Name: Gitanjali Diwakar

JGU ID: 22010754

PUBLIC INTERNATIONAL LAW: MID-TERM EXAM

(ANSWERS)
Part A Question 1 (a)

To determine the legal consequences of the actions discussed in the case at hand, we must
assess the meaning of two terms signature and ratification.

Signature refers to the act of signing a treaty and agreeing to the terms of the treaty.
Ratification, however, implies that the States are willing to be legally bound by the treaty. It
isn’t a mere agreement.

International law provisions related to signature and ratification

1. As per Article 11 of the Vienna Convention on the Law of Treaties, 1969, the
consent of a State to be bound by a treaty may be expressed, upon an agreement by
the States, by signature, ratification, exchange of instruments constituting a treaty, or
by any other means.
2. Article 12 of the Vienna Convention of the Law of Treaties 1969, explains that a
State is bound by a treaty upon signing the treaty only if the treaty states that the
signature would have such an effect.
3. Article 14 of the Vienna Convention of the Law of Treaties 1969 explains that a
State is bound by a treaty upon ratification if the treaty expressly states so, or if the
representative of a State has signed the treaty subject to ratification.

Analysis of the treaty between Desertia and Forresta

In the case at hand:

1. Forresta had only signed the treaty with Desertia. It did not ratify it.

2. Article 20 of the Treaty of Flush-water, between Forresta and Desertia, has mentioned that
the treaty is open to signature and subject to ratification.

3. Since both States are parties to the Vienna Convention of the Law of Treaties, 1969,
the provisions herein are applicable to them, i.e. Article 14 of the Convention.

Therefore, by applying the provision laid down in Article 14 of this Convention, it can be
concluded that Forresta is bound by the Treaty of Flush-water.

Part A Question 1 (b)

A treaty comes into force in two ways:

1. By incorporating it automatically into domestic law, such as that of a monoistic

2. By implementing a parliamentary legislation that encompasses the terms and purpose
the treaty

The promulgation of the treaty takes place only after it has been published in an official
gazette.

The date of enforcement, however, is determined by the terms of the treaty as elaborated in
the Vienna Convention on the Law of Treaties, 1969.

Therefore, in the case at hand, the treaty will be enforced 30 days after Desertia ratified the
treaty.

Part A Question 2 (a)

This deals with issues pertaining to the territorial jurisdiction of a State.

A state’s authority allows it to prescribe law, enforce law, and adjudicate within its
territory.

The principle of territorial jurisdiction explains that:

1. States have the primary jurisdiction with regard to incidents that occur within its territory.

2. The nationality of the offenders is immaterial.

This implies that the States are responsible for the maintenance of law and order within its
territory.

The principle of extra-territorial jurisdiction, on the other hand, allows a State to apply
its laws to serve justice to its nationals residing outside its territorial boundaries.

One principle that forms a part of its norm is the passive personality principle. As per this
norm, a State may claim jurisdiction for crimes committed by aliens against their nationals
abroad.
Therefore, in the case at hand, France can claim jurisdiction to bring criminal proceedings
against Mr Jansen as the incident had occurred in its jurisdiction.

However, if the application of extra-territorial jurisdiction were also to be considered in this

case, Spain may also bring criminal proceedings against Mr Jansen for severely injuring Ms
Garcia, a Spanish National.

Part A Question 2 (b)

The concept that ought to be addressed in this scenario is that of diplomatic immunity.

The provision that governs this aspect is the Draft Articles on Diplomatic Protection
(DADP).

Article 1 of DADP, diplomatic protection is said to be:

1. Invoked by a State through diplomatic action or other means of peaceful settlement.

2. It is the responsibility of another State to provide such protection.
3. The protection in question is caused by an internationally wrongful act of the State.
4. The injury in question was caused by a legal person, who is a national of a State.

Only the State of the individual’s nationality can exercise diplomatic protection.

In this regard, one may also apply a principle of international law, whereby Heads of
Governments, States, consulates etc. enjoy immunity from civil and criminal
proceedings in private and official capacity.

In the case of Democratic Republic of Congo v Belgium, wherein a Belgian prosecutor

wanted to extradite the Foreign Minister of Congo to Belgium for allegedly violating
provisions of the Geneva Convention of 1949, the ICJ held Belgium cannot do so as it does
not have the jurisdiction to try the official. It also mentioned that there is no customary law
against the principle and its application related to the diplomatic immunity of State officials.

