TUTORIAL ASSIGNMENT

(1) In January 2012, State A demanded State B to recall one of its diplomatic agents

serving at its embassy in State A.

(2) In February 2012, the air force of State A shot down a passenger airliner of State B

which was performing a scheduled flight over State A, thinking that the latter was a

spy aircraft. All the passengers and crew died.

(3) In March 2012, State A without a lawful justification confiscated assets and property

owned by a State B’s company, which is doing business in State A.

(4) Very recently in August 2012, the army of State A attacked and occupied the

Northern territory of State B.

Students are required to advise the Government of State B of how to respond to each

action of State A in accordance with international law, referring to peaceful and

coercive means of enforcing international law, including, but not limited to,

international claims, claims of reparation, countermeasures like retorsion and

reprisals, and the use of military force.

Students have to prepare a written memorandum and an oral presentation.

INTRODUCTION

Despite the facts that there is lack of effective enforcement machinery, international

law can nevertheless be enforced. The traditional method of enforcing international law has

been for the injured or offended State to lodge protests against the law-breaker. Diplomatic

protests are as a rule the first step of enforcement. Such protests commonly include demands

that the wrong done be appropriately righted. If protests are not properly heeded, it can be

followed by peaceful or coercive means of enforcement. There are two major ways or means

of enforcing international law, namely, peaceful and coercive. In Article 2(3), obliges

Member States to settle their disputes by peaceful means and security and justice are not

endangered. In Article 2 (4) of the Charter strictly prohibits States to use force against one

another. However in the case of an armed attack by another country, the use of force in self-

defense, including collective self-defense, is still permissible, provided that the laws of war

are complied with.

QUESTION 1

In January 2012, State A demanded State B to recall one of its diplomatic agents serving at its embassy in State A.

In this situation, there are several issues that arise. Firstly is whether the act of State A

demanded State B to recall one of its diplomatic agents serving at its embassy in State A

breach international law.

For the first issue to be answered, we can refer to Vienna Convention and Diplomatic

Relation 1961. In Article 9 it provides as follows:

1. The receiving State may at any time and without having to explain its decision,

notify the sending State that the head of the mission or any member of the

diplomatic staff of the mission is persona non grata or that any other member of

the staff of the mission is not acceptable. In any such case, the sending State shall,

as appropriate, either recall the person concerned or terminate his functions with

the mission. A person may be declared non grata or not acceptable before arriving

in the territory of the receiving State’

2. If the sending State refuses or fails within a reasonable period to carry out its

obligations under paragraph 1 of this article, the receiving State may refuse to

recognize the person concerned as a member of the mission.

Hence, State A did not breach any international law when they demanded State B to

recall one of its diplomatic agents serving at its embassy in their State by virtue of Article 9

of Vienna Convention and Diplomatic Relation 1961.

The second issue of the situation above was whether there was any available

enforcement of international law applicable for State B upon State A.

One of the diplomatic means of settling international disputes is negotiation.

Negotiation is the process of reaching an agreement by discussion. It is the principle means of

handling all international disputes and it is through negotiation that the majority of disputes

may be settled. When States choose to settle their disputes peacefully through negotiation

mechanism they must conduct themselves in such manner as to ensure that the negotiation is

meaningful. This has been affirmed in the case of North Sea Continental Shelf where the

court stated that the parties to a dispute are under an “obligation so to conduct themselves that

negotiations are meaningful”. However, if negotiation ends up without success, the situation

might enter a new and more dangerous phase, which requires resort to other means to settle

the dispute peacefully.

Secondly, another applicable action that could be taken by State B towards State A is

retorsion. Retorsion is retaliatory measure, resorted by a State against unfriendly,

discourteous or inequitable acts of another State. These acts are of the similar nature as those

takenn by the offending State. For example, if a State imposess restrictions on the entry of

citizens of a paticular country in its territory, that country may also impose similar

restrictions, or is State Y declares persona non grata the ambassador of State Z, that can

declare similarly in respect of the ambassador of State Y. There are no precise conditions

when restortion cab be resorted to. They are the forms of unfriendly acts, which are

seemingly legal.

As a conclusion the State B can respond to the act of State B by two means of

enforcement of international law which are negotiation and retorsion.

QUESTION 2

In February 2012, the air force of State A shot down a passenger airliner of State

B which was performing a scheduled flight over State A, thinking that the latter was a

spy aircraft. All the passengers and crew died.

