1. What are the sources of public international law?

Give an example of international law norms coming from each source. (5 points) International law devotes a great deal of attention to its sources. (Kennedy, David. "The Sources of International Law." American University International Law Review 2, no. 1 (1987): 1-96. The sources are enumerated in Article 38 of the Statute of the International Court of Justice. It is addressed to the justices of said court and mandates them on what rules they can base their decisions on. The four classic sources contained in Article 38 reads: 1. The Court, whose function it is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

According to Dr. Walid Abdulrahim, a law professor from The Lebanese University, these sources are divided into two. One is the primary sources. They are represented by the international conventions, custom and general principle of law. The other one is subsidiary sources, which are the decisions of the court and scholars legal opinions. Moreover, aside from the sources enumerated, the provision provides for the opportunity to decide a case ex aequo et bono (equity) as an alternative source of Public International Law if the parties agree thereto. However the sources is not limited to what is provided by Article 38. Contemporary sources, such as the acts of the international organizations, are also now considered as valid sources. Thus, the sources of the contemporary Public International Law can be classified into seven: 1. International customs; 2. Treaties; 3. General principles of law; 4. Judicial decisions; 5. Opinions of legal scholars; 6. Ex aequo et bono (Equity); 7. Acts of international organizations.

International crimes are the most common examples under international customs. States are

prohibited to carry out or permit slavery, torture, genocide, war of aggression, or crimes against humanity for these acts are always violative to customary international law. Under treaties, the examples are: the Charter of the United Nations, the four Geneva Conventions of 1949, the Vienna Convention on Diplomatic Relations of 1961, the International Covenant on Civil and Political Rights of 1966 and the Convention on the Law of the Sea of 1982. In the adjudication of international disputes, the concepts of estoppel and equity are employes in the court. Both of which are general principles of law. Thus, when a state encourages another state to engage i an act that it presented as valid and legal and the latter state rely upon the belief, the former becomes estopped from asserting that it never made such claim and will be punishes accordingly. The Anglo-Norwegian Fisheries case of 1951, which stated the criteria for the recognition of baseline from which to measure the territorial sea; and the Reparations case of 1949, which established the legal personality of international organizations are judicial decision promulgated by ICJ judges and ripened into laws. The scope, form, and content of International law are also influenced by writers on such subject. Well-known in this category are Gentili, Grotius, Pufendorf and Vattel. They were known as supreme legal authorities during the 16th to 18th centuries and were a primary factors in the evolution of modern International Law.

In substitute to the normally employed legal rules, Article 38 of the Statute of the ICJ lists ex aequo et bono as an alternative basis for a decision by the Court if the parties agree thereto. For instance, ICJ in the North Sea Continental cases, directing the delimination between the parties West Germany, Holland and Denmark in accordance with equitable principles, found their decision on ex aequo et bono. Because of the growing number of international organizations since the First World War, suggestions have been made to the effect of making the acts of these organizations recognized as a source of International Law. However, the question whether the decisions of the organs of these organizations can be regarded as a separate source of International Law must be satisfied first. The only clear example of binding decisions under this is the resolutions which the Security Council of the United Nations are authorized to take under Chapter Seven (VII) of the Charter of the United Nations dealing with actions related to threats to the peace, breaches of the peace, and acts of aggression.

2. What are the concepts of opinion juris and persistent objector in relation to international customary law? Give examples. (5 points) As Fredrik Ingman, in Persistent objector The demise of a hero?http://lup.lub.lu.se/record/ 1558532/file/1564685.pdf, puts it: the primary objects within international law that can achieve a . status as a persistent objector are states The desired result of being a persistent objector is creating an exemption from a rule of . customary international law that the state does not wish to be bound by

This all goes back to the thought of will, or consent, of states as being of the outmost importance in determining what the state can be bound by. Therefore, it could be a good start to

examine what role the consent has in the process of making customary international law. The two elements that make up customary international law are state practice and opinion juris. This far the scholars agree. A question that becomes relevant here is whether all states should have shown a uniform practice and opinion juris or if it suffices with a qualified majority of unified states. Here scholars do start to disagree and subsequently are divided into two major lines of thought.

