Exam 2015, questions and answers - Exam 2 PDF

Preview

Summary

Exam 2 ...

Description

Examiners’ reports 2015

Examiners’ reports 2015 LA3013 Public international law – Zone B Introduction The purpose of the examination paper is to enable candidates to demonstrate an understanding of the principles of international law and an ability to apply these principles in answering the questions. The range of questions should have ensured that no candidate who had diligently followed the course was short of answerable questions. What distinguished very good papers from those rather more mediocre was an ability to apply knowledge to the question. A common failing in papers below 2:1 standard is to provide a general answer to a specific question. An even worse failing is to simply recognise the area of international law with which a question is concerned and then provide an outline of the apparently relevant law. Time in the examination allows for consideration and judicious choice. The most appropriate choice will not always be the most apparently straightforward questions. It is worth considering which questions allow you to best evidence both knowledge and thought. Particularly impressive are answers which suggest something beyond rote learning. In choosing questions it is also important to bear in mind the need to provide an answer within the time allocated, and this sometimes means selecting a question that is more easily answered in the allotted time, rather than one where it might be difficult to distil an answer. Time management remains a crucial consideration. The first 15 minutes of the examination should be used to plan possible answers so that the best choices are made.

Comments on specific questions Question 1 ‘The distinctions between public international law and domestic law are so significant that international law is better described as an aspect of international relations.’ Discuss. General remarks The issues this question raises are discussed in the subject guide. Law cases, reports and other references the examiners would expect you to use Chapters 1–3 of the subject guide; one of the prescribed texts. Common errors Simply describing the differences between international law and domestic law without specifically directing the answer to the relationship between international law and international relations.

1

LA3013 Public international law

A good answer to this question would… recognise that this question requires an elucidation of the differences between public international law and domestic law followed by a conclusion as to whether it is better to describe international law as an aspect of international relations. The differences are obvious, particularly arising from the fact that international law is largely based upon the consent of the state subjects, rather than as in domestic law where the rules are pronounced by the government and require obedience from subjects. The lack of a legislature, lack of a court with compulsory jurisdiction and severe limitations to enforcement possibilities all characterise public international law. This notwithstanding, there are good reasons for distinguishing international law from international relations. These arise from the reality of the distinctiveness of legal method. A good answer will explain what is meant by this, probably alluding to Chapter VI of the UN Charter. It would also consider the relevance of the frequency with which international law is not enforced and discuss the significance of the fact that non-compliance with international law seems often to bring no apparent sanction. Poor answers to this question… did not consider the significance of the distinctions between international relations and international law. Question 2 ‘The role given to the Security Council under the Statute of Rome creating the International Criminal Court, has effectively and regrettably greatly constrained the power of the Court.’ Discuss. General remarks The question is directed to another contemporary and ongoing debate. In essence the underlying question concerns the role that non-parties to the ICC Statute may play in determining its international power. Law cases, reports and other references the examiners would expect you to use Charter of the United Nations; Statute of the International Criminal Court. Reference should also be made to the ad hoc tribunals for the Former Yugoslavia and Rwanda. Common errors Failing to understand just how the Security Council constrains the ICC. A good answer to this question would… depend upon an understanding of the relationship between the United Nations (and particularly the Security Council) and the International Criminal Court. Whereas the ad hoc tribunals for the Former Yugoslavia and Rwanda that preceded the creation of the ICC were established by the UNSC and operated as subsidiary organs of the SC, the ICC is an independent treaty-based organisation. Nevertheless, the ICC is established in relationship with the UN and the Rome Statute has a number of explicit connections to the SC. These arise from the SC’s Chapter VII powers. The major powers of the SC concerning the ICC are firstly the ability to refer to the Court situations over which the Court would not otherwise have jurisdiction. Secondly, the Security Council has the ability to suspend investigations and prosecutions at the ICC. Crucially, when it comes to enforcement the ICC is dependent upon the cooperation and assistance of states and this can be enhanced by SC intervention. The position is complicated by the fact that three of the five Permanent Members of

