The Analysis of the Ruritania v Utopia - Essay Example

?Ruritania vs Utopia Week A. Ruritania’s Arguments: Ruritania will rely on Article 2(4) of the UN Charter 1945 which prohibits the use of force or the threat of the use of force.1 This claim would apply to the series of bombing raids launched by Utopia over Ruritania following the attack on Utopia’s Stock Exchange and the interception of the airplanes over Ruritania’s airspace. Article 2(4) provides for a general prohibition against inter-state aggression. In this regard, no UN member state may use force against any other state regardless of whether that state is a member of the UN or not.2 Ruritania will argue that since both parties are members of the UN, they are both obliged to respect the general prohibition against war and in bombing Ruritania and intercepting an airplane in Ruritania’s airspace, Utopia committed acts of aggression contrary to Article 2(1) of the UN Charter 1945. With respect to Rocky, Ruritania might argue that pursuant to the maxim par in parem non habet jurisdictionem (no state has jurisdiction over another) applies in the case of Rocky who is the son of a diplomat.3 This maxim is reflected in 1963 Vienna Convention on Consular Relations to which both Ruritania and Utopia are parties and thus are equally bound. In particular Article 41 of the 1963 Vienna Convention provides that: Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.4 Rocky has not been implicated in any crime although there are suspicions that he might have attempted to commit a crime. Therefore the gravity of the crime cannot be established as no crime was committed, only the suspicion that a crime may have been contemplated. Therefore pursuant to Article 41(1) of the 1963 convention, Rocky’s arrest and detention pending trial is unlawful. Moreover, Article 41(2) of the 1963 Convention provides that: Except in the case specified in paragraph 1 of this article, consular officers shall not be committed to prison or be liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect.5 It therefore appears that Rocky is entitled to bail and his freedom pending the final outcome of the trial. It will also be argued that since, Rocky is a family member of an ambassador diplomatic immunity under the 1963 Convention applies to him.6 Utopia’s Response Utopia’s response will rely on the UN Declaration on Friendly Relations which effectively expands state responsibilities under the UN Charter. In this regard, the relevant part of the UN Declaration on Friendly Relations reads as follows: Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.7 Utopia will therefore argue that Ruritania essentially sponsored or acquiesced in the terrorist activities of the FAI and in essence supported their activities allowing them to launch a terrorist attack on Utopia from Ruritania. In addition, Utopia will rely on the exception to the general prohibition against war as found in Article 51 of the UN Charter. Article 51 provides as follows: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.8 Thus Utopia was at liberty to defend itself against Ruritanai notwithstanding the fact tha the Security Council had not taken action on the matter. Moreover, in relying on the provisions of the provisions of the Hague Convention for the Suppression of Unlawful Seizure of Aircraft 1970 and the Montreal Convention for the Suppression of Unlawful Act against the Safety of Civil Aviation 1971 that Rocky committed an offence contrary to these Conventions and therefore cannot claim immunity. Utopia will further argue that given the civilian deaths associated with the first airplane attack on the Stock Exchange, diplomatic immunity cannot arise to protect Rocky from prosecution for crimes that violate international criminal law.9 Week B Ruritania v Utopia Judgment Majority Opinion of the Court Ruritania (hereinafter the plaintiff) relies on Article 2 (4) of the UN Charter 1945 and in doing so argues that Utopia’s (herinafter the defendant) bombing raids on plaintiff were a violation of Article 2(4). The plaintiff argues that Article 2(4) prohibits the use of force or the threat of the use of force by one member state over another and since both the plaintiff and the defendant are members of the UN they are both equally bound by the provisions of Article 2(4) of the Charter. The defendant argues that by virtue of Article 51 of the UN Charter, it had a right to use force against the plaintiff in self-defence since it considers that the plaintiff attacked it sovereignty by flying or facilitating the flying of airplanes into its Stock Exchange. Essentially, the plaintiff asks the court to take a restrictive approach to Article 2 (4) of the UN Charter and by invoking Article 51, the defendant asks the court to take a more extensive approach to Article 1(4). The restrictive approach requires a strict interpretation of Article 2(4) of the UN Charter and the expansive approach requires that the court take into account a state’s need to launch a pre-emptive strike against the use of force, act in self-defence or to intervene on humanitarian grounds.10 If this court were to take a restrictive approach to Article 2(4) of the UN Charter it would not take account of the circumstances in which the defendant felt compelled to launch an attack on Ruritania and this would essentially mean that no attack would be reviewed. This cannot be what the UN Charter intended by implementing Article 51 of the UN Charter. The right to sovereignty alone cannot limit a state’s right to go to war in certain circumstance. Therefore the prohibition against war must be examined with respect to the three factors: the use of force is authorized by the state; the “cause of just”; and “the intention is correct”.11 Therefore this court evaluates the plaintiff’s claim and the defendant’s defence by reference to the extensive interpretation of the prohibition against the use of force or the threat of the use of force pursuant to Article 2(1) and Article 51 of the UN Charter. The International Court of Justice (ICJ) has previously ruled on a similar dispute in The Republic of Military and Paramiltary Activities in and against Nicaragua (Nicaragua v The United States of America). In this case the ICJ found that the US by providing