Example Exam for Macquarie University

Example Exam for Macquarie University

Session 1, 2021

LAWS2000 (course id) International Law

Official Reading Time: 10mins

Required Writing Time: 120 mins

Total Duration: 5 hours

Instructions for Candidates

This is an open book examination.

There are five questions, each worth 20% of the total marks.

You should answer ALL questions in the answer book and should begin each answer on a new page in the answer book.

Please allocate your time according to the percentage contribution of the questions.

The exam questions will be uploaded to ilearn at 12pm (AEST), 11 June 2021. Please submit your answers by 5pm (AEST), 11 June 2021.

No late submission or extension is normally allowed.

Please note all example exams questions are from tutorial questions that we have been discussing during the semester. This is to give you a sense of the style of final exam questions and how it would be marked.

QUESTION 1 (20 points)

What powers does the Australian Constitution vest in the following in relation to international law?

The executive (5 points)

The executive relies on the prerogative powers under the Constitution (section 61) to enter treaties. Such treaties do not have direct effect in Australian law until they are included through an act of Parliament.

The legislature (10 points)

The legislature/parliament relies on Section 51 (xxix) Foreign Affairs powers to pass laws giving effect to Australias treaty obligations. This section is intended to enable Australia to carry out its functions as an international person, fulfilling its international obligations and acting effectively as a member of the community of nations. (New South Wales v Commonwealth [1975] (Murphy J))

The main relevance of the external affairs power is determining when the Federal government has power to enact legislation that might otherwise fall to the powers of states. For example, the environment is an issue which is the domain of the states. The Commonwealth government relies on the foreign affairs power (and usually other heads of power eg. Corporations power and race power in the Tasmanian dams case) to pass environmental legislation relating to Australias obligations under Multilateral Environmental Agreements.

The judiciary (5 points)

Section 75(i) of the Constitution vests the High Court with original jurisdiction re: Matters arising under a treaty. This means that the High Court has the right to hear cases which pertain to issues under a treaty prior to any other Court. What this means in practice is that all issues in relation to international law are directed to the High Court.

QUESTION 2 (20 points)

To what extent can international law be used to facilitate statutory interpretation in Australia?

It is a (rebuttable) judicial presumption that Australia law is in conformity with its international obligations.

It is well-accepted that Australian courts will not impute to Parliament an intention to abrogate or curtail certain human rights or fundamental freedoms, including rights and privileges recognised under the common law, unless such an intention is clearly manifested by unambiguous and unmistakable language. (5 points)

The Acts Interpretation Act 1901 (Cth) s 15AB(2)(d) recognises that a treaty or international agreement referred to within an Act can be used to interpret a provision of that act:

Without limiting the generality of subsection(1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes: (...)

(d) any treaty or other international agreement that is referred to in the Act;

(5 points)

This means that a treaty can only assist in the interpretation of Australian legislation if:

there was contemplated or actual participation by Australia in that treaty prior to enactment of the legislation in question, and (5 points)

either the legislation in question (Acts Interpretation Act 1901 (Cth) s 15AB(1)):

is ambiguous or obscure, or

would otherwise lead to a result that is manifestly absurd or is unreasonable (5 points)

QUESTION 3 (20 points)

LOG ENTRY: SOL 381

Ive been thinking about laws on Mars. Yeah, I know, its a stupid thing to think about, but I have a lot of free time. Theres an international treaty saying no country can lay claim to anything thats not on Earth. And by another treaty, if youre not in any countrys territory, maritime law applies. So Mars is international waters.

NASA is an American non-military organization, and it owns the Hab. So while Im in the Hab, American law applies. As soon as I step outside, Im in international waters. Then when I get in the rover, Im back to American law.

Heres the cool part: I will eventually go to Schiaparelli and commandeer the Ares 4 lander. Nobody explicitly gave me permission to do this, and they cant until Im aboard Ares 4. So that means I will be taking a craft over in international waters without permission. Which by definition makes me a pirate! Mark Watney- space pirate!

Outer Space Treaty 1967

Art II: Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

Art VIII: A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.

