Public International Law Tutorial Assignments and Answers PDF

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WEEK 1 THE LAW-MAKING PROCESS AND THE SOURCES OF INTERNATIONAL LAW Assignment 1 By 1986, States A, B, C, D, E, F and G (who for this problem constituted at the time most of the States in the world) each claimed exclusive fishery zones extending to 12 miles from their coastlines. In 1990, State A uni...

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WEEK 1 THE LAW-MAKING PROCESS AND THE SOURCES OF INTERNATIONAL LAW Assignment 1 By 1986, States A, B, C, D, E, F and G (who for this problem constituted at the time most of the States in the world) each claimed exclusive fishery zones extending to 12 miles from their coastlines. In 1990, State A unilaterally declared that its fishery zone would henceforth be extended to 200 miles. States B and C, whose fishing vessels had regularly fished just outside A’s 12 mile limit, protested to A that its claim was in breach of international law. Although the numbers of vessels from B and C fishing in A’s waters began to diminish, some from each State continued to fish there. In 1992, State C raised the matter in the United Nations Security Council but a motion condemning A’s action was vetoed by State X a permanent member of the Security Council. At various times after 1994, States D, E and F extended their exclusive fishery zones to 200 miles. Neither State B nor State C had any fishing vessels operating in these waters and neither made representations to States D, E and F. In 2000, State G sent a fishing expedition, and an accompanying naval protection fleet, to A’s waters for the first time. G’s vessels proceeded to fish within the 200 mile zone but not within 12 miles of State A’ s coastline. State A protested to State G about the fishing which it described as “illegal under general international law”. In 1999, the United Nations General Assembly passed a (fictitious) Resolution on Protection of the Economic Resources of the Sea, which, inter alia, proclaimed that the coastal State possessed exclusive rights over the economic resources of the sea up to 200 miles from its coast. 90% of the members of the Assembly voted in favour of the resolution but States C and G voted against with State B and another couple of States abstaining. A (fictitious) multilateral treaty, containing the same provision came into force in 2005. State C and State G have not signed or ratified the treaty, State B has signed it but has not ratified it. All other States mentioned above have signed and ratified it. Taking into account the sources of international law, and ignoring any substantive rights or obligations under the law of the sea not specified in problem, do States B, C and G have a right, in 2007, for their vessels to fish between 12 and 200 miles from State A’s coast? If not, when did they lose the right? Answer 1 The issue here is whether States B, C and G have a right in 2007 for their vessels to fish between 12 and 200 miles from State A’s coast, or if the coastal State possesses exclusive rights over the economic resources of the sea up to 200 miles from its coast. Firstly, we can look to the treaty. Although there is no hierarchy within the sources of international law as set out in Article 38(1) of the ICJ Statute, looking for treaty law is a sensible place to start as treaties have a clear implementation date of the rules set out in it. In this case, there is a multilateral treaty containing the provision that the coastal State does possess exclusive rights over the economic resources of the sea up to 200 miles from its coast. All parties to this treaty, who have ratified the treaty, are therefore bound by the provisions set out in this treaty. Both states C and G did not sign or ratify this treaty, and therefore it is clear that they are not party to the treaty and not bound by its provisions. State B has signed the treaty, but has not ratified it, which generally means that they will not be bound by the provisions of the treaty. However, under Article 18 of the VCLT, a state who has signed a treaty is obliged to refrain from acts which would defeat the object and purpose of a treaty. Therefore, although they are not bound by the provisions of the treaty, under general treaty law they must not act in such a way to defeat the object and purpose of the treaty. This would mean that they would not have the right to fish within 12 and 200 miles of State A’s coast.

