LIT500 International Law – Customary Law and State Responsibility

Question 1

Read the hypothetical case study below and answer the questions that follow.

Over the past 25 years, a highly destructive industrial fishing practice known as Deep-Ocean Kinetic Trawling (DOKT) was developed. Recognising the severe ecological damage it causes, 180 out of 193 sovereign states have passed domestic legislation strictly prohibiting DOKT in both territorial and international waters. At multiple United Nations General Assembly sessions, these 180 states have issued joint diplomatic declarations explicitly stating that they enforce this prohibition because they are under a mandatory international legal obligation to prevent the total collapse of shared deep-sea ecosystems.

Recently, satellite imagery revealed that five states have occasionally engaged in DOKT in secret. When confronted, the international community heavily condemned these actions. In response, the five states did not assert a legal right to use DOKT; rather, they apologised, claimed the trawling was a mistake by rogue private corporations, and paid fines.

However, the State of Aquatica has taken a completely different approach. Since the very first UN resolution discussing a potential ban on DOKT 25 years ago, Aquatica has consistently and publicly voted against the prohibition, issued formal diplomatic notes rejecting the existence of any such rule, and openly continued state-sponsored DOKT operations. Aquatica maintains that it never consented to this rule and is therefore exempt. In response, the international community argues that preserving the deep-sea environment is a fundamental communitarian duty safeguarding a matter of common concern for the entire globe.

Evaluate whether the prohibition on DOKT discussed in the above case study has attained the status of customary international law for all states in the international order. Justify your answer with comprehensive reference to all applicable legal principles.

Mark allocation:

• Legal principles.
• Application of principles to the case study.
• Referencing in the prescribed format (footnotes, THRHR style, includes page numbers).
• Use of authoritative sources (textbook, international law instruments and cases). (2)

Question 2

Read the hypothetical case study below and answer the questions that follow.

The Republic of Oakhaven and the State of Pinecrest share a border along the Beryl River. In 2015, the two states signed the “Beryl River Environmental Protection Treaty,” which explicitly prohibits the dumping of “heavy metals or toxic sludge” into the river system. The treaty’s preamble states its core objective is “to preserve the absolute ecological safety and pristine water quality of the shared river basin.”

Recently, Oakhaven discovered a highly lucrative seam of lithium near the river. Knowing that traditional lithium extraction produces toxic sludge, Oakhaven engineered a new thermal- pumping extraction method. This method does not produce sludge or heavy metals; instead, it discharges millions of gallons of boiling-temperature water directly into the Beryl River. This thermal discharge has completely sterilised a 50-kilometer stretch of the river, killing all fish and vegetation. When Pinecrest invoked the treaty, Oakhaven refused to stop. Oakhaven’s legal team argued that they had read the document word-by-word, and because boiling water is not explicitly listed as a “metal” or “sludge,” their extraction methods are technically permissible and they do not have to change their operations.

Infuriated by Oakhaven’s refusal, the President of Pinecrest delivered a televised national address. He issued a strict ultimatum: “If Oakhaven does not shut down those thermal pumps within 48 hours, we will deploy a military-grade digital virus into their national infrastructure. This code is designed to physically overload and melt down their power grid’s transformers. We know this will crash their air traffic control networks and disable hospital ventilators, but we are prepared to bring their nation to a devastating standstill until they submit.”

In response to this ultimatum, Oakhaven decided to distract Pinecrest by creating chaos across the border. Oakhaven’s state intelligence agency secretly funnelled massive amounts of untraceable cryptocurrency to an underground separatist political group inside Pinecrest. Furthermore, Oakhaven’s operatives penetrated Pinecrest’s provincial voting databases, subtly deleting voter registrations in specific districts to ensure the separatist candidates would win the upcoming local elections.

Analyse the above case study and determine whether the parties have violated any fundamental principles of international law. Justify your answer with comprehensive reference to all applicable legal principles.

Mark allocation:

• Legal principles.
• Application of principles to the case study.
• Referencing in the prescribed format (footnotes, THRHR style, includes page numbers).
• Use of authoritative sources (textbook, international law instruments and cases). (2)

Experts Answer on Above Questions on Customary Law

Requirements for customary international law

With respect to the prohibition of DOKT, it has specific characteristics of customary international law rule, but the question of whether it binds Aquatica depends on the persistent objective doctrine. As per the customary international law, it is important to have general and consistent states practice and opinio juris, the belief that the practice is followed because international law necessitates it. According to the ICJ, it is important to have both state practice and opinio juris as mandatory requirements.

Application to DOKT

The facts provided clearly indicates the existence of both the elements as, 180 of 193 states have prohibited DOKT domestically, and three other States have indicated that they also favor the prohibition of mandatory international legal obligation. The five states that secretly practiced DOKT did not have a legal right to do so, and this conduct clearly supports the existence of opinio juris because states accept that DOKT is legally prohibited.

Aquatica as a persistent objector

Aquatica is different as it opposed the prohibition from the beginning, and consistently voted against it. It issued diplomatic notes rejecting the rule and continued its state sponsored DOKT operations. Aquatica has a strong claim to persistent-object status.

Possible exception – peremptory norms

One of the important qualifications is jus cogens, a norm that cannot be avoided by persistent objection. It cannot be conclusively established that a specific prohibition on DOKT has attained jus cogens status.

Conclusion

The DOKT prohibition has very strong evidence of customary international law, and Aquatica may remain exempt as a persistent objector.

Fundamental principles of international law

There are many fundamental principles of international law that are being implicated such as Oakhaven’s treaty obligation, as it is bound by the Beryl River environmental protection treaty and must perform in good faith. The Treaty only prohibits heavy metals or toxic sludge, and its objective is to preserve the absolute ecological safety and pristine water quality. As a result, discharging boiling water that sterilizes 50 km of the river is inconsistent with the treaty objective.

Environmental no harm principle

Environmental protection is an important aspect within international law and states are obliged to undertake activities within their jurisdiction in a manner that is environmentally friendly. There is severe ecological damage from Oakhaven’s conduct to a shared International river and it clearly violates its international obligation.

Pinecrest’s threatened cyber attack

The deliberate intention to destroy Oakhaven’s power infrastructure can cause consequences for air Traffic control, hospital and national infrastructure. This kind of attack raises the prohibition on the threat of use of force under international law.

Prohibition of intervention

The threat of Pinecrest also conflicts with the principle of non intervention. The intervention is unlawful when coercive methods are used to interfere with the matters in which another state is entitled to decide freely.

Oakhaven’s funding of separatists

Oakhaven’s funding of separatists inside Pinecrest constitutes a serious interference with Pincecrest’s domestic political affairs. According to ICJ, any kind of support for subversive activities in another state is prohibited intervention.

Manipulation of voting database

Oakhaven’s intelligence operatives deleting voter registration interfere with Pinecrest political process. This particular conduct is attributable to state intelligence operatives, and intended to influence the Electoral results. It directly engages the principle of sovereignty and non intervention.

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