Answer-To-Question- 1

Answer-to-Question-_1_

[1] Friendship Treaty is a treaty under VCLT Art. 1. It is written, between two states, intended to be governed by international law [see Arts. III and VII], and binding [Art. VIII]. Art. VII provides legitimate grounds for ICJ jurisdiction [ICJ Statute Art. 36(1)].

[2] The lack of elections may violate ICCPR Art. 25. Syria has a duty to remedy these violations [ICCPR Art. 2].

[3] ICCPR Arts. 2(2) and 3 prohibit race and gender discrimination, respectively. Syria has not declared a state of emergency to derogate from these principles [Art. 4(1)]. CERD Art. 5(1) and ICESCR Art. 7(c) are also violated if Syria is a party.

[4] Syria has probably used unlawful force [UN Charter 2(4)]. ICCPR Arts. 21 and 22 allow peaceful assembly and association (assuming the protesters were peaceful); however, Syria can restrict the rights to protect national security. Syria will argue that this includes the right to use force, but it is unlikely that force was necessary. The protesters are civilians and could be arrested and tried rather than attacked [Israel]. Syria may argue anticipatory self-defense [derived from UN Charter Art. 51] or protection of international peace and security [UN Charter Art. 1(2)] (given the Arab Spring toppling other regimes) to justify its force.

[5] Syria is engaged in a non-international armed conflict with the FSA, a non-state actor, so Common Article 3 applies. FSA civilian members are most likely directly participating in hostilities by taking up arms and marching with the organized militia so they will lose their civilian protections [Common Article 3]. Thus, Syria can lawfully target them.

Saudi Arabia, Turkey, and the Gulf States may be interfering in domestic affairs by supporting the uprising [UN Charter 2(7), Montevideo Art. 8].

[6] Syria's killing of unarmed protesters could be genocide, but targeting a political group is not grounds for genocide [Rome Statute Art. 6]. Unless the protesters are targeted as Sunni ethnic group members, this crime is inapplicable. The attacks could also be crimes against humanity for persecution of a political group [Rome Statute Art. 7(1)(h)]. Under the Kunarac framework, there has been a widespread attack, and given the large number of protesters killed, it may be that they were targeted as part of a plan to silence dissident political views. Intent could be gained through command responsibility [Rome Statute Art. 28]. The abuses may also be war crimes of willful killing or torture [Rome Statute Art. 8(2)(a)]. However, the case cannot be brought in the ICC (absent Security Council referral) because Syria is not a party and the attacks committed by Syrian nationals occurred entirely in Syria.

The war crimes/torture charges could support universal jurisdiction [RS 404].

Syria likely violates ICCPR Art. 9 for arbitrary arrest.

[7] FSA, a non-state actor, cannot face charges in the ICJ for its human rights abuses but Syria can sue its individual actors in the ICC. This is highly unlikely, however, because Syria would then expose individual Syrian actors to jurisdiction for alleged human rights abuses. ICCPR imposes duty on Syria to stop FSA's abuses.

[8] Syrian Kurds are victims of discrimination based on racial origin [ICCPR Art. 26]. Syria probably used unlawful force here just as it did against the earlier protesters. The targeting of Kurds may be a crime against humanity given the comprehensive nature of the discrimination.

[9] If a vote were to take place with China and Russia vetoing intervention, the international community could invoke Uniting for Peace to send a humanitarian mission to Syria.

[10] US applies countermeasures against Syria's unlawful acts [DASR Art. 49]. These may be lawful retorsions (if the previous condemnations could be seen as notification/demand for compliance--DASR Art. 52) but it does not seem proportional to ban all immigration into the US [DASR Art. 51, Gabcikovo-Nagymarous]. The relation of the countermeasures to the breach is also questionable.

The US also violates ICCPR Arts. 12 and 26, freedom of movement and discrimination, by requiring Syrian students to report to police stations. The US has not declared a state of emergency in order to derogate from these protections.

This measure may also violate the Friendship Treaty between Syria and the US under Arts. II and III, which provide for freedom of movement and favorable treatment to nationals within the other's territory. The US may defend that it is simply invoking the right "to maintain public order...and safety" [Art. II].

[11] Russia may be violating the Security Resolution and may be intervening in domestic affairs.

The US/French blockade is taken as a countermeasure to the rumored Russian acts but even if France/US are injured parties, the countermeasure is directed at Syria rather than offending Russia, which makes it unlawful [DASR Art. 49(1)]. Proportionality may also be at issue, although at least provision has been made for humanitarian aid.

The blockade could be a further violation of the Friendship Treaty, Arts. I and V. The US should defend under Art. VI claiming the treaty cannot preclude its duty to maintain international peace and security in compliance with the Security Resolution.

If the blockade is unlawful, Syria may be responding with a retorsion by closing American businesses. Otherwise, Syria too is now in violation of the Friendship Treaty, Arts. I and IV. The proportionality of the countermeasure is contentious, but necessity could be present given the fact that Syria sees itself as countering a terrorist revolt, making access to its ports imperative for self-defense. DASR Art. 24 distress and Art. 25 necessity are not valid defenses because Syria contributed to the situation by failing to hold elections and suppressing political expression.

[12] There is little indication that the pro-government forces' actions can be attributed to Syria, but Syria still has a duty to protect foreign diplomats [Tehran case]. Syria has not fulfilled this requirement by installing a police guard only at the US embassy. Also no mention is made of arresting the perpetrators. This lackluster response could prove an implicit ratification, allowing for attribution to the state and grounds for liability to the US and France.

[13] The assassination is rumored to be attributed to the government and could further support crimes against humanity against the Kurds [Paragraph 8 above].

Self-determination is a protected right [UN Charter 1(2)] subject to limitations on its method of assertion [Quebec]. It is unlikely that this unilateral declaration followed Syrian domestic law, but on the grounds of long-term, escalating Kurdish oppression, the move may be justified (denied citizenship/political voice, multiple killings) [Quebec]. Jordan's immediate recognition may lend some support to Kurdish independence but it will not serve to legitimize an otherwise unlawful act [Quebec]. Jordan may also be intervening in Syrian affairs by recognizing Kurdish independence too soon.

[14] France probably uses unlawful threat of force [UN Charter 2(4)]. France should defend by duty of humanitarian intervention [Yugoslavia v. Belgium], but its unilateral approach is suspicious, especially given its former colonization of Syria [R2P, right intention]. Art. 51 does not help because France has not suffered an armed attack and Syria did not request aid for collective self-defense [Nicaragua].

French entry in the conflict means there is an international armed conflict subject to Geneva Conventions and AP1. Jordan's involvement is unclear but at least complicit. DASR Art. 6 may preclude Jordanian liability for French actions, but if not Jordan may claim anticipatory self-defense or international peace and security measures given the influx of Syrian refugees.

France may argue their use of force is lawful through humanitarian intervention or as a reprisal for the killing of the French national. Regardless of the questionable legality of an armed reprisal under the UN Charter, bombing a government building and killing five officials is hardly proportionate to a single French death. Art. 51 self-defense is still unhelpful because the single death will not meet the scale required for an armed attack [Nicaragua].

Targeting of the government headquarters and officials is almost certainly a legitimate military objective [AP1, Art. 52(2)].

[15] US must provide one year's notice before terminating the Friendship Treaty [Art. VIII] so this will not preclude ICJ jurisdiction [Art. VII]. The Treaty will therefore support Syria's ICJ claims against the US for its blockade and actions against Syrian students. If the US does not appear, the ICJ will still consider the claim [ICJ Art. 53].

Without French or Jordanian consent and absent a relevant treaty, Syria's claims against France and Jordan will not be heard by the ICJ. However, Syria has territorial jurisdiction for acts that occurred in its state [RS 402(1)] so if it can secure the French or Jordanian nationals responsible it can try them domestically [subject to reasonability, RS 403].

