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TUTORIAL QUESTIONS

Weeks 1-6

LAW 2310 PUBLIC INTERNATIONAL LAW

The tutorial questions set out in the following pages have been prepared by Dr David Berry, and
Professor Alina Kaczorowska-Ireland.
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WEEK 1

HISTORY AND NATURE OF INTERNATIONAL LAW

Please read: A. Kaczorowska-Ireland, Public International Law, 5th edition, Routledge

(2015), Chapter I.

Question 1

Critically examine the theoretical and practical arguments challenging the status of international
law as “law”.

Question 2

Explain why States generally comply with rules of public international law.

Question 3

Explain how international law can be enforced against a State and against an individual. Give
examples.

Question 4

Outline why international law is, or is not, important to Commonwealth Caribbean States? Can
small States influence the development of international law? Can they participate effectively in
the international system?

WEEKS 2 AND 3

SOURCES OF INTERNATIONAL LAW

Please read: A. Kaczorowska-Ireland, Public International Law, 5th edition, Routledge

(2015), Chapter II.

Question 1

Critically discuss whether Article 38 of the Statute of the International Court of Justice (ICJ) can
be regarded as a final statement on the sources of public international law.
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The question of where to find sources of international law, bearing in mind that the international
community has neither a constitution nor legislature, is usually answered by reference to Article
38 of the Statute of the International Court of Justice (ICJ). This provision mirrors Article 38 the
Statute of the Permanent Court of International Justice (PCIJ) which operated under the auspices
of the League of Nations. It provides: (1) The Court, whose function is to decide in accordance
with international law such disputes as are submitted to it, shall apply: a. international
conventions, whether general or particular, establishing rules expressly recognised by the
contesting states; b. international custom, as evidence of a general practice accepted as law; c.
the general principles of law recognised by civilised nations; d. subject to the provisions of
Article 59, judicial decisions and the teaching of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of rules of law. (2) This provision
shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree
thereto. Five distinct sources can be identified from Article 38 of the Statute of the ICJ: ■
treaties; ■ international custom; ■ general principles of international law; ■ judicial decisions; ■
the writings of publicists. There is also an incidental source, i.e. equity. While there is little doubt
that Article 38 does embody the most important sources of international law, it provides an
incomplete list of them. This is because, on the one hand, it envisages sources of international
law from a strictly jurisdictional perspective and, on the other hand, being a text adopted more
than 90 years ago, it does not take into account the subsequent evolution of international law.
Article 38 has been criticised for a number of reasons: ■ It treats judicial decisions and the
writings of publicists as being of equal importance, while in practice judicial decisions have
more weight than the writings of publicists. ■ There is a discrepancy between the English and
the French texts of Article 38 as to the role of judicial decisions and the writings of publicists
which are referred to as ‘auxiliary’ in the French version, and as ‘subsidiary’ in the English
version. These terms do not have the same meaning. ■ It is worded very generally and thus
provides little assistance in resolving the issue of the hierarchy of sources. Notwithstanding this,
Article 38 indicates an order of importance, which in practice the Court may be expected to
observe although it does not address the issue of a conflict between different sources of law. It
operates without any problem when there is, for example, no treaty between the parties to a
dispute but there is a customary rule. The situation is more complex where a treaty and a
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customary rule provide opposite solutions. ■ It does not reflect the evolution of international law.
Thus, the reference to international principles ‘recognised by civilised nations’ appears today as
at best archaic, and at worst insulting, implying as it does that some nations may not be civilised.
Acts of international organisations which have greatly contributed to the formation of
international law are not mentioned in Article 38. Moreover, the concept of jus cogens,
recognised by the 1969 Vienna Convention on the Law of Treaties (VCLT), endorsed by the ICJ
and other international and national courts and tribunals, and which plays a fundamental role in
modern international law, is not a part of Article 38. ■ It does not reflect the importance of non-
binding sources, in particular the so called soft law, which in many areas have greatly influenced
the law-making process. This chapter examines both the traditional sources as set out in Article
38 and more contemporary sources including soft law. Whatever the shortcomings of Article 38,
it certainly provides the starting point for any discussion of sources of international law. It should
be noted that the distinction between formal and material sources appears inappropriate in
relation to international law. Salmond explained the distinction between formal and material
sources in the following words: A formal source is that from which a rule derives its force and
validity … The material sources, on the other hand, are those from which is derived the matter,
not the validity of the law. The material source supplies the substance of the rule to which the
formal source gives the force and nature of law. 1 For example, a rule will be binding if it meets
the requirements of a custom, which is a formal source of international law, and its substance
will be indicated by State practice, which is the material source of the custom. This is
comparable to the distinction between primary and secondary rules developed by Hart (see
Chapter 1.3). 2 The peculiarity of international law challenges the distinction between
substantive and procedural elements of a rule of international law. As Professor Brownlie stated
it is difficult to maintain the distinction between formal and material sources taking into account
that the former ‘consist simply of quasi-constitutional principles of inevitable but unhelpful
generality. What matters is the variety of material sources, the all-important evidence of the
existence of consensus among States concerning particular rules of practice’.
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Well if there is a dispute, the court should look at the treaties , to fill the gaps , then the court
look at something else.

