INTERNATIONAL RELATIONS: International Law-II Midterm Tutorial

ERCİYES UNİVERSITY DEPARTMENT OF INTERNATIONAL RELATIONS

2011-2012 Academic Year INTERNATIONAL LAW-II Midterm Tutorial

1. Article 1 of the United Nations Treaty of 1967 on Principles Governing the Activities of States in the 
Exploration and Use of Outer Space, including the Moon and
 Other Celestial Bodies provides that

"The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, ... and shall be the province of all mankind."

What does this provision say about the legal regime of outer space and how does it differ from the legal regime of airspace?

ANSWER PLAN: i. a res communis regime, ii. the concept of common heritage of mankind and its legal status with reference to other areas of international law, iii. its differences from the regime of airspace.

SUGGESTED SOLUTION:

i. International law applies between states. International spaces lie outside the sovereignty of any state and generally open for use by all states in common. These areas are the communal parts of the sea and of the air and the whole of outer space, which may be either subject to sovereign control between states or physically in no man's land.

The 1967 UN Treaty stipulates that outer space is not subject to national appropriation by claim of sovereignty.

Therefore, outer space is not open to acquisition by any state. States cannot claim sovereignty over outer space including the moon and other celestial bodies, as it is open for use by all states. Hence, it is claimed to be res communis and part of the common heritage of mankind. A res communis regime of common areas permits freedom of access, exploration and exploitation.

ii. Article 11 of the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies provides that "The Moon and its natural resources are the common heritage of mankind."

The concept of common heritage of mankind means that the Moon and its natural resources cannot be acquired by state states claiming sovereignty over them, but must be conserved and exploited for the benefit of all, irrespective of their degree of economic or scientific development.

A common heritage regime is different from that of res communis in outer space in that the former involves

· the regulation of exploration and exploitation,

· the establishment of management mechanisms and

· the distribution of the benefits on the basis of equity (i.e. equitable sharing of benefits).

Other than the 1979 Moon Agreement, the concept of common heritage of mankind is included in the 1982 UN Convention on Law of the Sea (UNCLOS) for exploiting the resources of the sea-bed beyond national jurisdiction in the interest of all mankind. The common heritage concept has not found application beyond the 1982 UNCLOS and the 1979 Moon Treaty, although it is suggested that Antarctica is too constitutes common heritage of mankind. However, the Antarctic treaty system does not support this suggestion, because its primary concern is the preservation of the Antarctic ecosystem rather than equitable allocation of benefits from resource exploitation.

iii. The regime of outer space is fundamentally different from that of airspace in that whilst the former is res communis, states have complete and exclusive sovereignty over the airspace above their territory. For that reason, there is no freedom of overfight or transit passage through the airspace of a state. It is only by international agreements that any aircraft movement in territorial airspace is permitted. If no such permission is granted, an unlawful intrusion will attract interception including use of force in exceptional circumstances.

2. "Thus, in principle an act or omission which produces ... a breach of a legal obligation gives rise to responsibility in international law, whether the obligation rests on treaty, or some other basis. However, many rules prescribe the conduct required without being very explicit about the 'mental state', or degree advertence required from the state organs involved." Quoted from Ian Brownlie, Principles of Public International Law, 7th Ed. (New York: Oxford University Press, 2008) 436f.

Please discuss the mental basis of responsibility in terms of fault.

ANSWER PLAN: Theories of state responsibility: objective responsibility and subjective responsibility, dolus, culpa

SUGGESTED ANSWER:

The question relates to whether or not state responsibility for unlawful acts or omissions requires fault. There are two theories as to the basis of state responsibility.

i. Objective responsibility:

Once an unlawful act, which can be attributable to a state, has taken place, that state becomes liable for a breach of an international obligation irrespective of any fault of intention on its part. This is also called as the risk theory. Brownlie describes it as the doctrine of voluntary act that providing agency and causality connection are established, there is a breach of duty by result alone.

There may be certain defences available such as act of third party, but the burden of proof will be placed on the defence once the result of a breach of duty is established.

There seems a strong support in state practice and judicial decisions for strict liability of the kind.

The objective test of responsibility was adopted by the General Claims Commission between Mexico and the USA in the Neer Claim, by the British-American Arbitral Claims Tribunal in the Jassie Case and by the French-Mexican Claims Commission in the Clair Claim. In the latter case, the Claims Commission decided that a state was responsible for acts of its officials and organs even in the absence of any fault of its own.

ii. Subjective responsibility:

In this view, the responsibility of states is based on some element of fault in the form of intention to harm (dolus) or negligence (culpa). Culpa represents a range of blameworthiness based on fault. It covers any kind of conduct from negligence to recklessness.

