Final Exam “Introduction to Public International Law”
(Course Code: Law 301, Section 1)
Name: Moro Kort Kheav
Date: March 3rd 2021
Part I. General Questions
Please write a correct answer (or a brief description for an answer) to each of the following
questions:
1. Mention below the specific paragraph in the Nicaragua case where the International Court of
Justice reaffirms the two elements required for customary international law.
Paragraph 207 of the Nicaragua case mentions the following:
‘In considering the instances of the conduct above described, the Court has to emphasize that, as
was observed in the North Sea Continental Shelf cases, for a new customary rule to be formed,
not only must the acts concerned amount to a states practice, but they must be accompanied by
the opinion juris sive necessitates..". (10 points)
Answer
State conducted prima facie which is inconsistent with the principle of non-intervention. Both
states’ conducts were not justified by reference to a new right of intervention. Hence, the two
elements required for customary international law are state practice and opinio juris. The
world court announced its judgement in favor of Nicaragua and America had to pay for
reparation of all damages it had made towards Nicaragua. 09 Ppts
2. The French Constitution provides that treaties are “law” that must be applied within the
French legal system.
Does France adopt monism or dualism approach? Write a few words to explain under
international law, if applicable. (10 points)
Answer
To understand the relationship between domestic law and international law in this international
community, we must initially know the two main theories: monism and dualism. The monist
theory refers to the theory that concludes all law is a component of the universal legal order,
while the dualist theory holds that international law and domestic law are two different bodies of
law operating independently of each other. On a parallel note, under a dualist state, international
law is inferior to national law; all principles and rules cannot automatically be conducted in
alignment with domestic law and must be translated into national law first before they can affect
individual obligations and rights.
However, in this scenario, France adopts a monist approach due to the fact that the French
Constitution provides that “treaties are laws that must be applied within the French legal
system.” This statement indicates that international law and French domestic law are part of the
universal legal order that regulates the conduct of France, and therefore international laws are
automatically incorporated into the French domestic national legal order. To put it simply, under
this monist theory, there is only a single legal order, and thus every treaty law or international
law can be directly applied in domestic courts without needing legislative implementation.
According to some monist theorists, sometimes international law is even more superior to
domestic law.
3. When is a state bound by a treaty? What is the difference between signature and ratification
of a treaty that requires signature followed by ratification?
Answer
A treaty is regarded as a bilateral or multilateral agreement in written form between existing
actors, such as states and international organizations, and it is governed by international law.
Every treaty is negotiated by representatives of states or international organizations and then
concluded when there is expressed consent from the respective parties or states involved. This is
when a state is bound by a treaty. The consent from a state to be bound by a particular treaty
shall be expressed by signature, exchange of instruments that constitute the treaty, ratification,
acceptance, accession, or approval, etc. However, the most commonly used form to express
consent is signature, particularly in bilateral treaties and multilateral treaties with a few parties.
Although it appears much simpler than ratification, in some cases, appending one’s signature to a
treaty portrays only agreement as to the finalized version of the treaty and does not necessarily
mean that the State in question intends to be bound by it or not, nor does it signify the obligation
to ratify. Simply put, expressing consent by signature merely shows that states or delegates
agreed on the text, accepted certain legal consequences, and perhaps are willing to consider the
ratification step. Whereas ratification basically means the ratifying states have agreed to be
bound by a treaty and must act in accordance with the treaty obligations and do so in good faith.
4 BIS (Second Choice).
There has been an evolution of various methods of pacific settlement of disputes among states
(and other subjects) under international law, especially through the UN Charter ;( 20 Points)
⮚ Describe briefly those various methods of pacific settlement.
⮚ What the main specific differences between the International Court of
Justice (ICJ) and International Criminal Court (ICC) as regard to their
adjudication and particularly to legal status of the parties in dispute.
Answer
For many years, international law has been regarded as a means to achieve peaceful settlement of
disputes, thereby maintaining the establishment and preservation of peace and security within the
international community. It is inevitable that hostilities tend to arise between nations; however,
these conflicts can also be resolved through the peaceful settlement mechanisms provided by
international law, thus promoting peace and stability. Article 33 of the United Nations Charter,
Chapter 6 on the Pacific Settlement of Disputes, stipulates that any dispute that may potentially
threaten the maintenance of international peace and security should first be addressed through
negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional
agencies or arrangements, and other peaceful means. The Council shall, when it deems
necessary, call upon the parties involved to utilize such means to resolve the dispute. The
methods of peaceful settlement of disputes fall into three categories: diplomatic, adjudicative,
and institutional methods.
