Questions

Question 1 (20 points)

South Africa has claimed an Exclusive Economic Zone (EEZ) to the fullest extent possible. Suppose that neighbouring Namibia is constructing an artificial island that lies within South Africa’s EEZ. This artificial island is meant for a Namibian research centre intended to do research on the role of climate in the change of water currents around the Cape. South Africa informs Namibia of its mistake in placing this island in South Africa’s EEZ and tells Namibia that it has no right to do this without South Africa’s permission. Namibia responds by saying that within the EEZ, other states enjoy the freedoms of the high seas, including building artificial islands. Which country is right and why? Both states are party to UNCLOS.

Question 2 (20 points)

In the International Court of Justice Arrest Warrant Case (Democratic Republic of Congo (DRC) v. Belgium), Belgium issued an arrest warrant for the arrest of Mr Yerodia, the Minister of Foreign Affairs of the DRC at the time. The reason for this was incitement of racial hatred by Mr Yerodia against Tutsi’s in Eastern DRC. Belgium was not allowed to prosecute Mr Yerodia. Determine whether Mr Yerodia could possibly be tried by the International Criminal Court for these acts by considering whether the Court has personal jurisdiction and material jurisdiction (so there is no need to go into temporal jurisdiction). Mention relevant treaty provisions. The DRC ratified the Rome Statute in April 2002.

Question 3 (20 points)

In 2003, the UK became engaged in an international armed conflict in Iraq. The UK decided to establish a prison in Iraq where the people detained are mostly Iraqi nationals suspected of having committed terrorist acts. The UK decided to outsource some of the tasks related to the management of the prison to a private military and security company registered in the United States of America, called Blackwater. For this purpose, a contract was concluded between the UK Government and Blackwater in which the following provision could be found:

‘All prisoners shall be treated with respect for their human dignity at all times. Prisoners may not be subjected to any form of illegal ill treatment. Torture is particularly and irrevocably prohibited.’

The UK is a party to the Convention Against Torture (CAT). In 2007, reports appeared in the media that the staff of Blackwater working in the prison tortured a large number of Iraqi prisoners.

Could the UK be held responsible for the torture of Iraqi prisoners committed by Blackwater employees? Motivate your answer and mention applicable (treaty) provisions and/or case law.

Question 4 (20 points)

In the case of Handyside v. United Kingdom, the European Court of Human Rights (ECtHR) concluded that although the UK had interfered with Mr Handyside’s right to freedom of expression, the UK was not in violation of Article 10 of the European Convention on Human Rights (ECHR). In this case, the Court developed the doctrine of the margin of appreciation. Explain what function this margin of appreciation has in deciding whether an infringement in a right constitutes a violation of that right. Refer to paragraphs of the Handyside Case where necessary and/or helpful.

Question 5a (10 points)

California – one of the states of the United States of America (US) – strongly opposes the new President’ s policies and rules. In a referendum, the people of California can express their will to become independent from the US and also express who they think must be the first President of California. From the referendum it follows that 95% of the people of California wish to become independent and 83% of the people would like to see former Governor Arnold Schwarzenegger as the first President of California. After taking some time to prepare the transition, the Republic of California is declared independent by the new President of California, Mr Schwarzenegger. Already in the first week of the independence, around 100 States express their congratulations to the newest State in the world and communicate their wishes to enter into all kinds of commercially interesting agreements and treaties.

Argue, by applying the relevant criteria, whether you think the Republic of California can be considered a State or not.

Question 5b (10 points)

Do you think that the unilateral declaration of independence by California was a violation of international law? Motivate your answer.

Answers

Question 1

South Africa claims that Namibia should have asked for South Africa’s permission and South Africa is right in this:

• Reference to Article 60 UNCLOS: 6 points;

• Article 60 UNCLOS says that, in the exclusive economic zone, the coastal State (South Africa) shall have the exclusive right to authorize others (in this case Namibia) to construct artificial islands. Authorization (= permission) was thus required: 6 points.

• Namibia claims that within the EEZ, other states enjoy the freedoms of the high seas, including building artificial islands. This argument is based on:

  • Article 58 UNCLOS giving a list of rights and duties of other States (like Namibia in this case) in the exclusive economic zone of a State (South Africa in this case): 3 points;

  • This list includes most of the freedoms referred to in article 87 UNCLOS (high seas freedoms): 2 points;

• Yet the list does not include freedom of other States (Namibia) to construct artificial islands, because Article 60 UNCLOS says that, in the exclusive economic zone, the coastal State (South Africa) shall have the exclusive right to construct and to authorize and regulate the construction, operation and use of artificial islands: 3 points.

Further clarifications:

• Mentioning art. 56 UNCLOS is incomplete. While it says that in the exclusive economic zone, the coastal State (South-Africa) has jurisdiction with regard to the establishment and use of artificial islands, this provision does not exclude right of other States (Namibia) to establish artificial islands; Article 60 does so.

• Merely mentioning art. 87 UNCLOS is an incomplete answer as it only establishes that freedom of the high seas comprises, inter alia, freedom to construct artificial islands and other installations permitted under international law, subject to Part VI.

• Also, merely relying on art. 80 UNCLOS leads to an incomplete answer. It merely indicates that Article 60 UNCLOS applies mutatis mutandis to artificial islands, installations and structures on the continental shelf, situated in the high seas.

