Public International law Exam PDF

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exam answers from Dr. Ekaterina Yahyaoui Krivenko's public international law class - grade B...

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Irish Centre for Human Rights

Student ID No.: 13456868 Course: LLM Human Rights Lecturer name: Ekaterina Yahyaoui Word Count (inclusive of footnotes but exclusive of bibliography): 5,163

Question 1

The government of the State in question has decided the onus of upholding the Convention on the Rights of the Child 1989 (CRC) is too burdensome, expressing a preference to denunciate the treaty. The laws governing treaties have been compiled in the Vienna Convention on the Law of Treaties 1969 (VCLT), which encompasses all treaties engaged in between states.1 As demonstrated in the Namibia Case 19712 and the Fisheries Case 1973,3 the VCLT provides the framework surrounding the nature of treaty law. A “treaty” is defined within the VCLT as “an international agreement concluded between States in written form and governed by international law”. 4 While the CRC may be described as a “universal” treaty – the most famous of which is the Charter of the United Nations 1945 – it undoubtedly falls within the scope of the VCLT.

a) Can this State legally cease its participation in the CRC? Bradley & Gulati (2010)5 argued that a general right to unilateral withdrawal from customary norms, and treaties alike, exists. However, no such right can be found in any provisions of the VCLT. The obligatory nature of the treaties has been founded upon the widely recognised international customary law principle of “pacta sunt servanda” – enshrined within Article 26 VCLT – by which international agreements must be executed “in good faith”. This principle has been demonstrated in the Nuclear Test Cases 1974,6 as well as the Nicaragua Case 1986.7 The binding nature of international legal instruments has also been confirmed to exist, by the 1 Article 1: Vienna Convention on the Law of Treaties, 1980 2 Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia [1971] International Court of Justice (ICJ) 3 Fisheries Jurisdiction Case [1951] (United Kingdom v Norway) International Court of Justice, ICJ Rep 116 (ICJ). 4 Article 2: Vienna Convention on the Law of Treaties, 1980 5 CA Bradley M Gulati, 'Withdrawing From International Custom' (2010) 120 Duke Law School. 6 Nuclear Test Cases [1974] (Australia; New Zealand v France) International Court of Justice 253, 457 (ICJ). 7 Case Concerning the Military and Paramilitary Activities in and Against Nicaragua [1986] (Nicaragua v United States of America) International Court of Justice 14 (ICJ)

International Court of Justice (ICJ) in Qatar & Bahrain 1994,8 where it contains a catalogue of commitments to which the parties have expressed explicit consent to be bound, as would be the circumstances in this instance. In the interest of preserving the principle of “pacta sunt servanda”,9 a presumption that a treaty will continue in force has been established in the VCLT under Article 42, which may only be rebutted under specific circumstances.10 In relation to this rationale, the official commentary of the International Law Commission (ILC) has observed: “it desirable, as a safeguard for the stability of treaties, to underline in a general provision…that the validity and continuance in force a treaty…may be set aside only on the grounds…provided for in the present articles.” 11 The circumstances permitting the rebuttal of this presumption are detailed in Articles 52 & 56 VCLT: - Article 54 reiterates the importance of mutuality, permitting denunciation from a treaty where it conforms to the provisions of the respective treaty, or where the consent of all other participating parties is acquired following an informative consultation. - Article 56 places a burden of proof on the party seeking to withdraw from treaties that lack the inclusion of a withdrawal procedure. As stipulated, the State must establish the intent to permit the possibility of withdrawal or denunciation or that it is implied by the nature of the treaty. In respect of these criteria, Article 52 CRC must be consolidated. It states; “A State Party may denounce the present Convention by written notification to the Secretary-General of 8 Maritime Delimitation and Territorial Questions between Qatar and Bahrain [1994] (Qatar v Bahrain) International Court of Justice Rep 112. (ICJ) 9 Malgosia Fitzmaurice, 'Treaties', Max Planck Encyclopedia of Public International Law (2010). 10 Article 42(2) details a party seeking to denunciate a treaty may only do so “as a result of the application of the provisions of the treaty or of the present Convention”. 11 General Assembly, 'Yearbook Of The International Law Commission: (United Nations 1966): A/CN.4/SER.A/1966/Add.1