Therefore, in the case at hand, it can be concluded that Mr Jansen was correct and that Spain
cannot bring any criminal proceedings against him while he serves as the Foreign Minister of
the Netherlands.
Part A Question 3 (a)

The case at hand addresses a concept called self-determination. This concept refers to the
right of a people to freely determine their political, cultural, economic, and social status.

Self-determination has been elaborated upon in Article 1(2) of the UN Charter, and Article
55 of the UN Charter.

There are essentially two types of self-determination:

1. Internal self-determination: In this scenario, a particular group or a community

within a State has the right to determine how they wish to be governed, as well as
participate in the economic, social, and cultural life of the State.
2. External self-determination: This is essentially a change in the political status of a
region. The people or a nation decides its own political status, and forms governments
without any external influence or coercion.

Article 3 of the UN Declaration on the Right of Indigenous Peoples protects the rights of
indigenous persons related to self-determination. Then again, such persons do not have the
right to external self-determination. In the ICJ Advisory Opinion related to South Africa’s
continued presence in Nambia, it was held that such moves were illegal and would hamper
the development of the people.

Therefore, in the case at hand, Boldavia’s declaration of independence does not violate
international law as it is protected under Article 3 of the UN Declaration on the Rights of
Indigenous Peoples.

Part A Question 3 (b)

A mere declaration of independence and the existence of diplomatic ties with many nations
does not entitle a region to become a State under international law. This is due to the
application of the concept called State Recognition.

Recognition is said to be a formal acknowledgement and acceptance of a new State as an

international legal entity by the existing States of the international community.

State recognition has two aspects to be considered:

 1. Constitutive aspect, whereby the State in question fulfils the criteria for recognition
laid down in the Montevideo Convention of Rigts and Duties of States, 1933 (such
as permanent population, defined territorial boundaries, and a government or an
administrative network), and the other States of the international community
acknowledge this factor.
2. Declarative aspect, which is also said to be the most important element of State
recognition.

There are two modes of recognition, namely:

1. De jure recognition: This grants the region the permanent status of a State, it can be
granted even without de facto recognition.
2. De facto recognition: This is essentially a test of control for a newly formed State. It
has to be followed by de jure recognition.

As per this principle of State recognition, a permanent member of the UN has to recognise
the State in question. Also, recognition is not a legal act; it is a political act. Therefore,
States are not bound to recognise other States.

In the ICJ’s Advisory Opinion on the Unilateral Declaration of Independence in respect of

Kosovo, 2010, it was held that Kosovo’s declaration of independence was not illegal. But
Kosovo is not part of the UN despite it having established multilateral ties with many
countries and being recognised by 113 nations. This was because Russia, Spain, Serbia
and Greece did not recognise it to be a State. It must be noted that Russia and Spain are
among the permanent members of the UNSC.

Therefore, in the case at hand, Boldavia cannot be considered a State under international law
merely due to the existence of its multilateral ties and declaration of independence.

Part B Question 2.1

In the case at hand, Freedomville is not a State under international law.

A mere declaration of independence and the existence of diplomatic ties with many nations
does not entitle a region to become a State under international law. This is due to the
application of the concept called State Recognition. State recognition has two aspects to be
considered:
 3. Constitutive aspect, whereby the State in question fulfils the criteria for recognition
laid down in the Montevideo Convention of Rights and Duties of States, 1933
(such as permanent population, defined territorial boundaries, and a government or an
administrative network), and the other States of the international community
acknowledge this factor.
4. Declarative aspect, which is also said to be the most important element of State
recognition.

There are two modes of recognition, namely:

3. De jure recognition: This grants the region the permanent status of a State, it can be
granted even without de facto recognition.
4. De facto recognition: This is essentially a test of control for a newly formed State. It
has to be followed by de jure recognition.

As per this principle of State recognition, a permanent member of the UN has to recognise
the State in question.