One of the main areas of critique often discussed alongside this doctrine is the peremptory norms in international law (jus cogens). Malcolm N. Shaw, Professor of International Law at the University of Leicester, as well as Michael Akehurst, Professor of Law at the University of Cambridge, argues that an overwhelming majority of states, crossing political and ideological . block-lines, can together give jus cogens character to a customary international law The USA has in its Restatement (Third) of Foreign Relations Law taken the standpoint that a large majority of states can create the acceptance and acknowledgement needed to give a law the status of jus cogens. Therefore, this status of jus cogens will apply even to a small number . of reluctant states France has met this claim by saying that it does not consider itself bound to the jus cogens character of any rule since France did not consent to the development of the jus cogens . concept

Lee Peoples, Associate Professor of Law Library Science at Oklahoma City University School of Law, argues that jus cogens rejects consent as basis for its existence, and therefore jus cogens trumps persistent objectors when dealing with customary international law. If jus cogens were dependent upon the consent of states, it would not have been peremptory. On the other hand, Antonio Cassese argues that the principle of the persistent objector is valid in every situation, which is even against a rule of jus cogens. For a jus cogens rule to have a peremptory effect, the world community as a whole must accept it. To Cassese, this means that if one state disagrees, then the world community is not whole and therefore no peremptory effect. Here, state sovereignty and consent are the two most valuable principles in international law. No consent automatically means no binding effect. He writes: No country which persistently, consistently, objects to a rule of customary international law from its conception, can be regarded as bound to that rule. I would like to add that even jus cogens cannot bind a persistent objector; in other words, voluntarism applies even to jus cogens. What Cassese argues here is highly controversial and seems to be contradicted by cases from ICTY, IACtHR and ICJ. First, in order to establish that jus cogens is accepted by courts as peremptory norms under international law: In the Congo vs. Rwanda case before the ICJ, the court made a direct statement regarding jus cogens. The prohibition on genocide was considered to have reached a status of both erga

omnes and jus cogens. Then, on to establish the relationship between jus cogens and the principle of the persistent objector. In the case of Furundzija before the ICTY, the tribunal states that there is a peremptory prohibition on torture and that this prohibition internationally precludes any legislative, . administrative and judicial attempt to legitimize torture

Two influential documents are also in part dealing with the issue of the persistent objectors vs. jus cogens. These are the VCLT and the ILC draft articles on internationally wrongful acts. Article 53 VCLT gives us three preconditions for a jus cogens rule. It should be a peremptory norm under international law. The world community as a whole should have accepted that no deviations are to be made from this rule. Lastly, a jus cogens rule can only be changed by the emergence of a new jus cogens rule. Article 53 in conjunction with article 63 VCLT states that any obligation constituting a breach of a jus cogens rule is to be considered null and void. The special status of jus cogens rules is further portrayed by ILC draft articles on internationally wrongful acts. These articles are considered a codification of the customary international law in this area. In article 26, it is stated that no force majeure, self-defence, distress or necessity can be used as an explanation when a state has breached a jus cogens rule. Therefore, actions that normally preclude the wrongfulness of acts cannot change the universally binding force of a jus cogens rule. The point of view most widely held, by scholars and legislatures, seems to be that jus cogens cannot be trumped by a principle of the persistent objector.

3. Who are the subjects of international law? In relation to this, describe the doctrine of sovereign immunity under international law. (5 points) Historically only 1) states were subjects of international law, but the list of subjects now includes non-state actors, such as 2) individuals, 3) non-governmental organizations (NGOs), and 4) multinational corporations (MNCs). This expansion reflects the extent to which states have, in the development of international society, created new tools (e.g., IGOs) and crafted new public-private partnerships with NGOs and MNCs as part of international cooperation. The production of GPGs through international law is therefore not strictly global in sense that states and nonstates actors are involved. Eg FCTC and IHR revisions. Non-state actor involvement in the production of GPGs through international law does not, however, mean that non-state actors have equal status or authority with states. States remain the dominant subjects of international law for the purposes of GPG production. Rules of international law overwhelmingly address state rights and duties in the international system. This fact is important for understanding the production of GPGs. Whether at the national or international level, public goods require governmental intervention because private actors have insufficient incentives or resources to produce the goods. The growth of NGO and MNC involvement in international law does not, by itself, represent progress in the production of GPGs

because whether states - the public actors - actually produce the public goods remains the central question. http://www.who.int/trade/distance_learning/gpgh/gpgh7/en/index3.html The general rule is, sovereign or government is immune from lawsuits or other actions except when it connects to them. This used to be an absolute doctrinal position which held Federal state and local governments immune from tort liability arising from activities by the government. However, at present, sovereign immunity application is becoming more flexible. It is now possible to waive liability according to the circumstances involved. If a country represents itself as a contracting body, sovereign immunity may not be available to it. Otherwise, it is generally available to all countries in the international court. Countries can be immuned from legal proceeding in another state under international law and subject to some conditions. The ICJ can rule that ius cogens relating to international humanitarian law cannot prevail when confronted by State sovereign immunity. This was the case in Case Germany v. Italy, Greece. 4. When is military force justified under the United Nations Charter? Describe the grounds and the procedure provided by the Charter for military intervention to be justified. (5 points) The UN Charter prohibits the use of military force except in cases of self-defence or when authorized by the UN Security Council to address threats to international peace and security. These are in accordance with Article 2(4), 39, 42 and 51of the said Charter. Article 2 mandates that organization and its members shall act in accordance with the principle that all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. Article 39, on the other hand reads that the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

