International Law Mid Semesters Exams and Results (IUP, Both Classes)

Assalaamu’alaykum warahmatullaahi wabarakaatuh

Dear students of International Law,

I have finally managed to complete the correction of Class A as well. For Class A students, I give you 2 x 7 days (after today) to make an appointment with me, shall you further clarification of your grades. As for Class B, your 2 x 7 days has started from the first time this post was issued.

All students must read the following explanations first before you meet me, so that you can self-evaluate first. This is because I have updated a few items in the Common Mistakes which I will identify with a special mark so that Class B students can easily identify what is new.

Regards,

EXAM DISCUSSION

1. A treaty could codify and develop customary international law. Explain and provide one example!

Explanation:

A treaty can codify existing customary international law (state practice and opinio juris) by writing it down in one instrument. However, States can also agree to modify and change certain rules of customary laws to make a new rule in that treaty. Then, after the treaty is complete, this could generate a new rule of customary law by new state practice and new opinio juris. This last part is how a treaty can develop customary international law.

Examples could be various, and students are expected to explain how that example codifies and develops customary international law. Among the examples would be the Vienna Convention on the Law of Treaties between States (1969). It codified the pre-existing practices of states in concluding written agreements, but also added new features such as rules relating to jus cogens.

Common Mistakes:

The largest common mistake suffered by so many is this: not knowing what the answer is. There is only one way to fix this: study better.

As a minor point, I find that there are a number of students saying that “customary laws are too general and too vague”. While it is not necessarily wrong, it is not necessarily true either. Your seniors last year made the exact same mistake (see discussion on Question 1 of last years mid semesters on this link). But only now do I probably realize why some of you are making mistakes like this.

It seems that some students misunderstand the word “general” that I used to describe customary international law. Some of you seemed to think that this word refers to the content of the law, meaning that the content of the law is general norms and not specific rules. This is not the case. What is meant by “general” here does not refer to the rules, because any rule can be general or specific whether they are a rule of customary law or even treaties!

Maybe you were not listening, or you wrote “general” on your notes and then forgot what it means, or it might be the way I explained it, I don’t know.

What “general” means is not substance but to whom it applies. Customary international law applies to the whole international community! Except, as we learned, in two situations (a) there is a agreement between a few states to exclude themselves from the customary rule, and (b) there are persistent objectors.

NEW ADDITIONAL COMMON MISTAKES:

Some students say that customary international laws are not binding, while this is wrong. They are indeed binding.

Some students also said that treaties are higher in the hierarchy of the sources of international law. No, they are not.

Some students gave an example of US customs being codified as a treaty as an example of codification of customary international law. This should have been an obvious mistake, because the practice of just one State (UK) is hardly customary international law.

2. The Advisory Opinion of the International Court of Justice on June 22, 2010 provides that Kosovo’s Declaration of Independence in 2008 was not against international law. To date, the State has been recognized by more than 100 Member States of the United Nations. However, according to facts on the field, has Kosovo indeed fulfilled the requirements of Statehood under the 1933 Montevideo Convention?

Explanation:

certainly not. It is understood that the requirements of the Montevideo Convention are: defined territory, permanent population, effective government, and the capacity to enter international relations. Students are expected not only to identify how the “Effective Government” element due to reliance to UNMIK and KFOR for governance and security, but also how this also affects the “capacity to enter international relations” element. This last element requires “independence” and “sovereignty”, which is clearly unfulfilled also.

Common Mistakes:

The most common mistake is, again, not knowing the answer. Some credits are still given to those who at least explain what the four requirements of the Montevideo Convention are. But the main point is to know that that some requirements are not satisfied! Students failing to answer this either did not listen to the lectures properly, and/or did not prepare well.

3. When can an individual be considered a ‘person’ under international law? Explain and provide two examples!

Explanation:

a simple explanation is that they should bear rights or obligations under international law. Examples may also vary, but students are expected to also explain how those examples reflect the existence of rights or obligations under international law for that particular individual. One example would be in international criminal law, where an individual may be held accountable for committing crimes of international law such as Genocide.

Common Mistakes:

The most common mistakes would be only giving examples without explanation, or only giving one example. This would result in not getting full marks.

NEW ADDITIONAL COMMON MISTAKES:

A number of students mentioned that individuals, when their rights are violated, can sue a state before the ICJ. No, they cant. The ICJ only accepts State vs State cases.