In the ICJ’s Advisory Opinion on the Unilateral Declaration of Independence in respect of

Kosovo, 2010, it was held that Kosovo’s declaration of independence was not illegal. But
Kosovo is not part of the UN despite it having established multilateral ties with many
countries and being recognised by 113 nations. This was because Russia, Spain, Serbia
and Greece did not recognise it to be a State. It must be noted that Russia and Spain are
among the permanent members of the UNSC.

Therefore, in the case at hand, Freedomville be cannot be considered a State under

international law merely due to the existence of its multilateral ties, treaties and declaration of
independence. This is because it has not been recognised by the permanent members of the
UNSC.

Part B Question 2.2

In the case at hand, the right to self-determination is relevant in the context of declaring
the status of Freedomville by the people residing there.

Self-determination refers to the right of a people to freely determine their political,

cultural, economic, and social status.
Self-determination has been elaborated upon in Article 1(2) of the UN Charter, and Article
55 of the UN Charter.

There are essentially two types of self-determination:

3. Internal self-determination: In this scenario, a particular group or a community

within a State has the right to determine how they wish to be governed, as well as
participate in the economic, social, cultural life of the State.
4. External self-determination: This is essentially a change in the political status of a
region. The people or a nation decides its own political status, and forms governments
without any external influence or coercion.

Article 3 of the UN Declaration on the Right of Indigenous Peoples protects the rights of
indigenous persons related to self-determination. Then again, such persons do not have the
right to external self-determination.

Therefore, in the case at hand, Freedomville’s people have the right to internal
self-determination, which is protected under Article 3 of the UN Declaration on the Rights of
Indigenous Peoples.

Part B Question 3.1

The case in question addresses a key concept in international law called State Responsibility.

This principle is governed by the Draft Articles on Responsibility of States for

Internationally Wrongful Act, 2001 (DARS).

There are three elements which constitute State responsibility:

1. Obligations (which are often established by treaties, customary international law,

general principles and opinio juris)
2. Wrongful act by the State (i.e. the fault or an act that was done either in good faith
or bad faith, accidentally, intentionally, unintentionally, consciously, or
unconsciously): This could be an act or an omission.
3. Damage
4. Reparations
This responsibility extends to State organs and individuals who represent the State. In
the Mallen case, wherein a Mexican consul was attacked by a policeman, the ICJ held that
the State would be held responsible for the act as it had violated international law on
diplomatic protection.

Similarly, in the case at hand. Independencia will be held responsible as the actions of its
police force violated international humanitarian law which embodies the principle of jus
cogens. A further analysis of the facts would also highlight that the defence forces of
Independencia had acted upon the instructions of the State. In the Tehran hostage case,
wherein a group of militants had attacked the US Embassy, the ICJ held Iran responsible as
the conduct was adopted by the country’s government as its own and the militants were
acting as agents of the government.

Therefore, in the case at hand as well, Independencia will be held responsible as it had
evidently violated international law and the actions of the forces were a result of an approval
by the State of Independencia.

Part B Question 3.2

Yes, Peacephalia had violated international law regarding the actions taken against the
Minister of Foreign Affairs of Independencia.

The actions were against the principle of diplomatic immunity.

This principle is governed by the Draft Articles on Diplomatic Protection (DADP).

Article 1 of DADP, diplomatic protection is said to be:

5. Invoked by a State through diplomatic action or other means of peaceful settlement.

6. It is the responsibility of another State to provide such protection.
7. The protection in question is caused by an internationally wrongful act of the State.
8. The injury in question was caused by a legal person, who is a national of a State.

Only the State of the individual’s nationality can exercise diplomatic protection.

In this regard, one may also apply a principle of international law, whereby Heads of
Governments, States, consulates etc. enjoy immunity from civil and criminal
proceedings in private and official capacity.
In the case of Democratic Republic of Congo v Belgium, wherein a Belgian prosecutor
wanted to extradite the Foreign Minister of Congo to Belgium for allegedly violating
provisions of the Geneva Convention of 1949, the ICJ held Belgium cannot do so as it does
not have the jurisdiction to try the official. It also mentioned that there is no customary law
against the principle and its application related to the diplomatic immunity of State officials.

Therefore, in the case at hand, the Minister of Foreign Affairs of Independencia is entitled to
diplomatic immunity and cannot be arrested while holding an official position.

Part C Question 1

There are essentially two types of sources of international law. They are primary and
secondary sources.

