Examiners report 2014

Transcription

1 Examiners report 2014 LA3013 Public international law Zone B Introduction The range of questions asked on this paper meant that few candidates could have been taken by surprise, and the query that a significant number might have is why their marks were not higher. Overwhelmingly the answer to the query relates to examination technique. For many, having identified the area of international law with which each question was concerned, they proceeded to describe the law apparently relevant. This is not the way to obtain a high mark. What is required for this is to provide an answer to the question asked. To do this successfully candidates would be well advised to consider why the Examiners might have wanted to ask the question in the way it was expressed. Almost invariably (as will be seen when individual questions are considered below) this requires an answer in the form of a reasoned argument arriving at a conclusion. As always, a small but significant number of candidates failed to allocate sufficient time to each question. Where the four questions are of equal value, so too should equal time be allocated to each. Candidates answering only three questions can scarcely pass, let alone achieve a high mark. Specific comments on questions Question 1 Explain and discuss the significance of the concept of sovereign equality in international law. A question that all candidates could be expected to be able to answer. The concept is now at the heart of international law (at least since the creation of the UN Charter). ICJ cases including Nicaragua v USA and the advisory opinion concerning the status of Kosovo are relevant here, as is Resolution 2625 of the UNGA (Declaration of Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the UN). A common problem was to either over-emphasise the importance of sovereign equality, or to dismiss its significance entirely. 1

2 LA3013 Public international law realise that the centrality of the concept of sovereign equality in international law needs to be explained, probably by alluding to Article 2(1) of the United Nations Charter. The fact of the incompatibility of the era of colonialism with sovereign equality suggests that it is a modern concept of international law but this needs to be qualified by mention of Westphalia. What states are equal in, is in their sovereignty that is in their jurisdictional rights over their territory and nationals. Sovereign equality also brings with it the right to resist interference in purely internal affairs. At the same time the apparent contradiction between sovereign equality and the allocation of power in the UN to the veto powers of the Security Council should be discussed. It is also pertinent to observe that while the equality is formal and takes no heed of differences in power, wealth, size or population, it is yet not insignificant. Perhaps its least significant attribute is the allocation in the UN General Assembly of one vote for each member, as the GA usually has little power in fact. Where this formal equality is important is in cases of dispute that give rise to legal questions. All member states of the UN are equal before the law and appear before the International Court of Justice as equals. Examples of what this means (and its practical limitations) are relevant. did not understand the relationship of formal equality to substantive inequality. Student extract Concept of sovereign equality goes hand in hand with territorial sovereignty. This is beca sovereignty deals with the right of a particular state over its own land and the subjects. A good example of the concept of sovereign equality can be seen with the United Kingdom s response towards the act of German Nazi's in 1930's. Not even a note of protest was sent, this is beca, it was thought that such a response would be in breach of sovereign equality of Germany. It is rather ironical how during the 19th century, colonisation was a clear breach of sovereign equality. However, this was not in breach of international law at the time. The justification were that some states of the world were at such a primitive stage, self-governance was nowhere near their capacity. This view seems very much sceptical but this was the status of sovereign equality at the time. This has changed up to a great extent, nevertheless the powerful states still play a major role in the sovereign equality of not so powerful states. Another main link of sovereign equality is the duty of non-intervention. The states have a duty of non-intervention in matters outside their territory. This is however rather ironical beca, it is only theoretical. The practical aspect of it is rather contrary to the expectation. Comment on extract This opening to an answer was not untypical. There is some ful content but there is also a lack of precision and some unacceptably broad statements. As an opening it suggests that a low to medium lower second would be the appropriate mark. It is correct to observe the correlation between sovereign equality and territorial sovereignty but the example of the UK and Nazi Germany is not well-expressed. The point about colonialism again is ful but poorly expressed and similarly nonintervention is an important point but rather cryptic. 2

3 Question 2 Underlying all international law is the principle of pacta sunt servanda (the duty to observe treaties in good faith). While this appears to be common sense, it is however much less obviously sensible when considered in detail. Discuss. Again a question concerning pacta sunt servanda was foreseeable although the particular form of the question was probably not. Again what is required is consideration of the whole question, not a general discussion. The essence of this question encompasses a central theme of the subject guide. Also crucial was knowledge of the Vienna Convention on the Law of Treaties and its interpretation of pacta sunt servanda. Additionally, the International Court of Justice decision, Gabcikovo-Nagymaros Project (Hungary/Slovakia) Judgment (1997) should have been cited and d. The most common error here, yet again, was to think that what was required was a general discussion of pacta sunt servanda effectively ignoring the second sentence in the question. recognise that the question encompasses a central theme of the subject guide, namely that what appears to be the common sense basis of international law is imbued with a particular perspective of the world. (The Egyptian international lawyer s quotation on p.27 of the subject guide makes this explicit.) A good answer would probably commence with reference to Article 26 of the Vienna Convention on the Law of Treaties, 1969, and then proceed to consider the qualifications to that Article by provisions which provide exceptions to the pacta sunt servanda principle. Problems with the principle might arise and should be considered in the case of a treaty concluded under duress or coercion, (both of which required discussion) or where there has been a fundamental change of circumstances after the treaty was concluded. The question of unequal bargaining power might also be (briefly) discussed. Reference to the case of Gabcikovo-Nagymaros Project (Hungary/Slovakia) Judgment (1997) was crucial to illustrate the very limited that may be made of Articles of the VCLT. Very good answers would critically analyse that decision, especially in upholding the validity of a treaty concluded by non-democratic countries which a new democratic government wished to argue could be voided under Article 62 (fundamental change of circumstances) or even Article 60 or 61. Exceptional answers would refer to the dispute in the drafting of the VCLT s Article 52 and the subsequent Declaration on the Prohibition of Military, Political or Economic Coercion in the Conclusion of Treaties. failed to identify the point of the question which was to elicit a discussion of why pacta sunt servanda as interpreted may be seen to favour powerful states over those without military, political or economic power. Student extract The underlying concept which international law is based upon is the principle of 'pacta sunt servanda' which is derived from customary international law. International law is based upon regulating state conduct in 3

4 LA3013 Public international law the international legal arena unlike a domestic legal system it is more or less based upon voluntary consent among parties since every state is considered to be sovereign. Sovereign equality is a cardinal principle of international law. The question emphasis is upon the uncertainty which in fact prevails in the principle of 'pacta sunt servanda' since it heavily relies upon consent upon the states to agree the treaty provisions in good faith. However in reality certain countries with impunity reject to abide by the principle of pacta sunt servanda, thereby flouting international law. This was evident when America refd to be a part of the treaty which created the International Criminal Court (ICC) and when it rejected to be a part of Kyto Protocol which is aimed at protecting environment protection. When Israel refd to abide by the decision of the International Court of Justice in the case of Palestinian Wall Advisory opinion case and constructed the wall was another occasion where a country failed to abide on international law. Some critics point out that certain countries ref with impunity disregard the principle "pacta sunt servanda" is beca International law lack a proper enforcement mechanism since ICJ decision are not binding. However, Dixon ref this criticism by stating that law is not based upon sanctions. It is also essential to point out that the majority of the nations do really observe the principle of pacta sunt servanda and in fact they recognise to be bound by it. The Vienna convention on law of treaties 1978, United Nations convention on law of sea, the international covenant on civil and political rights 1966 and the convention and prevention of the crime of Genocide 1948, are treaty provision which so the majority of states have be party to be provisions thus casses state that they are more or less like "customary law" where parties feel bound to follow. Furthermore article 2(4) of the charter of the United Nations 1945 which provides "All members shall refrain in international relations from threat or of force against the territorial integrity and political independence of any state" is a provision under " of force" which is universally recognised this position was evident in the Nicaragua V USA (Merit) case where the ICJ held that article 2 (4) of the charter of the UN is customary international law thus regardless of whether a country is a party to the charter of the UN or not it will be considered binding. Comment on extract This is a rather confd and confusing introduction to an answer. There seems to be confusion as to exactly what pacta sunt servanda means and the opening paragraph seems to suggest in its examples that it is concerned with the obligation to obey international law generally. Refusing to join a treaty or refusal to comply with an advisory opinion of the ICJ have nothing whatever to do with the principle. The third paragraph is terribly confd and the only crucial point namely that the pacta sunt servanda principle applies to the treaty that is the UN Charter remains hidden. At this point in the reading of the answer an Examiner would be considering whether this answer could possibly achieve a bare pass. Question 3 Reservations, as defined by Article 2(1(d)) of the 1969 Vienna Convention on the Law of Treaties, may allow states to opt out of certain treaty provisions. Discuss the relative advantages and disadvantages of permitting reservations. 4

