Written Diploma Exam – Summer – Topics since 2006
PUBLIC INTERNATIONAL LAW
2006
Treaty-Based Autonomous Regimes and their Relationship with General International Law. Develop the theoretical aspects of the question 2007 and illustrate your answer with concrete references to practice and case-law.
2007
What Unilateral Acts Are Permissible in Contemporary International Law?What Regime for Unilateral Acts Taken for a Wide Range of Purposes Will Best Serve the World Community in the Twenty-First Century?
2008
What is the Theoretical and Practical Impact of International Criminal Law on International Law?
2009
“Fragmentation” of International Law through “Proliferation” of International Courts and Tribunals: A Real Problem or Artificial Debate?
2010
The Security Council and Human Rights.
2011
Obligations to the International Community.
2012
Customary and Treaty Law in the Jurisprudence of the International Court (PCIJ – ICJ) – Please elaborate.
2013
In what sense and to what purpose is International Law a system?
2014
CASE CONCERNING APPLICATION OF THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE
(BOSNIA AND HERZEGOVINA v. YUGOSLAVIA)
ICJ JUDGMENT OF 11 JULY 1996
Dissenting Opinion of Judge ad hoc Kreca
§ 43 (Excerpt)
“Jus cogens creates grounds for a global change in relations of State sovereignty to the legal order in the international community and for the establishment of conditions in which the rule of law can prevail over the free will of States. As an objective, non-eliminatory norm, it constitutes a material basis, a criterion for challenging the legality of individual acts in the international community. Therefore, it essentially limits the impact of effectiveness in international law”.
Please discuss with reference both to practice and theory.
2015
Judge Peter Tomka, while recalling that the Court “has never abandoned its view (…) that customary law is ‘general practice accepted as law’”, stressed that “in practice, the Court has never found it necessary to undertake such an inquiry for every rule claimed to be customary in a particular case (…) Sometimes this entails a direct review of the material elements of custom on their own (…) or at least to use rules that are clearly formulated in a written expression (…)” (P. Tomka, “Custom and the International Court of Justice”, The Law and Practice of International Courts and Tribunals, vol. 12, 2013, p. 197).
Please comment.
2016
QUESTION OF THE DELIMITATION OF THE CONTINENTAL SHELF BETWEEN NICARAGUA AND COLOMBIA BEYOND 200 NAUTICAL MILES FROM THE NICARAGUAN COAST
(NICARAGUA v. COLOMBIA)
PRELIMINARY OBJECTIONS
ICJ JUDGMENT- 17 MARCH 2016
“1. The res judicata principle
55. The Parties agree that the principle of res judicata requires an identity between the parties (personae), the object (petitum) and the legal ground (causa petendi). They likewise accept that this principle is reflected in Articles 59 and 60 of the Statute of the Court. These Articles provide, respectively, that “[t]he decision of the Court has no binding force except between the parties and in respect of that particular case”, and that “[t]he judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.” (…)
58. The Court recalls that the principle of res judicata, as reflected in Articles 59 and 60 of its Statute, is a general principle of law which protects, at the same time, the judicial function of a court or tribunal and the parties to a case which has led to a judgment that is final and without appeal (…)”.
Please discuss.
2017
Lex ferenda and the evolution of international law.
2018
“In this connection, it should be emphasized that the Court possesses an inherent jurisdiction enabling it to take such action as may be required, on the one hand to ensure that the exercise of its jurisdiction over the merits, if and when established, shall not be frustrated, and on the other, to provide for the orderly settlement of all matters in dispute, to ensure the observance of the “inherent limitations on the exercise of the judicial function” of the Court, and to “maintain its judicial character” (Northern Cameroons, Judgment, I.C.J. Reports 1963, at p. 29). Such inherent jurisdiction, on the basis of which the Court is fully empowered to make whatever findings may be necessary for the purposes just indicated, derives from the mere existence of the Court as a judicial organ established by the consent of States, and is conferred upon it in order that its basic judicial functions may be safeguarded.” Nuclear Tests (Australia v. France), Judgment, ICJ Reports 1974, p. 253, at 259 (§ 23).
