Revision: Public International Law - Research Paper Example

Revision: Public International Law Introduction: This case study is a classic example of the overlapping aspects in ensuring self-defence to protect a country’s territorial integrity in the wake of belligerent postures by a neighbouring country, as opposed to the larger moral responsibility and requirement to steadfastly uphold the canons of international laws and conventions, especially those directly concerned with the issues itself. The International Court of Justice: Since the Vienna Convention cannot be invoked in this case, it may be necessary to seek the legal assistance of the International Court of Justice at the Hague (A specialised organ of the UNO to deal with disputes among countries) to work out a peaceful settlement that could be accepted by all the three parties in the dispute, Countries A,B and C. The Court has a twofold role: to settle, in accordance with international law, legal disputes submitted to it by States (Contentious cases) and to give advisory opinions (Advisory proceedings) on legal questions referred to it by duly authorized United Nations organs and specialized agencies. (Cases). In this case, while the aspects of Country A’s military incursions and territorial transgressions remains within the area of international jurisprudence of the ICJ, it is also Need to be seen in the larger context of apparent overlapping of the UN laws on enforcing border peace accords between neighbouring states with asserted impunity . This writer cannot help but observe that, in this case the complexities of international multilateral peace brokering and its implications have created more fuel for controversies than what such situations really demands. In such cases, while it is necessary to direct thoughts and action to the perspectives adopted by affected countries, it is also equally crucial to ensure that peace process does not compromise on international conventions and established tenets of relevant laws. Crux of this issue: According to the writer, the central issue would be in terms of Country A using national emergency as a manoeuvre to renege its commitments under UN Conventions. It needs to be seen, whether the circumstances under which Country A could declare a state of national emergency are validated if not lauded. Since the relations between Country A and B had been far from cordial since quite some time, it does not make logical sense to declare national emergency at the present juncture. Moreover, the need for declaring the state as under national emergency needs to be taken after consultations with the UN observers posted along the international borders with Country B and C. It needs to be resolved whether State A claims that the aggressive threats by State B warrants a national emergency, “ since no country, under international law is allowed to renege unconditionally on its commitments in times of danger ­ whether domestic or foreign.” (Situation of Human Rights in Egypt. 2007, p. 2). Aspects of self-defence by Country A. It is believed that being members of the UNO, the countries are in a position to seek the intervention of this international body under these circumstances. Moreover, since the earlier peace accord was brokered by the UNO, it does have a major interest in maintaining peace along the common borders shared by Country A and B. Country A’s concerns over border transgressions and perceived overrunning of its country must be shared by the UNO if permanent peace is to be re-established in this part of the world. Moreover, it is also seen that, in the event Country B does decide to launch a military adventure in Country A, UNO would need to intervene with military solutions through it peace keeping organ, the International Court of Justice. The ICJ is committed to playing “A leading role in fulfilling one of the most important duties under the Charter of the United Nations:  ensuring the peaceful resolution of disputes among States. (General Assembly adopts UN Convention Against Corruption, Opens Treaty for Signature at High- Level Conference in Merida, Mexico, 9-11 December. 2007). It is now incumbent on Country A to seek a peaceful solution by putting its case in the ICJ for appeal against what could be seen as perceived border transgression on the part of Country B. It is also believed that the judgements delivered by “the Court (or by one of its Chambers) in disputes between States are binding upon the parties concerned.  Article 94 of the United Nations Charter lays down that “each Member of the United Nations undertakes to comply with the decision of [the Court] in any case to which it is a party.” (Practical Information: Frequently asked Questions. 2008). Under Section 51 of the UN Charter, the rights of members of the UNO to act in self-defence are advisable only when it is necessary in overall interests of international peace and security in the affected region. The actions taken by Security Council needs to be informed to UNO members immediately, and it does not , in any way, affect powers and responsibilities of Security Council to take any actions that may be deemed necessary to maintain international peace and stability. (Chapter VI: Pacific Settlement of Disputes. 1945). Moreover, under Article 39 of the United Nations Charter, the Security Council has the powers to determine the existence of threats to the peaceful process, its contravention, including acts of aggression made by one country against another, making recommendations, and to take considered decisions on what measures are to be taken in accordance with Article 41 and 42 of the Charter in order to maintain international peace and world security. (Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression). However it also needs to be mentioned that the repercussions of self-defense should not exceed the gravity of its cause under any circumstances. In this case, the writer feels that Country A’s reactions to professed belligerence by B are mismatched. It is gathered from assessing the facts in this case that Security Council of the United Nations Organisation (UNO) had taken action of contracting a peace deal between Country A, B and C in order to ensure peace in this part of the world. Therefore, since all the parties had initially accepted the terms of the peace treaty, it would seem rather implausible, for Country A to claim, at this stage, that the peace accord was gained through coercive and compulsive