While Article 42 provides that, should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. Article 41 states that the Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of

diplomatic relations. Article 51, moreover, 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. In order for military intervention to be justified, procedures provided under Article 43 must be observed. Thus, all Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security. Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided. The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes. 5. What is the incorporation theory of international law? Do we follow this theory in the Philippines? Explain your answer. (5 points)

The incorporation of international law is the process by international agreements become part of the municipal law of a sovereign state. A treaty becomes incorporated when a country passes a domestic legislation that puts in effects such treaty in the national legal system. However, incorporation is not necessary at all times. A countrys domestic law can do away with affecting a legislation expressly stating its effectivity but still abide by it. Treaties become law without incorporation in states that follow a monist system. This happens when their provisions are considered sufficiently self-explanatory. In contrast dualist states require all treaties to be incorporated before they can have any domestic legal effects. Most countries follow a treaty ratification method somewhere between these two extremes.

Section 2, Article II of the 1987 Constitution states that the Philippines adopts the generally accepted principles of international law as part of the law of the land. As held in Kuroda vs. Jalandoni 83 P 71, rules and regulations, wholly based on the generally accepted principles of international law by belligerent nations are who signatories to the convention, form part of the law of our nation even if the Philippines was not a signatory to the convention embodying them, for our constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory. 6. Under the United Nations Convention on the Law of the Sea (UNCLOS), what are the concepts of innocent passage and archipelagic waters? How are they related? Is the latter consistent with our understanding of the archipelagic doctrine enshrined in the 1987 Philippine Constitution? (5 points)

As provided in Article 19, Subsection A, Section 3, Part II of Unclos, innocent passage is a concept in law of the sea which allows for a vessel to pass through the territorial waters of another state subject to certain restrictions. The UN Convention on the Law of the Sea defines innocent passage as innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law. Archipelagic waters are the bodies of water enclosed by baselines drawn by archipelagic States in conformity with the rules promulgated by the U.N. Convention on the Law of the Sea of 10 December 1982 (1833 U.N.T.S. 3), art. 47, are archipelagic waters, subject to the sovereignty of the archipelagic State regardless of their depth or distance from the coast (art. 49(1)). However, they are open to innocent passage by ships and aircraft (art. 52(1)) through any archipelagic sea lanes that might be established (art. 53). The state has full sovereignty over these waters (like internal waters), but foreign vessels have right of innocent passage (like territorial waters). Their status, not being identical to that of the internal waters, territorial sea, or international straits, is best described as sui generis: Brown, International Law of the Sea (1994), Vol. 1, 114. See Churchill and Lowe, The Law of the Sea (3rd ed.), Chap. 6. The archipelagic doctrine is now incorporated in Chapter IV of the said convention. It legalizes the unity of land, water and people into a single entity. The Philippines bolstered the archipelagic principle in defining its territory when it included in Article 1 of the 1987 Constitution the following: "The national territory comprises the Philippine Archipelago, with all the islands and waters embraced therein xxx"; and "The waters around, between and connecting the islands of the archipelago, regardless of their dimensions, form part of the internal waters of the Philippines." On the strength of these assertions, the Philippines Archipelago is considered as one integrated unit instead of being divided into more than seven thousand islands. The outermost of our archipelago are connected with straight baselines and all waters inside the baselines are considered as internal waters. This makes the large bodies of waters connecting the islands of the archipelago like Mindanao Sea, Sulo Sea and the Sibuyan Sea part of the Philippines as its internal waters, similar to the rivers and lakes found within the islands themselves. The archipelagic principle however is subject to the following limitations: a) respect for the right of the ship and other states to pass through the territorial as well as archipelagic waters b) respect to right of innocent passage c) respect for passage through archipelagic sea lanes subject to the promulgation by local authorities of pertinent rules and regulations. (http://politicsandgovernance.blogspot.com/ 2010/06/philippines-and-archipelagic-doctrine.html)

7. Describe the International Seabed Authority established by UNCLOS its functions, character, and composition. (5 points)

Article 157 states that the Authority is the organisation through which state parties shall organise and control activities in the area particularly with a view to administering the resources of the Area. The powers and functions of the Authority shall be those expressly conferred upon it by this Convention. The Authority shall have such incidental powers, consistent with this Convention, as are implicit in and necessary for the exercise of those powers and functions with respect to activities in the Area. The Authority is based on the principle of the sovereign equality of all its members. All members of the Authority shall fulfil in good faith the obligations assumed by them in accordance with this Part in order to ensure to all of them the rights and benefits resulting from membership. All states are ipso facto members of the authority pursuant to Article 156 of the International Seabed Authority established by the UNCLOS.

