PIL - Final Exam

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Lecture 6: Territory

1. Please explain the following categories of territories in international law: (i)


territories under sovereign control, (ii) territories under no sovereign control (terra
nullius), (iii) territories under common use (res communis) and (iv) common heritage of
mankind. Be very descriptive and do not hesitate to refer to samples, international cases
or incidents in international arena.
Territory is the material basis of the existence of states. There is no state without territory.
Therefore, states pay special attention to ensuring its integrity. Firstly, I would like to
mention about territories under sovereign control. It is the territories which are under the
control of the states. For example, Azerbaijan or Turkey can be an example of this meaning
they have territories under their own sovereign control. Secondly, I would like to mention
about territories under no sovereign control. It is also called “terra nullius”. Terra nullius is
the territory which belongs to nobody and can be subject to occupation by states meaning that
if there is terra nullius it can be appropriated by a sovereign or sovereigns. Region that falls
under this definition today includes Gornja Siga, located between Serbia and Croatia.
Thirdly, I would like to mention about territories under common use. It is also called “res
communis”. It means that this territory doesn’t belong to anybody but can be used by any
state in the world. The difference of res communis from terra nullius relates to the band on
establishment of the sovereignty over such territory. None of the states can establish its
sovereignty over territories regarded as res communis. High seas can be example of this.
Finally, I would like to mention about common heritage of mankind. It represents the notion
that certain global commons or elements regarded as beneficial to humanity as a whole
should not be unilaterally exploited by individual states or their nationals but rather should be
exploited under some sort of international arrangement for the benefit of mankind as a whole.
Antarctica or outer space can be example of this.

2. Please discuss the status of international boundary rivers. How such rivers are shared
in international law and what happens if there is a change in the flow of such rivers?
In certain circumstances, you do have the boundary line between 2 or more states. The
general approach while we are splitting the boundary between 2 countries is that the first
question that we should ask: whether that respective river is navigable or non-navigable.
These are used for the purpose of navigation. If you are able to use it for the purpose of
navigation to carry something, then this river is navigable. If it is navigable then you are
taking that river and calculating what far of that respective river is navigable part. And you
are taking navigable portion of the river and splitting it into two. Part 1 belongs to one
country and part 2 belongs to another country. If it is not navigable river, you are taking this
coast and another baseline of the river splitting into two and this portion belongs to you and
another portion belongs to that country. In short, where there is a navigable channel, the
boundary will follow the middle line of that channel. Where there is no such channel, the
boundary line will, in general, be the middle line of the river itself or of its principal arm.

3. By giving samples, please clarify status of leases and servitudes in international law.
Lease is a kind of territorial right meaning that full sovereignty to territories are not
existent, you need to create them. For example, let’s suppose that there is a territory which
belongs to few states. Lease helps to take territory from a country B, pay for the space to
operate there. Quanta Namo Prison can be example of this. After Spain war, USA signed an
agreement to release some territory from Cuba to USA. Another example can be related to
Panama channel. USA and Panama agreed to give away Panama’s small portion to USA’s
control. When it comes to servitude, it is another category of territorial rights which gives us
a right of passage from country A to country B. Turkey’s limitation of Asian part of Turkey
for European Union, Turkish Republic period provided servitude rights to third countries:
Russia to pass through Black Sea to limit Turkish sovereignty. Another example is Suveysh
channel which signed by all countries in the world to pass through this channel within
Egyptian territories.

4. Explain the doctrine of uti possidetis in international law. What may happen if there
is no uti possidetis during the process of identification of territory?
Uti possidetis is something like requirements for people to apply for demarcation and
delimitation (effective control principle). Derives from the colonial past, used mainly for the
colonial powers. Asks you to look at previous administrative boundaries to say that we have
two independent states, but we should also consider previous applications. When we have no
uti possidetis then we apply general effective control policy, since administrative line has not
been found to define the territories.

Lecture 7: International Organizations and United Nations


1. Please explain the institutional (structural) and functional differences between the
European Union and the Council of Europe.
The Council of Europe is more of a cultural institution that is primarily concerned with
developing and spreading the awareness on human rights to its members. The Council of
Europe is composed of 47 member states while the EU is composed of 27. The Council of
Europe requires its members to maintain its good standing of democracy and human rights.
When it comes to the European Union it is more of a political entity that acts as one unified
nation in the bigger world market. It leans more on implementing economic policies. The
European Union requires its members to maintain an exemplary economic performance that
will help elevate the status of the entire Union and not drag it down. In short, the Council of
Europe is a political international organization serving certain principles in the European
territories, human rights, law and democracy. European Union is a supranational organization
functioning in the area of building strong ties in economic field.