The first issue in this situation is whether State A action breach international law or

not. By virtue of Article 51 of the United Nation Charter, it can be said that State A had

breach international law because this article provides that,

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. Measures taken by Members in the exercise of this

right of self-defence shall be immediately reported to the Security Council and shall

not in any way affect the authority and responsibility of the Security Council under

the present Charter to take at any time such action as it deems necessary in order to

maintain or restore international peace and security.

Meaning to say that use of weapon can only be used as self-defence. Plus, by virtue of

Chapter VII of the Charter which stated among others only Security Commission will be the

body who measures the necessity of using armed forces. It can be seen in so many cases, one

of the case was in case of Israeli destruction of Iraq’s nuclear reactor in June 1981. Within

two weeks of Israel's air strike the U.N. Security Council passed a resolution which “strongly

condemns the military attack by Israel in clear violation of the Charter of the United Nations

and the norms of international conduct. This statement clearly shows that the act of attacked

other State which contradict to Article 51 will lead to breach of international law. By virtue

of this case, it can be said that State A had breached international law. Thus it leads to second

issue.

The second issue is how State B to respond to the action of State A. The first means of

disputes settlement is by diplomatic means. There are a few ways of diplomatic means and

one of the diplomatic mean is by inquiry. Inquiry entails search for understanding the true

facts through a process of asking question and investigating possible answers. Inquiry is also

called fact finding. Inquiry is conducted by an impartial third party who makes an

investigation to determine the facts, including the causes and effects, underlying a dispute

without resolving the dispute itself. This can be illustrated by the case of Dogger Bank

incident. In this case the Russian Baltic fleet which was on its way, in 1904, to Pacific to

engage in the war with Japan, attacked British fishing vessels operating around the Dogger

Bank in the North Sea thinking that they were Japanese vessels. So disputes ensued and the

parties appointed commission of inquiry composed of senior naval officers from Great

Britain, Russia, the United States, Frances and Austria, with the primary task of establishing

what had actually happened. The commission established the fault to be on the part of Russia.

Russia accepted the findings of the commission and agreed to compensation.

As a conclusion, applying this case to recent circumstance, the best possible mean to react

on the act of State A is by inquiry as explained in details before.

QUESTION 3

In March 2012, State A without a lawful justification confiscated assets and property owned by a State B’s company, which is doing business in State A.

State A’s act is known as expropriation of foreign property. Expropriation can be

defined as “the deprivation by the State of foreign rights to property or its enjoyment”.

According to General Assembly Resolution 1803, there are two requirements that need to be

fulfilled by a State in order for the expropriation to be lawful which are it must have a public

purpose and it is accompanied by compensation. In the matter of compensation, General

Assembly Resolution 3281 provides the view which in favor of developing States where it

states that the compensation amount is to be determined by the law of the expropriating State.

Meanwhile, most of the developed States ought to Hull formula of: “adequate, effective and

prompt compensation where the compensation is to be the full value of the property at the

time of the taking.

In this current situation, it can be seen that State A without lawful justification had

confiscated the assets and property owned by State B’s company and there is no

compensation had been made which this is a clear non fulfilment of the two requirements

mentioned above and therefore render the expropriation unlawful and in violation of the

International Law.

As for actions that can be taken, first, State B can launch a diplomatic protest against

State A and then opt for other peaceful means of enforcement provided under Article 33 of

the Charter of the United Nations. International claim can be made to seek reparation in the

form of satisfaction or formal apology, compensation and restitution. In the case of Chorzow

factory, the court held that unlawful expropriations give rise to the obligation of reparation of

all loss or damage sustained by the owner of expropriated property and the remedy is

restitutio in integrum, restitution in kind or if impossible, its monetary equivalent or

compensation. State B also may bring the case to the International Court of Justice as

mentioned under Article 92 of Charter of the United Nations. Lastly, coercive means such as

counter measure such as retorsion and reprisals can be adopted. Retorsion is unfriendly but

legal. One of the examples is terminating the diplomatic relation with the State that breaks the

International Law. On the other hand, reprisals is normally illegal but became legal due to the

prior illegal act committed by the other State. State B may retaliate by doing the same to the

property of State A’s citizen. It must be proportionate to the original wrong.

QUESTION 4

Very recently in August 2012, the army of State A attacked and occupied the Northern territory of State B.

In this current situation, there are several issues arises. First, whether State A’s act of

attacking and occupying the Northern territory of State B violates Article 2(4) of Charter of

the United Nations. Second, whether State B is entitle to exercise the right of self-defence

provided under Article 51 of Charter of the United Nations and what are other actions that

can be taken by State B in response to this conflict.