2

Examiners’ reports 2015

the SC are not parties to the Rome Treaty. This means that referrals such as that concerning Darfur in 2005, and Libya in 2011, come from a body whose members are themselves unwilling to submit to the jurisdiction of the ICC. An excellent answer will consider situations such as that arising from atrocities in Darfur where, notwithstanding an ICC warrant of arrest for the Sudanese president Omar al-Bashir, states had failed in their obligation to arrest him if he visited. The ICC Chief Prosecutor was forced to suspend the investigation when the SC refused to insist upon his detention as the ICC had requested it to do. Ironically, the case began as a SC referral. Finally, it would be useful to ask how the SC distinguishes the cases it refers, such as Sudan and Libya, from those it does not, such as Sri Lanka, Syria or even Zimbabwe. Poor answers to this question… had very little idea of the power of the SC in its relationship with the ICC. Question 3 ‘The use of the veto in the Security Council effectively prevents the use of force to resolve any international problems where one party is either a veto power or enjoys close relations with such a state.’ Consider with particular reference to one or more contemporary international disputes. General remarks This question requires knowledge of contemporary events. Law cases, reports and other references the examiners would expect you to use UN Charter; role and status of the Security Council. Common errors Failing to acknowledge the political realities that led to the incorporation of the veto power. A good answer to this question would… probably begin with a brief history of the veto – why it was created (Article 27 of the UN Charter), how it has been interpreted (referring particularly to the Korean War), when it has been used (particularly alluding to its use by China and Russia in preventing international intervention, and by the USA in its refusal to accept almost any criticism of Israel’s egregious breaches of international law) and whether there is any realistic alternative. A myriad of examples could be used to illustrate the paralysis that results from the veto power, ranging from Abkhazia, to Zimbabwe, to Syria, to Crimea, to Ukraine, to the USA’s veto of a resolution endorsing the advisory opinion of the ICJ on the legality of the construction by Israel of ‘the wall’. Some reference to the General Assembly’s ‘Uniting for Peace’ resolution as an attempt to avoid the veto problem might be expected. It would also be relevant to discuss the apparent inability to reform the power because such reform would be subject itself to a veto. Poor answers to this question… lacked enough knowledge of the status of the veto to usefully exemplify its apparent shortcomings. Student extract ….The Security Council’s function under Article 24, Ch 5 of the UN Charter is given by the United Nations. The United Nations knew that Article 2(4) and

3

LA3013 Public international law

Article 2(7) alone were not enough to prevent the use of force. The security council was then given the responsibility to maintain peace and security in the international community. The council is given the right to decide to use measures not involving the use of force under Article 41. The measures include economic sanctions and severance of diplomatic relations. These measures can be seen being applied on countries such as Rhodesia and South Africa where embargos were enforced. The Security Council only resorts to use of force under Article 42 when Article 41 is deemed to be inadequate. This is measures are rarely used as it is seen as a last resort when all other measures do not work. The Security Council is made up of 15 members, 5 of whom are permanent members. They are US, UK, France, Russia and China, they are considered to be the main powers of the world and given the right of veto. The right of veto allows them to reject any resolution presented to the security council. The use of veto has been so prominent that often a times drafted proposals never get presented due to the fact that it would have been vetoed by one of its members. The main members who often use or in some cases abuse this right to veto is the US and Russia. The use of force is prohibited under Art 2(4), however there are justifications such as self-defence used by states to present their use of force as an exception. Self-defence is an inherent right under Art 51. It is a temporary right until the security council can take measures to maintain and restore international peace and security. The case of Caroline sets out the guidelines that the necessity of self-defence must be instant, overwhelming, no choice given and no moment of deliberation. It is a rather narrow scope however the failure of Article 51 to define ‘armed attack’ would help countries to widen the scope. Comment on extract This is a reasonable excerpt and on the assumption that it went on to discuss how action by the Security Council may be evaded by ensuring a resolution that may be vetoed by claiming self-defence (as it in fact did), would come into the upper second category. Question 4 Explain and consider the implications in international law of the accession to the Rome Statute of the International Criminal Court by Palestine. General remarks This topic was referred to in the Recent developments and those who followed the discussion there should have been able to produce a competent answer. Law cases, reports and other references the examiners would expect you to use This question required familiarity with the Rome Statute of the International Criminal Court, and also particularly the relationship between that Court and the Security Council. Common errors Inadequate discussion of the relationship between the Court and the Security Council. A good answer to this question would… recognise that the implications in international law of the accession by Palestine are rather clearer than the political implications. Good answers may be confined to the legal position but very good answers should at least allude to the political realities that haunt a purely legal analysis.

4

Examiners’ reports 2015

The Palestinian Authority President signed the Rome Statute following the rejection by the Security Council of a Palestinian-drafted resolution calling for ‘a full and phased withdrawal of the Israeli occupying forces’. Palestine formally joined the ICC on 1 April. It has already requested, as it is entitled to do, the ICC to exercise jurisdiction over any crimes committed in the occupied territories of East Jerusalem, the West Bank and Gaza from 13 June 2014. This period covers the events leading up to and including the 2014 conflict between Israel and militants in Gaza. In January 2015 the ICC prosecutor decided to open a preliminary examination into the situation in Palestine. The Palestinians believe that some of the military actions by the Israelis at that time amount to war crimes. Membership also allows Palestine to ask the ICC to examine the continuing expansion of Israeli settlements with reference to Article 8 of the Rome Statute. It is nevertheless clear that Israel will not cooperate with the ICC and that the USA would veto any required Security Council action. Furthermore, the ICC would also examine the actions of Hamas in the conflict. These issues will require discussion. The political realities include the refusal of the USA to accept Palestine as a sovereign state, the ability of Israel to refuse to pay the taxes to Palestine that it collects on its behalf, and the decision of Israel to lobby ICC member countries to cut funding for that organisation. Poor answers to this question… did little more than explain the process of accession, failing even to quote the authority for the opening of the preliminary examination by the ICC prosecutor. Question 5 Does the right of self-determination in international law validate or invalidate the action of Russia in annexing Crimea (previously territory of the state of Ukraine)? General remarks This is another question requiring an ability to apply international law to a factual contemporary situation. It too is discussed in the Recent developments but also requires knowledge of the political realities of what occurred. Law cases, reports and other references the examiners would expect you to use The relevant legal sources here are legion but familiarity with the ICJ case concerning self-determination and Kosovo is essential. Examiners would also expect knowledge of the case concerning the Aaland Islands and the Canadian Supreme Court’s consideration of any claim to secession by Quebec. Common errors An inability to appreciate the significance of the ICJ’s Kosovo decision. A good answer to this question would… begin with what is meant by the right of self-determination in international law. Emphasis should almost certainly be placed upon the apparently conflicting concepts of self-determination and territorial integrity. Useful exemplifications of the resulting problems would include cases concerning the Aaland Islands, Quebec, Kosovo and Scotland. Until the conclusion of the Cold War it is generally accepted that the right of self-determination was confined to decolonisation, and (more problematically because largely theoretically) to territories within a state’s borders where a distinct population was suffering egregious human rights abuses with no remedy available.