support to the Contras in its rebellion against the government of Nicaragua had violated Nicaragua’s sovereignty. However, the ICJ made it clear that a right to self-defence or collective self-defence must be preceded by evidence that the state in question acted in concert with those who launched an attack and that the Security Council was asked to act and had not acted in circumstances where the use of force of the threat of force was imminent or occurring.12 On the facts of the case and on the evidence, the attack on the defendant’s Stock Exchange was carried out by a militant group. The defendant merely suspects that the plaintiff sponsored and orchestrated these attacks. However, there is no evidence before the court beyond the defendant’s suspicion that the plaintiff was directly involved in the planning and carrying out of the attack by the militant group. Therefore, even when an extensive view is taken of the prohibition against the use of force or the threat of the use of force, this court finds that the defendant violated international law and specifically Article 2(1) of the UN Charter. With respect to the diplomat’s son Rocky, the court agrees that plaintiff’s argument that the maxim par in parem non habet jurisdictionem (no state has jurisdiction over another) applies.13 Article 41 of the 1963 Vienna Convention makes it clear that diplomats and their families cannot be arrested or detained pending a trial. However, Article 41 provides an important exception in which arrest and detention is possible where the protected party is held for the purposes of a hearing relative to a grave crime and is held “pursuant to a decision by the competent judicial authority.”14 The facts and circumstances of the case indicate that Rocky was arrested and detained when the defendant had a serious security breach in which civilians had been killed and damages sustained to its Stock Exchange. The evidence suggests that the defendant had reasonable grounds to suspect that Rocky was about to fly a plane that would have caused the same kinds of damages previously incurred by the defendant. The court agrees with the defendant that the Hague Convention for the Suppression of Unlawful Seizure of Aircraft 1970 and the Montreal Convention for the Suppression of Unlawful Act against the Safety of Civil Aviation 1971 applies and there are grounds to suspect that Rocky attempted to commit an offence contrary to these Conventions and therefore cannot claim immunity. The court further accepts the defendant’s contention that given the civilian deaths associated with the first airplane attack on the Stock Exchange, diplomatic immunity cannot arise to protect Rocky from prosecution for crimes that violate international criminal law.15 Therefore for the reasons expressed above the court rules that: The defendant violated international law when it launched an attack on the plaintiff and further violated the plaintiff’s sovereignty. The attack on the plaintiff was not justified and was not an authorized act of self-defence. The defendant’s detention of Rocky is not a violation of the international law regulating diplomatic immunity. Rocky is suspected of attempting to commit a grave crime which put civilian lives at risk and therefore his arrest and detention pending trial is lawful. Dissenting Opinion: The majority opinion is affirmed but only partly. It is affirmed that the arrest and detention of Rocky is not contrary to the international laws protecting diplomats, their staff and family members from prosecution, arrest and detention. Therefore the reasons given by the majority opinion are agreed and adopted by this dissenting opinion. This dissenting opinion agrees with the majority opinion that the defendant did not have just cause to launch what amounts to self-defence, but for different reasons. Attention is directed to the UN Declaration on Friendly Relations, in which the relevant part of the Declaration reads as follows: Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.16 The use of the term “acquiescing in organized activities within its territory” effectively relieves the defending state of the duty to prove that the state in question was directly involved in the planning and execution of terrorist attacks against another state. It is enough that the planning and execution took place in the state in circumstances where the host state knew or ought to have known that those activities were planned and executed within its borders and did nothing to intervene. In ordinary circumstances it would be difficult to argue that the host state did not know or could not have known that a terrorist attack of the kind planned by and carried out against the defendant was taken place within its territory. However, the plaintiff has been involved in a civil war for the last ten years and could not have had the resources or the wherewithal to know that terrorists were planning to launch an attack on the defendant. The plaintiff would have been using all of its resources to restore order within its own borders. Bibliography Bassiouni, M.C. International Criminal Law: Sources, Subjects and Contents, (The Netherlands, Martinus Nijhoff Publishers, 2008). Caplan, L. M. ‘State Immunity, Human Rights, and Jus Cogens: A Critique of the Normative Hierarchy Theory,’ (2003) 97 The American Journal of International Law, 741-781. Corten, O. ‘The Controversies over the Customary Prohibition on the Use of Force: A Methodological Debate,’ (November 2005) 16(5) European Journal of International Law, 803-822. Dinstein, Y. War, Aggression and Self-Defence, (Cambridge, UK: Cambridge University Press, 2005). Milojevic, M. ‘Prohibition of Use of Force and Threats in International Relations’ (2001) 1(5) Law and Politics, 581-604. Ross, M.S. ‘Rethinking Diplomatic Immunity: A Review of Remedial Approaches to Address the Abuses of Diplomatic Privileges and Immunities’, (1989) 4 American University Journal of International Law and Policy, 173-205. The Republic of Military and Paramiltary Activities in and against Nicaragua (Nicaragua v The United States of America) Jurisdiction and Admissibility, 1984 ICJ Rep 392 (June 27, 1986). UN Charter 1945. UN General Assembly Resolution 2625/1970. Vienna Convention on Consular Relations 1963. Read More