Public International Law - UL - TentamenTest (2017)

Question

Question 1 (New Style)

The fight against terrorism might make it necessary to derogate from provisions of international human rights law. Please explain whether it is permissible to combat terrorist attacks by introducing measures which derogate from the prohibition of torture and the right to peaceful assembly in the International Covenant on Civil and Political Rights (ICCPR). If derogation from these rights is permissible, elaborate upon the legal requirements that any measures derogating from the ICCPR would need to meet. Substantiate your answer with reference to relevant legal provisions and/or case law. (20 points)

Question 1 (Old Style)

You are the student assistant of your professor of public international law. As he is currently very busy, he asked you to support him in preparing the next lecture. He asked in particular for a comprehensive overview of the subjects of public international law. Address in detail the subjects-doctrine and describe the principal characteristics of three subjects under public international law. Substantiate your answer with reference to relevant legal provisions and/or case law. (20 points)

Question 2

For twenty years, Elantris has been governed by a military dictator, General Iadon. Iadon has enjoyed increasing popularity for the past two years. In early 2016, he announced that he was determined to democratize Elantris and he wished to have his position confirmed and legitimized through fair and transparent presidential elections. However, Iadon’s rival Mr. Raoden emerged as the winner of the 15 March 2017 elections.

Iadon was outraged. He refused to accept the outcome and had hundreds of Raoden’s supporters expelled, killed or tortured. Raoden fled the country. Large-scale unrest followed, primarily in the Western part of the country where Raoden enjoys the most widespread support. General Iadon responded by ordering the Elantris army to “clean up that rebel nest”. Elantris’s Western neighbor and archrival Fjorden has followed these developments with concern and considers that the situation in Elantris forms a threat to the stability of the entire region.

Fjorden announced its readiness to conduct a military intervention in Elantris to end violence thereand to oust General Iadon from power (and thereby to enable Raoden’s inauguration as president), contributing to democratization of Elantris and to stability. Fjorden and Elantris are both UN members.

Now consider the following scenario. The SC fails to deal with the situation and does not adopt a resolution. Fjorden still wishes to intervene in relation to the violence by the Elantris’ Government against civilians and/or the evolving humanitarian crisis. However, Fjorden is not willing to risk violating international law. You are asked to provide a legal advise on a generally accepted alternative legal basis for military intervention in light of the evolving humanitarian crisis. Under what conditions does international law allow States to intervene to protect civilians and have these conditions been satisfied in the current circumstances? Limit the discussion to one legal basis. (8 points)

Question 3a

Ms. Y was a Colonel in the Free Syrian Army (FSA), a non-state actor. In this capacity, she fought against the armed forces of Syria between 2014 and 2016. Recently, suspicions have been raised that she intentionally directed attacks against the civilian population in Syria. Ms. Y has the Swedish nationality and now resides in the Netherlands. For both Sweden and the Netherlands the Statute of the International Criminal Court (ICC) entered into force on 1 July 2002. Sweden investigated the case of Ms. Y. in 2016 and decided not to prosecute due to the lack of evidence. Nonetheless, the ICC Prosecutor convinced the Dutch authorities to arrest the suspect and to hand her over to the ICC in February 2017.

The Prosecutor has charged the suspect with a violation of Article 8(2)(b)(i) of the ICC Statute. During the confirmation of charges hearing, the presiding judge of the ICC noted that Sweden has a good track record prosecuting war criminals and even has made a recent conviction in a similar case. Further, the judge remarked that the ICC seems to have jurisdiction to continue the proceedings.

Sweden and the Netherlands are parties to the 1949 Geneva Conventions and their 1977 Additional Protocols. Syria is only party to the 1949 Geneva Conventions. You are counsel for the defendant and are keen to counter all the actions and arguments of the Prosecutor. Substantiate your answers with reference to relevant legal provisions and/or case law.

Is the case admissible before the ICC? Please do not address the wider issue of jurisdiction. (9 points)

Question 3b

Is the Prosecutor of the ICC correct in charging Ms. Y under Article 8(2)(b)(i) ICC Statute? (6 points)

Question 3c

Discuss to what extent Common Article 2 of the 1949 Geneva Conventions applies the si omnes clause. (5 points)

Question 4a

On 1 January 2017, the Republic of Sendaria adopted an act that bans the production and sale of all flavoured cigarettes within the Republic of Sendaria. The act does not apply to apple flavoured cigarettes, which are exclusively produced within Sendaria. Sendaria justifies the ban on the basis of health concerns. It argues that flavoured cigarettes induce adolescents to start smoking and, as a result, to become addicted to cigarettes. A large survey among the Sendarian population shows that 80% of adolescents who experimented with cigarettes in 2016 opted for the flavoured varieties.