5

LA3013 Public international law

Since the Cold War, particularly through the disintegration of the Soviet Union and Yugoslavia – and especially in the case of Kosovo – the position is much less clear. The ICJ decision concerning Kosovo will require discussion, as will the Russian creation of ‘states’ (Abkhazia and South Ossetia) in Georgian territory. Some knowledge of the events in Crimea and the ‘referendum’ will be necessary to substantiate an answer. Poor answers to this question… failed to comprehend the inherent problems within a ‘human right to selfdetermination’ as asserted in the International Covenants. This difficulty was aggravated with an insufficient comprehension of the implications of the ICJ’s advisory opinion concerning Kosovo. Student extract In March 2014 a referendum was held in the territory of Crimea being at the time an autonomous province of Ukraine, where the inhabitants were asked whether Crimea should become independent and incorporated at a later stage to Russia. The outcome of this referendum held in the context of Russia’s military invasion of Crimea, was that over 90% of the population was in favour of the secession from Ukraine and becoming a part of Russia. The referendum was held without the authorisation of Ukraine and in the context of a military occupation by Russia. Following the referendum Russia has annexed Crimea claiming this has been done in accordance with the right to self determination available to the inhabitants of Crimea under international law. The principle of self-determination which evolved to become a right to selfdetermination is enshrined in the UN Charter and other various international treaties such as the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights. It holds that ‘peoples’ are free to determine their political status and economic, social and cultural development. International law does not define the term ‘peoples’. It can be understood as population of a state or an ethnic, religious or other group. The right to self-determination is an obligation ergo omnes as decided for instance in the International Court of Justice’s (ICJ) Advisory Opinion regarding the construction of a wall in the occupied Palestine. However this right can be exercised taking into account the principle of sovereignty and territorial integrity and unity of states as recognised in the UNGA Friendly Relations Declaration of 1970. For this reason international law distinguishes between internal self-determination consisting in participation in State’s governance and external self-determination. The later can take place only in exceptional circumstances such as decolonisation or a dissolution of a state. Comment on extract This extract provided an excellent introduction to the answer. It provides necessary but brief background to the case and clearly appreciates the dilemmas implicit in the concept of self-determination. It appreciates the position of the Ukraine in the events. It went on to address the question of secession focusing upon Kosovo, Quebec, Catalonia and Scotland, arguing that the annexation could not be valid because, in accordance with the UN Charter, territorial changes under these circumstances (Russian aggression) cannot be effective legally. The extract would suggest at least a strong 2:1. Question 6 Consider the legal significance of the decision of the European Court of Human Rights in Case of Al-Skeini and Others v. United Kingdom (7 July 2011).

6

Examiners’ reports 2015

General remarks This modern case has been referred to explicitly in study guide updates. It relates to the reach of the European Convention on Human Rights. Law cases, reports and other references the examiners would expect you to use Both the case and the readings referred to in the subject guide should have been consulted. Common errors Those who answered this question were all conversant with the decision but not all considered its implications for extra-territorial jurisdiction. A good answer to this question would… observe that Al- Skeini is an important decision of the European Court of Human Rights which, at least in part, was in conflict with a House of Lords ruling in 2007. The case concerned the abuse of Iraqi civilians by British soldiers in southern Iraq, together with the brutal killing of Baha Mousa while he was detained at a British army base in Iraq. The question to be determined was whether the provisions of the ECHR extended to the protection of Iraqis in Basra where the UK was an occupying power. Apart from Baha Mousa, five other Iraqis were killed by members of UK armed forces while on patrol. The argument of the UK was that the deaths occurred outside the territory of the UK and therefore the jurisdiction of the UK, and that consequently, the ECHR, which imposes an obligation for independent and thorough investigation, did not apply. A very good answer would understand the issue and explain why the European Court of Human Rights extended the UK’s human rights obligation beyond the British army base to the territory occupied generally. The answer would discuss the sort of control apparently necessary to bring...