International Law Mid Semesters 2015 – IUP [UPDATED WITH REVISIONS AND GRADE!!!]

Assalaamu’alaykum warahmatullaahi wabarakaatuh

Dear students of the International Undergraduate Program especially for those taking the International Law course, both class A and class B.

I have finished everyone’s answer sheets by now, alhamdulillah, and and I hereby announce the results. It was heart-lifting when some students could get over 90, and the highest was 96. However, there were a number of students getting below 50 points out of a maximum of 100, some below 20 and even below 10, and one even got a solid zero. I really wish to know where we got wrong. The high scorers make me proud but are not my concern. I worry those who get low scores. Where did we get wrong?

If you have any inputs for me personally, please either meet me personally or drop me an email at fajri.matahati@gmail.com . You can criticize me as hard as you want and I promise it will not affect your grades (although I would appreciate proper manners). As for other lecturers, maybe you can talk directly to them.

Now, it is me who was put in charge to correct the entire mid-semester exams, so if there are any protests or further inquiries on the results you can direct them to me. However, here are the rules.

First, wait until the IUP office releases your grades. InshaaAllah they will be out on Monday. Or, upon the permission of Mas Rangga, I might release them on Saturday night (yep, that’s sad on my part, but whatever hahaha)

Second, you must read the question evaluations below first and reflect on what you have answered.

Third, you must make an appointment with me so you cant just drop by my office and see if Im around. Send me an email, indicating if there are any of the key answers in the evaluations which you disagree with (yes, I am open to such a possibility) or if you still don’t understand it, or if you think you have a different answer but it should be still correct. If not, you must indicate a reason why you think you got lower than you should have. This is because there are so many of you, so you must have a good reason to make an appointment (as I previously explained). And all meetings will be strictly in my office. You propose a day, then I tell you what hours I am available.

Fourth, you only have 10 working days to drop me an email to request the meeting, starting from the day the results are published (although the appointment can be done after those 10 days). After 10 working days, I will not accept any requests for appointments.

After that, you can catch me around campus if you wish to ask about anything regarding international law, including about the exams if you wish, but it will not lead to any follow ups to your exam results even if apparently there were mishaps during the correction.

Here are the question evaluations, and after I corrected the second class I have some extra inputs which I have marked so you know what is new

Question 1: Treaties being lex specialis to customary international law (a) how can it? (b) when cant it? (15 points)

Possible answers to this question: certain states wishing to exclude themselves from the customary laws (CIL) just amongst the parties but not denying what is customary for everyone else, or customary laws having very general or vague rules so that the treaty is to make specific provisions.

[NEW INSERTION] Reading more answer sheets, it got me thinking. It is okay to answer “when the customary laws are rather vague”. However, I realize that some students seem to be under the impression that customary international laws are all general and vague. You are probably mixed up with traditional customs, and even in that case such a statement is not necessarily true. There are numerous customary laws that are quite detailed, such as the provisions of the Geneva Conventions 1949 (they are treaties but are codifications an progressions of -and now have evolved into– customary international law).

When are treaties not lex specialis from CIL? When the treaty is in breach of customary laws which have elevated to jus cogens.

The first thing that you need to remember is that in order to apply lex specialis derogate legi generalis is that there has to be a conflict of rule in the first place. So it is incorrect to bring a situation where there is no breach of customary international law by the treaty in question. But due to the vagueness of the question, this can also be used to answer question (b). Im giving you benefit of doubt.

Further, some give examples of law-making treaties intended to make a new customary law. This is also incorrect for question (a) because the intention is replacing an old custom with a new one. Therefore, its lex posteriori derogate legi inferiori. However, this can be used to answer question (b).

PS: the conflict has to be treaty vs. customary international law. Therefore, those giving treaty v. treaty examples are incorrect.

Question 2: Monism and Dualism: Compare and Contrast (10)

The idea is that in a monist system, international law and national law are seen as one system so there need not to be incorporation of international law to national legislation for it to be applicable within the state. This is in contrast to the dualist system that sees international law and national law as two systems, which requires incorporation to the national legislation for it to be applicable in the state.

The mistake of many students is (a) the use of improper English words that they become incoherent (such as monism use ‘one perspective’, etc –what is that supposed to mean?), or (b) the mere elaboration of the (alleged) definition of the theory but without really explaining how do they really contrast each other.

Question 3: Kosovo Independence and the Montevideo Convention (MC) (15 points)

The four criteria of statehood in the MC are very easy: defined territory, permanent population, effective government, and capacity to enter international relations.

What many got wrong is in analyzing the facts. Some say ‘lack of stable government’, while there is no requirement of stability of governance in the MC. Some say that everything is nice and dandy so yay all are fulfilled.

What is required is for you to point out that the government of Kosovo is run by UNMIK, thus is not independent.

Some other mistake is to say that there is no recognition to Kosovo (while there is A LOT), or to say that Kosovo committed tons of violence –they were the VICTIM not the perpetrator.

Question 4: Holy See as subject of international law (10 points)

What is required from you is to mention evidences of the Holy See having international legal personality. For example: the Lateran treaty, or other treaties it has participated in, or its diplomatic relations with states, or its membership at the UN, etc.

The mistakes common to this question: simply stating that it doesn’t have to be a state to be a subject of international law, [NEW INSERTION] or merely saying “it has legal personality/rights and obligations/it has been recognized by other states”, but not really explaining what actually is evidence of legal personality. Another problem is discussing the spiritual role of the Holy See, without explaining the legal significance.

