IUP – International Law (Class A) : A General Evaluation and Conclusion

Dear Students of IUP: International Law Class A,

The following is the explanation of the final exams, as well as your scores from it.

1. Please explain the advantages and disadvantages of settling international disputes through diplomatic channels/political means and international adjudication/legal means!(International Dispute Settlement)

There are various advantages and disadvantages of both means. The advantages of political means would usually revolve around the fact that if there are any results, then it will be justice for both parties as they have both agreed upon them. The disadvantages usually are that the recommendations of mediations or conciliations are non-binding, therefore it heavily relies on the good faith of the parties. If parties do not have good faith or if the problem is of a certain level of extremety, agreements are hard to be reached and recommendations are hard to be followed.

The advantages of internal adjudication would usually be that the decision of the third party is binding, thus (legally) the dispute is solved. However, there are some disadvantages too. The parties are not necessarily satisfied with the results as they are imposed by a third party, but must accept it as it is legally binding. Also, whats more is that both in arbitration and ICJ, it highly relies on both parties to willingly submit the case to arbitration or ICJ. In a case where one of the parties knows or thinks that they are actually wrong but do not want to lose, they will never want to submit, e.g. China in the Senkaku/Diaoyu dispute.

An interesting point is “effectiveness”. Some say legal means take longer, including numerous textbooks, but such a claim is actually rather elusive. ICJ can indeed take years, but the Camp David mediations have also taken so many years. On the other hand, arbitration can take really short (which is one of the classical advantages of arbitration over court settlements). So actually, the claim of effectiveness can only be marked if given with evidence.

2. Please explain the differences between Arbitration and Judicial Settlement before the International Court of Justice, by comparing their characteristics and jurisdictional requirements(International Dispute Settlement)

The basic differences would be to what extent can the tribunal be adjusted to the convenience of the parties. In arbitration, the parties can choose the arbitrators, seat, governing law, law of forum, while in the ICJ there is no such choice (except when the parties can choose to let the judges to decide ex aequo et bono). Further, as consequence of the ability of the parties to choose the law of forum (for arbitration. Or for ICJ, the inability), arbitration tends to be more relaxed and less formal, and more efficient. Arbitration allows the possibility of a confidential proceedings if the parties wish so, while ICJ does not allow such possibility.

As a matter of Jurisdiction, the ICJ is only open for disputes between states while arbitration is open for not only states (also individuals, corporations, and other entities as wel). On both arbitration and ICJ, the courts can only exercise jurisdictions when both parties have agreed to bring the case before the tribunals.

3. The arrest of Sonny was against international law, as he enjoyed diplomatic immunity. There are three rationales of such immunity, which are: the extraterritoriality, representative, and functional necessity. Please explain how these three theories justify immunity! (Diplomatic Law)

There is the extraterritoriality theory, where the diplomat is not seen to be legally in the receiving state thus not bind by that state’s lawergo immune from it. There is also the representative theory, seeing that a state may not be subject to the law of another state, and a diplomat is seen as a representative of that state thus bears the personality of a state, therefore must be immune to the national laws of the receiving state. Lastly there is the functional necessity theory, where immunity is deemed as necessary for the diplomat to perfom his/her functions in conducting friendly relations on behalf of the sending state with the receiving state.

4. Rather than arresting Sonny, what is the best action that the Republic of Cats can do against Sonny? And explain, why did you choose that action! (Diplomatic Law)

There are two possible means, which is declaring persona non grata (not really asking Mouse to recall, but not welcoming Sonny anymore. This difference has a moral significance) and requesting Mouse to waive Sonny’s immunity. Most mistakes are because not everyone explains the reason why such choice is made.

Reasons could vary, which may include so many things. Anything that makes sense is acceptable.

• 5. Assuming the events occurred in 2012, and that both states lived in the setting of today’s world and have ratified the ICCPR, Is death penalty against international customary laws? Answer by explaining first, whether or not the trend of abolishing death penalty has achieved the status of international customary laws!(Human Rights Law)

The answer to this question is not fixed on “yes it is” or “no it is not”. What matters is for students to analyze the current condition of death penalty according to the two elements of international customary laws: State Practice and Opinio Juris. With the fact that many states are abolishing, giving moratorium, or restrictions, to death penalties, while there are many states that still have death penalty as well, one must try their best to interpret such situation based on the State Practice and Opinio Juris.

Most mistakes by students are the mere mention that “many abolishes it” or “many dont”, without analyzing from the elements of international customary laws as the exam problem required.

6. Was the retroactive charge towards Sonny lawful? Answer by explaining the concept and exception of the rules on retroactive prosecutions! (Human Rights Law)

The answer to this question is not fixed on “yes it is” or “no it is not”. What matters is for students to analyze the concept of a retroactive law (a law that was made after an event but applies to that event) and its exception (which is that during the event the law was not positive law yet, but was already recognized in international customary laws).

After explaining that, students need to argue that the particular crime is indeed a crime in international customary laws. Not much explanation is required on this latter point, though.

7. Was President Ratna’s decision to counter-invade legal under international law? (IHL)

The answer to this question is not fixed on “yes it is” or “no it is not”. What matters is for students to analyze the concept of self defense as a justifiable reason to wage war of jus ad bellum. It is correct to use a classical understanding of self defense to say that President Ratna fighting and repelling King Aloysius’s army was lawful as it was an imminent threat, but counter invading afterwards was not proportional as the threat was already eliminated. It is also correct to use the pre-emptive self defense doctrine, as long as the students could identify the possibility of King Aloysius attacking again in the future which necessitates such preemptive atatck..

8. Bearing in mind the civilian deaths and injuries, did Captain Alard violate International Humanitarian Law in the battle by the mountain pass? (IHL)

As much as we dread the fact that civilians have died, the facts show that Captain Alard did not violate IHL. The principle of distinction in IHL is to distinguish between combatants (actively participating in the hostilities) and non-combatants (not participating in the hostilities), where the former may be legitimately attacked and the latter may not be. Given such distinction, being a civilian doesnt always mean that they are non-combatants (this is the mistake of many students). While the civilians in the fact were picking up weapons and attacking Captain Alard, then they are still civilians but are not non-combatants.

9. Bearing in mind that King Aloysius and President Ratna were forced to sign the peace treaty between, is this treaty valid?(Law of Treaties)

Traditionally, coercion is indeed a ground to invalidate a treaty. However, if the coercion is in conformity with the UN Charter (see Article 52 and 75 of the VCLT 1969), the coercion is valid. The coercion in the case was done under Chapter VII of the UN Charter, thus is a valid coercion, and therefore the treaty is still valid.

Commonly, students did not see the fact that coersion invalidates treaties only when such coersion is against the UN Charter. Another mistake is when they said that the treaty is still valid because “it is for a good purpose”, without putting that in a framework of the applicable law. Some were mistaken by thinking that coercion is okay if the treaty is in conformity with the UN Charter, while it is the coercion that has to be so.

10. If the Kingdom of Mouse decides to make a reservation on Article 3, is there any difference of legal effect if the Republic of Cats: a) rejects the reservation, and b) accepts the reservation? (Law of Treaties)

Many students get tricked here. In principle, rejecting a reservation means that the reservation does not apply between the rejecter and the reserver, while accepting it means that the reservation does apply between them. However this is a bilateral treaty, and, not to mention, reserving that article would defeat the purpose of the treaty (reserving a peace clause in a peace treaty). Reservations cannot be valid. Therefore, there would be no difference in rejecting or accepting the reservation: the reservation cannot be done anyways.

11. What does the “Clean Slate Principle” mean, and does it apply to the State of Ratta and Touille? (State Succession)

The Clean Slate Principle essentially means that a newly emerged state can choose not be bound by treaty-based legal rights and obligations from the state that it succeeded (except for certain kinds of treaties). This principle applies to both Ratta and Touille because they are newly emerged states.

12. The arbitraryexecution by the State of Ratta towards the alleged Touille spies are clearly against the ICCPR. However, the State of Rattatouille never ratified the ICCPR, and the State of Ratta has not even ratified anything since its establishment. Can the ICCPR be applied to the State of Ratta to conclude that such acts were an internationally wrongful act? (State Succession)

Yes it can be applied, because human rights related treaties are the exception towards the Clean Slate Principle. ICCPR and other human rights conventions are considered as international customary law, and is therefore binding to the State of Ratta.

13. Can the State of Touille demand state responsibility from the State of Ratta from such actions? Answer by explaining first the elements of state responsibility! (State Responsibility)

Most mistakes in answering this question is the failure to mention the elements of state responsibility. The elements are: a breach of an international obligation (which is fulfilled by the breach of ICCPR as international customary law), and such action is attributable to the state in question (which is also fulfilled as it was perpetrated by the agent of the state).

14. Please explain the difference between Objective Liability and Subjective Liability! If we assume that the State of Ratta must indeed be responsible, which kind of the previously mentioned liability theories can be used to claim their liability? (State Responsibility)

Objective Liability is merely based on whether or not the action committed is a breach of international obligation, and when it is then liability exists. Many mistakes were in understanding Subjective Liability, which sees not only whether or not the action is a breach of international obligation, but observes also the element of fault. If the state has done whatever that was possible to prevent and supress the breach (therefore neither committed nor omitted the action), but the breach still happened, then according to the Subjective Liability they cannot be liable. However, an Objective Liability approach would mean that the state is still liable anyway.

Ratta did commit a breach of international obligation, and the commission was also deliberate. Therefore, liability can incur from both the Subjective as well as Objective Liability approach.

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Your final grades will be submitted to Mas Wawan today as well, but in this post I will announce your final exam scores. You have 14 days starting from the day Mas Wawan announces your grades to inquire about them. Bear in mind that the proportions used to make your final scores are:

Final Score = Class Participation (20%) + Assignments (20%) + Exams (60%)

After getting the Final Score, I converted them into the Final Grades using the scale as follows:

85,1 – 100 = A

70,1 – 85 = B

50,1 – 70 = C

30,1 – 50 = D

0 – 30 = E

I gave some of you a grade of (-) because these particular students did not attend the final exam, thus I would wait for the decision of IUP of what to do to them. If IUP decides to grant them a replacement exam, then the grades will be given accordingly. But if not, then that will be an E.

Generally, I and Pak Sigit are very happy to see a general increase in your performance between the mid exams and the final exams. We even have agreed to give special bonuses to those who have displayed a drastic increase between the two tests. We are really proud of all of you, and really hope and pray for all of you, so that what we have learned in class could be beneficial for all of us. Especially for all of you, we hope that the lessons that we have discussed could be fruitful both directly for you to continue your lessons in international law or indirectly to your skills in analyzing law.

For the better or the worse, I and Pak Sigit would thank everyone for their marvelous contribution in class as well as in providing feed back, and humbly appologize for our mistakes for we are also human. Along with that, we hope that all of us –both students and lecturers—could always improve. And in that aim, we will always be available if you have any questions or feedback, even much later after this class is over.

Regards to you all,

Sigit Riyanto and Fajri Matahati Muhammadin