The principal organs of the Authority, as provided in Article 158, are an Assembly, a Council and a Secretariat. Thus, it established the Enterprise, the organ through which the Authority shall carry out the functions referred to in article 170, paragraph 1. Subsidiary organs may be established as may be found necessary. Each principal organ of the Authority and the Enterprise shall be responsible for exercising those powers and functions which are conferred upon it. In exercising such powers and functions each organ shall avoid taking any action which may derogate from or impede the exercise of specific powers and functions conferred upon another organ.

8. Describe diplomatic immunity the rights of diplomats, who can invoke it, its consequences and why it must always be respected. (5 points) Diplomatic immunity is a principle of international law by which certain foreign government officials are not made subject to the local courts and other authorities jurisdiction. Under the concept of reciprocity, diplomats assigned to any country in the world benefit equally from diplomatic immunity. The Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention on Consular Relations of 1963 codified most modern diplomatic and consular practices, including diplomatic immunity. While it is true that diplomats are exempt from the criminal, civil and administrative jurisdiction of the host country, this exemption may be waived by their home country. Moreover, the immunity of a diplomat from the jurisdiction of the host country does not exempt him/her from the jurisdiction of his/her home country. The Convention provides for specific measures that can be taken by both the home and host countries in cases of misuse or abuse of diplomatic privileges and immunities. On the whole, diplomatic privileges and immunities have served as efficient tools facilitating relations between States. No UN Member State has so far proposed rescinding the Convention or re-writing its provisions.

Following are the diplomatic privileges and immunities guarantee that diplomatic agents or members of their immediate family: May not be arrested or detained May not have their residences entered and searched May not be subpoenaed as witnesses May not be prosecuted

Diplomatic immunity must be respected because it protects the channels of diplomatic communication by exempting diplomats from local jurisdiction so that they can perform their duties with freedom, independence, and security. Diplomatic immunity is not meant to benefit individuals personally; it is meant to ensure that foreign officials can do their jobs. http:// www.ediplomat.com/nd/diplomatic_immunity.htm 9. What is the International Court of Justice? When does it take jurisdiction of a case? (5 points) Article 92 of Chapter XIV of the International Court of Justice provides that such court shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter. charter of united nation. The Courts role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies. The International Court of Justice acts as a world court. The Court has a dual jurisdiction : it decides, in accordance with international law, disputes of a legal nature that are submitted to it by States (jurisdiction in contentious cases); and it gives advisory opinions on legal questions at the request of the organs of the United Nations or specialized agencies authorized to make such a request (advisory jurisdiction). In contentious cases (adversarial proceedings seeking to settle a dispute), the ICJ produces a binding ruling between states that agree to submit to the ruling of the court. Only states may be parties in contentious cases. Individuals, corporations, parts of a federal state, NGOs, UN organs and self-determination groups are excluded from direct participation in cases, although the Court may receive information from public international organizations. This does not preclude non-state interests from being the subject of proceedings if one state brings the case against another. For example, a state may, in case of "diplomatic protection", bring a case on behalf of one of its nationals or corporations. Nottebohm Case (Liechtenstein v Guatemala), [1955] ICJ Reports 4. In principle, the Court's advisory opinions are only consultative in character, but they are influential and widely respected. Whilst certain instruments or regulations can provide in advance that the advisory opinion shall be specifically binding on particular agencies or states, they are inherently non-binding under the Statute of the Court. This non-binding character does not mean that advisory opinions are without legal effect, because the legal reasoning embodied in them reflects the Court's authoritative views on important issues of international law and, in arriving at them, the Court follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases submitted to it by sovereign states. The UN General Assembly Requests a World Court Advisory Opinion On Israel's Separation Barrier, Pieter H.F. Bekker, ASIL (American Society of International Law) Insights, December 2003.

10. Describe the concept of state liability? Under what circumstances can a state be held liable for a wrongful act? (5 points)

International liability" denotes a State's "civil responsibility," or obligation to pay compensation or make reparations for injuries that non-nationals suffer outside its national boundaries as a result of activities within its territory or under its control. A State's international liability is engaged not only under international law, but also within the national dimension of municipal legal systems in circumstances involving transnational relations. Even though an act of a State may not be wrongful by virtue of consent, force majeure or fortuitous event, distress, or necessity, the absence of a wrongful act does not prejudge the question of compensation for damage caused by that act.7 The State may engage its international liability and compensate for damage caused by its act, regardless of the existence of a wrongful act'8 In more ways than one, a State's international liability constitutes proof of injurious consequences independent of a wrongful act attributable to that State. A State's international liability is engaged not only under international law, but also within the national dimension of municipal legal systems in circumstances involving transnational relations. http://digitalcommons.lmu.edu/cgi/ viewcontent.cgi?article=1400&context=ilr Article 2 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts provides for the elements of an internationally wrongful act of a State It states that there is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) Is attributable to the State under international law; and (b) Constitutes a breach of an international obligation of the State.