4. In 2015 Indonistan ratified the Milk Rights Treaty, whose Article 3 provides that “All States Parties agree that: […] (b) Milk shall be provided free of charge for all children up to five years of age;”. Nevertheless, one year after the ratification, there has not been any change in Indon law. Not only is milk not free, the price has even increased. In March 2016, a group of mothers filed a lawsuit against the government, asking for their right to free milk based on Article 3(b) of the Treaty. Is it possible for an Indon judge at a national court to apply the Milk Rights . Treaty? Answer by explaining the difference between the monist and dualist approaches in the application of international law at the national level!

Explanation:

Students are first expected to describe the relevant differences between monism and dualism, before answering. A dualist state would require transformation of that international law norm into an national law instrument first, so if Indonistan is a dualist state then the judge will not be able to apply the Milk Rights treaty as there is no transformation yet. If Indonistan is a monist state, yes the judge will be able to apply the treaty since monism requires no transformation.

And yes, there is no info whether Indonistan is a Monist or Dualist State. So the answer will remain as “if dualist then X, if monist then Y”.

Common Mistakes:

The most common mistake is to fail to identify that the case does not show whether Indonistan is a monist or dualist state.

Some students say that “since there is ratification, then they must be a dualist”. First, this is wrong. Even monist state also has to ratify first before it is bound by the treaty. The difference between monism and dualism is, after ratifying, whether they need to transform into national laws.

Second, even if it’s a dualist state, some students say that “yes the judge can use the Milk Rights Treaty because it is already ratified”. This is wrong. The case clearly says that there has been no change in the national laws of Indonistan, meaning that there has been no transformation.

Lastly, some students did not read the case carefully enough. This is not Indonesia! So it is incorrect to use Indonesia’s system (confusion between monism and dualism)

5. In the importance of recognition for the political existence of a State, what are the differences between the declarative and the constitutive theories? Provide also a real and thoroughly-explained example whereby an entity could be considered a State according to one theory, but not the other!

Explanation:

a general explanation is simple. The declarative theory does not require recognition for statehood (satisfying the Montevideo Convention requirements), while the constitutive theory requires recognition for statehood. Even, states not fulfilling the Montevideo Convention requirements may even be considered as a State under the Constitutive Theory, if there is recognition.

An easy example is to refer to question No. 2. How Kosovo is not a state according to the declarative theory as they fail to fulfill the Montevideo Convention requirements, despite having recognition. Under the constitutive theory, Kosovo is a state despite failing to fulfill the Montevideo Convention requirements, as they have recognition.

Common Mistakes:

The main mistake is that a lot of students seem to be confused of which one is constitutive and which one is declarative. Many got it the other way round.

A minor point I would like to mention is the use of the word ‘important’ when explaining whether a state needs recognition. The word ‘important’ could mean a lot of things, and where it matters here: something can be important but not essentially required. The word “required” or “imperative” may be more appropriate for these purposes. This may seem minor, but the way of choosing words is an important skill for lawyers.

NEW ADDITIONAL COMMON MISTAKES:

This is a mistake that only one student made, but I thought I should point this out. This student said that Palestine has nothing that resembles a government, and the closest would be an extremist Islamic movement. This statement is as ignorant as it is outdated. The Palestinian government under Mahmoud Abbas, which has ratified a number of international treaties such as the Rome Statute, can hardly be said to be “nothing that resembles a government, and …. an extremist Islamic movement”. One can google and find that yes they have a structure of a government.

What may be closest to an “extremist Islamic movement” would be Hamas, which is no longer in the terrorist list of the European Union.

6. Explain one similarity and one difference between the legal regime governing the sea and that of outer space!

Explanation:

There are a number of similarities between the two regimes, including how the area is generally seen as common heritage of mankind (or res communis) and that the jurisdiction of flagships apply. There are also a number of differences, including how in the law of the sea there may be different zones with different rights and responsibilities between coastal states and foreign states, while in the law of outer space everything is res communis. Also, law of the sea has a very long standing customary international law while the laws of outer space is still very new. I accept any answers that are correct.

Common Mistakes:

The most common mistake is, again, not knowing the answer. There is not much that I could explain.

NEW ADDITIONAL COMMON MISTAKES:

It interests me that quite a lot of students somehow get mixed up between the law of air and the law of space, including by citing the Chicago Convention 1944. The question was about law of outer space and did not mention air!

SO Here are the results for both Classes: