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The current edition of the module guide was published in 2016.
NOTE: In order to provide a comprehensive 2018 Pre-exam update, it
is important that candidates also have access to the 2017 update,
which remains relevant. Therefore this 2018 update begins by
repeating the earlier update.

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Since the publication of your module guide considerable uncertainty
has been lent to a number of areas of public international law, with the
election of President Trump. He has threatened to walk away from a
number of treaties entered into by the Obama administration. Most
important are the threats to withdraw from the Paris agreement
concerning climate change, and the multilateral agreement with Iran in
which Iran agreed to halt the development of nuclear weapons in
return for trade concessions. Whether and how this may be done is a
matter for conjecture but such a stance is obviously of relevance to the
guide’s chapter on the law of treaties. The position his pre-election
statements seemed to take with regard to treaties are reminiscent of
the position of John Bolton (discussed at section 11.3.2 of the module
guide).
Another area of uncertainty concerns Israel and the status of Jerusalem
in particular. In the face of almost universal objection by the
international community the incoming President has promised to move
the US Embassy in Israel, at present in Tel Aviv, to Jerusalem with all
that this implies.
With regard to Israel and particularly the status of settlements and
acquired territory, please be familiar with the Security Council
Resolution 2334 passed on 23 December 2016. See:
http://www.un.org/webcast/pdfs/SRES2334-2016.pdf
This is clearly of relevance to the discussion in section 11.4.2 of your
module guide.
For a controversial interpretation of the significance of the resolution
see:
http://normanfinkelstein.com/2017/01/04/norman-finkelstein-
on-the-un-security-council-resolution-2334/
and

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http://www.ejiltalk.org/legal-bindingness-of-security-council-
resolutions-generally-and-resolution-2334-on-the-israeli-
settlements-in-particular/
An unrelated development concerns sovereign immunity (module
guide section 5.4.1). In a remarkable development, the US Congress
overruled President Obama’s veto to pass the Justice Against Sponsors
of Terrorism Act on September 28, 2016.
https://www.congress.gov/114/plaws/publ222/PLAW-
114publ222.pdf
Brief reports considering the implications of the Act are to be found at:
https://www.theguardian.com/us-news/2016/sep/28/senate-
obama-veto-september-11-bill-saudi-arabia
http://www.huffingtonpost.com/david-andrew-
weinberg/americans-can-sue-saudi-a_b_12334446.html
http://abcnews.go.com/Politics/legal-experts-law-allowing-911-
families-sue-saudia/story?id=42432568
https://www.lawfareblog.com/justice-against-sponsors-terrorism-
act-initial-analysis
With regard to the use of force in international law, you should make
yourself familiar with the UK Attorney-General’s address on the law
relating to the use of force in January 2017. It is to be found at:
https://www.gov.uk/government/uploads/system/uploads/attach
ment_data/file/583171/170111_Imminence_Speech_.pdf
It is obviously important for Chapter 9 of the module guide, in
particular to sections 9.4 and 9.5.
Finally, the OUPblog of ‘Top ten developments in international law’
(see
http://blog.oup.com/2016/12/top-ten-international-law-2016/
concludes in its last substantive paragraph, headed ‘The turn away
from international law’ as follows:
It would be impossible to finish this overview without saying
something about the turn to populist, isolationist politics in
countries from the Philippines to the US and the UK, with
strong movements in many other countries. For many
international lawyers, it feeds into a concern that many of the
world’s major countries are moving away from international
law and careful diplomacy as a means of regulating
international relations and creating a more peaceful world
order. At times, it appears that large groups of the public are
not just indifferent to these efforts, but are hostile to them.
There are no easy answers, but these times call for reflection
and re-engagement.
They do indeed.
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Since the previous pre-exam update (above), which remains relevant,
public international law cannot be said to have resolved the many
uncertainties that followed the election of President Trump. There have
been, over the past 12 months, many developments in international
relations to which international law is manifestly relevant but
candidates will need no reminding that as international law is a legal
regime based upon consent, its application remains problematic. (See
module guide section 2.2.) Contemporary events certainly exemplify
situations in which political realities make the utilisation of
international law, in order to resolve real or potential conflict,
impractical.
While the issues discussed in the previous pre-exam update remain
relevant, there have been both developments within them and also
new issues including self-determination issues concerning Catalonia,
North Korea becoming an international nuclear power and the forcible
expulsion of Rohingya Muslims from Myanmar. This update will begin
by adding to the situations considered in the last update and will then
allude to the new issues.
As a preliminary issue, one modification needs to be made to section
8.1.2 of the module guide concerning the structure (and the criticism
of the structure) of the International Court of Justice. At the election of
judges to replace those five retiring (all of whom wished to be re-
appointed for a further nine years) there were six candidates for the
five vacancies. After preliminary votes were taken in the General
Assembly and the Security Council, the sitting British judge,
Christopher Greenwood, had his nomination withdrawn as, although
he received a majority of votes in the Security Council, he received
many fewer than his Indian rival in the General Assembly. This was the
first time that the ‘gentlemen’s agreement’ ensuring that each
permanent member of the SC filled one position in the ICJ, had been
breached – and the first time for 70 years that the UK was without a
seat. It also upset the ‘gentlemen’s agreement’ as to the regional
distribution of judges. For further information on the process leading
to this result see:
https://www.ejiltalk.org/icj-elections-2017-un-general-assembly-
and-security-council-elect-four-judges-to-the-icj-but-fail-to-agree-
on-a-fifth-yet-again-trivia-question/
President Trump has now carried out his threat to withdraw from the
Paris agreement concerning climate change, and continues to threaten
the multilateral agreement with Iran in which Iran agreed to halt the
development of nuclear weapons in return for trade concessions.
Interesting points are made in:
https://fas.org/sgp/crs/misc/withdraw.pdf
http://reason.com/blog/2017/06/01/can-trump-unilaterally-
withdraw-from-int
The latter includes this comment:
There is one wrinkle. Under the Vienna Convention on the Law
of Treaties, termination or withdrawal from treaties can take

