Practice Exam 3 17/18 - Public International Law - UU

Questions

Question 1

The International Monetary Fund (IMF) was established at a United Nations conference in 1944. The IMF's mandate includes ensuring the stability of the international monetary system, as well as overseeing all macroeconomic and financial issues which affect global stability. In recent years, the IMF has become concerned with the fact that, despite global economic growth, there still exists a lack of access to education for young girls in many countries around the world.

Question 1a (10 points)

The IMF raises the issue with the United Nations General Assembly. The General Assembly decides to request the International Court of Justice (ICJ) for an advisory opinion on the following question: what obligations do States have under international law with regard to ensuring access to education for their citizens?

Can the ICJ render an advisory opinion at the request of the General Assembly in this case? Mention relevant treaty provisions and case law to support your answer.

Question 1b (15 points)

Between the IMF and the United Nations, there is an agreement authorising the IMF to request advisory opinions from the ICJ. The IMF thus decides not to raise the issue with the General Assembly, but to bring a request for an advisory opinion to the ICJ by itself on the same question: what obligations do States have under international law with regard to ensuring access to education for their citizens?

Can the ICJ issue an advisory opinion at the request of the IMF in this case? Mention relevant treaty provisions and case law to support your answer.

Question 2 (25 points)

All States in this case are parties to the United Nations Charter.

Over the last 5 years, the State of Proximia has suffered from several gruesome attacks in its territory by a group called ‘Independent State’ (IS). IS comprises of militants from all over the world, but it receives funding, weapons and training from the prosperous neighbouring State of Neverland. Witnesses have also seen members of Neverland’s army on the ground directing IS troops in their day-to-day activities, with modern technologies and tactics. Without this support IS would be completely
incapable of carrying out its activities.

After IS carried out a particularly grave attack at a concert in a Proximian park, which killed 20 Proximian nationals, Proximia decided to conduct air strikes targeting several military bases in Neverland. Neverland immediately objected, claiming that Proximia has violated international law.

Do you agree with Neverland? Mention relevant treaty provisions, customary international law and case law to support your answer.

Question 3a (10 points)

Audaria is a province of the State of Croteria. Living in Audaria is a group of ethnic minority called Audarian, who possesses a language, culture and religion that are distinct to the rest of Croteria. Audaria has a regional authority which exercises administrative control throughout the region. In the past decade, the Croterian authorities have consistently discriminated against the Audarians, excluding them from Croteria’s administrative, health, and education systems. After several years of peaceful protest and unsuccessful attempts to engage in negotiation with the Croterian central government, the Audarian regional authority declared independence from Croteria in 2018. Does Audaria’s declaration of independence violate international law? Why/ why not? Explain your answer by elaborating on the relevant case law.

Question 3b (15 points)

Since Audaria’s declaration of independence, 123 States have established diplomatic relations with Audaria. In your opinion, can Audaria be considered a State under international law? Mention the relevant treaty to support your answer.

Question 4a (10 points)

Mr. Hendriksen, a Dutch national, was visiting Italy while on vacation. As he was driving a rental car from the hotel to the beach, Mr. Hendriksen ignored a red traffic light and hit Ms. Figo, a Portuguese national. Ms. Figo was severely injured, but Mr. Hendriksen continued driving regardless. Ms. Figo later died in the hospital.

Which States can claim jurisdiction to bring criminal proceedings against Mr. Hendriksen? Mention all possibilities and explain your answer by referring to the applicable principles of jurisdiction.

Question 4b (15 points)

One month after the incident, Mr. Hendriksen was appointed Minister for Foreign Affairs by the Netherlands. After Mr. Hendriksen became the Minister of Foreign Affairs, the Portuguese authorities decided to bring criminal proceedings against him. Mr. Hendriksen claims that he cannot be subjected to a crimimal trial in Italy.

Is Mr. Hendriksen correct? Explain your answer by referring to customary internaitonal law and relevant case law.