Please discuss the excerpt above, with reference both to practice, not limited to that of the ICJ, and theory.
2019
“There are certain differences or divergence of opinions between States which inherently elude judicial settlement through the application of the law. Even when these divergences have a legal dimension, tackling those legal aspects by judicial means may not necessarily lead to their settlement. This may be due to the fact that the role of the law is often limited by virtue of its instrumental dimension.” Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), ICJ Judgment, 1st October 2018, Declaration of President Yusuf, para. 7.
Please discuss.
2022
“257. The Court has noted above (paragraphs 169 and 170) the attitude of the United States, as expressed in the finding of the Congress of 29 July 1985, linking United States support to the contras with alleged breaches by the Government of Nicaragua of its “solemn commitments to the Nicaraguan people, the United States, and the Organization of American States”. Those breaches were stated to involve questions such as the composition of the government, its political ideology and alignment, totalitarianism, human rights, militarization and aggression. (…)
258. The questions as to which the Nicaraguan Government is said to have entered into a commitment are questions of domestic policy. The Court would not therefore normally consider it appropriate to engage in a verification of the truth of assertions of this kind, even assuming that it was in a position to do so. A State’s domestic policy falls within its exclusive jurisdiction, provided of course that it does not violate any obligation of international law. Every State possesses a fundamental right to choose and implement its own political, economic and social systems. Consequently, there would normally be no need to make any enquiries, in a matter outside the Court’s jurisdiction, to ascertain in what sense and along what lines Nicaragua has actually exercised its right.
259. However, the assertion of a commitment raises the question of the possibility of a State binding itself by agreement in relation to a question of domestic policy, such as that relating to the holding of free elections on its territory. The Court cannot discover, within the range of subjects open to international agreement, any obstacle or provision to hinder a State from making a commitment of this kind. A State, which is free to decide upon the principle and methods of popular consultation within its domestic order, is sovereign for the purpose of accepting a limitation of its sover- eignty in this field. This is a conceivable situation for a State which is bound by institutional links to a confederation of States, or indeed to an international organization. (…) ” Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment. I.C.J. Reports 1986, p. 14.
Analyze critically with reference to subsequent developments.
2023
Analyse critically the following extract of a separate opinion of late Judge Cançado Trindade:
“174. As I pointed out one decade ago, the evolution of contemporary international law does not emanate from the inscrutable “will” of the States, but rather from human conscience. General or customary international law emanates not so much from the practice of States (not devoid of ambiguities and contradictions), but rather from the opinio juris communis of all the subjects of international law (States, international organizations, human beings, peoples, and humankind as a whole).
[…]
- In my perception, in rescuing the universalist vision which marked the origins of the most lucid doctrine of international law, the aforementioned historical process of humanization of international law contributes to the construction of the new jus gentium of the twenty-first century, oriented by the general principles of law. This historical process is enhanced by its own conceptual achievements, such as, to start with, inter alia, the acknowledgment of jus cogens and the corresponding obligations erga omnes of protection, disclosing likewise the universalist outlook of the law of nations.”
(Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, I.C.J. Reports 2019, p. 95, Separate Opinion of Judge Cançado Trindade, at pp 209 and 216).
PRIVATE INTERNATIONAL LAW
2006
The Common-law countries have been subject to criticism with regard to various matters in the field of jurisdiction in private international law.
– Explain what these criticisms are, consider the arguments for and against them and say whether in your opinion they are justified.
– Support your answer with practical (as well as theoretical) arguments based on decided cases and legislation.
2007
Choice of Court Agreements and Arbitration Agreements.
2008
The late Professor Arthur von Mehren of Harvard Law School stated the following in an article published in 2011:
“The fundamental … [challenge] that conflicts law faces in the … [XXIst] century is whether jurists [including courts, scholars, and practitioners] can arrive at shared standards [and mutually respected principles] of litigational and substantive justice.”
Professor von Mehren then asks whether theory and practice relating to jurisdiction, choice-of-law and recognition and enforcements of judgments are “likely to move in the direction of parochial-unilateralism or cosmopolitan-bilateralism.”2. He warned of the risk of disenchantment with the response.
