Practice Exam 2 17/18 - Public International Law - UU

Questions

Question 1a (10 points)

What are the ways through which the International Court of Justice (ICJ) could establish jurisdiction over a dispute between two States? Mention relevant treaty provisions to support your answer.

Question 1b (15 points)

Justitia and Benevoleria are members of the United Nations. In 1980, the two States decided to conclude a bilateral treaty called the Yellow Pipeline Treaty ('the Treaty') regulating the construction of underwater pipelines between the two States. The Treaty does not contain any provisions on dispute settlement. After Justitia began its construction in 2003, Benevoleria accused Justitia of violating several provisions of the Treaty, and decided to bring a case against Justitia to the ICJ for these violations.

In 1976, Justitia made an unconditional declaration recognising the jurisdiction of the ICJ as compulsory in relation to other states that made the same declaration. In 1990, Benevoleria also made a declaration accepting the compulsory jurisdiction of the ICJ, but only over disputes arising from multilateral conventions.

Would the ICJ have jurisdiction in this case? Mention relevant treaty provision and case law to support your answer.

Question 2a (10 points)

What is the right of innocent passage according to the United Nations Convention on the Law of the Sea (UNCLOS). Mention relevant provisions under UNCLOS to support your answer.

Question 2b (15 points)

Upon ratification of the UNCLOS in 2003, Myanmar made the following declaration in relation to the exercise of the right of innocent passage:

Myanmar is of the view that (..) a notification requirement is needed in respect of nuclear-powered ships or ships carrying nuclear or other inherently dangerous or noxious substances.

In your opinion, is Myanmar’s notification requirement regarding nuclear vessels and vessels carrying noxious substances in conformity with UNCLOS? Mention relevant provisions under UNCLOS to support your answer.

Question 3a (10 points)

Name and briefly describe the sources of international law. Provide an answer of no more than two lines for each source and mention relevant treaty provisions to support your answer.

Question 3b (15 points)

Parvati and Forbido are parties to the Convention on Access to Resources in the Numera Steppe (the Steppe Convention), a treaty aiming at improving access to water.

Among the provisions of the Steppe Convention is the following:
Article 12. ACCESS TO WATER
In the event that a source of water is located on the border between State parties, the Heads of State of the respective parties shall enter into negotiations in good faith for an arrangement on access to the water.

As a republic, Parvati made the following declaration when ratifying the Steppe Convention:
“With regards to Article 12, Parvati does not recognize the authority of any monarch, king or queen, of another State and will only engage in negotiations with elected members of democratic institutions.”

The Kingdom of Forbido is a constitutional monarchy, with King Mufasa as the Head of State. The Forbadian people are very proud of their King, so Forbido decides to object only to the reservation made by Parvati.

Parvati and Forbido are parties to the Vienna Convention on the Law of Treaties. Describe how the treaty relationship between Parvati and Forbido is affected by the reservation and the objection to the reservation. Mention relevant treaty provisions to support your answer.

Question 4 (25 points)

Meereen and Astapor are two neighbouring States. The Khaleesi Group is a private company registered in Meereen and is the sole provider of electricity in Astapor.

In 2008, there was social unrest in Meereen because of the decision of Khaleesi Group to raise electricity prices, leading to mass demonstrations outside the headquarters of the Khaleesi Group in Meereen. On 21 October, Daenerys Targaryen, CEO of Khaleesi Group and a Meereen national, travelled to the mentioned headquarters to meet with the demonstrators. While a meeting was taking place in the headquarters, a group of unidentified individuals began to vandalise the building, then subsequently entered the building and killed Daenerys Targaryen. Meereen police officers were at the scene of the events, yet they did not prevent the damage to the building and the death of Targaryen.

Following the events, the Government of Meereen issued the following statement: “The police of Meereen is not to blame for the events of 21 October. It is the reckless pricing policy of Khaleesi Group which led to its CEO’s death. The people justly reacted to this capitalist tyranny.”

Astapor argues that there is an obligation under international law for all States to protect the life and property of foreigners within their jurisdiction. Therefore, Astapor claims that Meereen was responsible for the death of Daenerys Targaryen and the damage done to the headquarter building. Do you agree with Astapor? Mention relevant sources, including (treaty) provisions and case law to support your answer.

Answer indication

Question 1a

Bases of jurisdiction: explain each of the four bases and mention the relevant paragraph of Article 36 ICJ Statute.

Question 1b

Optional clause declarations

• Both States have made optional clause declarations under Art. 36(2) ICJ Statute.
• Optional clause declarations operate on the basis of reciprocity. The ICJ would have jurisdiction only when the parties’ declarations overlap.
• Justitia has made an unconditional declaration accepting the jurisdiction of the Court for any international law dispute vis-a-vis any other state, which has made the same declaration. There are no conditions or reservations attached.
• Benevoleria’s declaration contains a reservation, which only gives the Court jurisdiction over multilateral treaties. Euphoria’s scope of consent is thus narrower than that of Justitia, so the Court would have jurisdiction only to the extent of Benevoleria’s acceptance.
• The Yellow Pipeline Treaty is a bilateral treaty, therefore it falls beyond the scope of Euphoria’s consent to the ICJ’s jurisdiction.
• Conclusion: the ICJ would not have jurisdiction under Art 36(2) of its Statute.

Question 2a

Innocent passage

• A right that all States have in the territorial sea of another State
• Explanation of passage: traversing through territorial sea, continuously and expeditiously, only allowed to stop and anchor in exceptional circumstances
• Explanation of innocent: not prejudicial to peace, good order and security, not engaged in any of the activities listed in paragraph (2)

Question 2b

Coastal State’s right over innocent passage

• Explain States have rights to regulate innocent passage but only in relation to certain issues under article 21(1)
• Explain whether Myanmar’s requirement falls under one of the subparagraphs of Article 21(1)
• Explain coastal States have duties regarding innocent passage under Art 24
• Explain whether Myanmar’s requirement has the practical effect of denying or impairing innocent passage
• Conclusion: depending on argument, consistency with argument is key to giving points

Question 3a

Sources

• International convention: explain and mention art. 38(1)(a)
• Customary international law explain and mention art. 38(1)(b)
• General principles of law: explain and mention art. 38(1)(c)

Question 3b

Legal effect of objection

• Forbido objects to reservation, but not to the party status of Parvati, thus Steppe Convention still in force between the two.
• Article 12 of the Steppe Convention, the provision to which the reservation relates, does not apply between Forbido and Parvati to the extent of the reservation.
• Conclusion: the King will not be the one to negotiate the arrangement in the event of negotiation between the 2 States.

Question 4

• States are responsible for international wrongful acts (art 1 ARSIWA)
• Define international wrongful acts and constituent elements (art 2 ARSIWA)
• Apply these elements to the facts
  • Act or omission?
  • Attribution:
    • Act: argument on whether the Meereen’s statement is sufficient to attributable protesters’ acts to Astapor
    • Omission: the failure resides with the police, which of course constitutes a state organ
  • Breach of international law: obligation to protect the life and property of aliens within their jurisdiction
• Conclusion: depending on argument, conclude whether Meereen is responsible under international law, consistency is key to giving points here.