2. Please list the organs of the United Nations and provide description of their
organization and functions.
United Nations Organs were established with accordance to San Francisco conference
with UN charter and ICJ statute, created a very universal organization with a purpose of
protecting peace and security to prevent humanity from entering WWIII. The United Nations
has 6 main organs. These are the General Assembly, the Security Council, Economic and
Social Council, the Trusteeship Council, the Secretariat and the International Court of Justice.
1) The General Assembly - The General Assembly is the main deliberative, policymaking
and representative organ of the UN. All 193 Member States of the UN are represented in the
General Assembly, making it the only UN body with universal representation. 2) The
Security Council - The Security Council has primary responsibility, under the UN Charter,
for the maintenance of international peace and security. It has 15 Members (5 permanent and
10 non-permanent members). Each Member has one vote. 3) Economic and Social Council -
The Economic and Social Council is the principal body for coordination, policy review,
policy dialogue and recommendations on economic, social and environmental issues, as well
as implementation of internationally agreed development goals. 4) The Trusteeship Council -
The Trusteeship Council's aim is to provide international supervision for 11 Trust Territories
that had been placed under the administration of seven Member States and ensure that
adequate steps were taken to prepare the Territories for self-government and independence.
5) The Secretariat - The Secretariat comprises the Secretary-General and tens of thousands of
international UN staff members who carry out the day-to-day work of the UN as mandated by
the General Assembly and the Organization's other principal bodies. 6) The International
Court of Justice - The Court’s role is to settle, in accordance with international law, legal
disputes submitted to it by States and to give advisory opinions on legal questions referred to
it by authorized United Nations organs and specialized agencies.

Lecture 8: Dispute Settlement in International Law, International Court of Justice


1. Please explain the main differences between mediation, arbitration and judicial
settlement of disputes available to states in public international law.
Mediation and Arbitration are similar to each other since both ways are not traditional and
in both ways third party is involved to solve the issue but there is some slight difference
between these two mentioned. While Mediation is a non-binding process and only one single
party is involved which targets not to judge but facilitate the negotiations between conflicting
parties. Arbitration is a binding process in which more than one external party are involved in
the process and those parties are not states but the person who plays the role judges and takes
the decision based on vote majority. When it comes to judicial settlement, simply when
parties are having a conflict, they apply to courts to solve the conflict. The most known of
those courts in ICJ.

2. Which participants of public international law may be parties before ICJ?


International Court of Justice can get to be placed into 3 types of cases or as known as
participants of ICJ. 1) Disputes between states. 2) Advisory opinions (broad discretionary
power). 3) Interpretation of international treaties (states, UN bodies and specialized agencies
can be participant of ICJ).

3. What is the difference between Arbitration Clause and Arbitration Agreement (A


Compromis)?
Firstly, I would like to start with the Arbitration Clause. Arbitration Clause is a dispute
settlement mechanism which is a part of a treaty which underlines that the disputes should be
solved throughout arbitration and arbitration agreement is slightly different from arbitration
clause. Arbitration agreement is an agreement signed separately between the parties in
accordance with international treat while there is not any dispute yet.

4. What is the content of the ICJ’s jurisdiction?


To explain it simply, we are dividing the context of ICJ into 3 parts. The first one is about
disputes between the member states, when an issue arises between parties, they are applying
to ICJ. ICJ is doing its duty and deals with the case. The second one is called as advisory
opinion which means the interpretation of laws, sometimes, it is needed to clarify what is
exactly mean by respective context of a law. The last one is about treaty interpretation which
deals with again the context of the treaties. It clarifies the articles of the treaties.

5. What is the applicable law that may be applied by an international arbitration


institution/tribunal or ICJ in cases involving disputes between states?
International Law is applicable for dispute between states, yet PIL does not limit to apply
equity principles.

Lecture 9: Use of Force in International Law


1. Can force be used under international law for purposes of restoring democracy or
humanitarian intervention?
In principle, international law prohibits the use of force by a state against another state.
This prohibition forms the basis of the current international legal system and applies to all
UN member and non-UN states. In short, the use of force is prohibited in PIL, prohibition of
force is Jus Cogens natured. The only exception for this matter is self-defense, either
individually or collectively. We come to the conclusion that restoring democracy cannot be
used as a base to have use of force activated. Moreover, third parties should not intervene,
and I would like to also mention that in case of humanitarian intervention this doctrine can be
used sometimes for application of Chapter 7.

Lecture 10: State Responsibility


1. Please explain doctrine of ‘exhausting (all) domestic remedies’ and pre-condition of
its effectiveness. Why do you think, this doctrine is considered as a necessary element in
state responsibility?
When you do have issue with another state, the first matter that must be considered you as
a state is possibility which is given to another country to solve that respective problem. When
you do have issue with another state first matter is possibility to another county to solve that
problem. You must ask to them to apply to your own court.