Article 2(4) of Charter of the United Nations prohibits the use of force and threats by

States against the territorial integrity or political independence of any state or in other manner

inconsistent with the Purposes of the United Nations. This rule of International Law has been

recognized as having the character of jus cogens by the International Court of Justice in the

Nicaragua case. A rule of jus cogens is a peremptory norm of general international law from

which no derogation is permitted and all the treaty and customary rules which are contrary to

a rule of jus cogens is null and void and without any legal effect.

For the first issue, by referring to the Article 2(4) of Charter of the United Nations

mentioned above, it can be seen that State A’s act is a clear violation of International Law

which has the character of jus cogens. State A has used force and threat against the territorial

integrity and political independence of State B when she attack and occupied the Northern

territory of the latter.

This will lead to our second issue that is whether State B is entitle to exercise the right of

self-defence provided under Article 51 of Charter of the United Nations and what are other

actions that can be taken by State B in response to this conflict. Article 51 of Charter on the

United Nations provides the exception to the general rule of the prohibition on threat and use

of force. There are two exceptions provided that is, first, the States is allowed to defend

herself against an armed attack and second, action taken by the Security Council.

In order for a State to exercise her right of self-defence, it has to be noted that measures

taken in self-defence should immediately be reported to the Security Council and the right of

self-defence seize once the Security Council has taken measures necessary to maintain

international peace and security. Only after the compliance with this principles a State is

allow to exercise her right of self-defence subject to the fulfilment of the three conditions.

The first condition had been expressly mentioned under Article 51 that is there must be an

armed attack. The most straightforward type of armed attack is that by a regular army of one

State against the territory or against the land, sea or air forces of another. Meanwhile,

according to Article 3(a) of General Assembly Definition of Aggression, the direct attack by

a State may include the invasion or attack by the armed forces of a State of the territory of

another State. In this current situation, it can be seen that there is an armed attack and

occupation by State A towards Northern Territory of State B which is a clear fulfilment of

this requirement.

The second condition is necessity. This condition is not mentioned in the Charter of the

United Nations but it is part of the customary international law. There are three pre conditions

regarding the requirement of necessity. First, to prove that there has been an armed attack

against it and the burden of proving lies on the State that wants to use force in self-defence.

In this current situation, it can be seen that there is armed attack by State A. Second, if there

are other means to stop the attack, the State attacked must opt for that means. Third, the

instancy or immediacy of the armed attack. This is important in order to differentiate between

self-defence or unlawful. The armed attack must be on-going in order for the right of self-

defence to be applicable by the State attacked. According to Article 3(a) of General

Assembly Definition of Aggression, definition of aggression extends to “any military

occupation, however temporary, resulting from an invasion or attack, or any other annexation

by the use of force of the territory of another State or part thereof” which this constitutes the

occupation of territory as a continuous armed attack that render the right of self-defence to be

applicable.

The last condition is proportionality. Same as the condition of necessity, this condition is

not mentioned in the Charter of the United Nations but it is part of the customary

international law. Since the main objective of self-defence is not only to resist the attack but

also to expulse the invader and the restoration of the territorial status quo ante bellum, it is

important to ensure that only necessary measures should be taken to achieve the objectives.

The defensive measures should be ended once the objectives have been achieved. With the

fulfilment of all the conditions required above, State B may exercise her right of self-defence.

States B also may launch other actions against State A starting with a diplomatic protest

and followed by other peaceful means provided under Article 33 of Charter of the United

Nation before proceed with the coercive means such as countermeasure such as retorsion and

reprisals.

Retorsion is unfriendly but legal. One of the examples is terminating the diplomatic

relation with the State that breaks the International Law. On the other hand, reprisals is

normally illegal but became legal due to the prior illegal act committed by the other State.

Among these are the rupture of diplomatic and possible consular relations; economic

sanctions, ranging from selective reductions to total stoppage of trade; travel limitations;

financial restrictions on the flow of currencies; and the elimination of transportation (land,

sea, air) and mail service and other means of communication to and from the State against

which sanctions are established. However, there are certain restrictions regarding the

countermeasures in the sense of reprisals that are, countermeasures must not involve the use

of military force, must not involve any departure from certain basic obligations under

International Law or jus cogens and it must be proportionate with the injury suffered.

State B also may make an international claim for injury suffered in the form of

restitution, compensation and satisfaction. An action also could be brought against State A

before the International Court of Justice.