A small number of cases can be cited to support the culpa doctrine. In the Home Missionary Society case between the USA and Britain, the Tribunal ruled that it is well-established principle of international law that no government can be held responsible ... where it is itself guilty of no breach of good faith or of no negligence in suppressing insurrection.

Another example to mention is the Corfu Channel Case where the ICJ assessed fault in the form of knowledge and stated that every state has a duty not to allow knowingly its territory to be used for acts contrary to the rights of other states.

iii. The Draft Articles on the Responsibility of States for Internationally Wrongful Acts, adopted by the UN International Law Commission in 2001 seem without a decisive position. Articles 1 and 2 do not entail any fault and thus leaning towards the objective theory. However, the ILC's commentary to the Draft Articles makes it clear that standards of state responsibility will depend on the content of each primary rule in a given context.

3. 'The use of force to rescue nationals in a foreign state without the consent of that state is uncommon and has been practised by only few states since the Second World War.' Quoted from Christine Gray, International Law and the Use of Force (Oxford: Oxford University Press, 2000) 108.

Please discuss the following two statements on the US intervention in Grenada in 1983.

'There is no getting around the fact that the United States and its Caribbean allies have committed an act of aggression against Grenada. They are in breach of international law and the Charter of the United Nations'. (Leading article, The London Times, October 26, 1983).

'I believe our Government has a responsibility to go to the aid of its citizens if their right to life and liberty is threatened. The nightmare of our hostages in Iran must never be repeated.' (President Reagan - Televised Address - October 28, 1983)

ANSWER PLAN: Prohibition on the use of force, the use of force to rescue own nationals in self-defence

SUGGESTED SOLUTION:

Article 2(4) of the United Nations Charter clearly stipulates that States

'shall refrain in their international relations from the threat or use of force against the territorial or political independence of any state, or in any manner inconsistent with the purposes of the United Nations.'

This provision is universally accepted as stating the customary rule of law which is applicable to all states, whether or not members of the United Nations.

This article refers to the use of force and not of war, and consequently all armed force is prohibited whether or not this constitutes war in the technical sense of that term. In addition, the threat or use of force is prohibited in any manner inconsistent with the purposes of the United Nations. These are stated in Article 1 of the Charter. Any use of force by a state outside its own borders is likely to be inconsistent with the maintenance of international peace and security or of promoting friendly relations among nations. Article 1 of the Charter also lists one of the purposes of the United Nations as the suppression of acts of aggression. Aggression is ex facie a violation of Article 2(4).

The Resolution on the Definition of Aggression, GA Resolution 3313 (XXIX), provides that aggression is the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any manner inconsistent with the UN Charter. For example, this might take the form of an invasion, attack, blockade, bombardment or military occupation. No consideration of whatever nature, whether political, economic, military or otherwise, may be adduced to justify aggression. Therefore, prima facie, it would appear that by their invasion the United States and its Caribbean allies have committed an act of aggression against Grenada within the meaning of this Resolution. They have also used force against the territorial integrity and political independence of Grenada in direct contravention of Article 2(4) and customary international law.

Article 51 makes it clear that force may only be used in self-defence or under the authority of a competent organ of the United Nations. In order to legitimate the use of force, it must therefore be established that the United States was acting in self-defence when it invaded Grenada. This will depend on whether the protection of nationals can be described as action taken in self-defence.

In the past, the use of force to protect the lives and property of nationals was considered a legitimate exercise of the right of self-defence. In the Spanish Moroccan Claims Case (1925) 2 RIAA 616, Umpire Huber, the Rapporteur of the Commission stated:

'(I)t cannot be denied that at a certain point, the interests of a state in exercising protection over its nationals and their property can take precedence over territorial sovereignty, despite the absence of any conventional provisions. This right of intervention has been claimed by all states; only its limits are disputed.'

It is unclear whether the right to protect nationals has survived in contemporary international law. This depends on the interpretation given to Article 51 of the United Nations Charter. On the one hand, one view is to seek to derive from customary international a right of intervention to protect national. For that, claims have been made that Article 51 did not extinguish the previous customary international right of self-defence which persists and which now co-exists with the right of self-defence under Article 51. On the other hand, the better view, advanced by the UK in the Anglo-French invasion of Suez in 1956 is that the justification comes from Article 51 as a form of self-defence.

State practice appears to refute the possibility that the use of force to protect nationals and property is a manifestation of self-defence. For example, in 1956, the United Kingdom argued that the Anglo-French invasion of Suez was legitimate as a means of protecting nationals and property in a foreign state, which are threatened. This contention was rejected by the majority of the international community.

