation of points for this answer depended on the quality of the argumentation.

Question 3

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 4

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)

Question 1

How would you assess the compatibility of the Sendarian act with the basic principles of the GATT?

What are the international regulations on the use of force? - ExamTests 13

Questions

Question 1

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)

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 3

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 4

See the case of question 3 of this chapter.

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

Question 5

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 “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.

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 3

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 4

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 5

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

Question 1

What are the laws on armed conflicts? - ExamTests 14

Questions

Question 1

Discuss to what extent Common Article 2 of the 1949 Geneva Conventions applies the si omnes clause. (5 points)

Question 2

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 3

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 4

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

Does international law allow for such an armed intervention?

Answers

Question 1

The si omnes clause relates to the scope of application of IHL treaties (Klabbers, pp. 206-207) (1 point). What this means, according to Klabbers, is “that particular instruments would only apply if both parties to the conflict were also parties to the convention concerned.” (or any other correct explanation of the concept of si omnes) (1 point) This is in principle confirmed in Common Article 2(3)(1 point) (“Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations”) (the same point was awarded for mentioning this or similar expressions that demonstrated understanding of this part of CA 2(3) without mentioning the provision explicitly). However, Common Article 2(3) to the 1949 Geneva Conventions also partly dispenses with the idea of the si omnes clause (1 point) by extending the application of the Conventions to States that are not party to the Geneva Conventions if those States accept and apply the Convention. (1 point)

Frequent mistakes

Si omnes is not the same as erga omnes

Question 2

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 3

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 4

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

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 1

Discuss to what extent Common Article 2 of the 1949 Geneva Conventions applies the si omnes clause.

What is international criminal law? - ExamTests 15

Questions

Question 1

Ms. Y was a Colonel in the Free Syrian Army (FSA), a non-state actor. In this capacity, she fought against the armed forces of Syria between 2014 and 2016. Recently, suspicions have been raised that she intentionally directed attacks against the civilian population in Syria. Ms. Y has the Swedish nationality and now resides in the Netherlands. For both Sweden and the Netherlands the Statute of the International Criminal Court (ICC) entered into force on 1 July 2002. Sweden investigated the case of Ms. Y. in 2016 and decided not to prosecute due to the lack of evidence. Nonetheless, the ICC Prosecutor convinced the Dutch authorities to arrest the suspect and to hand her over to the ICC in February 2017.

The Prosecutor has charged the suspect with a violation of Article 8(2)(b)(i) of the ICC Statute. During the confirmation of charges hearing, the presiding judge of the ICC noted that Sweden has a good track record prosecuting war criminals and even has made a recent conviction in a similar case. Further, the judge remarked that the ICC seems to have jurisdiction to continue the proceedings.

Sweden and the Netherlands are parties to the 1949 Geneva Conventions and their 1977 Additional Protocols. Syria is only party to the 1949 Geneva Conventions. You are counsel for the defendant and are keen to counter all the actions and arguments of the Prosecutor. Substantiate your answers with reference to relevant legal provisions and/or case law.

Is the case admissible before the ICC? Please do not address the wider issue of jurisdiction. (9 points)

Question 2

See the case of question 1 of this chapter.

Is the Prosecutor of the ICC correct in charging Ms. Y under Article 8(2)(b)(i) ICC Statute? (6 points)

Question 3

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 4

See the case of question 3 of this chapter.

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 5

In 2003, the UK became engaged in an international armed conflict in Iraq. The UK decided to establish a prison in Iraq where the people detained are mostly Iraqi nationals suspected of having committed terrorist acts. The UK decided to outsource some of the tasks related to the management of the prison to a private military and security company registered in the United States of America, called Blackwater. For this purpose, a contract was concluded between the UK Government and Blackwater in which the following provision could be found:

‘All prisoners shall be treated with respect for their human dignity at all times. Prisoners may not be subjected to any form of illegal ill treatment. Torture is particularly and irrevocably prohibited.’

The UK is a party to the Convention Against Torture (CAT). In 2007, reports appeared in the media that the staff of Blackwater working in the prison tortured a large number of Iraqi prisoners.

Could the UK be held responsible for the torture of Iraqi prisoners committed by Blackwater employees? Motivate your answer and mention applicable (treaty) provisions and/or case law.

Question 6

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?

Answers

Question 1

Admissibility of cases before the ICC are based on the complementarity principle (1 point), meaning that the ICC will only admit cases that are handled by national courts in contravention of Article 17 ICC Statute, i.e. a State is unable and unwilling to genuinely prosecute the case.

In the given fact pattern Article 17(1)(b) ICC Statute is the most relevant provision (1 point). Elements: the case has been investigated by a State that has jurisdiction (1 point); the State has decided not to prosecute (1 point); the decision not to prosecute did not result from the unwillingness or inability of the State (1 point) (further elaborated in Article 17(2) and (3) ICC Statute, but no separate points awarded for mentioning those). Sweden has investigated the case as it had jurisdiction based on the active nationality principle: Ms Y has the Swedish nationality (1 point), but decided not to prosecute based on a lack of evidence (1 point) and it may be inferred from the facts that Sweden is able and willing as it has prosecuted war criminals before, even recently (OR: the criteria of Article 17(2) and (3) do not apply). (1 point). The case is therefore inadmissible based on Art. 17(1)(b) ICC Statute. (1 point)

Frequent mistakes

Students did address the wider issue of jurisdiction (Articles 5, 11, 12, 13)- Students did not mention all the criteria in a way demonstrating understanding the relevant provision
Students did not apply (all) the rules to the facts

Question 2

Article 8(2)(b)(i) of the ICC Statute is a crime committed in an international armed conflict (1 point) according to Article 8(2)(b) (1 point). Common Article 2 Geneva Conventions provides a definition of an international armed conflict (an armed conflict between two or more High Contracting Parties (States) or occupation). (1 point)

The conflict involves the Free Syrian Army (a non-State actor) and a State (Government of Assad) and these do not constitute two High Contracting Parties (1 point). (The same point was awarded to answers that included a reference to Common Article 3 as a basis of saying there was only one State actor involved)

The Prosecutor is therefore not correct, because the charge is not applicable as the crime is not committed in an international armed conflict. (1 point)

Frequent mistakes

Students answered the question how the situation did qualify (as a non-international armed conflict), whereas the question only sought to find an answer to what it was not. As a matter of legal analysis and methodology, this is an important distinction.
Students looked at the substantive elements of mens rea and actus reus
Students mistakenly assessed whether Sweden (and/or the Netherlands) was a party to the conflict
Students did not link the ICC provision to IHL definitions

Question 3

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 4

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 5

This question asks after the responsibility of the UK, to which end the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) must be applied. The division of points:

Acknowledge that the ARSIWA apply as customary law: 1 point;
Mention art. 2 ARSIWA and the elements: 2 points;
Act or omission (both options are possible): 3 points;
- Torturing Iraqi prisoners; OR
- Omission: prevention the Blackwater staff from torturing Iraqi prisoners;
Attribution: 5 points:
- Departing from an omission: no attribution because the state omits (the duty rested on the state);
- Departing from an act: Mentioning a relevant article (either art. 5, 7 or 8 ARSIWA) (2 points); Argumentation (3 points);
Breach of law: 5 points: Mentioning the relevant law (CAT or the customary rule not to torture) (2points); Explaining the breach(3points);
Conclusion (attention is paid to coherence! If the argument leads to the conclusion that there was no state responsibility, yet the conclusion is that there was, points are deducted): 4 points.

Question 6

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 1

Is the case admissible before the ICC? Please do not address the wider issue of jurisdiction.

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