CHAPTER II, of the said draft provides the attribution of conduct to a state. Article 4 provides for the conduct of organs of a State. Conduct of persons or entities exercising elements of governmental authority is contained in Article 5. Article 6, on the other hand, contains the conduct of organs placed at the disposal of a State by another State. Article 7 provides the provision on excess of authority or contravention of instructions. Conduct directed or controlled by a State are provided for in Article 8. Article 9 is conduct carried out in the absence or default of the official authorities. Article 10 discusses the conduct of an insurrectional or other movement. Lastly, Article 11 focuses on the conduct acknowledged and adopted by a State as its own The subject of Chapter III is breach of international obligation. Article 12 provides for the existence of a breach of an international obligation. Article 13 is the international obligation in force for a State. The extension in time of the breach of an international obligation is provided for in Article 14. Article 15 provides for breach consisting of a composite act.

11. What is the International Criminal Court? Describe its jurisdiction, mandate, and powers? (5 points) According to Article 12 and 13 of the Rome Statute, the Court has four mechanisms which grant it jurisdiction: (1st) if the accused is a national of a State party to the Rome Statute (2nd) if the alleged crime took place on the territory of a State Party

(3rd) if a situation is referred to the Court by the United Nations Security Council. (4th) if a State not party to the Statute 'accepts' the Court's jurisdiction.

The ICC is intended to complement existing national judicial systems, and may only exercise its jurisdiction when national courts are unwilling or unable to investigate or prosecute such crimes.

Part 2, Article 5 of the Rome Statute grants the Court jurisdiction over four groups of crimes, which it refers to as the "most serious crimes of concern to the international community as a whole": the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The Statute defines each of these crimes except for aggression. The crime of genocide is unique because the crime must be committed with 'intent to destroy'. Crimes against humanity are specifically listed prohibited acts when committed as part of a widespread or systematic attack directed against any civilian population. The Statute provides that the Court will not exercise its jurisdiction over the crime of aggression until such time as the states parties agree on a definition of the crime and set out the conditions under which it may be prosecuted. The Court is allowed to exercise jurisdiction only under the following limited circumstances: where the person accused of committing a crime is a national of a state party (or where the person's state has accepted the jurisdiction of the Court); where the alleged crime was committed on the territory of a state party (or where the state on whose territory the crime was committed has accepted the jurisdiction of the Court); or where a situation is referred to the Court by the UN Security Council.

Temporal jurisdiction The Court's jurisdiction does not apply retroactively: it can only prosecute crimes committed on or after 1 July 2002 (the date on which the Rome Statute entered into force). Where a state becomes party to the Rome Statute after that date, the Court can exercise jurisdiction automatically with respect to crimes committed after the Statute enters into force for that state. Article 11 of the Rome Statute. Retrieved 18 October 2013. Complementarity The ICC is intended as a court of last resort, investigating and prosecuting only where national courts have failed. Article 17 of the Statute provides that a case is inadmissible if: "(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court." Article 20, paragraph 3, specifies that, if a person has already been tried by another court, the ICC cannot try them again for the same conduct unless the proceedings in the other court: "(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or

(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice."

12. Summarize the various United Nations human rights treaties and agreements that together might be called an International Bill of Rights. (10 points) After the end of World War II a series of conventions and declarations began to articulate universal human rights. What is known as the International Bill of Human Rights is made up of: Universal Declaration of Human Rights (1948) International Covenant on Civil and Political Rights (1966) International Covenant on Economic, Social and Cultural Rights (1966) Optional Protocol to the International Covenant on Civil and Political Rights Optional Protocol to the International Covenant on Economic, Social and Cultural Rights In 1948 the United Nations General Assembly adopted the UDHR. This was the first time that countries agreed on a comprehensive statement of inalienable human rights. The UDHR is not a treaty, so it does not directly create legal obligations for States. The Declaration has however, had a profound influence on the development of international human rights law. It is argued that because States have constantly invoked the Declaration over more than 50 years, it has become binding as a part of customary international law. Henry J Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals, (2nd ed), Oxford University Press, Oxford, 2000. On the same day that it adopted the UDHR, the United Nations General Assembly asked its Commission on Human Rights to draft a covenant on human rights, which could become a binding treaty. After six years of drafting and debate, in 1952 the General Assembly requested that the Commission on Human Rights draft two covenants rather than one. The covenants, International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights were opened for signature in 1966 and entered into force in 1976.Henry J Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals, (2nd ed), Oxford University Press, Oxford, 2000.