However, in the Security Council debate following the Entebbe Raid in 1976, it was effectively claimed that Israeli action in rescuing the hostages was an exercise of the well-established right to use limited force for the protection of one's nationals from the imminent threat of injury or death in situations where the state in whose territory they are located is either unwilling or unable to protect them. The right flowing from the right of self-defence is limited to such use of force as is necessary and appropriate to the protection of nationals from injury. However, the evaluation of the legality of the Israeli action depended heavily on the unusual circumstances of that specific case and these circumstances may not have been present in the Grenada case. In any event, the both instances were condemned by the international community.

The better view is that such intervention has no basis in modern international law, because as with Grenada, the instances in which states have purported to exercise it, and the terms in which it is delimited show that it provides infinite opportunities for abuse by allowing powerful states a legal pretext by which to intervene in the affairs of weaker states in the pursuit of national rather than international interests.

4. Since the first Hague Conference in 1899, there has been an evolution of various methods of dispute settlement. With reference to international instruments and jurisprudence give examples of the diplomatic methods of dispute settlement as contemplated by Art. 33 of the UN Charter.

ANSWER PLAN: Discuss the UN Charter provisions on dispute settlement and expand on the diplomatic methods of dispute settlement

SUGGESTED ANSWER:

Article 2(3) of the UN Charter states that 'all members shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered'.

Article 33 of the UN Charter mandates that any parties to a dispute, the continuance of which is likely to endanger the maintenance of peace and security, shall first seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means.

It is clear that the charter system contemplates a resort to peaceful mechanism prior to any use of force. In this answer you are required to review only diplomatic means of dispute settlement. In fact, most international disputes are settled through negotiation between parties, third-party assistance or court or arbitration procedures.

A dispute was defined by the Permanent Court of International Justice (PCIJ) in the Mavrommatis Palestine Concessions (Jurisdiction) case as 'a disagreement over a point of law or fact, a conflict of legal view or of interests between two persons'.

There is no hierarchy of methods and states have a free choice unless their choice is likely to endanger the maintenance of international peace and security, in which case, under Art. 37(1), they shall refer the matter to the Security Council.

Negotiation

The most common form of dispute settlement is by negotiation. It is probably the only universally accepted means of dispute settlement. In some cases, it constitutes the first step. Sometimes the treaties themselves specify a duty to negotiate as a prerequisite - see the North Sea Continental Shelf case. But negotiation is more than mere deliberation and thus may lead to resolution.

Shaw (2008) gives the example of Art. 282(1) of the United Nations Convention on the Law of the Sea which specifies that the first step in a dispute is to engage in negotiation. The negotiation must be genuine and must comply with rules of good faith and not be a mere formality.

Good offices and mediation

This method involves the use of a third party in the negotiation. This process is aimed at persuading the parties to a dispute to reach satisfactory terms for its settlement by themselves. Good offices can also be employed when a third party attempts to persuade one of the parties to enter into negotiations - for example, France encouraging the US-Vietnam talks. The impartiality of the third party is of essence. Confidence in its reliability is necessary for establishing contact between the parties. The main role of the third party is to provide a channel of communication. For instance, Norway in the Oslo Agreement between the PLO and Israel.

A mediator has an active and vital function seeking to persuade the disputing parties into accepting the mediator's own proposals. This can be the UN Secretary-General but often US presidents and their envoys will act - for example President Clinton's pivotal role in the Israeli-Palestinian dispute.

Inquiry

A commission of inquiry can be conducted by reputable observers to ascertain facts in contention in an international dispute. The 1899 Hague Conference first proposed this as an alternative to arbitration. An example is the Dogger Bank incident of 1904. In that case Russian naval ships had fired on British fishing boats thinking they were Japanese. This resulted in the 1907 Hague Conference support for international inquiries for settlement of disputes. This method has not been used very often, although it could be useful in settlement of disputes. However, many modern treaties provide for the establishment of permanent commissions of inquiry, fact finding or investigation.

Conciliation

This method involves a third-party investigation of the basis of dispute and the submission of a report containing suggestions for a settlement. This report does not constitute a binding decision, only a proposal for settlement. It was used most often between the two world wars. The rules of conciliation were set out in the 1928 General Act on the Pacific Settlement of International Disputes (revised in 1949). A panel of conciliation was composed of five persons, one from each side, the other three being neutral. Their investigation was to be concluded in six months and not to be held in public. This method is now proposed in a number of treaties - for example, the 1982 Convention of the Law of the Sea and the 1985 Vienna Convention the Protection of the Ozone Layer. This method was used in the Iceland-Norway continental shelf dispute. The panel proposed a new joint development zone.