The State of Riva, the leading producer of strawberry flavoured cigarettes globally, decides to bring a case before the WTO to challenge the act adopted by Sendaria. It claims that the act is discriminatory, since apple flavoured cigarettes are just as harmful to human health as other flavoured cigarettes. Both States are members of the WTO. You are invited to become a member of the panel that will decide the dispute.

How would you assess the compatibility of the Sendarian act with the basic principles of the GATT?

Question 4b

Would Sendaria be able to successfully invoke any of the general exceptions to these principles? Limit your discussion to one exception.

Question 5a

In her well-known book Silent Spring (1962), Rachel Carson writes the following: We stand now where two roads diverge. But [...] they are not equally fair. The road we have long been traveling is deceptively easy, a smooth superhighway on which we progress with great speed, but at its end lies disaster. The other fork of the road — the one less traveled by — offers our last, our only chance to reach a destination that assures the preservation of the earth.

Discuss how this quote relates to the principle of sustainable development within the field of international environmental law, identifying the origins of the principle and its constitutive elements (6 points).

Question 5b

Another important principle within the field of international environmental law is the obligation to conduct a so-called ‘environmental impact assessment’. Describe the content, nature and legal status of this obligation, based on relevant legal provisions and/or case law. Distinguish in your answer between the obligation of States to conduct an environmental impact assessment under general environmental law, and their obligation to do so under the law of the sea (14 points).

Answers

Question 1 (New Style)

As a principal rule, the ICCPR does provide for the possibility to derogate from the provisions of the ICCPR. This derogation is, however, only possible under strict conditions. (2 POINTS) Article 4 of the ICCPR contains the so-called derogation clause. It lists a number of conditions, which need to be met in order to be allowed to derogate. (1 POINT) Firstly, there must be a situation of public emergency which threatens the life of the nation. (1 POINT) Secondly, this situation must officially be proclaimed. (1 POINT) Furthermore, derogation is only permitted to the extent strictly required by the exigencies of the situation. (1 POINT) In addition, Article 4 requests that the measures are not inconsistent with other obligations under international law and do not involve discrimination on the ground of race, colour, sex, language, religion or social origin. (1 POINT) Paragraph 2 of Article 4 determines also, that derogation from specific rights is not allowed (2 POINTS). These rights are contained in articles 6, 7, 8, 11, 15, 16 and 18 of the ICCPR. (2 POINTS) The final condition to be met is that the State that wishes to derogate has to inform the other States Parties to the ICCPR through the intermediary of the Secretary General of the United Nations about its derogation(s). (1 POINT) It can thus be argued, that article 4 ICCPR permits States Parties to the ICCPR to derogate from provisions contained in the Convention. ( 1 POINT) States Parties are, however, obliged to derogate within the clearly prescribed limits of article 4 paragraphs 1 and 2. Derogation from the prohibition of torture, cruel, inhuman and degrading treatment is prohibited under article 4 (2) jo. Article 7. (2 POINTS) Other measures not constituting a violation of article 4(2) would thus be permitted. (1 POINT) Article 21 ICCPR provides for the right to peaceful assembly. (1 POINT) Since it is not listed in article 4 (2) ICCPR derogation from article 21 is possible if the conditions of article 4 (1) are met. ( 1 POINT)

It can thus be concluded, that it is indeed possible to derogate from provisions under the ICCPR. Article 4 ICCPR sets out the requirements. Derogation from the prohibition of torture is prohibited under article 4(2) ICCPR. (1 POINT) As regards article 21 ICCPR and the right to peaceful assembly, it is concluded that derogation is permitted within the prescribed limits of article 4 (1) ICCPR. (1 POINT)

Question 1 (Old Style)

According to the subjects doctrine, subjects under international law are those who bear rights and obligations under public international law. (3 POINTS)