The primary sources include:

1. International conventions (such as Treaties, Geneva Convention of 1949 etc)

2. International customary law
3. General principles

Judicial decisions or opinio juris are considered to be secondary sources.

The sources have been elaborated upon in Article 38 of the ICJ.

Quick brief about the sources of International law

1. International conventions: These include treaties governed by the Vienna

Convention on the Law of Treaties, 1969, the Geneva Convention of 1949 etc.)
2. International customary law: These include certain psychological as well as
material/factual elements. General practices of States come within the ambit of
customary international law. There are three elements of customary international law:
a. Duration of the custom
b. Substantial uniformity and consistency
c. Generality in practice (Eg: diplomatic immunity)
3. General principles: These include the general principles of international law that are
accepted by various States. Eg: jus cogens, ergo omnes, etc.
 4. Opinio juris: This is elaborated in Article 59 of the ICJ statute and it includes judicial
teachings and decisions of the most qualified persons.

Part C Question 2

A party must possess an international legal entity to be considered a subject of

international law.

The subjects of international law are divided into two categories:

1. Primary subjects
2. Secondary subjects

Primary subjects of international law can be further divided into States and Insurgents.

States have:

1. Lawful control over the territory

2. Law-making powers
3. Executive functions
4. Rights and Obligations

Insurgents are essentially those whose actions result in the destabilisation of States. Eg:
terrorists.

The secondary subjects of international can be categorised as the following:

1. Individuals: Their rights and duties are limited.

2. Multinational Companies: Their rights and duties are also limited.
3. International Organisations: They have limited legal capacity, i.e they are not
granted all rights, obligations and duties.

Part C Question 3

The principle of nationality entails rights and obligations concerning an individual of a

particular State. Then again, there isn’t a well-established definition of nationality. The
conditions for the purpose of determining one’s nationality vary from State to State. This
has been established in Article 1 of the Hague Convention on the Conflict of Nationality
Laws.
Nationality involves two legal maxims namely jus sanguinis (which translates to ‘by blood’)
and jus soli (which refers to a connection to the soil).

Therefore, it can be said that a person may become a ‘national’ of a State by:

1. Birth
2. Decent
3. Marriage
4. Naturalisation

In the Nottenbohm case , the ICJ had elaborated upon the principle of effective citizenship,
which is closely linked to the concept of nationality. The Court, herein, had stated a person
may become a citizen only if there is a strong link between the person and the State
granting the citizenship.

The concept of nationality is relevant in the international context for the following
reasons:

1. It determines the benefits and the obligations of the person residing in a State.
2. This would entitle the individual other rights such as the right to practice a
profession or travel.

Part C Question 4

The doctrine of extradition states that a State shall surrender an individual in its
territory to another territory, where the offender had originally committed the crime in
question.

The application of the principle of extradition takes place only when the offence so
committed is deemed to be an offence in both jurisdictions. It must be noted, however, that
there must not be a case of double jeopardy in the instance of extradition.

The State to whom the person is surrendered must have the jurisdiction to prosecute the
individual for the offence.

The citizenship of the offender is immaterial.

Extradition however can take place only when are treaties established on these lines. Only
offenders who have committed crimes that are punishable with a minimum
imprisonment period of 12 years can be extradited.

The process of the extradition involves the following steps:

1. A State or Court or Prosecutor must initiate the process the execute an arrest warrant
for the offender.
2. The warrant must explain the circumstances related to the arrest.
3. The offender must then be surrendered to the State that requested for the extradition.

Part C Question 5

Asylum refers to seeking protection and shelter from one’s own country or another
country by an individual who is in danger.

The three elements of asylum are:

1. Admission
2. Shelter
3. Degree of active protection

There are two types of asylum that one may seek. They are:

1. Territorial asylum: This includes asylum granted to an individual of a country in

another country’s territory.
2. Extra-territorial asylum: This refers to the asylum granted by the embassies,
warships or organs that represent a State. Here the jurisdiction of a particular State is
applicable and the law of the State in which the organ/embassy is situated.

Then again, asylum can only be provided if a treaty exists between the said countries.
This was established in the case Peru v Colombia. Also, asylum cannot be granted in the
case of international crimes, including political crimes.