Public International Law

Exam, January 2005, duration six hours (for students having to postpone their
exam)

Both questions below shall be answered. You are supposed to spend an equal amount of
time (three hours) on each of the questions. Texts relevant for question 1 are annexed.

Question 1
Discuss the relationship between Article 25 on “necessity” of the Draft Articles on
Responsibility of States for Internationally Wrongful Acts of the International Law
Commission, and:
a) Article 4 of the International Covenant on Civil and Political Rights.
b) Article 2 of the International Covenant on Economic, Social and Cultural Rights.

*******

Question 2
Imagine Iraq after the elections to be held in January 2005. The new Iraqi government is
headed by a Shia muslim who is closely allied to Iran and hostile to the United States and
its Coalition partners. The new government wants the Coalition forces to leave its
territory and to invite Arab countries, in particular Iran, Syria, Algeria and Egypt, to
provide military assistance to maintain peace and security within its borders.

You are working with the State Department of the United States. Your superior has been
traveling to Iraq recently, and visited the Kurdish areas in the northern parts of the
country. The Kurdish authorities are very concerned that the new government will pursue
a policy that will not respect Kurdish interests and that they will suffer from
discrimination and from withdrawal of rights and benefits that they enjoy under the
Interim Constitution adopted 8 March 2004.

You are asked by your superior to prepare a note setting out the measures the United
States may take in order to protect the interests of the Kurdish minority while remaining
in compliance with public international law, in particular Article 2.3 and 2.4 of the United
Nations Charter. You are asked to suggest initiatives that the United States may take
unilaterally, and initiatives that may be brought forward in the General Assembly, the
Security Council and the Human Rights Committee of the United Nations.

*******

Draft Articles on Responsibility of States for Internationally Wrongful Acts of the

International Law Commission:

Article 25:
1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness
of an act not in conformity with an international obligation of that State unless the act:
 a) Is the only way for the State to safeguard an essential interest against a grave and
imminent peril; and
b) Does not seriously impair an essential interest of the State or States towards
which the obligation exists, or the international community as a whole.
2. In any case, necessity may not be invoked by a State as a ground for precluding
wrongfulness if:
a) The international obligation in question excludes the possibility of invoking
necessity; or
b) The State has contributed to the situation of necessity.

Article 55:
These articles do not apply where and to the extent that the conditions for the existence of
an internationally wrongful act or the content or implementation of the international
responsibility of a State are governed by special rules of international law.

Exam, December 2004, duration six hours

Both questions below shall be answered. You are supposed to spend an equal amount of
time (three hours) on each of the questions. Some relevant documents for the questions
are annexed.

Question 1
Discuss the lawfulness of the invasion of Iraq – which arguments can be put forward in
favor of and against the lawfulness of the invasion.

*******

Question 2
Imagine Iraq after the elections to be held in January 2005. The new Iraqi government is
headed by a Shia muslim who is closely allied to Iran and hostile to the United States and
its Coalition partners. The United States has negotiated with the former Interim
Government of Iraq about future military presence in Iraq, and the Interim Government
agreed to lease an area of 100 square kilometers to the United States for the establishment
of a military base. The Agreement, which was kept secret, states that in case of
termination of the Agreement by Iraq, the United States has the right to demand monetary
compensation for its expenses, and that the amount is to be determined by an arbitral
tribunal. The Agreement also states that its termination takes effect six years after the
notice of termination has been received by the other State.

You are employed as legal expert by the Ministry of Foreign Affairs of the new Iraqi
Government. Your superior asks you to make an assessment of whether it will be possible
to terminate the Agreement without having to pay compensation to the United States. In
addition, your superior wants to know whether it will be possible to avoid arbitral
proceedings. You are asked to set out the legal arguments in favor of and against your
conclusions.
 *******

The following texts are of relevance to the question 1:

The United Nations Security Council Resolution 678 (1990):

…
2. Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15
January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, to use
all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions
and to restore international peace and security in the area;

The United Nations Security Council Resolution 687 (1991):

…
Conscious of the need to take the following measures acting under Chapter VII of the Charter,
1. Affirms all thirteen resolutions noted above, except as expressly changed below to achieve the goals of
this resolution, including a formal cease-fire;
…
33. Declares that, upon official notification by Iraq to the Secretary-General and to the Security Council of
its acceptance of the provisions above, a formal cease-fire is effective between Iraq and Kuwait and the
Member States cooperating with Kuwait in accordance with resolution 678 (1990);
34. Decides to remain seized of the matter and to take such further steps as may be required for the
implementation of the present resolution and to secure peace and security in the area.

