These questions are based on work groups from 2016/2017

Questions

Question 1a

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

Question 2a

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 2b

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

Question 2c

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.

Question 3a

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 3b

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

Question 3c

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 5a

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 5b

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 5c

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 6a

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 6b

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 6c

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 7a

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

Question 7b

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?

Question 8a

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 8b

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 8c

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 8d

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 9a

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 9b

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

Question 10a

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 10b

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

Question 10c

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

Question 10d

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 10e

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

Question 11a

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

Question 11b

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

Question 11c

How did the Court come to this conclusion?

Question 12a

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.

Question 12b

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 12c

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 12d

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.

Question 13a

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 13b

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 13c

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 13d

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 14a

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 14b

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

Question 15a

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^stof 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.

Does international law allow for such an armed intervention?

Question 15b

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 15c

Would the support given by Venezuela to the FARC give Colombia the right to use force against Venezuela? Explain your answer.

Answers

Question 1

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 2a

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 2b

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 2c

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.

Question 3a

General practice and the acceptance of this practice of law.

Question 3b

"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 3c

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 5a

• 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 5b

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 5c

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 6c

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 6b

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 6c

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

Question 7a

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 7b

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 8a

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 8b

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 8c

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 8d

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 9a

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 9b

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 10a

Convention relating to the Status of Refugees, 1951.

Question 10b

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 10c

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

Question 10d

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 10e

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 11a

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 11b

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 11c

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

Question 11d

A State official in function enjoys full immunity from criminal jurisdiction and inviolability. The Court says that immunities enjoyed under international law by a former Minister for Foreign Affairs do not represent a bar to criminal prosecution in certain circumstances. A former Minister may be subject to criminal proceedings before certain international crime court, where they have jurisdiction. Other exceptions in this case come from the Pinochet-case and the Qaddafi-case. In Pinochet Lord Millett concluded that international law cannot supposed to have established a crime having the character of a jus cogens and at the same time to have provided an immunity and Lord Philips said that no established rule of international law requires state immunity rationae materiae to be accorded in respect of prosecution for an international crime.

Question 12a

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 12b

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 12c

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 12d

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 13a

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 13b

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 13c

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 13d

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 14a

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 14b

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 15a

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. It needs to be checked if the rebels have something to do with the State.

Question 15b

There is probably an existence of any threat to the peace, breach of the peace or act of aggression.

Question 15c

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