North Sea Contention Case

Article 62 was qualified to preexisting customary law.(rejected)

Customary international law

2,4 ande 5

Question 2

In the light of the case law of the ICJ critically assess the impact of the establishment of jus
cogens rules on the development of international law.

Question 3

Explain the decision in the North Sea Continental Shelf Cases and comment on how customary
international law may emerge from treaties. What evidence did the Court rely upon in those
cases to demonstrate State practice? What evidence for opinio juris? Did the Court, in those
cases, reduce the weight accorded to the practice of some States in relation to opinio juris and if
so, why?

Question 4

Assess the relative value, as sources or evidence of customary international law, of the
following:

A. A Declaration (fictitious) on the Prohibition of Imposition of the Death Penalty in Peace

Time, adopted as a UNGA resolution by 163 votes in favour, with 20 against, and 30
abstentions. 16 of the negative votes having been cast by States which execute persons
convicted of the most serious crimes committed in Peace Time.
B. A judgment of the ICJ given in a dispute between States A and B stating that the
imposition of the Death Penalty in Peace time is contrary to international law.
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C. A Code of Conduct, which has been endorsed by all major businesses in Europe, under
which they refuse to sell any substance of device which may be used by a State to carry
out the death penalty. The Code having been prepared by an NGO.

Question 5

In 2010, all States of the Mahaya region, except for St. Keets, became contracting parties to the
Mahaya Convention on Asylum which states that, subject to some conditions, asylum can be
granted in a foreign embassy to a political refugee who is a national of the State on the territory
of which the embassy is located. Article 1 of the Convention states: “This Convention constitutes
a codification of customary law in the Mahaya region on the granting of political asylum in a
foreign embassy located on territories of contracting parties”. The PM considers that there is no
customary law on the matter although there have been instances where foreign embassies
provided refuge to nationals of a State on whose territory they were located. The PM has
prohibited all St.Keets’s embassies, whether located in the Mahaya region or elsewhere, to grant
political asylum to nationals of a State on the territory of which the relevant St.Keets embassy is
located. The PM states that even if any such custom exists in the Mahaya region, St. Keets, for
political reasons, does not intend to accept it.
Advise the PM on whether the customary rule on the granting of political asylum in a foreign
embassy will apply to St. Keets.

WEEKS 4 and 5

THE LAW OF TREATIES

Please read: A. Kaczorowska-Ireland, Public International Law, 5th edition, Routledge

(2015), Chapter III.