Civil and political rights include the right to freedom of conscience and religion, the right to be free from torture, and the right to a fair trial. Most of these rights are not absolute. Instead they are subject to reasonable limitations which are created for a legitimate purpose. The ICCPR has two Optional Protocols. An optional protocol supplements the original convention with additional obligations. Optional Protocol to the International Covenant on Civil and Political Rights 1966 On 25 September 1991, Australia agreed to be bound by the First Optional Protocol to the ICCPR. This means the United Nations Human Rights Committee can hear complaints from individuals who allege that the Australian Government has violated their rights under the ICCPR. However, the findings of the Human Rights Committee are not enforceable.

Second Optional Protocol to the International Covenant on Civil and Political Rights On 2 October 1990, Australia agreed to be bound by the Second Optional Protocol to the ICCPR. The purpose of this protocol is for States to eliminate the death penalty. International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) Economic, social and cultural rights include the right to an adequate standard of living, the right to education, the right to fair wages and the right to safe working conditions. Article 2(1) of the ICESCR requires States to take steps, including legislative measures, to achieve the progressive realisation of ICESCR rights. This requires that States only demonstrate in good faith the fulfilment of the rights over time within their capacities. For example, it is assumed that where States have inadequate resources to ensure free education is provided, they will work towards achieving this goal. The United Nations Committee on Economic Social and Cultural Rights (the CESCR) monitors compliance with the ICESCR and provides guidance on how countries should interpret the ICESCR. Committee for ESCR General Comment No. 03: The Nature of States Parties Obligations, U.N. Doc HRI\GEN\1\Rev.1 at 45 (1994), available at: http://www.unhchr.ch/tbs/ doc.nsf/(Symbol)/94bdbaf59b43a424c12563ed0052b664?Opendocument 13. Summarize the international law on the environment, including on sustainable development (10 points). Environmental laws are the standards that governments establish to manage natural resources and environmental quality. The broad categories of natural resources and environ- mental quality include such areas as air and water pollution, forests and wildlife, hazardous waste, agricultural practices, wetlands, and land- use planning. Hence, international environmental law concerns agreements among different nations, or between citizens or corporations of different nations on this matter. Agreements or treaties among different nations are generally referred to as public international law. Contracts between private parties (corporations or citizens) residing in different nations are generally referred to as private international law. Because the field of international environmental law focuses on the relations and agreements among nations, it is part of public international law.

Means of Implementing and Enforcing International Environmental Law There are forums where international environmental disputes can be adjudicated, such as national courts, the International Court of Justice, and international arbitration panels. These forums, however, generally require that the disputing parties voluntarily submit to the jurisdiction of the court or panel. Additionally, even when these forums obtain jurisdiction over an international environmental dispute, they must rely on the cooperation of national governments to enforce rulings. For economic and political reasons, this cooperation is often withheld. In general, there is no international body authorized to directly enforce international environmental law. The task of direct enforcement is left to the member nations, whose governments propose and adopt implementing policies. Sometimes the implementing national legislation is identical to the international agreement. For example, Canada implemented the Migratory Birds Treaty (with the United States) by adopting the Migratory Birds Treaty Act. Because the language of this act is identical to language in the treaty, the law is basically a legislative codification of the international agreement. Other times, however, the international environmental agreement is of a general nature and

national governments must draft and implement more specific laws. For instance, in 1989 the International Convention on Transboundary Movement of Hazardous Waste was signed in Basel, Switzerland. This convention forbids the export of hazardous wastes to countries that lack adequate means to dispose of them. Under the terms of the convention, signatory nations are called upon to draft their own more specific national laws to implement this pledge. Although international institutions are generally not responsible for directly implementing and enforcing international environmental law, they often play important monitoring, informational, and diplomatic roles. In the past two decades, states have also used economic incentives and trade bans to encourage compliance with international environmental agreements. Roughly speaking, jurisdiction may be defined as a courts legal ability to hear a com- plaint. If the subject matter of the case is not within the scope of a courts jurisdiction, or if one of the parties, either the one bringing the case (plaintiff) or the one against whom it is brought (defendant) is not within a courts jurisdiction, the court will not hear the dispute. This is particularly relevant to international environmental law for a number of reasons. First and foremost, if a treaty or convention does not specify an international forum that has subjectmatter jurisdiction, often the only place to bring a suit with respect to that treaty is in the member states domestic court system. This then presents at least two additional hurdles. If the member state being sued does not have domestic implementing legislation in place to hear the dispute, there will be no forum available. Even in the event that the domestic legislation pro- vides for suits of this nature, the judges who decide the case are residents of the country against which it is brought, and the resulting potential conflicts of interest are apparent. With respect to parties, only nations are bound by treaties and conventions. In international forums, such as the International Court of Justice, countries must consent to being sued in order to preserve their sovereignty. Thus, it is often impossible to sue a country. The final difficulty in the jurisdictional arena is the question of who may bring a suit. Often, only countries may sue countries, not individual citizens and not nongovernmental organizations. This has huge repercussions in that the environ- mental harm must be large and notorious for a country to even notice it. Second, for a country to have a stake in the outcome of the subject matter, some harm may have to cross the borders of the violating country into the country that is suing. Finally, even if transboundary harm does exist, the issue of causation, especially in the environ- mental field, is often impossible to demonstrate with any certainty. In addition, in all fields of international law no country is ever in perfect compliance with every international obligation. Moreover, some countries are substantially more powerful than others. This may seem self-evident and unimportant, until one considers that suing another country may expose the plaintiff country to retaliatory actions. The enforcement issue is one where advocates for a safer environment often find themselves stymied. A country cannot be forced to do what it is not willing to do. One can sanction the country, order damages, restrict trade, or, most frequently, declare noncompliance, but beyond that, if a country will not comply, there is very lit- tle to be done. Countries usually accept or avoid international environmental obligations because it is in their economic self-interest to do so. Nations rarely take actions that may harm their domestic economy or their international trade for altruistic reasons. They take these actions expecting some economic or political benefit sooner or later. What is international environmental law? http://www.ucar.edu/communications/gcip/m3elaw/

