Case 1

Focus of Case: purchase agreement

Relevant PIL Source: Vienna Convention on the Law of Treaties

I Vienna Convention on the Law of Treaties applicable?

Legal definition of the term “treaty“ (Art 2 para 1 lit a VCLT):

For the purposes of the present Convention: (a) ‘treaty’ means an

international agreement concluded between States in written form

and governed by international law, whether embodied in a single

instrument or in two or more related instruments and whatever its

particular designation

1. Concluded between States?

• Austrian Armed Forces are attributable to the Republic of Austria It

can be assumed that the other contracting party is not a State (


• Conclusion: the purchase agreement is not a treaty falling under the

purview of Art 2 para 1 lit a VCLT because one party to the agreement

is not a state but a private person.

Case 2

Focus of Case: use of force

Relevant PIL Source: UN Law

I. Attack by Arkadia and the use of force

use of force: Art 2 para 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.

also: customary law, ius cogens Instrument of interpretation: Friendly Relations Declaration

1. Definition of force

• Prohibition on the use of armed force

• Not economic force (boycotts, embargoes)

• Conclusion: Arkadia used force. (ground forces/missiles)

2. Prohibited conduct

• Prohibition on the use of force

• Prohibition of threats of force

◦ ICJ Nuclear Weapons Case

• Direct and indirect force

 ICJ Nicaragua Case (merits)

 What about ommisson?

• Conclusion: Arkadia used force.

3. Definition of territorial integrity and political independence

• There is no official definition of these terms

• However, they have to be interpreted broadly

 See ICJ Nicaragua Case (merits), Corfu Channel Case

• Justifications are generally impermissible

• Conclusion: Arkadia used force against the territorial integrity of Utopia.

4. Definition of the term “in their international relations“

• Not covered: suppression of insurrections, quelling of riot

◦ What about intervention by invitation?

• Here: criterion of “international relations“ is fulfilled

• Conclusion: Arkadia used force against the territorial integrity of Utopia and

therefore violated the prohibition on the use of force as enshrined in Art 2 para

4 UN-Charter.

use of force: exceptions?

II exceptions

Collective security (Art 39, 41, 42 UN-Charter)

Self-defence (Art 51 UN-Charter)

• Conclusion: The military attack cannot be justified given that the

attack neither constitutes measures of collective security nor self-

defense, which are the only two exceptions to the prohibition on the

use of force.

III Utopia preventing the attack

Anticipatory self-defence must fulfill the following criteria:

◦ Necessity of self-defence (arguable)

◦ instant (questionable)

◦ overwhelming (q)

◦ leaving no choice of means (arguable)

◦ leaving no moment of deliberation (arguable)

• Conclusion: Given that Arkadia uses an increasingly harsher tone

towards Utopia, while at the same time it turns requests for

negotiations down, it can be assumed/cannot be assumed that Utopia

must have feared an attack. (Example: In light of the aforementioned, it

is safe to argue that the threat was/was not imminent and any act of

anticipatory self-defence would have been a violation of the prohibition

on the use of force.)

IV Utopias military reaction – self defence?

1. Armed attack:

◦ use of military force

◦ ICJ Nicaragua Case  refers to definition of “aggression“ by GA (GA

Res 3314)

◦ Intensity?

 ICJ Nicaragua Case: a certain level of intensity is required

 Oil Platforms Case: only “most grave forms“ of force constitute an armed


• Conclusion: used military force (ground troops, missiles) to a

significant extent (see GA Res 3314)  an armed attack occurred

2. Limitations (ICJ, Oil Platforms Case 2005)

a) Necessity

 Using force must be the only available means

b) Proportionality

 Use of force must be proportionate to the force defended against

◦ Reaction must be immdediate (“able to respond quickly“)

◦ Report to the UN-Security Council

• Utopia: The reaction by Utopia was immediate and the UN SC has

been informed in time. Furthermore, the counter attack was necessary

given that other means were not available in the alternative. However,

the reaction was not proportionate. Especially the bombing of two

major Arkadian cities was disproportionate. Utopia violated the

prohibition on the use of force.