In the diplomatic method of pacific settlement of disputes, several procedures aim to resolve
conflicts peacefully: negotiation, enquiry, mediation, conciliation, and good offices.
Negotiation is a peaceful process between two or more parties aimed at settling their differences
and achieving mutually beneficial outcomes. While it often leads to successful resolutions, it
may not always do so.
Enquiry is a formal institution for peaceful dispute settlement, involving impartial and
conscientious investigation to clarify facts and facilitate settlement through other peaceful
means. This process has been utilized within the United Nations and its agencies for general
fact-finding purposes.
Mediation involves a structured and interactive process with third-party assistance to resolve
conflicts through specialized communication and negotiation. Although mediators lack legal
power to force acceptance, they work to persuade parties to reach agreements in a private and
confidential setting.
Conciliation combines elements of enquiry and mediation, with specialized organs elucidating
facts and proposing settlement terms to disputing parties. Unlike mediators, conciliators aim to
suggest terms of settlement and win party acceptance.
Good offices, utilized with the consent of both parties, act as intermediaries in disputes where
diplomatic relations have been severed. This process involves transmitting messages separately
to each party to foster a conducive atmosphere for negotiation or resolution.
In the adjudicative method, arbitration and judicial settlement are employed for dispute
resolution. Arbitration involves impartial adjudicators resolving disputes with the parties'
consent, based on choice and respect for law. Judicial settlement refers to resolution through
international tribunals like the International Court of Justice (ICJ).
The ICJ resolves disputes between states, with its decisions binding only on the involved parties
and providing advisory opinions on legal matters. It does not handle applications from
individuals or private entities. In contrast, the International Criminal Court (ICC) has jurisdiction
over individuals and entities beyond states, making it more accessible than the ICJ.
Part II. Case study for discussion under international law: (40 Points)
Use of Force under International Law (UN Charter)
You are the legal adviser to the foreign minister of the state of Narnia. You have just been told
that one of your national airlines has been hijacked and your nationals are being held by a
guerrilla group in the airport of the state of Upstart. The government of Upstart has not acted to
assist your nationals and has allowed the guerrillas to hold them at the airport. Assess the legality
of a rescue operation mounted by the special forces of Narnia and advise your foreign minister.
Plan of Answer:
Define the use of force issues involved in this problem as the rescue of nationals abroad and
address first whether the proposed action may offend the prohibition on the use of force.
Propose the rescue of nationals as an exercise of self-defense.
Examine the debate concerning the legality of this practice applying relevant state practice and
case law.
Conclude with your advice to the government of Narnia on the proposed action.
Answer
Before the creation of the United Nations, states often resorted to military intervention or force to
settle their conflicts, leading to escalation of tension and military violence between disputants.
However, with the establishment of this universal international organization and the adoption of
its Charter, all member states are bound by its provisions.
Article 2(4) of the UN Charter imposes an obligation on all states to refrain from the use of force
or threat against the territorial integrity and political independence of any other state. Despite this
obligation, in the scenario described, where Narnia nationals are held as hostages in the airport of
the State of Upstart without intervention from the Upstart government, it may become inevitable
for force to be used as a means to rescue the hostages.
The use of force is deemed lawful under specific circumstances, including self-defense against
an armed attack as outlined in Article 51 of the UN Charter, and collective security actions
authorized by the Security Council under Chapter 7 of the Charter. However, another potential
exception to the prohibition of force, not explicitly stated or established, is humanitarian
intervention aimed at protecting human rights, especially when the intervening state does not
meet the aforementioned requirements.
States have the jurisdiction to protect their citizens abroad, which can sometimes be used as a
pretext for interventions, as seen in the case of the UK intervention in Suez in 1956. The
protection of nationals is considered a component of the general right of self-defense. Therefore,
when a territorial state like the State of Upstart fails to provide adequate protection against acts
of violence by a guerrilla group, intervention may be justified.
If a state's actions appear to align with a recognized principle but are defended by appealing to
exceptions and justifications contained within the rule itself, the state's conduct may be deemed
justifiable on that basis. This approach allows for flexibility in interpreting international law to
accommodate situations where strict adherence to the rules may not adequately address pressing
humanitarian concerns.
