TUTORIAL ASSIGNMENT

(1) In January 2012, State A demanded State B to recall one of its diplomatic agents serving at its embassy in State A. (2) In February 2012, the air force of State A shot down a passenger airliner of State B which was performing a scheduled flight over State A, thinking that the latter was a spy aircraft. All the passengers and crew died. (3) In March 2012, State A without a lawful justification confiscated assets and property owned by a State Bs company, which is doing business in State A. (4) Very recently in August 2012, the army of State A attacked and occupied the Northern territory of State B.

Students are required to advise the Government of State B of how to respond to each action of State A in accordance with international law, referring to peaceful and coercive means of enforcing international law, including, but not limited to, international claims, claims of reparation, countermeasures like retorsion and reprisals, and the use of military force. Students have to prepare a written memorandum and an oral presentation.

INTRODUCTION Despite the facts that there is lack of effective enforcement machinery, international law can nevertheless be enforced. The traditional method of enforcing international law has been for the injured or offended State to lodge protests against the law-breaker. Diplomatic protests are as a rule the first step of enforcement. Such protests commonly include demands that the wrong done be appropriately righted. If protests are not properly heeded, it can be followed by peaceful or coercive means of enforcement. There are two major ways or means of enforcing international law, namely, peaceful and coercive. In Article 2(3), obliges Member States to settle their disputes by peaceful means and security and justice are not endangered. In Article 2 (4) of the Charter strictly prohibits States to use force against one another. However in the case of an armed attack by another country, the use of force in selfdefense, including collective self-defense, is still permissible, provided that the laws of war are complied with.

QUESTION 1 In January 2012, State A demanded State B to recall one of its diplomatic agents serving at its embassy in State A. In this situation, there are several issues that arise. Firstly is whether the act of State A demanded State B to recall one of its diplomatic agents serving at its embassy in State A breach international law. For the first issue to be answered, we can refer to Vienna Convention and Diplomatic Relation 1961. In Article 9 it provides as follows:

1. The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State

2. If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this article, the receiving State may refuse to

recognize the person concerned as a member of the mission.

Hence, State A did not breach any international law when they demanded State B to recall one of its diplomatic agents serving at its embassy in their State by virtue of Article 9 of Vienna Convention and Diplomatic Relation 1961.

The second issue of the situation above was whether there was any available enforcement of international law applicable for State B upon State A.

One of the diplomatic means of settling international disputes is negotiation. Negotiation is the process of reaching an agreement by discussion. It is the principle means of handling all international disputes and it is through negotiation that the majority of disputes may be settled. When States choose to settle their disputes peacefully through negotiation

mechanism they must conduct themselves in such manner as to ensure that the negotiation is meaningful. This has been affirmed in the case of North Sea Continental Shelf where the court stated that the parties to a dispute are under an obligation so to conduct themselves that negotiations are meaningful. However, if negotiation ends up without success, the situation might enter a new and more dangerous phase, which requires resort to other means to settle the dispute peacefully.

Secondly, another applicable action that could be taken by State B towards State A is retorsion. Retorsion is retaliatory measure, resorted by a State against unfriendly, discourteous or inequitable acts of another State. These acts are of the similar nature as those takenn by the offending State. For example, if a State imposess restrictions on the entry of citizens of a paticular country in its territory, that country may also impose similar restrictions, or is State Y declares persona non grata the ambassador of State Z, that can declare similarly in respect of the ambassador of State Y. There are no precise conditions when restortion cab be resorted to. They are the forms of unfriendly acts, which are seemingly legal. As a conclusion the State B can respond to the act of State B by two means of enforcement of international law which are negotiation and retorsion.

QUESTION 2

In February 2012, the air force of State A shot down a passenger airliner of State

B which was performing a scheduled flight over State A, thinking that the latter was a spy aircraft. All the passengers and crew died.