The principal subjects of international law are states. (2 POINTS) According to article 1 of the Montevideo Convention, states are those entities who fulfill four requirements of statehood (1 POINT): States need to have a population (1 POINT), a territory. (1 POINT), an effective government. (1 POINT) and they should have the capacity to enter into international relations (1 POINT). Finally, there is the question of the function of recognition (constitutive or declaratory). (1 POINT) In addition to states, international organizations are also recognized to be subjects under international law (2 POINTS). International organizations are those entities, which are created by states (1 POINT) in order to pursue a specific task, such as the protection of human rights. ( 1 POINT)

Finally, individuals are to be mentioned as another subject of international law. (2 POINTS) Individuals are, however, to be distinguished from states and international organizations as they do not possess full legal personality under international law. (1 POINT) They can, for instance, not conclude an international treaty. (1 POINT) It can thus be concluded that states and international organizations are the primary subjects of international law. In addition, individuals possess limited legal personality under international law. (1 POINT)

Alternative answers:

Credits were also given for a discussion of multinational companies and peoples as subjects of international law.

Question 2

The “responsibility to protect” [or R2P] (1 point) is such a generally accepted ground (1 point - as I could not give 0.5 points, I also accepted “right to protect” although this is not really correct). It has been formulated in the World Summit Outcome/General Assembly Resolution A/60/1 (2005) (1 point). R2P may be invoked to protect the population against genocide, crimes against humanity, ethnic cleansing and war crimes (1 point - also granted if you referred to core crimes) subject to SC authorization [alternatively: as a collective measure] (1 point).

In the present case, the circumstances (attacks on civilians) may justify invocation of R2P (1 point – I granted this point also if you considered that there was not enough information available to judge this) but there is no SC authorization (1 point). In conclusion, Fjorden cannot intervene based on R2P, since the conditions (SC authorization) have not been met (1 point).

It was possible to earn a bonus point for a comparison with humanitarian intervention, i.e. that R2P is applicable in stricter circumstances (core crimes rather than flagrant violations human rights) and/or that HI is not generally accepted. (1 bonus point)

Frequent mistakes

I have not withheld points for this issue (you were left free to argue whether you found that the factual circumstances in Elantris justified R2P) but it is very difficult to argue that the order to “cleanup that rebel nest” could qualify as an incitement to commit genocide (only certain specific types of groups are protected by the definition of genocide – see Genocide Convention).

In general, Question 2 proved to be more difficult than expected, possibly due to the fact that it was clarified at the outset that there is no SC authorization. However, if you had read the question carefully, it would have become clear that this is not a problem. After all, you were not only to identify a generally accepted legal basis to respond militarily to the humanitarian crisis and attacks on civilians, but also to discuss whether its conditions have been fulfilled. R2P thus clearly remained an option – and indeed it was the only correct option.

Still, this question was graded very leniently. You did not automatically loose all 8 points for having taken the wrong path. The maximum number of points you could get depended on the legal basis you opted for (more or less relevant/valid/credible option). Your answer was then graded mainly based on the quality of arguments, but reference to some specific criteria was also taken into account. As any answer other than R2P was incorrect, the criteria were only used as a guidance (so you cannot claim extra points on this basis!) and the most important factor determining your score was the degree of knowledge of the possibilities to use force (within and outside the UN Charter) that your answer demonstrated.

Alternative answers for which a number of points have been granted

• Humanitarian intervention - the only other legal basis specifically aiming to form a military response to a humanitarian crisis, but not a generally accepted one. Here you could earn a maximum of 5 points (6 if your answer clearly indicated that you opted for this legal basis due to your correct conviction that R2P requires SC authorization) Some factors taken into account: most importantly, that HI is not generally accepted. In addition: name, circumstances (flagrant violations of HR rather than genocide, war crimes, crimes against humanity, ethnic cleansing which may justify R2P), no requirement of SC authorization, applicability.

• Uniting for Peace – this procedure is not specifically tailored to respond to a humanitarian crisis. Here you could earn a maximum of 4 points. Some factors taken into account: name, source, SC inactivity, veto (i.e. by a permanent member) in the SC as reason for its failure to deal with the situation, applicability.

• Finally, (individual or collective) self-defense. This option was the least credible/relevant one, so you could only earn maximum 3 points. Factors taken into account: name, constituting the sole exception under the UN Charter to the prohibition on the use of force, applicability.