5 A predictable and general question that requires an evaluative exercise. Major references here are to be found in the Vienna Convention on the Law of Treaties. Also important is the ICJ advisory opinion of 1951, Reservations to the Convention on Genocide. The controversy surrounding reservations to the Convention on the Elimination of all Forms of Discrimination against Women was also pertinent. The most common error was to give a very bland exegesis on reservations to treaties. understand that this is a question that requires technical knowledge of the purpose and operation of reservations to treaties. They are relevant (obviously) only to multilateral treaties and they have the effect of meaning that different parties to a treaty may have different obligations to other different parties. Their great advantage lies in the fact that states are able to become party to a treaty even where they are unable or unwilling to accept all of its provisions. At the same time, beca of the treaty principle of reciprocity any reservation has the effect of limiting the obligations of other treaty parties to the reserving state and thus no party to a treaty can be bound to a greater extent as against any other party than that party is itself bound. The disadvantage of allowing reservations is that the effect of the treaty may be severely curtailed one good example concerns Article 36(2) of the UN Charter (providing for the acceptance of compulsory jurisdiction in the ICJ). It should be observed that not all reservations are permitted and the 1951 ICJ case of Genocide Convention (Reservations) deserves a mention, if only to explain the controversy surrounding reservations to the Convention on the Elimination of all Forms of Discrimination against Women (1979). The distinction between reservations and declarations could fully be explained. either did not understand why reservations present a problem, or thought reservations simply incompatible with treaty-making. Question 4 Critically explain and evaluate the decision of Jones and Others v. the United Kingdom in the European Court of Human Rights of 14 January 2014 concerning immunity from suit. In the 2014 Recent developments, candidates were urged to read this decision and the discussion that followed. As an important case concerning jurisdictional immunity in international law a question concerning it was highly predictable. Beyond the case itself knowledge was required of Article 6 of the ECHR, the State Immunity Act 1978, the UN Convention on Torture (and subsequent domestic legislation) and the ICJ case Jurisdictional Immunities of the State (Germany v Italy) (2012). 5

6 LA3013 Public international law The most common error was a failure to understand the issues involved in the case and why it was controversial. outline briefly the facts of the case and explain the issue namely whether those who had allegedly been tortured while in Saudi custody could sue their individual torturers in UK courts and whether they would be denied their right of access to court under Article 6(1) of the European Convention on Human Rights if they could not. The case turned on whether not only Saudi Arabia s Ministry of Interior could claim immunity under the State Immunity Act 1978 for these acts of torture, but also the actual personnel responsible for acts said to be in contravention of the UN Convention on Torture and subsequent domestic legislation. The Chamber of the ECtHR held that to extend immunity to the perpetrators was not inconsistent with the UK s obligations under the Convention. Having explained this, a good answer will consider some of the arguments that may be made for and against this decision. On the one hand is the argument that the object of sovereign immunity is to pursue the legitimate aim of promoting comity and good relations via the respect of another state s sovereignty and not to allow immunity for these individuals would violate this aim. The Court referred to the ICJ decision, Jurisdictional Immunities of the State (Germany v Italy) (2012), which held that a state was not deprived of its immunity simply beca it was accd of serious violations of international human rights law. On the other hand, here there appear to be two competing principles of international law, namely the comity of nations, and the denunciation of torture. It is not clear why the first should continue to take priority. Exceptional answers observed that in the USA where the actual torturer is within US jurisdiction no reliance upon state immunity is permitted in an action for redress. did not grasp that there was a real dilemma for the European Court of Human Rights, that it rather evaded. Question 5 Evaluate the relative strengths and weaknesses of dispute settlement provided for in the United Nations Charter. This is a broad question which some candidates saw as being exclusively about the pacific settlement of disputes. The subject guide looks in some detail at both Chapter VI and Chapter VII of the UN Charter which deal with dispute settlement. There were few common errors in answers to this question. understand that this question primarily (but not exclusively) required a discussion of Chapter VI of the UN Charter concerned with the pacific settlement of disputes. This means considering and explaining the meaning of the methods of dispute settlement to be found in Article 33(1) and evaluating their strengths and weaknesses. Drawing on the subject guide and the relevant readings a good 6