The first issue in this situation is whether State A action breach international law or not. By virtue of Article 51 of the United Nation Charter, it can be said that State A had breach international law because this article provides that,

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Meaning to say that use of weapon can only be used as self-defence. Plus, by virtue of Chapter VII of the Charter which stated among others only Security Commission will be the body who measures the necessity of using armed forces. It can be seen in so many cases, one of the case was in case of Israeli destruction of Iraqs nuclear reactor in June 1981. Within two weeks of Israel's air strike the U.N. Security Council passed a resolution which strongly condemns the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct. This statement clearly shows that the act of attacked other State which contradict to Article 51 will lead to breach of international law. By virtue of this case, it can be said that State A had breached international law. Thus it leads to second issue. The second issue is how State B to respond to the action of State A. The first means of disputes settlement is by diplomatic means. There are a few ways of diplomatic means and one of the diplomatic mean is by inquiry. Inquiry entails search for understanding the true facts through a process of asking question and investigating possible answers. Inquiry is also called fact finding. Inquiry is conducted by an impartial third party who makes an investigation to determine the facts, including the causes and effects, underlying a dispute without resolving the dispute itself. This can be illustrated by the case of Dogger Bank incident. In this case the Russian Baltic fleet which was on its way, in 1904, to Pacific to engage in the war with Japan, attacked British fishing vessels operating around the Dogger Bank in the North Sea thinking that they were Japanese vessels. So disputes ensued and the parties appointed commission of inquiry composed of senior naval officers from Great Britain, Russia, the United States, Frances and Austria, with the primary task of establishing what had actually happened. The commission established the fault to be on the part of Russia. Russia accepted the findings of the commission and agreed to compensation.

As a conclusion, applying this case to recent circumstance, the best possible mean to react on the act of State A is by inquiry as explained in details before.

QUESTION 3

In March 2012, State A without a lawful justification confiscated assets and property owned by a State Bs company, which is doing business in State A.

State As act is known as expropriation of foreign property. Expropriation can be defined as the deprivation by the State of foreign rights to property or its enjoyment. According to General Assembly Resolution 1803, there are two requirements that need to be fulfilled by a State in order for the expropriation to be lawful which are it must have a public purpose and it is accompanied by compensation. In the matter of compensation, General Assembly Resolution 3281 provides the view which in favor of developing States where it states that the compensation amount is to be determined by the law of the expropriating State. Meanwhile, most of the developed States ought to Hull formula of: adequate, effective and prompt compensation where the compensation is to be the full value of the property at the time of the taking.

In this current situation, it can be seen that State A without lawful justification had confiscated the assets and property owned by State Bs company and there is no compensation had been made which this is a clear non fulfilment of the two requirements mentioned above and therefore render the expropriation unlawful and in violation of the International Law.

As for actions that can be taken, first, State B can launch a diplomatic protest against State A and then opt for other peaceful means of enforcement provided under Article 33 of the Charter of the United Nations. International claim can be made to seek reparation in the form of satisfaction or formal apology, compensation and restitution. In the case of Chorzow factory, the court held that unlawful expropriations give rise to the obligation of reparation of all loss or damage sustained by the owner of expropriated property and the remedy is restitutio in integrum, restitution in kind or if impossible, its monetary equivalent or compensation. State B also may bring the case to the International Court of Justice as

mentioned under Article 92 of Charter of the United Nations. Lastly, coercive means such as counter measure such as retorsion and reprisals can be adopted. Retorsion is unfriendly but legal. One of the examples is terminating the diplomatic relation with the State that breaks the International Law. On the other hand, reprisals is normally illegal but became legal due to the prior illegal act committed by the other State. State B may retaliate by doing the same to the property of State As citizen. It must be proportionate to the original wrong.

QUESTION 4

Very recently in August 2012, the army of State A attacked and occupied the Northern territory of State B. In this current situation, there are several issues arises. First, whether State As act of attacking and occupying the Northern territory of State B violates Article 2(4) of Charter of the United Nations. Second, whether State B is entitle to exercise the right of self-defence provided under Article 51 of Charter of the United Nations and what are other actions that can be taken by State B in response to this conflict.