m3pdfc1.pdf 14. What are the doctrines of pactasuntservanda, jus cogens, clausula rebus sic stantibus, and ergaomnes?How are they related to each other? (10 points) Pacta sunt servanda (Latin for "agreements must be kept"Blacks Law Dictionary (Sixth Edition, 1990), p.1136., is a brocard, a basic principle of civil law and of international law. In its most common sense, the principle refers to private contracts, stressing that contained clauses are law between the parties, and implies that non-fulfilment of respective obligations is a breach of the pact. The general principle of correct behaviour in commercial praxis and implies the bona fide is a requirement for the efficacy of the whole system, so the eventual disorder is sometimes punished by the law of some systems even without any direct penalty incurred by any of the parties. With reference to international agreements, "every treaty in force is binding upon the parties to it and must be performed by them in good faith."I. Brownlie, Principles of Public International Law (Fifth Edition, 1998), p. 515. Pacta sunt servanda is based on good faith. This entitles states to require that obligations be respected and to rely upon the obligations being respected. This good faith basis of treaties implies that a party to the treaty cannot invoke provisions of its municipal (domestic) law as justification for a failure to perform. The only limit to pacta sunt servanda are the peremptory norms of general international law, called jus cogens (compelling law). In this regard, a view has been formed that certain overriding principles of international law exist which form a body of jus cogens. These principles are those from which it is accepted that no State may derogate by way of treaty. As a result they are generally interpreted as restricting the freedom of States to contract while voiding treaties whose object conflicts with norms which have been identified as peremptory. The legal principle clausula rebus sic stantibus, part of customary international law, also allows for treaty obligations to be unfulfilled due to a compelling change in circumstances. In public international law, clausula rebus sic stantibus (Latin for "things thus standing") is the legal doctrine allowing for treaties to become inapplicable because of a fundamental change of circumstances. It is essentially an "escape clause" that makes an exception to the general rule of pacta sunt servanda (promises must be kept). Because the doctrine poses a risk to the security of treaties as its scope is relatively unconfined, it requires strict regulations as to the conditions in which it may be invoked. http://www.princeton.edu/~achaney/tmve/wiki100k/docs/Pacta_sunt_servanda.html In international law, erga omnes, has been used as a legal term describing obligations owed by states towards the community of states as a whole. An erga omnes obligation exists because of the universal and undeniable interest in the perpetuation of critical rights (and the prevention of their breach). Consequently, any state has the right to complain of a breach. These erga omnes obligations have been defined as obligations of a State towards the international community as a whole, in the vindication of which all States have a legal interest. They are rules which accord a right to all States to make claims. As stated by Brownlie such rules are [o]pposable to, valid against, all the world, i.e. all other legal persons, irrespective of consent on the part of those thus affected.Brownlie, Principles of Public International Law (Fifth Edition, 1999), Glossary. It should be noted however that although all norms of jus cogens are enforceable erga omnes not all erga omnes obligations are jus cogens. Reparation for Injuries suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, ICJ Reports (1949), p. 185

exists because of the universal and undeniable interest in the perpetuation of critical rights (and the prevention of their breach). Consequently, any state has the right to complain of a breach. These erga omnes obligations have been defined as obligations of a State towards the international community as a whole, in the vindication of which all States have a legal interest. They are rules which accord a right to all States to make claims. As stated by Brownlie such rules are [o]pposable to, valid against, all the world, i.e. all other legal persons, irrespective of consent on the part of those thus affected.Brownlie, Principles of Public International Law (Fifth Edition, 1999), Glossary. It should be noted however that although all norms of jus cogens are enforceable erga omnes not all erga omnes obligations are jus cogens. Reparation for Injuries suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, ICJ Reports (1949), p. 185