Question 2

Personal jurisdiction (total 10 points):

• Mentioning Art. 12(2) under a and b Rome Statute: 2 points;

• Applying art. 12(2) under a and b Rome Statute (mentioning whether the act was committed on the territory of a state party or committed by a national of one of the state parties): 6 points (3 points per element);

• Conclusion - the ICC has personal jurisdiction: 2 points.

Material jurisdiction (total 10 points):

• Mentioning the basis of art. 5 Rome Statute: 2 points;

• Checking genocide: art. 6 Rome Statute – It is doubtful that this would be genocide as the intent to destroy part of a population must be proven. Nonetheless the immediate context was the Rwandan genocide so if it is argued that this is an act of genocide and supported with sound arguments, it can be plausible: 2 points;

• Checking crime against humanity: art. 7 Rome Statute – there must be a widespread and systematic attack against the civilian population with knowledge from the state. Next, there must be one of the acts mentioned in the article. From DRC perspective, there is doubt that there is a widespread and systematic attack, although again, the Tutsi’s are targeted quite heavily in Eastern DRC. If a crime against humanity, it could be art. 7(1) under h; persecution of a group: 2 points;

• Checking war crimes: art. 8 Rome Statute – at the time of these acts an armed conflict was off and on, making it possible to argue that there was a war-situation. At the same time, it is also easy to argue that there was not a full-fledged armed conflict going on. If a war situation was in place, there is still the question what the crime would be, possibly art. 8(2) b(i): 2 points;

• Conclusion: the ICC does/might/does not have material jurisdiction, based on how the points mentioned here are argued: 2 points.

Further clarifications:

• The term ‘personal jurisidiction’ is used as Klabbers uses it and we have used this in class as well. If someone mentioned art. 12 Rome Statute as territorial jurisdiction, this has not been considered incorrect.

• Personal jurisdiction means having jurisdiction over the person before the court, not whether a person is a natural person or whether a person enjoys immunity (the Rome Statute excludes immunity for state officials anyway).

• Points were granted for merely mentioning the crimes in art. 5 Rome Statute even with little clarification.

• The crime of aggression is difficult to apply as it is typically a crime that is committed by states.

• Temporal jurisdiction was excluded from the question yet many went into this (the fact that the crimes were committed before entry into force of the Rome Statute).

Question 3

This question asks after the responsibility of the UK, to which end the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) must be applied. The division of points:

• Acknowledge that the ARSIWA apply as customary law: 1 point;

• Mention art. 2 ARSIWA and the elements: 2 points;

• Act or omission (both options are possible): 3 points;

  • Torturing Iraqi prisoners; OR

  • Omission: prevention the Blackwater staff from torturing Iraqi prisoners;

• Attribution: 5 points:

  • Departing from an omission: no attribution because the state omits (the duty rested on the state);

  • Departing from an act: Mentioning a relevant article (either art. 5, 7 or 8 ARSIWA) (2 points); Argumentation (3 points);

• Breach of law: 5 points: Mentioning the relevant law (CAT or the customary rule not to torture) (2points); Explaining the breach(3points);

• Conclusion (attention is paid to coherence! If the argument leads to the conclusion that there was no state responsibility, yet the conclusion is that there was, points are deducted): 4 points.

Question 4

• Minimum understanding of the ‘margin of appreciation’ (leaving some interpretative space for domestic authorities): 5 points.

• Rationale of the margin of appreciation (i.e. lack of uniform conception in Europe, advantages of knowledge that domestic authorities have): 10 points max.

• Additional aspects (precision (para 48-49), structure, and the relationships between the margin of appreciation and the ECtHR (“hand in hand with a European supervision” – para 49)): 5 points max.

Further clarifications:

Students who did very well (scoring 18-20 points) were able to identify that although states have a margin to interpret both the content (in this case “morals”) of the law as well as the means used to protect it (i.e. necessity of measures etc), European supervision applied to both of these aspects and they were thus able to describe the relationship between the margin of appreciation and Art. 10 (2) ECHR. With the margin of appreciation, it must be clear that when there is little regional consensus, there is a wider margin of appreciation. When there is broad regional consensus, there is a smaller margin of appreciation.

A common mistake made was to confuse art. 10(2) ECHR with the margin of appreciation. Art. 10(2) ECHR contains a test and when applying this test, the ECtHR uses the margin of appreciation. An argument based on balancing of rights (non-discrimination versus freedom of expression) is not correct.

Question 5a

This question asks for the application of the Montevideo criteria on statehood. The division of points:

• Mentioning the Montevideo Convention: 0.5 points;

• Territory: 1.5 points when mentioned and described and/or applied – 1 point when only mentioning the element;

• Population: 1.5 points when mentioned and described and/or applied – 1 point when only mentioning the element;

• Effective government: 1.5 points when mentioned and described and/or applied – 1 point when only mentioning the element;

• Capacity to enter into relations: 1.5 points when mentioned and described and/or applied – 1 point when only mentioning the element;

• Reference to the theory of recognition – name the declaratory and constitutive theories: 1 point per theory;

• Applying a theory correctly: 0.5 points;

• Clear conclusion to the question: 1 point.

Question 5b

There is no explicit prohibition of unilateral declaration under international law: 5 points. This has been clearly established in the ICJ Kosovo Advisory Opinion. For merely mentioning this case: 2 points. Explaining in more detail what has been decided in the case: 5 points.