The United Nations Security Council Resolution 1441 (2002):

…
Acting under Chapter VII of the Charter of the United Nations,
1. Decides that Iraq has been and remains in material breach of its obligations under relevant resolutions,
including resolution 687 (1991), in particular through Iraq’s failure to cooperate with United Nations
inspectors and the IAEA, and to complete the actions required under paragraphs 8 to 13 of resolution 687
(1991);
2. Decides, while acknowledging paragraph 1 above, to afford Iraq, by this resolution, a final opportunity to
comply with its disarmament obligations under relevant resolutions of the Council; and accordingly decides
to set up an enhanced disarmament process established by resolution 687 (1991) and subsequent resolutions
of the Council;
…
12. Decides to convene immediately upon receipt of a report in accordance with paragraphs 4 to 11 above,
in order to consider the situation and the need for full compliance with all of the relevant Council
resolutions in order to secure international peace and security;
13. Recalls, in that context, that the Council has repeatedly warned Iraq that it will face serious
consequences as a result of its continued violations of its obligations;

The following texts are of relevance to the question 2:

The United Nations Security Council Resolution 1546 (2004):

The Security Council,
…
Reaffirming the independence, sovereignty, unity, and territorial integrity of Iraq,
Reaffirming also the right of the Iraqi people freely to determine their own political future and
control their own natural resources,
…
Recognizing also the importance of the consent of the sovereign Government of Iraq for the
presence of the multinational force and of close coordination between the multinational force and that
government,
 Welcoming the willingness of the multinational force to continue efforts to contribute to the
maintenance of security and stability in Iraq in support of the political transition, especially for upcoming
elections, and to provide security for the United Nations presence in Iraq, as described in the letter of 5
June 2004 from the United States Secretary of State to the President of the Council, which is annexed to
this resolution,
Noting the commitment of all forces promoting the maintenance of security and stability in Iraq to
act in accordance with international law, including obligations under international humanitarian law, and to
cooperate with relevant international organizations,
Affirming the importance of international assistance in reconstruction and development of the Iraqi
economy,
Recognizing the benefits to Iraq of the immunities and privileges enjoyed by Iraqi oil revenues and
by the Development Fund for Iraq, and noting the importance of providing for continued disbursements of
this fund by the Interim Government of Iraq and its successors upon dissolution of the Coalition
Provisional Authority,
Determining that the situation in Iraq continues to constitute a threat to international peace and
security,
Acting under Chapter VII of the Charter of the United Nations,

1. Endorses the formation of a sovereign Interim Government of Iraq, as presented on 1 June 2004, which
will assume full responsibility and authority by 30 June 2004 for governing Iraq while refraining from
taking any actions affecting Iraq’s destiny beyond the limited interim period until an elected Transitional
Government of Iraq assumes office as envisaged in paragraph four below;
2. Welcomes that, also by 30 June 2004, the occupation will end and the Coalition Provisional Authority
will cease to exist, and that Iraq will reassert its full sovereignty;
3. Reaffirms the right of the Iraqi people freely to determine their own political future and to exercise full
authority and control over their financial and natural resources;
4. Endorses the proposed timetable for Iraq’s political transition to democratic government including:
(a) formation of the sovereign Interim Government of Iraq that will assume governing responsibility
and authority by 30 June 2004;
(b) convening of a national conference reflecting the diversity of Iraqi society; and
(c) holding of direct democratic elections by 31 December 2004 if possible, and in no case later than
31 January 2005, to a Transitional National Assembly, which will, inter alia, have responsibility
for forming a Transitional Government of Iraq and drafting a permanent constitution for Iraq
leading to a constitutionally elected government by 31 December 2005;