7 answer could be expected to distinguish between mechanisms that are largely informal and not essentially coercive (negotiation, enquiry, mediation and conciliation) and those that are, in their method, legal and binding (arbitration and judicial settlement). Evaluation is difficult. While most disputes are settled by negotiation, the more intransigent the dispute, the more likely it is that arbitration and judicial settlement will be required. This, however, brings its own problems in that not all disputes can satisfactorily be reduced to questions amenable to legal resolution this required discussion. Beyond this a consideration is required of Articles and the role of both the Security Council and the General Assembly in resolving disputes which may endanger the maintenance of international peace and security. In turn this might fully lead to a discussion of the situations in which a resort to force under Chapter VII becomes relevant. failed to go beyond an outline of the different mechanisms found in the Charter for dispute settlement. Question 6 The international legal system has moved increasingly towards providing mechanisms whereby individuals can be held accountable. Discuss with reference to illustrative examples. This is another question that is directed to a contemporary debate in international law the place and role of the individual in the international legal regime. Reference should certainly be made to the Nuremberg trials, the International Tribunals for the Former Yugoslavia and Rwanda, the International Criminal Court and the European Convention on Human Rights. While there were many errors they were individual rather than common. probably adopt an historical approach in considering the legal personality of individuals in international law. Until Nuremberg it was generally considered that individuals, while they might be the objects of international law, were rarely if ever the subjects. On rare occasions they were granted procedural capacity but it was only after WWII that restricted international legal personality was acquired and this was originally primarily in order to create international legal responsibility for international crimes. Contemporary international law now affords individuals a greater measure of procedural capacity as for instance under the ECHR by which individuals can initiate claims against their national state alleging breaches of the Convention. But it has been increasingly recognised that individuals may be held accountable under international law. In particular the Statutes of the International Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR), and the International Criminal Court should be discussed. International criminal responsibility is also increasingly dealt with in national courts often through the of universal jurisdiction. In addition to genocide, acts which are now recognised as giving rise to individual responsibility include piracy, hijacking, terrorism and drug trafficking. 7

8 LA3013 Public international law It is also relevant to observe that notwithstanding the ECHR, in general the standing of an individual in international law is for purposes of responsibility rather than being granted broader rights. Here (or earlier) it could fully be observed that different sorts of bodies will have a range of rights and responsibilities with only states being full members of the international legal regime. tended to consider only international criminal responsibility. Question 7 Discuss the implications in international law of the Scottish referendum on independence. This question is seemingly a little (intentionally) ambiguous. It can firstly be interpreted as asking for a discussion of the implications of the reality of the Scottish referendum the fact that it is being held; or, secondly, it could be taken as questioning the implications of the results of the referendum. The International Bill of Human Rights is obviously relevant here with its emphasis upon the human right of self-determination of peoples. Similarly, cases concerned with secession and territorial integrity are important, particularly the case concerning the Aaland Islands, and more recently Kosovo. The most common error here was to be unfamiliar with the relationship between self-determination and secession. demonstrate both some knowledge of the place of self-determination in international law and some knowledge of secession. Some candidates may have confined their answers knowing that as the UK Government has granted the referendum, should the vote be in favour of separation it will be a question of how separation is to be negotiated rather than whether it should be allowed. (This reasonable position would obviate the need to consider a right to secede but if that was discussed it would not incur any penalty.) The ICJ concerning the independence of Kosovo is obviously relevant as this makes it clear that secession is not legally impermissible and that if it is permitted by the state from which secession takes place its legality will not be questioned. Having said that, there are still important implications of a positive response to the referendum that need to be considered. The first concerns succession to treaties and whether Scotland would become automatically party to treaties to which the UK is a party. The second concerns membership of international organisations such as the United Nations, European Union and NATO. The third concerns the division of assets and debts. Other points that could helpfully be alluded to are the question of currency whether Scotland could retain the pound, and the question of citizenship of the new state and how this is to be decided. Simply interpreted this question as requiring a discussion of any possible right to secession. 8

9 Question 8 How might the United Nations Security Council be reformed in order to advance the purposes of the United Nations? Public international law has been hugely affected by the creation of the United Nations and by the operation of the UN Security Council in particular. Few candidates will not have had reason to consider the effectiveness of the Security Council, particularly considering its permanent members and their veto powers. A wide range of international legal disputes could be utilised here to illustrate both the success of the Security Council s decisions and the many failures. While there were many errors they were individual rather than common. observe that the question seems to rest upon the assumption that the Security Council, as presently constructed, is less than completely effective in promoting the purposes of the United Nations. This should be examined in the light of proposals for the reform of the SC, questioning how these might (if at all) promote the purposes. It is to be anticipated that dissatisfaction with the SC comes from both its undemocratic constitution arising from its permanent membership, and the permanent members power of veto. Here a discussion of the 2003 Kofi Annan proposals for SC reform would be relevant, but this should be concluded by questioning whether such changes would resolve the problems already existing. A good answer would canvas proposals for change and explain both their strengths and weaknesses. Probably some discussion would concern whether the veto is essential, and if it is, which countries should have the right to exercise it. Any original suggestions made would also have to be directed to the advancing of the purposes of the UN. effectively merely expressed dismay at both the veto and the permanent membership without considering in any depth the problems inherent in any reform. 9