It is important to now assess whether, prior to the creation of the treaty, whether there was a customary international law that had developed over this period of time set out in the case. A customary international law is described in Article 38(1)(b) of the ICJ Statute as ‘evidence of a general practice accepted as law’. This definition was then extended in the North Sea Continental Shelf case. In this case the court stated that ‘not only must the acts concerned amount to a settled practice’ but there must be ‘evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it’ (para 77). Therefore, there must be state practice and opinio juris. State practice is judged objectively, taking into account a number of relevant factors, such as the duration and consistency of the practice. In Nicaragua, the court stated that complete uniformity was not necessary, but it must amount to a settled practice. In this case, after State A extends its fishery zone to 200 miles, both State’s B and C protest and continue to fish within the 200-mile limit, however the number of vessels from these states within this zone do diminish. In four years’ time, States D, E and F all extend their fishery zones to 200 miles, indicating that this is a consistent practice with State A’s actions. After six years’, State G decides to send a fishing expedition to within the 200-mile limit of State A, and they take a fleet of naval ships with them. The state practice indicates that there is some consistency within the State’s behaviour, but an analysis of opinio juris is needed to determine whether this amounts to a customary international law. Opinio juris is a subjective belief that a state is legally required to undertake an action, in which the state is conscious of the duty it owes (Lotus case). In order to assess the reasons why state’s do certain things, you must look to things such as voting patterns on General Assembly resolutions, discussions and official statements from the state which form quasi-legal opinions. In this case, State C raised the issue of State A extended its fishery zone to the Security Council, however it was vetoed by a permanent member of the Security Council. This could indicate that there is a custom, but it is not conclusive. The fact that States D, E and F all extended their own fishery zones following State A’s actions could be indicative of a custom forming, as these states could be seen to believe that this is legally required. The General Assembly Resolution is the biggest indication that this has become a customary international law, as 90% of states voted in favour of coastal states having exclusive rights over the economic resources of the sea up to 200 miles. Although this resolution is not binding, it was stated in Nicaragua that effect of consenting to such resolutions can be understood as acceptance of the validity of the rule or set of rules declared by the resolution (para 188). Finally, although State G later sent a fishing expedition into the 200-mile coastal limit of State A, the fact that they were accompanied by navy vessels could be indicative that they knew what they were doing was against international customary law, else the felt the need to protect themselves from State A. Therefore, it can be strongly deduced that a customary international law has been created. It is likely to have developed between 1994 and 1999, and then codified in the treaty created in 2005. This would mean that State G would be bound by the customary international law, despite not being bound by the treaty, as all States are bound by customary international law. Therefore, they lost the right to fish within the 12 to 200-mile limit of State A in the period from 1994 to 1999. State C may not be bound by the customary international law, and therefore still have the right to fish within the 12 and 200-mile limit of State A, if they can be proven to be a persistent objector. It was ruled in Anglo Norwegian Fisheries case, and exception to the general rule that every State is bound by customary international law was created, in the shape of the persistent objector rule. In order to be a persistent objector, the State must object the custom from the very first stages of its development. Although it is not required to object to every application of this rule, they must object to all

applications which affect their State. In this case, State B cannot be said to be a persistent objector because firstly they did not vote against the General Assembly resolution, they simply abstained from it, and they then signed the treaty. State G did not object from the very first stages of the custom being developed, and are therefore probably too late. However, State C did object from the very first stages of the custom, when State A originally extended their fishery zone in 1990. They also raised the issue in the Security Council and voted against the General Assembly resolution. They also did not sign or ratify the treaty. They did not object to States D, E and F extending their fishery zones, however as already stated, because it did not affect them, they did not need to object to this application of the rule. State C have objected from every application of the rule throughout the period of its development, and therefore they will not be bound by the customary international law. This means they still have the right to fish within the 12 and 200-mile coastal limit of State A. Following the treaty in 2005, the treaty law and customary international law co-existed in parallel.