the United Nations. Denunciation becomes effective one year after the date of receipt of the notification by the Secretary-General.”12 Thus it can be understood that it is permissible for the State in question to denunciate the CRC, within the parameters detailed in the aforementioned provision. Nevertheless, there are additional procedural duties imposed by Section 4 of the VCLT. Despite the understanding that the VCLT reflects customary international law, these provisions have not been deemed as such, in accordance with the ICJ in the Gabčikovo-Nagymaros Project Case 1997/8.13 However, as set out in the Nicaragua Case 1986,14 treaty provisions apply as lex specialis: - Article 65 outlines that any State party wishing to denounce a treaty must notify the other parties with respect to the measures intended to be taken and the reasoning for withdrawal. Where no party has raised an objection, during a period of no less than three months, following the receipt of notification, the State party may proceed. - Article 67 details the formalities that actions, permitted under the previous provision, are subject to. The requisite notification must be made in written form and signed by the Head of State, Head of Government or Minister for Foreign Affairs of the representative State.

b) Is accountability for past & present non-compliance affected by successful withdrawal from the CRC? Deriving from the doctrines of state sovereignty, state responsibility is a fundamental aspect of international law.15 Any non-observance of international duties will generate a requirement for reparations,16 as set out in the Spanish Zone 12 The Convention on the Rights of the Child 1989 13 Gabčikovo-Nagymaros Project ICJ Rep 7 (Hungary v Slovakia) [1997] ICJ Rep 88, (1998) International Court of Justice [ICJ] 14 See paras 180 and 181 of judgment 15 Malcolm N Shaw, International Law (7th edn, Cambridge University Press 2014) pg. 566 16 James Crawford, The International Law Commission's Articles On State Responsibility (Cambridge University Press 2002).

of Morocco.17 As explained by Shaw (2014), the foundational aspects of state responsibility rely upon the existence of an international obligation between States and an act or omission that violates this obligation. 18 19 Thus, establishing that conduct is both contrary to an international obligation and attributable to a State is sufficient to appropriate international responsibility, for instance: - The CRC has imposed a set of obligations upon States that have ratified, in regard to the protection of children, including the State in question. - The Committee on the Rights of the Child has reported a consistent failure to comply with treaty obligations, in respect of the State in question. Upon successfully denunciating the CRC, Articles 43 & 70 VCLT will hold most relevance: - Article 43 provides that “the withdrawal of a party from [a treaty]… shall not in any way impair the duty of any State to fulfill any obligation embodied in the treaty to which it would be subject under international law independently of the treaty.” - Article 70 stipulates that, unless otherwise agreed upon previously by parties or treaty, denunciation releases a party from any further obligations and does not affect the legal situation created through the execution of the treaty. As is evident from these articles, while successful denunciation from the CRC will release the State in question from compliance with any further obligations, it will still be held accountable for any duties imposed on it while the treaty remained valid. Although all member States may be concerned with a breach of a multilateral obligation, this does not imply that they should be treated as if suffering injury, 20 a notion that was supported in ILC Draft Articles. Furthermore, the CRC does not 17 Spanish Zone of Morocco [1924] Permanent Court of International Justice, (Great Britain v Spain) 2 RIAA 615 (PCIJ) pg. 615 p. 157 18 Article 3: Draft articles on Responsibility of States for Internationally Wrongful Acts, 2001 19 Burns H. Weston and Hermann Mosler, 'The International Society As A Legal Community.' (1984) 78 The American Journal of International Law. 20 European Journal of International Law Vol. 10 (1999) No. 1 (1999), 353-363

contain a provision regarding a procedural response to systemic non-compliance with treaty provisions.

Question 2 An extremely wealthy man wishes to realise a project that would allow him to assume the role of the sole political & governmental leader of an independent artificial island state, having invested a large sum of money in the nearest coastal state. This issue will require consolidation of the United Nations Convention on the Law of the Sea 1982 (LOSC), which governs law & jurisdiction over the sea. The LOSC also replaced four treaties concluded at the United Nations Conference on the Law of the Sea 1958 (UNCLOS I). Significant issues were addressed by LOSC in its numerous provisions, specifically those most pertinent to this case:21 - Baseline; which measures the breadth of the territorial sea and follows the low-water line of a coastal state. - Territorial Sea; an area not extending further than 12 nautical miles from an established boundary, with respect to the baseline. This case will also draw on the issue of self-determination, which has seen significant development & evolution since its first proclamation in the Atlantic Charter 1941 (reiterated in the Moscow Declaration 1943). Subsequent to this, the right took formal shape with its inclusion in Article 1(2) of the UN Charter. It has since been guaranteed as a fundamental human right, having featured in Article 1(3) of both the International Convention on Civil & Political Rights & the International Convention on Social, Economic & Political Rights.