Evaluate the validity of the following statements:

Theres an international treaty saying no country can lay claim to anything thats not on Earth.

Art II of Outer Space Treaty clearly applies here (5 points)

And by another treaty, if youre not in any countrys territory, maritime law applies. So Mars is international waters. (5 points)

No 1) use this opportunity to discuss the difference between maritime law (private acts) and the law of the sea (public international law regulating oceans); 2) Remind students of the discussion of flag state and port state control for ships discussed in lectures and also the difference as to jurisdiction for aircraft; 3) No indication in the United Nations Convention on the Law of the Sea that it applies beyond the seas and oceans; 4) There is similarity between the high seas and outer space. They are all considered as res communis. Common areas of humanity where no country can assert sovereignty. However, you cannt just say maritime law applies or that Mars is international water.

NASA is an American nonmilitary organization, and it owns the Hab. So while Im in the Hab, American law applies. As soon as I step outside, Im in international waters. Then when I get in the rover, Im back to American law. (5 points)

True that NASA is a non-military organization, which is dedicated to peaceful application of space science. However, it is completely relevant here. Jurisdiction is concerned with whether a particular country can exercise control through its government organs.

As soon as I step outside, Im in international waters. This is wrong due to the reasons we discussed above i.e. Mars is not international waters. Further, there is no change in jurisdiction between when he steps outside and when he gets in the rover. See Art VIII of the Outer Space Treaty. The state party retains jurisdiction.

I will eventually go to Schiaparelli and commandeer the Ares 4 lander. Nobody explicitly gave me permission to do this, and they cant until Im aboard Ares 4. So that means I will be taking a craft over in international waters without permission. Which by definition makes me a pirate! Mark Whatney- space pirate! (5 points)

Again, refer to Art VIII: the US retains jurisdiction. Students have not been provided with the definition of piracy but see if anyone has found it. Even if maritime law applies Mark Whatney does not meet the definition of a pirate under international law because no acts of violence. See Article 101 of UNCLOS.

QUESTION 4 (20 points)

What is the rationale for ideas of State (or sovereign) immunity? Should it be absolute or restrictive?

See p 383 and p470 of the textbook.

The rationale for State/sovereign immunity is based on the Latin maxim par in parem non habet imperium i.e. the sovereign equality of states. That is one state should not be able to exercise jurisdiction over another state even if that state through its state organs is within the jurisdiction of that state. The discussion we want to encourage students to have here is one about what the limits should be on immunity. (10 points)

Discussion of the issue of whether immunity should be absolute or restrictive should be quite straight-forward. Students might bring up the historical origins of immunity. In modern times, naturally it is desirable that there are limits on immunity so that wrongful acts are not perpetrated with impunity. Student should also emphasise that the immunity is restricted to activities directly connected to governmental activities. For example, immunity does not extend to commercial activities. (10 points)

QUESTION 5 (20 points)

State A and State B (both members of the UN) share a common border but their relationship is tense. One day, three border guards of State A provoke the border guards of State B by using heavy weapons across the border, injuring one soldier of State B. As a consequence, State B launches a counter-attack that leads to armed conflict in a bloody one-month war.

State A is completely defeated. State B then insists that State A signs a peace treaty to

(a) end all armed activities between State A and State B, and

(b) to cede a certain part of As territory to State B.

Advise the parties.

Students should identify 3 main issues: The prohibition against the use of force (UN Charter Art 2(4)) and self defence (Art 51). A further issue that they might not pick up on draws on discussion of the VCLT in Week 4 i.e. Art 52 VCLT and the validity (or otherwise) of the peace treaty.

Students might like to approach the question as follows:

Has State A violated the prohibition against the use of force?

Has State B used force in violation of the UN Charter? i.e. Can State Bs actions be justified as self-defence?

Is the peace treaty between the two states valid?

Has State A violated the prohibition against the use of force? (5 points)

Art 2(4) is a universally recognised rule of customary international law. Further, as both State

A and B are UN member states they are bound by the Charter.

Art 2(4) UN Charter: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations

Yes, the use of heavy weapons across the border, injuring one solider of B can be said to be use of force in violation of the Charter prohibition.