• There were a number of other creative solutions. However, you really cannot justify military intervention based on the ICCPR, ICC Statute, universal jurisdiction or under ius in bello (the Geneva and Hague Conventions). As the question explicitly asked you to advise on such a legal basis, you could not earn any points for these or other alternatives.

Question 3a

Admissibility of cases before the ICC are based on the complementarity principle (1 point), meaning that the ICC will only admit cases that are handled by national courts in contravention of Article 17 ICC Statute, i.e. a State is unable and unwilling to genuinely prosecute the case.

In the given fact pattern Article 17(1)(b) ICC Statute is the most relevant provision (1 point). Elements: the case has been investigated by a State that has jurisdiction (1 point); the State has decided not to prosecute (1 point); the decision not to prosecute did not result from the unwillingness or inability of the State (1 point) (further elaborated in Article 17(2) and (3) ICC Statute, but no separate points awarded for mentioning those). Sweden has investigated the case as it had jurisdiction based on the active nationality principle: Ms Y has the Swedish nationality (1 point), but decided not to prosecute based on a lack of evidence (1 point) and it may be inferred from the facts that Sweden is able and willing as it has prosecuted war criminals before, even recently (OR: the criteria of Article 17(2) and (3) do not apply). (1 point). The case is therefore inadmissible based on Art. 17(1)(b) ICC Statute. (1 point)

Frequent mistakes

• Students did address the wider issue of jurisdiction (Articles 5, 11, 12, 13)- Students did not mention all the criteria in a way demonstrating understanding the relevant provision

• Students did not apply (all) the rules to the facts

Question 3b

Article 8(2)(b)(i) of the ICC Statute is a crime committed in an international armed conflict (1 point) according to Article 8(2)(b) (1 point). Common Article 2 Geneva Conventions provides a definition of an international armed conflict (an armed conflict between two or more High Contracting Parties (States) or occupation). (1 point)

The conflict involves the Free Syrian Army (a non-State actor) and a State (Government of Assad) and these do not constitute two High Contracting Parties (1 point). (The same point was awarded to answers that included a reference to Common Article 3 as a basis of saying there was only one State actor involved)

The Prosecutor is therefore not correct, because the charge is not applicable as the crime is not committed in an international armed conflict. (1 point)

Frequent mistakes

• Students answered the question how the situation did qualify (as a non-international armed conflict), whereas the question only sought to find an answer to what it was not. As a matter of legal analysis and methodology, this is an important distinction.

• Students looked at the substantive elements of mens rea and actus reus

• Students mistakenly assessed whether Sweden (and/or the Netherlands) was a party to the conflict

• Students did not link the ICC provision to IHL definitions

Question 3c

The si omnes clause relates to the scope of application of IHL treaties (Klabbers, pp. 206-207) (1 point). What this means, according to Klabbers, is “that particular instruments would only apply if both parties to the conflict were also parties to the convention concerned.” (or any other correct explanation of the concept of si omnes) (1 point) This is in principle confirmed in Common Article 2(3)(1 point) (“Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations”) (the same point was awarded for mentioning this or similar expressions that demonstrated understanding of this part of CA 2(3) without mentioning the provision explicitly). However, Common Article 2(3) to the 1949 Geneva Conventions also partly dispenses with the idea of the si omnes clause (1 point) by extending the application of the Conventions to States that are not party to the Geneva Conventions if those States accept and apply the Convention. (1 point)

Frequent mistakes

• Si omnes is not the same as erga omnes

Question 4a

The GATT contains three basic principles which seek to prevent member States from discriminating between products: most-favoured nations treatment under Art. I, national treatment under Art. III and a prohibition on quantative restrictions under Art. XI (1 point). The most relevant provision is Article III:4 of the GATT (1 point). This provision determines that imported products shall receive treatment no less favourable than that accorded to like products of national origin with regard to all laws, regulations and requirements affecting (amongst others) their internal sale (1 point). For this provision to apply, we must first assess whether apple flavoured and strawberry flavoured cigarettes are ‘like products’ (1 point). Apple flavoured and strawberry flavoured cigarettes appeal to the same public and are therefore in a competitive relationship (1 point). By prohibiting all flavoured cigarettes except the locally produced apple flavoured cigarettes, the act treats imported products less favourable than domestic products (1 point). There is therefore a violation of one of the basic principles of the GATT (1 point).