Jordan may have protective jurisdiction against Syria and vice versa [RS 402(3)].

If it is legitimized as a state and becomes a party to the ICC, IKRNS may try suing Syrian persons for crimes against humanity [this is questionable because acts occurred in current IKRNS(party) territory/former Syrian (non-party) territory]. IKRNS can give retroactive consent for acts occurring before it became a party [Rome Statute Art. 11].

------

------DO-NOT-EDIT-THIS-DIVIDER------

------

Answer-to-Question-_2__

With the events of September 11, 2001, the increasing strength and number of terrorist attacks worldwide, and the various "wars on terror" that are nowhere near resolution, terrorism poses an incredible challenge to the current DASR rules of state attribution. Terrorist cells operate in remote corners of unstable or sympathetic nations in order to launch international attacks. Nations like the United States and Israel are forced to strain existing international law for a means to lawfully target these "unlawful combatants" who take refuge within the sovereign territories of other states. Perhaps even worse, some state leaders equip and direct armed militias or rebel groups to commit offenses against their own citizens and then disclaim liability for the "terrorist" acts. These issues of global terrorism could precipitate a change in the DASR to attach liability to a state for any internationally wrongful acts committed from its territory. Despite the seeming promise of this change, it should be resisted.

The obvious advantage of such a revision is that it is a straightforward test that merely poses the question of where the acts were committed. This is a much simpler test than the DASR articles as applied in either the effective control test of Nicaragua or the overall control test employed in Tadic. These tests also serve to highlight the weaknesses of the current DASR approach. The Nicaragua test can be assailed on grounds that it sets too high of a bar for state attribution, requiring either specific instructions or complete dependence for attribution. Tadic sought to resolve this by requiring less control for attribution, but the overall control test still focuses on a complex set of factors providing only shaky grounds to definitively determine when enough is enough for state attribution.

A territorial test would dispel such complexities. At most, the test could create questions of where the act was started versus where it was completed, or how much of an act must be done within state territory to count as attributable. Cases of wrongful acts committed in disputed border territories would pose the greatest difficulty. However, application of a territorial test would probably not be much different than traditional lex loci delicti tests already employed by many courts around the world for simple torts cases.

Another clear advantage would be to provide the strongest possible incentive for states to monitor and suppress terrorist or other internationally wrongful activities within their borders. Neither sympathetic states nor sinister state leaders could disclaim the terrorist activities occurring in their territory. They would instead be under international pressure to quell terrorist activity, which would further the UN Charter's purpose of strengthening international peace and security.

Still, these advantages are outweighed by the unwanted effects such a test would create. First, a territorial test would penalize weak, unstable states without the capability or resources to stop terrorist groups in their borders. Even if provision were made for mandatory assistance to these unstable states via the UN Security Council, it would almost certainly be resisted by both the wealthy, powerful members that would be responsible for footing the bill for such increased assistance, and by the unstable states themselves who would see their sovereignty imperiled by foreign intermeddling in their domestic intelligence and security.

The change would further create an enormous expansion of state liability for acts over which the state may have no control, to include the wrongful acts of third parties and individuals. This kind of strict liability strikes at notions of voluntarism.

The territorial test also enormously decreases the liability for state actors when they intentionally conduct their wrongful acts from elsewhere. For instance, there could not even be a discussion of US liability for wrongful acts of the contras in Nicaragua. In fact the contras' human rights violations would be attributed to Nicaragua, who actively fought against them.

Finally, the test could have the effect of promoting territorialism to the detriment of friendly relations among nations [UN Charter 1(2)]. Realist-minded states, seeking to protect their self-interests and limit liability, would remove opportunities for immigration and student exchange. Citizens from countries known for instability or terrorism would face particular hardship, leading to discrimination on basis of national origin or ethnic group [ICCPR Art. 26].