But.does that then give rise to the right of self-defence by State B? This brings us to the next part of the question.

Has State B used force in violation of the UN Charter? i.e. Can State Bs actions be justified as self-defence? (10 points)

State B has violated the prohibition to use force when the legal requirements of Art 2 (4) UN Charter are met and when no legally recognized exception is applicable. Art. 2 (4) UN Charter obliges all member states of the UN to refrain from the threat or use of force. State B is a member State of the UN and therefore has to refrain from the threat or use

of force. The counter attack of State B qualifies as use of military armed force against State

A. State B attacks State A which leads to a one-month armed conflict between those two

States. State B has acted contrary to Art 2(4).

Are the countermeasures taken by B in conformity with Art. 51 UN Charter and therefore justified?

Art 51 UN Charter: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.

The central element of Art. 51 UN Charter is the armed attack a term that brings with it many problems and questions. It is clear that an armed attack requires the use of military weapon force. The Nicaragua Case of 1986 is the central decision of the ICJ concerning the right of self defense. Here the ICJ refers to the definition of aggression by the UN General Assembly of 1974 which is legally not binding but may help to grasp the meaning of armed attack. In the Nicaragua Case , the ICJ does not qualify every violation of the prohibition of the use of force as an armed attack but only such violations that reach certain intensity. In the Oil Platforms Case of 2003 the ICJ has also referred to the Nicaragua Case and has repeated that only most grave forms of the use of force can qualify as an armed attack which is also the case when less grave attacks occur cumulatively. Considering all this the use of heavy weapons across the border by the border guards of State B, a single act of violence, can hardly qualify as a most grave form of the use of force.

Even if it is argued that the requirement of an armed attack is met, it still must be shown that self-defence was imminent, necessary, proportional and for the purpose of fending off the armed attack.

Yes, it could be argued that the attack was imminent as shots had been fired across the border.

Necessity and proportionality of self defenceArt. 51 UN Charters right of self defence is not limitless. The measures and the degree of force have to be necessary and have to be exercised in a proportional manner in regard to the armed attack at hand.

From the lecture slides (These elements have been reinforced again and again in case law: Nicaragua, Oil Platforms and Armed Activities Cases to name but a few):

Necessity state must have no other means of recourse to halting the armed attack In other words, if the state is able to achieve the same result without resorting to force, there is no justification for self-defence.

For example: Security Council may justify collective action (art 24, 25 UN Charter). Or perhaps diplomatic measures would suffice.

Proportionality defensive action must be commensurate with the armed attack

Purpose the acts taken in self-defence must be for the purpose of fending off current persistent attacks and or preventing further attacks; and must be for the purpose of the restoration of the status quo ante bellum

The self defence measures taken by B led to a bloody one-month armed conflict and the complete defeat of B. In regard to the attack of State A and the threat it poses the measures taken by State B are extreme. They are of questionable necessity and not proportional. Given the cessation of territory outlined in the peace treaty it is also doubtful that the use of force was solely for the purpose of self-defence.

State B has violated the prohibition of the use of force when it launched a counter attack that lead to a bloody one-month armed conflict and resulted in the complete defeat of State A.

The measures taken by State B are not in conformity with Art. 51 UN Charter as either the armed attack requirement is not met or the response is disproportionate. Therefore, State B has used force in violation of the UN Charter.

Is the peace treaty between the two states valid? (5 points)

The law of international treaties between States is outlined in the Vienna Convention of the Law of Treaties (VCLT). Most of the content of the VCLT is considered to be customary international law and because of this it does not matter if State A and State B have ratified the

VCLT or not.

All treaties (peace treaties or otherwise) bind signatory states (pacta sunt servanda). However, Article 52 of the VCLT states that:

a treaty [is] void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.

So there needs to be 1) a threat or use of force in violation of the UN Charter and 2) the treaty has come about as a result of this threat or use of force (i.e. procured per the Convention text).

As discussed in 2) the actions of State B were not a valid exercise of self-defence and the treaty has been procured as a result of the use of force contrary to the UN Charter. Therefore the treaty and its provisions to cede territory are invalid.