Please discuss your views concerning the challenge identified in the above quotation by Professor von Mehren and your response to the question raised by him. Include in your response reference to the thinking of other identified civil and common-law scholars in the field of private international law.
You are required to illustrate your answer with reference to specific cases or concrete hypothetical situations (including both the facts and applicable legal principles in your answer).
If you wish, you may discuss how your response would be different from what might have been the answer to a similar challenge and question during the first part of the 20th century.
Your response may include references to materials that were not necessarily presented and issues not discussed during the general or special courses of this summer.
1 A. von Mehren, “American Conflicts Law at the Dawn of the 21st Century,” 37 Willamette L. Rev. 133, 135 (2001)
2 Id., 138.
2009
In an article published in a volume issued in honor of Professor Guy Flattet, in 1985, Professor Bernard Dutoit, under the title « Ordre public: chameleon of Private International Law? », wrote the following:
« The concept of ordre public thus shows itself to be indispensable in a system of private international law inherited from Savigny which is based on a wide range of abstract rules of conflicts that, in themselves, do not take any values into account. It is therefore clearly necessary to make room in such a system for the essential values that are the bedrock of society and that Savigny, from the viewpoint of equally “civilised” nations, could take for granted.
By virtue of its very function, ordre public therefore cannot be constrained within any static definition. Any attempts in this direction will burst like soap bubbles. Ordre public, which reflects the current status of civilisation and morals in a given country, adapts its colour, like a chameleon, in close harmony with socio-cultural changes. »
Please discuss the remarks made by Professor Dutoit in the above quoted sentences. You may include references to the thinking of other scholars and to decisions you may know. Your response may include references to materials that were not necessarily presented and issues not discussed during the general or special courses of this summer.
2010
Are conflict rules of an essentially technical nature without giving preference to any particular substantive outcome, or can they reflect substantive values?
What methods can be used by a legislator in order to promote substantive goals by means of private international law?
2011
In his General Course of Private International Law, La dimension sociale du droit international privé, (La Haye, ADI Poche, 2011), Professor Andreas Bucher wrote at p.55 (translated from French) :
” What has become of the ” Community of Law between States” ? Defined in a savignian manner, it has quite simply disappeared for a long time. As soon as one admits that legal relations respond to certain objectives and that these tend not to be the same for different states, one cannot affirm the existence, a priori, of an international unity of solutions and make it the foundation of rules of conflict [of laws and of jurisdictions] as is proposed by savignian teaching “.
Comment on this affirmation of Professor Bucher.
2012
“Party autonomy – foundations, limits and modalities of exercise” – Please elaborate.
2013
P.S. Mancini expresses, in his report to the Institut de droit international of 1874, the idea that every State can, “in the name of the principle of political independence of the State, prohibit, within the limits of its territory, any violation of its public law and of the public policy of the country as established by the national will”. Please discuss this text in light of present day private international law.
2014
Provide a critical analysis of the said “method of recognition of legal situations”. Please introduce both theoretical and practical considerations in your answer.
2015
Critically discuss the value of predictability in private international law.
2016
Discuss whether and to what extent contemporary private international law differs from the classical model articulated by Savigny (and later Kegel), and explain the reasons for such differences.
2017
Decisional harmony is no longer compatible with contemporary methodologies in private international law. Discuss.
2018
A. T. Von Mehren, “Choice of Law and the Problem of Justice”, Law and Contemporary Problems, Vol. 41, N.º 2, 1977, p. 42: “(…), one who expects to achieve results in multistate cases that are as satisfying in terms of standards of justice and of party acceptability as those reached in purely domestic cases is doomed to disappointment”. Discuss.
2019
Is the influence of human rights law on private international law of a disruptive quality?
2022
Please critically analyze and illustrate the following statement by Prof. Lagarde from his 1986 General Course:
“Private international law must be understood in its three inseparable dimensions, namely conflict of laws, jurisdiction and the effect of judgments and decisions (…). In these three dimensions, it is a matter of connecting factors.”
2023
Critically compare the increasing specialisation of choice of law rules with the specialisation of jurisdiction rules.