(a) Is this project achievable under international law? 21 United Nations Convention on the Law of the Sea 1982

As prescribed in Article 2 LOSC, a State’s sovereignty extends to the area “described as the territorial sea,” granting the exclusive authority over siting in this area. The limits of the territorial sea have been detailed in Article 3 LOSC, as “not exceeding 12 nautical miles” and are subject to other obligations contained in the Convention.22 Furthermore, the respective coastal state retains the onus of environmental protection in relation to the artificial island. 23 Thus it can be determined that the State in question could legally construct an artificial island within the parameters of its territorial sea, provided it does not interfere with the rights of all other States. It has been widely understood that the Montevideo Convention on the Rights and Duties of States 1933 set out the classical criteria of creating statehood: (1) a permanent population, (2) an established territory, (3) effective government and (4) the capacity to entire into relations with other States. 24 These criteria are based heavily on effectiveness, which in accordance with Lauterpacht (1947), is “the principal and probably the only essential condition of recognition of States and governments is effectiveness of power within the State and of actual independence of other States. Other conditions are irrelevant to the true purposes and nature of recognition.”25 Effectiveness has often been utilised as a measure of the legitimacy, even in cases regarding the acquisition of territorial sovereignty.26 On the issue of a permanent population, just as international law does not necessitate a minimum size of territory, no minimum population requirement exists.27 For example, Tuvalu is the second smallest nation in the world in terms a 22 For example; The right of innocent passage as contained in Article 17 LOSC 23 George K. Walker and John E. Noyes, 'Definitions For The 1982 Law Of The Sea Convention Part II' (2002/3) 33 California Western International Law Journal, Scholarly Commons. 24 Article 1: Montevideo Convention on the Rights and Duties of States 1933 25 Hersch Lauterpacht, Recognition In International Law (Cambridge University Press 1947). 26 Island of Palmas Case [1928] Permanent Court of Arbitration, (Netherlands v USA) UN Rep Int’l Arbitration Awards 829 (Permanent Court of Arbitration). 27 TM Franck and PL Hoffman, 'The Right Of Self-Determination In Very Small Places' [1976] New York University Journal of International Law and Politics.

population, second only to the Vatican. Thus, the small population of 10,000 is sufficient to establish an island State. The issue of an established territory poses a greater difficulty. The relationship between self-determination and the creation of statehood exists as a contradiction to the constitutive theory of recognition, that the “formation of a new State is… a matter of fact and not of law.”28 Although little development of the principle of selfdetermination occurred prior to 1945, its political strength was demonstrated in the case relating to the Status of the Åland Islands Case.29 Self-determination has been defined more precisely, guaranteeing a right to all peoples to “freely determine their political status and freely pursue their economic, social and cultural development”,30 affirmed as a rule by the Security Council in various instances.31 Through this reasoning, it is evident that where the issue arose in relation to a people residing on a “naturally formed island” under colonial rule or jurisdiction of a coastal state, this argument could successfully be invoked. However, it is evident from an analysis of international law that there is a present difficulty in defining the legal nature of artificial islands: - As per Article 11 LOSC, artificial islands cannot infer any territorial claims over the sea and cannot be considered permanent harbor works. - Although referred to as “islands”, this reflects an abuse of terminology, as artificial islands do not satisfy the test of permanence. 32 This is reflected in Article 60 LOSC, which does not recognise artificial islands as “islands”. According to Article 121 LOSC, an island is “a naturally formed area of land, surrounded by water, which is above water at high tide.” This distinction may be interpreted as a means to prevent States from appropriating further territory in the sea.