Assignment 2 Explain the relationship between treaty law and customary international law. Pay attention to the following issues: i.) Is there a hierarchy between different sources of international law? ii.) Can the same legal obligation apply in parallel under treaty law and customary international law? iii.) How does treaty law influence the formation of custom and vice versa? Article 38(1) of the ICJ Statute sets out that both international conventions (treaty law) and customary international law are sources of international law, alongside general principles of law. International treaties are essentially contracts between states in which they bind themselves legally to act in a particular way. These can be bilateral (between two states) or multilateral (between more than two states). For example, the UN Charter is a multilateral treaty. Treaties provide a clear timeframe in which the obligations set out in said treaty come into force and are binding upon the states who are partied to the treaty. On the other hand, customary international law develops over relatively long periods of time, meaning there is no clear date as to when such a rule comes into practice. Article 38 states that the essence of custom is that it should constitute ‘evidence of a general practice accepted as law’. This requires two elements: firstly, state practice, which has been recognised to mean some kind of ‘constant and uniform usage’ or a rule (Asylum Case 1950). The second element is opinio juris which is a subjective belief that the custom forms a law. Both treaty law and customary law form legitimate sources of international law, and there is no hierarchy between the two. The relationship between customary and treaty international law is intertwined. In the Nicaragua case 1986 it was stated that obligations arising from treaties and customary law can apply in parallel. This means that, even if there are identical rules in treaties as to those formed through custom, the latter is not subsumed by the former, they can co-exist. For example, the freedom from torture is not only codified in international human rights treaties, but also has a parallel life in customary international law. This is important due to the fact that treaties have the ability to codify certain customary international laws that were already in practice, and vice versa. For example, the Vienna Convention on the Law of Treaties 1969 essentially codified the customary rules surrounding the creation of treaties. It is not

that treaties were not made before 1969, simply that they were not governed by treaty law, instead the legal grounding was found in customary international law. In this sense, although treaties are only binding on those parties which sign and ratify the treaty, in some circumstances, due to the presence of customary international law which reflects treaty law, other states will be bound to comply with the obligations set out in treaties they are not party to. Article 38 of the Vienna Convention on the Law of Treaties sets out the nothing precludes a rule set forth in a treaty from binding a third state as a customary rule of international law. All states must comply with obligations set out in customary international law, unless they can be proven to be a persistent objector. This has a very high threshold, requiring states to have objected from the very first stages of the custom. In some circumstances, treaties can lead to the development of customary international law. States that have not become parties to a treaty may feel obliged to conform their conduct to some or all of the treaty provisions. Thus the process of creating new law-making treaties may, as a by-product, also facilitate the creation of new customary law. For example, the Law of the Sea Convention 1982 was widely ratified and subsequently shaped the development of new customary international law concerning the law of the sea. Also, the Universal Declaration of Human Rights, signed in 1948, set the tone for the international human rights law movement. This document is one of the most noted international customary law documents. Countries throughout the world have not only cited the document, but some have used parts of it in their own state documents (such as constitutions). This document has been understood to have international influence, even though it itself began as nonbinding. It has been established that there is no hierarchy between the sources of international law, however there is debate over whether there is a hierarchy of norms or rules within international law. Firstly, norms of jus cogens have been seen to have a higher hierarchical status than other norms. Norms of jus cogens are defined as peremptory norms from which no derogation is possible, such as the prohibition of genocide, torture, slavery or racial discrimination. These norms have been given some form of higher hierarchical status by Article 53 and 64 VCLT, which state that a treaty conflicting with jus cogens is not valid. However, the scope of the application of this is so limited, that it is difficult to say that there is any hierarchy within international law at all. Secondly, obligations erga omnes may be seen to create some form of hierarchy. They are defined as obligations of states towards the international community as a whole (Barcelona Traction para 33). This concept is closely linked to the concept of jus cogens, with everything that is jus cogens also being erga omnes, however not everything that is erga omnes is jus cognes, meaning that this concept has a wider scope. The effect of obligations erga omnes is an exception to the general rule that only an injured state can bring an action for not following international law. Erga omnes means that any state can bring an action, as it is said to affect the international community as a whole. This does not necessarily bring hierarchy to the system, it simply creates an exception to a limitation of international law in certain circumstances. Finally, Article 103 of the UN Charter states that where there is a conflict between another agreement and the UN Charter, that the Charter will always prevail. This could suggest that the UN Charter has superior hierarchical status compared to any other international agreement. However, this has very limited scope due to the small amount of actual obligations within the UN Charter, meaning a conflict is very rare. Therefore, although the UN Charter may have a slight superiority compared to other agreements, in practice this hierarchy is not exercised frequently. Look at Kadi?