Answer indication

Question 1a

General Assembly’s competence to request advisory opinions:

• The Court may give an advisory opinion on any legal questions at the request of whatever body may be authorized by or in accordance the UN Charter (points for argument and citing the correct Article of ICJ Statute).
• The GA has the competence to request an advisory opinion on any legal question. (points for argument and citing the correct article of ICJ Statute and relevant paragraph(s) of Advisory Opinion on Nuclear Weapons).
• The question asked of the ICJ is a legal question, as it relates to the obligations of States under international law (points for argument and citing relevant paragraph(s) of Advisory Opinion on Nuclear Weapons).
• Conclusion: the ICJ can exercise advisory jurisdiction.

Question 1b

IMF’s competence to request advisory opinions

• Argue whether the IMF automatically has the power to request advisory opinions, (points for argument and citing the correct Article of ICJ Statute).
• Elaboration of the conditions for IMF to ask for advisory opinion:
  • Whether the IMF has been authorised by the GA: (points for argument and for referring to the agreement between IMF and UNGA).
  • Whether the question is a legal question: yes, same as above ((points for argument and citing relevant paragraph(s) of Advisory Opinion on Nuclear Weapons).
  • Whether the question arises from the scope of its activities: no, as the IMF competence does not concern education/human right to education (points for argument and citing relevant paragraph(s) of Advisory Opinion on Nuclear Weapons).
• Conclusion: consistent with argument.

Question 2

• Mention the prohibition on use of force under Article 2(4) UNC.
• Mention exception for prohibition: self-defence (points for naming and providing legal basis).
• Elaborate and apply the criteria to the case:
  • Whether the attack at the concert constituted an armed attack against Proximia (points for argument, citing correct article of UNC and relevant paragraph of Nicaragua case).
  • Whether the attack was perpetrated by Neverland: Explain whether IS’ attack could be attributable to Atlantis (points for argument, citing relevant paragraph of Nicaragua case).
  • The invocation of the right to self-defence must be reported to the UNSC, and must cease when the UNSC takes over (points for argument, citing correct article of UNC and relevant paragraph of Nicaragua case).
  • Whether the air strike was necessary (no other option available) (points for argument, citing relevant paragraph of Nicaragua case).
  • Whether the air strike was proportionate to the initial attack and forced used (points for argument, citing relevant paragraph of Nicaragua case).
• Conclusion: must be consistent with argument.

Question 3a

Croteria’s declaration of independence:

• There is no explicit prohibition of unilateral declaration under international law, as established in the ICJ Kosovo Advisory Opinion
• Explain /Analyse what has been decided in the Kosovo Advisory Opinion
• Croteria’s declaration did not violate international law

Question 3b

Croteria’s statehood

• Mention Article 1 of the Monte Video Convention
• Mention and argue based on the criteria:
  • Whether Croteria has a population
  • Whether Croteria has a territory
  • Whether Croteria has a government
  • Whether Croteria has the capacity to enter into relations with other states
  • Reference to the theory of recognition—name the declaratory and constitutive theories
• Conclusion: consistent with argument

Question 4a

Several States can claim jurisdiction over one and the same act/concurrent jurisdiction.

• Italy can claim jurisdiction on the basis of the territoriality principle; the act was committed on Italian territory.
• The Netherlands can claim jurisdiction on the basis of the nationality principle; the act was committed by a Dutch national.
• Portugal can claim jurisdiction on the basis of the passive personality principle; the act was committed against a Portuguese national.

Question 4b

Immunity enjoyed by High Ranking Officials

• As Mr. Hendriksen is a Minister of Foreign Affairs. Thus under customary international law, he enjoys full immunity from criminal jurisdiction and when abroad, throughout the duration of his office (points for argument and referencing relevant paragraph of Arrest Warrant case)
• Mr. Hendriksen is charged for an act in his private capacity, when he was on holiday. But there is no distinction between acts performed by a Minister for Foreign Affairs in an “official” capacity, and those claimed to have been performed in a “private” capacity (points for argument and referencing relevant paragraph of Arrest Warrant case)
• Mr. Hendriksen caused the accident before he became Minister of Foreign Affairs, but there is no distinction between acts performed before the person concerned assumed office as Minister for Foreign Affairs and acts committed during the period of (points for argument and referencing relevant paragraph of Arrest Warrant case)
• Mr. Hendriksen is correct. Mr. Hendriksen enjoys full immunity from criminal jurisdiction, therefore, Portugal cannot prosecute him for the death caused to Ms. Figo.