15. Distinguish the concepts of internal waters, territorial sea, exclusive economic zone, and high seas from each other. (10 points) UN Convention on the Law of the Sea provides the following information as to the different maritime zones: A nation's internal waters covers waters on the landward side of the baseline of a nation's territorial waters, except in archipelagic states. It includes waterways such as rivers and canals, and sometimes the water within small bays. According to the United Nations Convention on the Law of the Sea, the coastal nation is free to set laws, regulate any use, and use any resource. Foreign vessels have no right of passage within internal waters, and this lack of right to innocent passage is the key difference between internal waters and territorial waters.Article 8 Internal waters, Part II, UN Convention on the Law of the Sea Territorial waters, or a territorial sea, as defined by the 1982 United Nations Convention on the Law of the Sea, is a belt of coastal waters extending at most 12 nautical miles (22.2 km; 13.8 mi) from the baseline (usually the mean low-water mark) of a coastal state. The territorial sea is regarded as the sovereign territory of the state, although foreign ships (both military and civilian) are allowed innocent passage through it; this sovereignty also extends to the airspace over and seabed below. Adjustment of these boundaries is called, in international law, maritime delimitation. The term "territorial waters" is also sometimes used informally to describe any area of water over which a state has jurisdiction, including internal waters, the contiguous zone, the exclusive economic zone and potentially the continental shelf. An exclusive economic zone extends from the outer limit of the territorial sea to a maximum of 200 nautical miles (370.4 km; 230.2 mi) from the territorial sea baseline, thus it includes the contiguous zone. A coastal nation has control of all economic resources within its exclusive economic zone, including fishing, mining, oil exploration, and any pollution of those resources. However, it cannot prohibit passage or loitering above, on, or under the surface of the sea that is in compliance with the laws and regulations adopted by the coastal State in accordance with the provisions of the UN Convention, within that portion of its exclusive economic zone beyond its territorial sea. Before 1982, coastal nations arbitrarily extended their territorial waters in an effort to control activities which are now regulated by the exclusive economic zone, such as offshore oil exploration or fishing rights (see Cod Wars). Indeed, the exclusive economic zone is still popularly, though erroneously, called a coastal nation's territorial waters. High seas are all parts of the mass of saltwater surrounding the globe that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal

and land-locked States: (a) freedom of navigation; (b) freedom of overflight; (c) freedom to lay submarine cables and pipelines, subject to Part VI; (d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI; (e) freedom of fishing, subject to the conditions laid down in section 2; (f) freedom of scientific research, subject to Parts VI and XIII. 2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.

16. Summarize international humanitarian law, including the right of refugees (10 points) International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict. International humanitarian law is part of international law, which is the body of rules governing relations between States. International law is contained in agreements between States treaties or conventions , in customary rules, which consist of State practise considered by them as legally binding, and in general principles. International humanitarian law applies to armed conflicts. It does not regulate whether a State may actually use force; this is governed by an important, but distinct, part of international law set out in the United Nations Charter. What is International Humanitarian Law? http://www.icrc.org/eng/assets/files/other/ what_is_ihl.pdf

Refugee law mainly the 1951 Convention Relating to the Status of Refugees and the Convention Governing the Specific Aspects of Refugee Problems in Africa - and the mandate of the Office of the United Nations High Commissioner for Refugees (UNHCR) provide the main framework for protection and assistance for refugees. Refugees are also protected by general human rights law, and if they find themselves in a State involved in armed conflict, by international humanitarian law. The general provisions of IHL protect civilian refugees in States involved in armed conflict, but they also receive special protection under the Fourth Geneva Convention and Additional Protocol I. This additional protection recognizes the vulnerability of refugees as aliens in the

hands of a party to a conflict. International humanitarian law guarantees access for relief and humanitarian organizations to refugees and IDPs in situations of armed conflict. Parties to a conflict must facilitate the supply of relief materials such as medicines, food, blankets and tents. Regrettably these rules have been ignored in many recent conflicts putting both refugee populations and IDPs in danger. The ICRC has consistently called on States and non-State armed groups to respect and ensure respect for international law and the basic principles of humanity when dealing with civilians. Only through respect of the rules of armed conflict can refugee flows and internal displacement be prevented; similarly, if people have to leave their homes, they can only be protected if IHL is complied with. http://www.icrc.org/eng/war-and-law/ protected-persons/refugees-displaced-persons/overview-displaced-protected.htm