MID-SEMESTERS RESULT : INTERNATIONAL LAW (CLASS A)

Dear beloved students of International Law (Class A),

Your grades have been submitted to the secretariat of IUP on Thursday, April 4th, 2013, around 11 am. I do not know when will it be announced, but I hope you will soon get them.

I congratulate those who have achieved good scores. Good job, and I hope you keep up your good work!

However, there are still a large number of students scoring relatively low –or even extremely low. One would say that when so many students score so low, then it is the teacher’s fault for not managing to deal with the class well. However, that is under the assumption of a teacher centered learning, because in that case, teachers are purely responsible for the transfer of knowledge. However, we are using a student centered learning. Both teachers and students play equal role, where teachers would only help give hints for the students to search for themselves.

The fault is on both of us.

I and Pak Sigit will definitely evaluate our teaching methods, and we would highly appreciate any feedback from you. You can give feedback directly to us, or via our class email also. If you do give feedback or criticize us, fear not, I swear to God it will not affect your grades. In fact, if the input is something very crucial, it would be for your benefit as well.

As for you guys, please also do better in your learning. Pay attention, be active in class, and read more. The problems given in the exams were things that we have discussed in class, or could be answered with the knowledge you got in class. Below, I give you the key to the answers of the mid semester exams, along with some common mistakes.

Some answered very differently to what I expected, but with a logical construction which is still very acceptable, therefore getting full marks for those particular question. As I said, your conclusions does not matter, except as a mere consequence of a proper legal analysis. It is this legal analysis that I count.

Below I give the keys to the mid semester problems.

1.       Introduction to International Law

Full marks are given to those who could explain at least:

  1. We discussed elements of the definition of law in class. There should be mentioned “rules”, “binding” between “subjects of international law”, At least those should be fulfilled. Saying that it only applies between states would be a deduced marking, as International Law is not only for states. Some deductions were made when students limited international law only to states, or only states and international organizations.
  2. That Austin said “there is no international law, but a mere international morale”, and also that he said that because of the lack of a supranational body to enforce the law, which he thinks is a requirement of a law. His views is very related to the situation of his time, because he lived in the 19th century, in when legal positivism just started to emerge, and way before international law was modernized the way we see it today. Most mistakes are that students dont really know what Austin’s opinion is.
  3. Any opinion would do, as long as it is backed by a logical legal analysis.

2.       Sources of International Law

Full marks are given to those who could explain at least one of the following:

  1. It is a primary source of law under the ICJ Statute Article 38(1)(a).
  2. That an agreement is binding as there is an expressed consent to be bound between the states through their representatives, which is based on the principle of pacta sunt servanda which is a general principle of law, which is a source of law.
  3. If one can prove it, an international customary law

Many students were mistaken in two ways:

  • Saying ‘Treaties in Article 38(1)(a) need to be written’. This is incorrect, because if you see the wording of that article, it is not mentioned that international conventions must be written. It says “international conventions, whether general or particular, establishing rules expressly recognized by the contesting states”. This article emphasizes that agreements are primary sources of law. The Vienna Convention on the Law of Treaties 1969 does mention that treaties must be written. However if one makes a closer look to Article 1(a) of that convention, that statement does not rule out the existence of non-written agreement. It only means that the said convention only applies to written agreements, and unwritten agreements are not governed by it.
  • ‘That there is no proof of its existence’. Proof is a matter of dispute, and its absence does not negate the fact that it is a source of law. One must remember the difference between ‘entering into an agreement’ and ‘writing an agreement’. The former is done as a consent to be bound, and the latter is done as an evidence of the former. Even when one makes a written contract, and disputes occur, the text of the contract will be submitted as evidence that an agreement exists. Therefore in principle, a non written agreement is still a source of law.

3.       Subjects of International Law

Full marks are given to those who could explain at least:

  1. That one can only be a subject under international law, if it has legal personality under international law –which means that one can bear rights and responsibilities under international law.
  2. Students must  mention proof of the above. Proof can be in form of mentioning examples, e.g. rights and responsibilities of the individuals through international criminal law and human rights law.
  3. While animals, to a certain extent, are given rights of protection (which in some countries, even legal standing to sue), they cannot bear legal obligations. Therefore they do not have legal personality, and consequently, not a subject of international law.

Some mistakes in answering this questions, were saying that individuals are subjects of international law, because a permanent population is a requirement of a state, while a state is also a subject of international law. This logic is rather odd. Under the same logic, then an island is also a subject of international law, because territory is also a requirement of a state.

But what is more important is that a population, in the requirement of state, is a cumulative collective state of individuals, thus no longer counts as an individual. One needs to explain the concept of legal personality first to answer this question, as aforementioned.

4.       Relations between National and International Law

Full marks are given to those who could explain at least:

  1. That the theory of monism sees national law and international law as one system but with two different level, thus international law would automatically apply to national law. Examples of this could be the application of jus cogens and international customary laws
  2. That the theory of dualism sees national law and international law as two separate systems, thus international law can only apply to national law via transformation (adoption, ratification, whatever). Examples of this could be international treaty law.

This is straight forward. Common mistakes are failing to mention examples. Another mistake is in misunderstanding the concept of monism, saying that ‘monism says that national and international law is the same thing’. This is not the best way to explain it and, in fact, does not reflect your understanding in the subject, thus cannot be counted as a proper answer.

5.       Statehood

Full marks are given to those who could explain at least:

  1. The criteria of statehood under the Montevideo Convention, and whether the facts satisfy these criteria, bearing in mind the fact that there are controversies over the independence of the Kosovo government at its establishment, or
  2. the requirement of the people’s rights of self determination to be manifested through a declaration of independence which is only under case of independence from colonialism, persecution and human rights violation, and whether or not the facts satisfy this requirement

Common mistakes are when students did not really analyze the facts and law properly. For example, stating that the requirement of having a permanent population is not fulfilled because the minority Serbs in Kosovo disagree to the independence. Having differences in political opinion does not per se become a reason of any significance, especially when used to assess whether or not there is a permanent population.

Another example is when some claim that ‘Kosovo violates the UN Charter by violating the territorial integrity of Serbia’. Such a claim will need extra analysis, because the principles mentioned in the UN Charter is to be obeyed by States. ‘Breaking away from Serbia’ was not an act of Kosovo as a state, but by the Albanians previously within the jurisdiction of Serbia. Seeing this issue at a glance, this may be a breach of Serbia’s law, but not necessarily a breach of international law. This is why this might need more analysis.

 

6.       Jurisdiction

Full marks are given to those who could explain at least:

  1. How the exercise of jurisdiction is an evidence of effective government, which is a requirement for statehood. Or, how the overlap of jurisdiction would be a dispute under international law as it concerns clash of sovereignty claim.
  2. Students may choose two among the following: personality principle, passive personality principle, protective principle, and universal jurisdiction. They must briefly but accurately explain what they are, and give an example for each.

The common mistake in this problem would be students explaining why jurisdiction is important for a country, but not really relating it to international law. Another common mistake is mentioning things that has nothing to do with overlapping claim of jurisdictions.

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Please note that each problem would be marked up to 10 points, and therefore a perfect score would be 60 points.

After you reflect on the explanations above, you can always meet me and Pak Sigit at anytime to inquire further about your answers. Most of the times I will be in the Ruang Bagian Hukum Internasional, or if not, you can just contact me first through email or SMS (PS: your answer sheets are with me). Pak Sigit would usually be in the 1st floor of Gedung IV (Ruang Doktor).

I hope we could all learn from our mistakes, and do our best in the future.

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