Article 25 of the Law of Administration for the State of Iraq for the Transitional Period (the Interim
Constitution), adopted 8 March 2004:

The Iraqi Transitional Government shall have exclusive competence in the following matters:
(a) Formulating foreign policy and diplomatic representation; negotiating, signing, and ratifying
international treaties and agreements; formulating foreign economic and trade policy and
sovereign debt policies;
(b) Formulating and executing national security policy, including creating and maintaining armed
forces to secure, protect, and guarantee the security of the country’s borders and to defend Iraq;

Exam, May 2004, duration six hours

It has been argued that military intervention against other States’ territories must be
viewed from a new perspective in public international law in light of the need for
protection against terrorism and weapons of mass destruction. In this context, arguments
have been brought forward in favor of a right of “preemptive strike” to protect national
interests. Present arguments in favor of and against the existence of such a right today,
and give your assessment of whether the existing rules of public international law in this
field need to be amended.

Exam, December 2003, duration six hours

You shall reply to both Part I and Part II, and you should use an equal amount of time
(that is approximately three hours) on Part I and Part II

Part I
Present and discuss the rules of the UN Charter that are of relevance to the issue of
military intervention in order to prevent a humanitarian crisis.

Part II
Technologia is a country whose biotechnology industry is very advanced. For several
years, Technologia has had a program for promoting the development of genetically
modified agricultural products. A great variety of the genetically modified plants are
commercially available.

The population and government of its neighboring country, Backwardia, have been
skeptical to the introduction of genetically modified organisms. Both scientific studies
and newspaper reports produced within Backwardia point to various problems and risks
associated with genetically modified organisms. Concern has been expressed with respect
to long term effects on human health, effects on the survival of endangered species, and
the possibility that modified genes will spread to wild relatives of the genetically
modified organisms. Consequently, no genetically modified agricultural products are
currently allowed to be marketed in Backwardia. However, Backwardia is facing a
situation where it is becoming increasingly hard to import agricultural products that are
guaranteed free from genetically modified elements. Hence, Backwardia is currently
considering a legislative reform that will allow genetically modified agricultural products
to be marketed. During the process of preparing the legislation, Backwardia discovers
that Technologia does not have any procedures for authorizing or controlling the
marketing of genetically modified agricultural products.

In response to the Backwardian concern related to the lack of authorization procedures

within Technologia, Technologian authorities argued that most biotechnology industries
receive government funding related to research and development of new products. In
order to qualify for such funding, the enterprises will have to inform the authorities about
the properties of products and processes used during the development of the products.
Hence, Technologia was of the opinion that they were well informed about the activities
of the biotechnology industry. If dangerous products were uncovered, Technologia would
be ready to prohibit production and marketing, and this would in their view substitute for
a traditional and bureaucratic authorization procedure. They also emphasized that the
industry contributed to the development of products that would turn out to be beneficial
to the population of both developed and developing countries.
In response, Backwardia pointed to the lack of risk assessment in the procedures applied
by Technologia. Moreover, they emphasized that their concern mainly related to possible
long term effects of genetically modified organisms.

Both Backwardia and Technologia are bound by the treaty reproduced below.

Imagine that you work as advisor to the government of Backwardia. You are asked by
your superiors to prepare a paper that responds to the following questions:
1. Is Technologia obliged to establish an authorization procedure for the growing of
genetically modified agricultural products given that genetically modified organisms
grown in Technologia may spread into Backwardian territory?
2. Is Technologia obliged to establish an authorization procedure for the marketing of
genetically modified agricultural products given that such products are highly likely to
find their way into Backwardia in large quantities due to lack of frontier control?