Question 5: Indonesia and the Netherlands –1949 and 2005 (10 points)

Simple: yes, recognition happened in both cases. In 1949 it was a de facto recognition, and in 2005 it was a de jure recognition. Not much to discuss about in this question, not many were mistaken here but once someone is mistaken its simply not studying enough while this is very simple.

[NEW INSERTION] Apparently there were a few students that got mixed up between de facto and de jure

Question 6: Rights of Innocent Passage in the Sea and Air (10 points)

Basically, the rights of innocent passage in the sea is derived from custom and not granted by the coastal states, thus the coastal state cannot limit it. However, the rights of innocent passage during the regime of the Paris Convention was granted by states, therefore it can be limited.

Not much to discuss on this one. Many were incorrect on this one due to the lack of understanding of what an innocent passage is and could not tell the difference between the law of the sea and law of airspace regarding the matter. Simple mistake but done by most.

[NEW INSERTION] one more mistake that is done by some students is that they did not seem to understand the question properly, especially on the rights of innocent passage in the airspace. The question clearly mentions how there used to be rights of innocent passage in the airspace, meaning that it doesnt exist anymore. As we have discussed and as most of you know as well, the rights of innocent passage in the airspace is deleted by the Chicago Convention 1944. Therefore, seeing the question, it does not make sense to compare rights of innocent passage in the sea and the rights of innocent passage in the airspace after the Chicago Convention, Does it? But some of you did that, unfortunately

Question 7: Common Heritage of Mankind: What does it mean? (10 points)

Two things that I require to be identified: (a) owned by all, and (b) no single state can claim sovereignty or ownership over it. Most answered this one correctly. Most students could answer this correctly (so proud of you ^_^ lol it was easy hahaha)

Question 8: President Irjaf (a) before we knew he was president, and (b) after we found out he was president (20 points)

Active nationality claims:

Iran, because Irjaf is Iranian

Passive nationality Claims:

Yemen, for the murder of Yemenis on the aircraft

Bahrain, for the murder of the pilots

Subjective territoriality claims:

Lebanon, for the shootings of the Omani civilians (shots from Lebanon aircraft, although effects in Oman)

Objective territoriality claims

Lebanon, since a number of crimes occur on the Lebanese aircraft, including murders etc

Yemen, for the alleged war crimes after the aircraft entered Yemen airspace

Oman, because they felt the effects of the shootings from the plane. However, some students incorrectly claim objective territoriality because the shootings were in Omani airspace (from inside the craft, closed doors, its Lebanese territory)

Saudi Arabia, for the injuries caused to Saudis in Saudi Arabia.

American Territoriality Potato Claims

USA doesn’t normally have jurisdictional claims (as some of you unfortunately assert). But they are AMERICANS.

I am quite liberal in grading this one, by the way.

[NEW INSERTION] Common mistakes on this question includes: (a) just mentioning ‘subjective jurisdiction’ or ‘active jurisdiction’ without adding either ‘territorial’ or ‘personality/nationality’ where applicable, or (b) probably mentioning the reasoning behind a certain claim, such as ‘because the 20 Yemen people were killed on the plane’ but without pointing out what kind of jurisdiction that is. (c) another factual error which is quite ‘unique’ but apparently happens, is that some students actually think Houthi is a state. We have discussed in class that they are a rebel group, and the text of the question also mentions that, what is wrong with you?

For the extradition from Saudi, after knowing Irjaf is a president, all I require is that you identify that there is a clash between immunity for heads of state, derived from Customary Law, versus universal jurisdiction which is derived also from customary law and also raising from Jus Apel I mean Cogens.

Now the first typical mistake is not preparing or reading anything about universal jurisdiction or the cases. They answer things like “the crime affects a lot of people so Saudi should get universal jurisdiction” etc. For people who did not even prepare anything, and answered just barely, don’t even think of complaining.

The second typical mistake is the debat emak-emak which I have discussed in class and warned you about. It is not enough just to say “there is immunity because he is head of state (or a much longer elaboration but essentially just saying that), but then it is a war crime which is a breach of jus cogens  so tadaaa no immunity. Remember, after identifying both sides and explaining them, you would need to explain why one is stronger than the other.  AND by analyzing the merits of the cases discussed in class!

One minor thing is that it was clear on the questions that it was allegations of war crimes. I don’t understand why some students have to mention ‘genocide’ or ‘crimes against humanity’, while obviously they have no idea what those words even mean (because if you did you wont even mention them).

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[NEW INSERTION] one more thing I wish to tell you about the way I do my grading is that I do not give any marks to answers which are tediously long and elaborate but incorrect. I do not give bonus ‘pity’ scores because ‘at least you write something, and I should appreciate that’, or in Bahasa some may call it ongkos menulis. My rules in grading is that I appreciate something that is worth appreciating. If you were in playgroup or early elementary school, I would highly reward the fact that you can write something more than two sentences in one answer. But since you are a university student, being able to write something is not something that special that I could appreciate with marks. Especially if the contents are totally incorrect or even worse: incoherent.

Therefore, as an advice, try your best to not squirrel around writing so many long paragraphs except you actually think its useful. For example, I honestly do not really care what is the motive behind Netherlands’ implied recognition in 1949 (that they think Indonesia wont exist for long etc or because they will attack us again anyway but HEY THEY ATTACKED US BEFORE THE ROUND TABLE CONFERENCE!). Because even if the Netherlands’ implied recognition was because their Queen had a secret crush with President Soekarno but wanted to keep it subtle so they decided an implied recognition is the best way to express such a love, this motive does not change the type of recognition anyways.

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THE GRADES

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So, thats all, good luck for your remaining exams!!!