28 Oppenheim, International Law, vol. 1 (rst edn., 1905), p. 624 29 (Status of the Åland Islands Case [1920] League of Nations Official Journal Spec Supp 3. 30 See Resolution 545(VI) 5 February 1952 (42–7:5) & GA res 1514 (XV), 14 December 1960 (89–0:9) 31 SC Resolutions 301, 20 October 1971 (Namibia); 377, 22 October 1975 (Western Sahara); 384, 22 December 1975 (Portuguese Timor); 1598 32 C.R. Symmons, The Maritime Zones Of Islands In International Law (Martinus Nijhoff Publishers 1979).

- The term “installations” has often been utilised in reference to man-made structures at sea, however a suggestion of the Drafting Committee to specify “installations” as including both “artificial islands” and “structures” was never formulated.33 - Soons (1974) differentiated between four different categories of manmade structures at sea: i) Those floating and kept in the same position with an anchor, ii) those resting on the sea bed, iii) those fortified by concrete and iv) those created via dumping natural substances on the sea bed. 34 - Fitzpatrick (1998) considers artificial islands & installations as man-made structures built upon a specific geographic location and, surrounded by a body of water and above water level at high tide.35 - Artificial islands cannot be referred to as ships, which were defined as movable chattels of a “very special nature” in the Lotus Case 1927.36 However, a distinction has not been elaborated upon by either the Helsinki Convention 199237 or the Convention for the Protection of the Marine Environment of the North-East Atlantic 1992,38 which refer to vessels as any type of structure operating in the maritime area. The uncertainty surrounding artificial islands implies that a definitive territory cannot be inferred by their construction, with respect to the Montevideo criteria. Moreover, the demand for self-determination in this context has not manifested under oppression of an authoritative state or through a denial of meaningful access to government, otherwise known as the criteria specified in the Secession of Quebec 199839 regarding external self-determination. The Friendly Relations Declaration 1970 afforded a distinct and separate status to “non-self governing” territories, which should retain the right of self-determination 33 A/CONF.62/L.57/Rev1 1980 Section VIII, XIV Off. Rec. 114, 119 34 Alfred H. A Soons, Artificial Islands And Installations In International Law (Occassional Paper 22, LLMC 1974). 35 Cordula Fitzpatrick, The Legal Issues Of The Ocean Cities (1998) p. 3 36 Lotus (France v. Turkey) (1927) PCIJ, Ser. A, No. 10. 37 Article 2(3) Helsinki Convention 1992 38 Article 1(1): Convention for the Protection of the Marine Environment of the North-East Atlantic 1992 39 Reference re Secession of Quebec [1998] 2 SCR 217 (Canadian Supreme Court).

subject to the principle of non-interference.40 This somewhat reflects the nature of internal self-determination, which could posit a more appropriate resolution to the issue. Allowing the people of the newly constructed island to self-govern under the jurisdiction of the coastal state in question would bypass the issues in relation to the inability for artificial islands to infer territorial claims, without contradicting any previous jurisprudence. In keeping with the principle of non-interference, it was established by the Commission of Rapporteurs in the Åland Islands Case 1921 that the right of self-determination does not require the introduction of a democratic government. Thus, the artificial island State could potentially operate with a single individual as head of government & head of politics. Finally, the capacity to enter into relations with other States, in the words of Crawford (2006),41 is more a consequence than a criterion of statehood. It is defined primarily by the ability of a State to exclude the authority of another from its internal affairs.

(b) Would your answer change if the population were comprised of the inhabitants of an island in danger of disappearance? (E.g. Tuvalu) Due to a rise in sea level induced by climate change, several low-lying island states are at a great risk of disappearance, higher than any before. The Pacific Island States of Tuvalu & Kiribati have proven emblematic of the “climate refugee” situation. The classic formulation of statehood contained in the aforementioned Montevideo Convention, understood as reflecting customary international law, details four essential aspects of statehood.42 Yet, the lack thereof does not imply the cessation of statehood. As a matter of fact, in accordance with Crawford 2006, “there is a strong presumption against the extinction of States once firmly established”.43 40 Article 2(1) UN Charter 41 James Crawford, The Creation Of States In International Law (2nd edn, Oxford University Press 2007) pg.717 61 42 Refer to note 26. 43 Supra note 41: 715, 701.

The inextricable link between territory & state was highlighted most notably in the Island of Palmas Arbitration.44 It was established that the exclusive control over a territory was imperative to the appropriation of sovereignty, thus inferring the inability to create a state without effective authority over land. Although U.S. ambassador Jessup supported this rationale, that “one cannot contemplate a State as a...