Question 1
States A, B, C, D, E, F and an International Cultural Organisation signed an international treaty
on co-operation in the area of higher education. State F signed the treaty but made two
reservations. State A immediately objected to one of those reservations. Now, two weeks after
State A made its objection to the reservation, the Minister of Foreign Affairs of State A consults
you, an expert in international law, on the following:

1. Whether State A can withdraw its objection, and if so, must this be done before the
ratification of the treaty or can the withdrawal take place later;
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2. Whether, the relevant article of the VCLT will apply to the withdrawal of a reservation
by State A despite the fact that one of the parties to the treaty is an international
organization; and
3. Whether State F can make a reservation to a provision of a treaty reflecting customary
international law.

Advise State A’s Foreign Minister on the above three matters.

Question 2

The Prime Minister (PM) of St. Keets, a small State located in the Mahaya region (fictitious),
consults you on the following matters:

The PM considers that it would be good for St. Keets to be a contracting party to the Convention
prohibiting acts of torture by state officials which has achieved ratification by 160 States.
However, he is uncertain as to how to react to a statement and reservations made by the
following contracting parties to the Convention.

A. State A has made the following reservation: “The application of the Convention is subject
to Sharia law which is supreme in State A.”

B. State B has made the following statement: “The definition of acts of torture set out in
Article 1 of the Convention means that State B will not be liable for any act of torture
committed by a private individual. Accordingly, if the definition in Article 1 is
interpreted differently State B will have no obligation arsing from Article 1.

Article 1 of the Convention states:

“1. For the purposes of this Convention, the term "torture" means any act by which
severe pain or suffering, whether physical or mental, is intentionally inflicted on a person
for such purposes as obtaining from him or a third person information or a confession,
punishing him for an act he or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at the instigation
of or with the consent or acquiescence of a public official or other person acting in an
official capacity. It does not include pain or suffering arising only from, inherent in or
incidental to lawful sanctions.
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2. This article is without prejudice to any international instrument or national legislation

which does or may contain provisions of wider application”.

C. State C has made the following reservation: “State C will not make any financial
contribution to the establishment and work of the committee established on the basis of
Article 3 and entrusted with the receiving and examining of complaints made against a
contracting State by individuals for alleged violation by that State of the Convention.
However, it will allow individuals to bring complaints against State C.” Only State D has
made an objection to the reservation made by State C, and opposed the entry into force of
the Convention as between it and State C. The PM, wishes to make a reservation similar
to that made by State C.

Advise the PM as to the meaning of the above reservations/statements, their legal implications
for St. Keets and whether or not St. Keeds should make objections to them.

Question 3
In 2015, States A and B concluded a treaty delimiting their land boundary. After the entry
into force of the treaty, the government of State A noticed that, a mistake, made by its
general surveyor, had “moved” the South–West part of the boundary by two kilometers in
favour of State B. State A notified this fact to State A, and requested the necessary
rectifications. State B refused on the ground that the treaty had entered into force and
therefore no rectifications were possible and that, in any event, the relevant part of the
boundary concerned only a very small area of land. In response, State A sent a note to
State B in which it declared the treaty invalid. State B vigorously protested. It sent a note
to State A stating that the treaty was still in force as State A, under the VCLT, had no
grounds for invalidating it.
Advise State A.
Question 4

Explain the rules on interpretation of treaties contained in the VCLT. Do they need to be
changed/improved?

Question 5

In 2008, States A, B and C concluded a treaty on the basis of which their citizens are not paying
taxes on cigarettes, chocolate and gasoline purchased for individual consumption on the territory
of any of these States. This exemption was initially intended to apply to citizens of State D.
However, State D withdrew from negotiations and did not ratify the treaty. Notwithstanding this,
the treaty contains the following provision:

“Third States for which this treaty provides rights must assent thereto in writing”.
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When citizens of State D started complaining that they have to pay taxes on chocolates,
cigarettes and gasoline purchased in any of States A, B, and C, State D sent a note to States A, B,
and C demanding that its citizens be treated in conformity with the treaty. State D argues that it
is not obliged to express its acceptance of the benefits provided by the treaty for its citizens in
writing because the VCLT does not require it to do so.