Frequent mistakes

• The ban would be a violation of Art. I on most-favoured-nation treatment. This answer is based on an incorrect understanding of Art. I. This provision applies to discrimination between trading partners (granting favours to one foreign State and not to the others). Sendaria itself is not a trading partner, so this provision has not been violated.

• The ban would be a violation of Art. XI on quantitative restrictions. This is not correct, since the ban does not relate to imports as such; it prohibits the production and sale of flavoured cigarettes. Hence, technically, other States could still export their cigarettes to Sendaria, but these cannot be sold.

• Some of you experienced difficulties with the Roman numbering. If the mistake was obvious, you were given the benefit of the doubt.

Question 4b

The general exceptions are listed in Art. XX of the GATT (1 point). Art. XX(b) allows State to adopt measures that are necessary to protect human, animal or plant life or health (1 point). The objective of the act is to prevent adolescents to start smoking (1 point) and therefore is designed to protect human health (1 point). The question is whether the act is ‘necessary’ to achieve this purpose (1 point). Measures are considered necessary when there is no reasonable less trade restrictive option to achieve a legitimate objective (1 point). It may be argued that the act is necessary in this sense, since preventing youth smoking is an important objective (1 point) and – based on the high number of adolescents who experiment with flavoured cigarettes – there doesn’t seem to be a reasonable alternative to banning those cigarettes (1 point). The act would therefore fall within the ambit of Art. XX(b) GATT (1 point). In order to be justified, the act must however also satisfy the requirements of the chapeau of Art. XX GATT (1 point). To satisfy the chapeau, measures should not be applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade (1 point). The fact that the act applies to all flavoured cigarettes except to locally produced apple flavoured cigarettes, while these are equally harmful to human health, indicates that the act constitutes unjustifiable discrimination/is a disguised restriction on international trade in the sense of Art. XX chapeau (1 point). Sendaria would therefore not be able tosuccessfully invoke Art. XX(b) GATT (1 point).

Frequent mistakes

• You should distinguish between the design of the measure and its application. When assessing whether the measure would be justified under the relevant exception, you should have assessed whether the measure was designed in a way to contribute to the objective and whether it was necessary for this purpose. When assessing whether the measure satisfies the chapeau, you should have assessed the way the measure was applied by Sendaria.

• You should distinguish between discrimination and discrimination that is arbitrary or unjustifiable. A measure can be discriminatory (on the basis of Art. 1 or 3), but cannevertheless be justified pursuant to Art. XX as long as the discrimination is done for a good reason (such as the protection of human health). Art. XX chapeau sees to situations in which a measure that protects a genuine interest is applied in a way that unduly affects other States.

Alternative answers

• Points were also granted for reasoning that the ban was not necessary, based on the availability of alternative measures. The allocation of points for this answer depended on the quality of the argumentation.

Question 5a

Origin and content

The principle of sustainable development was first authoritatively defined by the so- called Brundtland Commission (World Commission on Environment and Development) as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs” (1 point, for the identification of the origin of the principle in the work of the Brundtland Commission).

It was later reformulated in the Rio Declaration, in, inter alia, Principles 3 (“The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations”) and 4 (“in order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it”) (1 point, for naming the location of the principle in the Rio Declaration).

The content of the principle is as follows:

Taking into account the needs of the present, including the specific needs of developing states (1 point, for the taking into account of developmental needs)o In a manner that also takes into account the needs of future generations, in particular the need to protect the environment for the enjoyment of these future generations (1 point, for the taking into account of environmental needs)

Comparison between the quote and the principle

The quote by Rachel Carson most clearly relates to the principle of sustainable development as it identifies that humanity has two options for the future: to continue traveling down the ‘smooth superhighway’, with all the incumbent technological advances this brings, but resulting in the ultimate destruction of our environment; or to adapt the actions taken by humanity, to prevent environmental disaster . This is a clear illustration of the principle of sustainable development, as sustainable development entails that the actions humans take in the present must take into account the impact these actions will have on the environmental quality of the world in the future (1 point, for identification similarity).

However, Carson’s quote focuses more on the ‘sustainability’ element of the principle, and less so on the element of ‘development’, thus distinguishing it from the formulation of the principle as we can find it in the Rio Declaration (1 point, for identification difference).