Article 2(4) of Charter of the United Nations prohibits the use of force and threats by States against the territorial integrity or political independence of any state or in other manner inconsistent with the Purposes of the United Nations. This rule of International Law has been recognized as having the character of jus cogens by the International Court of Justice in the Nicaragua case. A rule of jus cogens is a peremptory norm of general international law from which no derogation is permitted and all the treaty and customary rules which are contrary to a rule of jus cogens is null and void and without any legal effect.

For the first issue, by referring to the Article 2(4) of Charter of the United Nations mentioned above, it can be seen that State As act is a clear violation of International Law which has the character of jus cogens. State A has used force and threat against the territorial integrity and political independence of State B when she attack and occupied the Northern territory of the latter.

This will lead to our second issue that is whether State B is entitle to exercise the right of self-defence provided under Article 51 of Charter of the United Nations and what are other actions that can be taken by State B in response to this conflict. Article 51 of Charter on the United Nations provides the exception to the general rule of the prohibition on threat and use of force. There are two exceptions provided that is, first, the States is allowed to defend herself against an armed attack and second, action taken by the Security Council.

In order for a State to exercise her right of self-defence, it has to be noted that measures taken in self-defence should immediately be reported to the Security Council and the right of self-defence seize once the Security Council has taken measures necessary to maintain international peace and security. Only after the compliance with this principles a State is allow to exercise her right of self-defence subject to the fulfilment of the three conditions.

The first condition had been expressly mentioned under Article 51 that is there must be an armed attack. The most straightforward type of armed attack is that by a regular army of one State against the territory or against the land, sea or air forces of another. Meanwhile, according to Article 3(a) of General Assembly Definition of Aggression, the direct attack by a State may include the invasion or attack by the armed forces of a State of the territory of another State. In this current situation, it can be seen that there is an armed attack and occupation by State A towards Northern Territory of State B which is a clear fulfilment of this requirement.

The second condition is necessity. This condition is not mentioned in the Charter of the United Nations but it is part of the customary international law. There are three pre conditions regarding the requirement of necessity. First, to prove that there has been an armed attack against it and the burden of proving lies on the State that wants to use force in self-defence. In this current situation, it can be seen that there is armed attack by State A. Second, if there are other means to stop the attack, the State attacked must opt for that means. Third, the instancy or immediacy of the armed attack. This is important in order to differentiate between self-defence or unlawful. The armed attack must be on-going in order for the right of selfdefence to be applicable by the State attacked. According to Article 3(a) of General Assembly Definition of Aggression, definition of aggression extends to any military occupation, however temporary, resulting from an invasion or attack, or any other annexation by the use of force of the territory of another State or part thereof which this constitutes the

occupation of territory as a continuous armed attack that render the right of self-defence to be applicable.

The last condition is proportionality. Same as the condition of necessity, this condition is not mentioned in the Charter of the United Nations but it is part of the customary international law. Since the main objective of self-defence is not only to resist the attack but also to expulse the invader and the restoration of the territorial status quo ante bellum, it is important to ensure that only necessary measures should be taken to achieve the objectives. The defensive measures should be ended once the objectives have been achieved. With the fulfilment of all the conditions required above, State B may exercise her right of self-defence.

States B also may launch other actions against State A starting with a diplomatic protest and followed by other peaceful means provided under Article 33 of Charter of the United Nation before proceed with the coercive means such as countermeasure such as retorsion and reprisals. Retorsion is unfriendly but legal. One of the examples is terminating the diplomatic relation with the State that breaks the International Law. On the other hand, reprisals is normally illegal but became legal due to the prior illegal act committed by the other State. Among these are the rupture of diplomatic and possible consular relations; economic sanctions, ranging from selective reductions to total stoppage of trade; travel limitations; financial restrictions on the flow of currencies; and the elimination of transportation (land, sea, air) and mail service and other means of communication to and from the State against which sanctions are established. However, there are certain restrictions regarding the countermeasures in the sense of reprisals that are, countermeasures must not involve the use of military force, must not involve any departure from certain basic obligations under International Law or jus cogens and it must be proportionate with the injury suffered.

State B also may make an international claim for injury suffered in the form of restitution, compensation and satisfaction. An action also could be brought against State A before the International Court of Justice.