Acting on the information provided in the paper they received, Backwardia approached
Technologia in order to enter into consultations with a view to make Technologia
establish an authorization procedure. Imagine that you work as advisor to the government
of Technologia. You are asked by your superiors to prepare a paper that responds to the
following questions:
3. Is Technologia obliged to enter into consultations with Backwardia?
4. During those consultations, can Technologia insist on maintaining a system based on
full freedom to grow and market genetically modified products within the borders of
Technologia while still claiming to negotiate in accordance with Articles 4, 9 and 10 of
the Convention?

Exam, December 2002, duration six hours

Students who have read Cassese: International Law:

Elections were held in the State of Elbonia, and a populist party came to power. One of
the party’s promises during the election campaign was to work towards expulsion of
foreigners originating in neighbouring Voisinia. Voisinian authorities, who had followed
the elections closely, responded to the hostile tone towards persons originating in Voisinia
by adopting a law stating that all persons living in Elbonia who could document links to
Voisinia were to be regarded as Voisinan citizens regardless of whether they also were
citizens of other States. The law entered into force immediately.

Following the elections, certain extremist groups seized the opportunity, and organised
demonstrations in which property of Voisinian citizens was destroyed. The police did not
interfere with the demonstrations, and none of the demonstrators were brought to justice.
The new Minister of the Interior argued in the press that he feared serious riots if he had
ordered the police to interfere with the demonstrations.
The extremists seemed to be encouraged by the passivity of the government, and groups
were organised which attacked the homes of Voisinian citizens. Several persons were
killed, tortured and raped. In total 250 people had been attacked, of which 75 were killed.
The total number of Voisinians living in Elbonia was 200,000. Elbonian authorities
condemned the attacks, and the Minister of the Interior called for the guilty to be brought
to justice. However, little was done in practice, and those arrested turned out to be
innocent. There was evidence that harassment of Voisinian citizens continued, but not as
explicitly as had previously been the case.

Voisinia’s government, which felt that they could not passively witness the misfortune of
their citizens in Elbonia, secretly sent agents into Elbonia in order to investigate the acts
that had been committed. The agents managed to capture two leaders of the extremist
group that was considered responsible for the attacks against Voisinan citizens. They
were smuggled out of Elbonia and into Voisinia, where they were imprisoned.

Both Elbonia and Voisinia had recognised the jurisdiction of the International Court of
Justice in accordance with Article 36.2 of the Statue of the International Court of Justice.
The first thing the new government of Elbonia did after the elections was to start a
process to withdraw the Elbonian declaration under Article 36.2. The declaration
withdrawing the acceptance of the jurisdiction of the International Court of Justice was
finalised and sent two days before the Elbonian citizens were brought to Voisinia, but
after the agents had started their investigations within Elbonia.

Imagine that you are working as a legal adviser at the Ministry of Foreign Affairs of
Voisinia. You are asked by your Minister to prepare a document setting out what claims
Voisinia may possibly invoke before the International Court of Justice, the arguments that
can be brought forward in favour of and against the claims, and the most likely results of
such a case. In addition, you are asked to describe the most likely claims that can possibly
be invoked by Elbonia, and the arguments that can be brought forward in favour of and
against these claims. You are also asked to give your opinion on the usefulness of
bringing the case before the International Court of Justice as compared to other ways to
react vis-à-vis Elbonia.

The following treaties have been ratified by both Elbonia and Voisinia:

Charter of the United Nations (1945)

Convention on the Prevention and Punishment of the Crime of Genocide (1948)
UN Covenant on Civil and Political Rights (1966)

[The International Law Commission’s Draft Articles on State Responsibility (2001) can
be found at http://www.un.org/law/ilc/texts/State_responsibility/responsibilityfra.htm]

Students who have read the selected articles in public international law:

Discuss the legal status and functions of the international institutions in international
environmental law
May 2001
Give a brief presentation of the prohibition against the use of force in international law.
Discuss and assess the relationship between the general prohibition against the use of
force and collective use of force through the United Nations.

Both questions shall be answered.

May 2000
Discuss the new articles on reprisals ("countermeasures") proposed by the UN Law
Commission (1996) (see Annex). Give your opinion about this proposal in the light of
which status reprisals should have in international law. Enclosure!

May 1997
Desision-making powers of international organizations in relation to member states.