Frequent mistakes

• Many students seemed somewhat at a loss as to how to answer this question. Many mentioned articles from the Paris Agreement, the Convention on Biological Diversity, etc. – unfortunately, this was often not done in a manner that provided a clear answer to the question that was posed. As such, points were not awarded.

• Very few students recalled the origin of the principle of sustainable development, as was explicitly asked in the question. Points were awarded for those who mentioned the work of the Brundtland Commission; alternatively, points were also awarded for those who discussed the relevance of the Stockholm Declaration. Points were also awarded to those who discussed the evolution of environmental law from so-called ‘disaster law’ to the current incarnation of environmental law – provided that this explanation was argued in a convincing manner and was linked to the question.

• Most students were able to identify the constitutive elements of the principle of sustainable development, albeit not always in an explicit manner. Points were awarded if it became clear from your answer that there are indeed two elements to the definition of the principle.

• Similarly, most students were also able to identify the similarity between Carson’s quote and the principle of sustainable development. Some students discussed elements of fairness or equity; points were also awarded for this, as this is also an element of the definition of sustainable development in environmental law.

• Very few students identified the difference between the quote and the principle – note that the quote originates from before the formulation of the principle of sustainable development (1962), and as such is missing a crucial element: the importance of development in order to achieve sustainability. Points were awarded to those students who demonstrated in their answers that they understood the clear difference between this developmental element and the sustainability element.

Question 5b

The obligation to conduct an environmental impact assessment can be located in Principle 17 of the Rio Declaration, which states that such assessments, “as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment” (1 point, for relevant provision general international law). The purpose of such an EIA is to conduct an assessment into the potentially harmful environmental effects of a planned project, in order to be able to make a decision on whether or not the project should be authorised, in light of the (potential) environmental risk (1 point, for explanation of what an EIA is). The conducting of an EIA by a State is one way in which it fulfils its due diligence obligations (1 point, for identifying nature of obligation).

International law does not specify the shape of an EIA (1 point). The obligation to conduct an environmental impact assessment was discussed by the International Court of Justice in the Pulp Mills case (1 point, for relevant case law). The Court held that the obligation has become part of general international law, which means that it is an obligation under customary international law (1 point, for identification of legal status). It further held that “where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource” (para. 204) it would be necessary to conduct an EIA. In other words, there must be a 1) risk (1 point) of a 2) significant adverse impact (significant excluding minor damage) (1 point) 3) on the environment of other States (1 point).

States must conduct an EIA at least prior to the initiation of the project (1 point), but also during the project itself (1 point) (Pulp Mills, para. 205: “The Court ... considers that an environmental impact assessment must be conducted prior to the implementation of a project. Moreover, once operations have started and, where necessary, throughout the life of the project, continuous monitoring of its effects on the environment shall be undertaken”).

The law of the sea contains its own specific obligations determining when States are required to conduct an environmental impact assessment in relation to planned activities in any of the maritime zones. All States have obligations under Part XII of UNCLOS to protect and preserve the marine environment; Article 206 of UNCLOS specifically provides that States have an obligation to conduct EIAs when there are “reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant or harmful changes to the marine environment” (1 point, for identification relevant provision law of the sea). As such, there is a general obligation under the law of the sea to conduct an EIA when there are ‘reasonable grounds’(as compared to ‘risk’ under general international law) (1 point), in relation to planned activities ‘undertheir jurisdiction or control’ (as compared to merely in a transboundary context under general international law) (1 point).

Frequent mistakes

• This question was answered remarkably well by most students. The majority were able to identify the applicable situation in which states are obligated to conduct an EIA, as well as the other elements of this obligation (e.g. the nature, the timing, etc.).

• Very few students recalled the relevant provision in the Rio Declaration.

• Few students explicitly identified that the ICJ’s identification of the obligation as part of ‘general international law’ actually entails that it is indeed part of customary international law. The answers were graded leniently here – points were also awarded if students simply recalled that the obligation is part of general international law.

• The majority of students successfully identified the relevant provision in UNCLOS requiring states to conduct an EIA. Unfortunately, less students took the time to explain the elements of this obligation under the law of the sea. This element was once again graded leniently: points were awarded to those students who discussed the elements, even if these students did not explicitly compare/contrast these elements to the obligation sketched under general international law by the ICJ in Pulp Mills.