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place only ‘in conformity with the provisions of the treaty’ or by

mutual consent of the parties. Although the USA does not
consider an executive agreement to be a treaty, under public
international law, executive agreements do count. As it happens,
the Paris Agreement does not allow parties to withdraw until
three years after it has come into force. So under the Vienna
Convention, the Trump administration would have to wait until
November 2019 to complete its withdrawal from the agreement.

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See:
https://www.ejiltalk.org/the-consequence-of-the-un-settlements-
resolution-for-the-eu-stop-trade-with-settlements/
Here the author considers whether Resolution 2334 does impose
obligations upon states in their trading relationships with Israel.

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On 6 December 2017, United States President Donald Trump formally
announced United States recognition of Jerusalem as the capital of
Israel, reversing nearly seven decades of American foreign policy, and
ordered the planning of the relocation of the US embassy from Tel Aviv
to Jerusalem. There is a reasonable discussion of this event in the
following article in Wikipedia (While a ‘Wikipedia’ reference is unusual
(for good reason) this is a most useful discussion.)
https://en.wikipedia.org/wiki/United_States_recognition_of_Jerus
alem_as_Israeli_capital

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http://edition.cnn.com/2017/08/29/opinions/overturn-jasta-
opinion-obaid/index.html
http://sites.bu.edu/dome/2017/06/30/continuing-responses-to-
911-the-price-of-justice/
And for a case where an attempt was made to use the Act against Israel
see:
https://www.courthousenews.com/wp-
content/uploads/2017/02/netanyahu.pdf

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In an important decision, the UK Supreme Court in Reyes v Al-Malki
[2017] UKSC 61 determined the scope of diplomatic immunity. See:
https://www.supremecourt.uk/cases/uksc-2016-0023.html

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Following on from the UK Attorney-General’s address on the law
relating to the use of force in January 2017, it is important to consider
developments concerning the law relating to anticipatory self-defence
(see sections 9.4 and 9.5 of the module guide). President Trump’s
threat to take action against a threatening North Korea receives
analysis in Monica Hakimi’s piece from March 2017 below:

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https://www.ejiltalk.org/north-korea-and-the-law-on-anticipatory-
self-defense/
One practical effect of the Attorney General’s speech may be inferred
from the following:
http://www.rwuk.org/upper-tribunal-rejects-the-uk-governments-
blanket-national-security-claim-to-withhold-targeted-killing-legal-
advice/
A very interesting piece by Marko Milanovic concerning humanitarian
intervention (see section 9.6 of the module guide) considers the
problem of justifying the illegitimate in terms of morality:
https://www.ejiltalk.org/illegal-but-legitimate/

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In June 2017, in GA Resolution 71/92, the General Assembly requested
an advisory opinion of the ICJ concerning the status of the Chagos
Islands. For background to this request, see:
https://thecprilblog.wordpress.com/2017/09/13/the-icj-advisory-
opinions-and-the-chagos-islands-an-analysis/
For the Resolution see:
http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/
71/292

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Marc Weller has written a useful piece (October2017) considering
Catalonian self-determination. See:
https://www.ejiltalk.org/secession-and-self-determination-in-
western-europe-the-case-of-catalonia/

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Although the syllabus does not include the subject of refugees, an
article on this topic which might be of interest is to be found at:
http://jilc.syr.edu/2017/09/24/the-rohingya-and-international-
laws-of-ethnic-cleansing/