WEEK 2 THE LAW OF TREATIES Assignment 1: On 1 September 2014, 30 heads of states met in Vienna where they signed the Treaty on Protection of Good Music (TPGM, TPGM Treaty). The preamble of the treaty expresses deep concern over recent developments in the sphere of music and expresses the commitment of the high contracting parties to eradicate all forms of techno music. The operative articles of the TPGM Treaty specify: Article 1 Any performance of techno music shall be banned in the territories of the high contracting parties. Article 2 The high contracting parties shall criminalise in their national penal codes the profession of techno DJ (deejay, disc jockey). Article 3 The State of Amadea shall have exclusive jurisdiction to prosecute techno DJs. Other high contracting parties shall extradite to Amadea a national of any state who is suspected of being a techno DJ. Article 4 This treaty enters into force on the day when it is ratified by 20 signatory states. The State of Amadea ratified the TPGM Treaty on 1 October 2015. On 1 September 2016, the State of Bachia ratifies the TPGM Treaty as the 19th state. On 5 September 2016, the State of Chopinia ratifies as the 20th state, but Chopinia also files a declaration stating: “The State of Chopinia understands that it is not bound by Article 3 of this Treaty.” On 6 September 2016, Amadea objects to Chopinia’s declaration: “The Government of Amadea considers this Treaty to be in force between the Amadea and Chopinia in its full extent, including Article 3.” The State of Debussia signed the Treaty at the Vienna Conference on 1 September 2014, but has not ratified it. Assume that there are 194 states in the world. All 20 states which have ratified the TPGM Treaty are parties to the Vienna Convention on the Law of Treaties (VCLT) and members of the United Nations. a) DJ Bromfiets is a famous Dutch techno DJ. He holds a public techno music performance in Bachia on 2 September 2016. Does Bachia, under the TPGM Treaty, have an obligation to arrest DJ Bromfiets on 2 September and extradite him to Amadea? Bachia ratified the TPGM on the 1st September 2016. The treaty did not come into force for the parties to the TPGM until the 5th September 2016 when the 20th State, Chopinia, ratified the TPGM. This is because Article 4 of the TPGM states that ‘this treaty enters into force on the day when it is ratified by 20 signatory states’. Therefore, under the TPGM Treaty, Bachia is under no obligation to arrest and extradite DJ Bromfiets to Amadea, because the public techno music performance was held on the 2nd September 2016, before the TPGM entered into force. b) DJ Bromfiets holds a secret techno music performance in Chopinia on 30 September 2016. Chopinian authorities become aware of this performance and arrest DJ Bromfiets. Amadea demands extradition of DJ Bromfiets. Does Chopinia, under the TPGM Treaty, have an obligation to extradite DJ Bromfiets to Amadea? By the 30th September 2016 the TPGM is clearly in force, and Chopinian has ratified the treaty, so is

bound by it. However, Chopinian has filed a declaration stating that it is not bound by Article 3 of the TPGM. This declaration is a reservation to the treaty under the definition set out in Article 2(1)(d) VCLT as it excludes or modifies the legal effect of certain provision of the treaty in their application to that State. Firstly, we must assess the validity of the reservation as according to Article 19 VCLT. The TPGM makes no reference to whether reservations are prohibited, and therefore it is assumed that reservations are permitted so long as they are not incompatible with the object and purpose of the treaty (Article 19(c) VCLT). The object and purpose of the treaty can usually be found in the preamble to a treaty, or the discussions prior to the formation of the treaty etc. In this case, the preamble to the TPGM is said to express the commitment to eradicate all forms of techno music. The reservation made by Chopinian is in relation to Article 3, which provides for the extradition to Amadea of nationals of any State expected of being a techno DJ. It seems that the extradition to Amadea of suspected techno...