In the meantime, States A, B, E, and F entered into a new treaty under which they have imposed
very high taxes on cigarettes applicable to all purchasers of cigarettes. This treaty is in
conformity with, and implements, a recommendation made by the World Health Organisation.
Subsequently, representatives of States A, B and C, had a meeting during which States A and B
made a proposal to terminate the 2008 Treaty. State C protested. Now, a month later, State C
argues that the 2008 treaty is still in force.

Advise States D and C.

Question 6

State A and State B concluded a Treaty according to which State B is required to remove its
naval bases from Holetown, a small city located near its border with State A. The preamble to
the Treaty states that the purpose of removal of the naval bases from areas near the border with
State A is the development of harmonious and peaceful relations between State A and State B.

Soon after the entry into force of the Treaty, State B removed its naval bases from Holetown.
However, it then constructed new naval bases in Georgetown, a village located 2 miles from
Holetown. Subsequently, State A sent a note to State B vigorously protesting against the
establishment of the new naval bases in Georgetown. State B responded that there was no reason
for State A to protest, as State B, in accordance with the Treaty, had removed its naval bases
from Holetown.

The Treaty also provides that in order to strengthen commercial relations between State A and
State B, State A will supply State B with 5,000 tons of grafino per annum. Grafino is a rare
mineral which can only be found in State A. However, as State A’s main grafino mine needed to
be modernized in order to supply the amount of grafino specified in the Treaty, State B loaned
State A a substantial amount of money for the purpose of modernizing that mine. The Treaty
itself did not specify that grafino would be supplied from State A’s main mine.

Three months after the entry into force of the Treaty, State A’s main grafino mine collapsed as a
result of an earthquake. Although it is possible for State A to mine grafino from a smaller mine,
the cost of so doing is much greater than it had been to supply grafino from the mine which has
been destroyed. In those circumstances, State A has decided that it can no longer fulfill its
obligations under the Treaty and wishes to put an end to them. State B insists that State A must
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continue supplying grafino, and that State B will start proceedings before the International Court
of Justice (ICJ) if State A terminates the Treaty.

Advise the government of State B on the legal issues raised by the above facts.

WEEK 6

INTERNATIONAL PERSONALITY

Please read: A. Kaczorowska-Ireland, Public International Law, 5th edition, Routledge

(2015), Chapter V.

Question 1

Alfred, is the managing director of the United Assistance (UA), an inter-governmental

organisation which has as its main purpose the provision of aid and assistance to victims of
internal armed conflicts. 77 States are members of the UA. Recently, Mr X, a citizen of one of
the member States of the UA, and an employee of the UA, was killed when on an official
mission in State D, where fighting are ongoing between the democratically elected government
and the opposition. According to reliable sources Mr X was killed in the part of State D which
was under the control of the government, and the government had neglected to prevent Mr X
killing and so far has not punished the culprits. Alfred, on behalf of the UA wishes to bring a
claim against State D for reparation in respect of damage caused to Mr X and the UA. State D is
not a member of the UA, however its democratically elected government signed an agreement
with the UA allowing UA’s employees to bring assistance to victims of the conflict. Nothing in
the treaty creating the UA states that UA has the power to bring claims against non-member
States for damages caused to its assets and its agents.

Advise Alfred.

Question 2

Was the League of Nations’ mandate system an appropriate way of leading mandated territories
towards political independence? Did it properly address the aspirations of the indigenous
inhabitants of non self-governing territories? What were the alternatives then? Provide an
example of a flagrant abuse of the “sacred trust” by a relevant mandatory State.

Question 3

Please read the advisory Opinion of the ICJ concerning Reparation for Injuries Suffered in the
Service of the United Nations. After so doing, compare and contrast the interpretation given to
the concept of “implied powers of the UN “by the majority of judges of the ICJ with that
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proposed by the dissenting judge in this case, Judge Hackworth. Which interpretation seems to
be more appropriate? What limitations on the exercise of implied powers by IGOs, if any, have
been accepted under international law?