2. What kinds of reparations are recognized in international law of state responsibility?


Please describe their main characteristics.
1.Compensation – You are damaging another party and this damage may be material or
lost profit.
2.Restitution – I have a building in a state A and state A take that building from me and kick
me out from state A. My country intervene this issue and state A says that okay I will give the
building back to that person. State A does not pay to me but restores previous existing
situation.
3.Satisfaction – When you are not asking money from another country, you are not asking for
restitution, but you are asking an apology. Another country declares that, okay I did
apologize all these bad things I have done juris population

3. Can wrongful acts or omissions of insurrectional or rebel groups be attributed to


states?
Public International Law recognizes only states as subject of the state responsibility and
we are not recognizing rebels, or we are not compensating damages which are acted by
rebellion groups. Because rebellions are not representing the state. However, if the rebellion
group becomes a new government in such a scenario government is responsible for all the
damage and all the wrongful acts.

4. What are the standards of treatment of aliens in public international law?


1. National standards – is the standard according to which state claims that I will treat your
citizen in my country as I am treating to my own nation.
2. International standards or minimum international standards – requires treating foreigners in
your country in accordance with the standards appointed or determined in accordance with
Public International Law.

5. Is expropriation lawful under public international law? If yes, under which


conditions can it be considered lawful?
Expropriation is taking property from a person that person may be individual or company.
That has foreign nationality or foreign corporation. This taking is forceful taking. In Public
International Law expropriation is lawful provided that required prerequisites. First
prerequisites are that it must contain compensation. If you are taking my property, you need
to pay it. Also, there should be a public purpose. For example, states say that I am building a
road which your citizen’s building is on that way and I need to destroy that building. Absence
of discrimination, if you are kicking out 5 building owner and keep your citizen it is
discrimination.

Lecture 11: Jurisdiction


1. What are the main two principles of criminal jurisdiction of the national courts?
As we talk about the main two principles of criminal jurisdiction of the national courts,
these are nationality and territorial. 1) Nationality – applies within own national jurisdiction.
2) Territorial – applies territorial jurisdiction in respect to our own territorial jurisdiction,
more broad sense.
2. Please explain the notion of extradition and requirements applicable to its
implementation.
Extradition – shall bilateral or multilateral for extradition to exist, you shall check if
punishment or crime applied is applicable in their own country or not, whether subject to
torture or not when extraditing persons to outside countries.

Lecture 12: Diplomatic Immunities


1. Please describe immunity status differences (in criminal, civil and administrative
cases) applicable to (i) heads of diplomatic missions (ambassadors), (ii) consuls, (iii)
representatives of the states in international organizations (e.g. in the UN) and (iv)
diplomatic couriers.
For this question, let me explain like that. 1) Types of persons under PIL: head of
diplomatic mission – full immunity: you cannot have jurisdiction applied on this immunity
including their household members except when a person from family is person non grata
defined. 2) Councils – Immunity is less protected in comparison with heads of the diplomatic
mission, criminal cases are covered, great criminal are not covered. 3) Countries – have full
diplomatic immunity while transiting between the territories.

Lecture 13: International Criminal Law


1. What is the difference between (i) International Criminal Court, (ii) International
Court of Justice, (iii) International Tribunal for Former Yugoslavia, and (iv)
International Tribunal for Rwanda?
The difference between tribunal for Yugoslavia and for Rwanda is that Yugoslavia
tribunal was responsible for all kind of cases deriving from Geneva Convention: crimes
against humanity and war crimes. Rwanda tribunal has nothing to do war crimes. Because
everything happened within one country. In 1998 International Criminal Court was subject to
discussions. It was decided that This court has jurisdiction over international law. Criminal
Court is based on treaties. The difference between tribunals and Criminal Court is that
Rwanda and Yugoslavia tribunals are based on the resolutions of Security Council, however,
criminal court is based on treaties.

2. Do you think establishment of ad hoc tribunals (International Tribunal for Former


Yugoslavia and International Tribunal for Rwanda) under the Chapter VII of the UN Charter
in line with sovereign and equal rights of states?

3. Can a national of a non-party State to the Statute of International Criminal Court be


brought before it?
Territoriality principle: If the country ratifies the treaty and become the member of
International Criminal Law. It means that the territory of the country become a part of this
treaty and any crime can be brought to the front of Criminal Law. Nationality principle:
Establishing ICT, I accept all my national are subject. For instance, the citizen of Belgium
can be brought to Criminal Court without asking a permission from Belgium. Security
Council: A national may still be brought to justice. You need the referral of Security Council.
Security Council can send the cases to Criminal Court for investigation

4. Please clarify the jurisdiction of the International Criminal Court.


1.Crime of genocide, 2. crime against humanity. Humanity means the crime against
civilians. 3.War crimes: crimes against other countries, 4. crimes regarding the use of illegal
weapons. All 4 categories are related to use of aggression. Criminal law has jurisdiction over
these categories when we have proper definition.

5. What is the difference between complementarity jurisdiction and concurring


jurisdiction in international criminal law?
Concurring jurisdiction means that international tribunal has a power to take the case from
national tribunal by the participation of international judge. Tribunal put the case in front of
international tribunal. Example: Yugoslavia case.
Complementary jurisdiction, if we have national court and it hears crime of genocide.
International Criminal Court has also start investigation regarding the case. ICC checks the
jurisdiction of national court, if there is no unfair process and bias, ICC does not intervene.

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