methods. It is said that a treaty obtained by threat of coercion is in violation of principles of charter of UN are void, abs initio, or void able, at the option of the aggrieved party. Again, if it is felt to ratify the treaty, after exorcising the coercive elements, there would be need to seek out a new treaty and not the existing coercive treaty. If, therefore, the treaty were maintained in force, it would, in effect, be by the conclusion of a new treaty, and not by the recognition of the validity of a treaty, procured by means contrary to the most fundamental principle of the Charter of the United Nations. (Watts, 1999, p. 739). On the other side it could be said that creation of new legal relationship cannot obliterate earlier treaties and accords, and a new law cannot serve to extinguish rights and responsibilities created by earlier laws, in this case the previous peace accord, unless there are clauses to that effect. Retrograde laws, in effect, would depend upon the terms and conditionalities, and other surrounding clauses. (Watts, 1999). Case of Nicaragua v. United States of America (1986): The landmark case regarding violation of territorial suzerainty and sovereignty has been laid in this case decision which could be considered as epoch-making. The International Court of Justice rejected the US stand regarding justification of collective self-defence maintained by United States of America in connection with the military and paramilitary activities in and against Nicaragua and held it liable for military action in Nicaragua. (International Court of Justice: 1986: Case concerning the military and paramilitary activities in and against Nicaragua. (Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America). 1986). Further, it bars the threat or use of force which has been described by the International Court of Justice (ICJ) as an authoritative norm of international law, from which states cannot deviate. (Nicaragua v United States, [1986] ICJ Reports 14, at para. 190) Article 2(4) states that all member states shall restrain themselves during their international dealings from the use of threats or use of coercion against the geographical jurisdiction or sovereignty of any state or act in any manner that is ultra vires, the objective principles enshrined in the charter of UN. (Opinion: In the Matter of the Potential use of Aarmed Force by the UK Against Iraq and in the Matter of Reliance for that use of Force on United Nations Security Council Resolution 1441: Legal Background. 2002). Under United Nations Charter, there are two extenuating circumstances that could possibly warrant the use of force or coercion. In the first place it could be seen in terms of: 1. The total or individualistic self-defence against authentic or impending hostilities. 2. The Security Council has sanctioned use of force in order to maintain, or pre-empt international pace and security. (Burroughs, 2002). Applying the above deliberations to the case study, it could be said that the United Nations Charter came into force from year 1945 while this peace accord was signed in 1976. Therefore, the countries A, B and C are bound by UN Charter unconditionally Thus it would not be wrong to say that the UNO, while delivering its verdict in the border dispute had acted well within its power which cannot be denied by the signatories to the peace accord because it is believed that the accord was signed within the regulatory framework governing the UN Charter under powers vested to it under Article 39, 41 and 42 of the UN Charter. Thus, Country A’s stand that the accord was coercive is legally untenable. In case its opinion remains unchanged it needs to be legally proved to be accepted, that indeed, coercion was practiced, by the UN Security Council while granting the acceptance of the Peace Accord to the three litigants, Country A, B and C. If one were to adopt the decision in Nicaragua v. USA (1968), Country A could be held liable for aggression in the name of self-defence and national emergency. The events leading to the build-up of military power and armament along the line of demilitarisation is suggestive of the fact that A wishes to engage in a military campaign adventure against Country B. Coercion: Under Article 52 of the Vienna Convention of the law of treaties 1969, coercion of a State by the threat or use of force is void, if its consent has been elicited by the use of such threats, or use of force, in violation of the principles of international laws embodied in the Charter of the United Nations. (Part V- Invalidity, Termination and Suspension of the Operation of Treaties: Section 2: Invalidity of Treaties: Article 52 - Coercion of a State by the Threat or use of Force. 1997). It is said that a treaty obtained by threat of coercion is in violation of principles of charter of UN are void, ab initio, or void able, at the option of the aggrieved party. Again, if it is felt to ratify the treaty, after exorcising the coercive elements, there would be need to seek out a new treaty and not the existing coercive treaty. In this case it is found that Country A contends that its signing of the Treaty was under coercion into ratifying the demilitarisation treaty, by the threat of economic and military sanctions by the United Nations Security Council, therefore its consent to be bound by the treaty is invalid. Change of Governments: This is seen as a major problem when later governments repudiate treaties made by earlier governments. In this connection, it needs to be stated that treaties that have not been time barred, remain in currency if: 1. The earlier governments had the necessary powers to sign the treaties. 2. By the exercise of these discretions they have set upon themselves, and subsequent governments, tasks and responsibilities relating to treaties and their implementation. 3. In most cases it is seen that these aspects of what transpires if there is a change of guard at the Government subsequently are covered in the Treaty itself and even if they wish, subsequent governments may not repudiate earlier treaties. ‘when a country signs an international treaty, it is not the government but the state that is bound, and the obligation will stand until a subsequent government formally exits the treaty. Exit is presumed to be costly: a government that "repudiates" earlier treaty obligations will suffer reputational harm in its international relations.’ (Ginsburg and Ulen). Therefore, the contention of non-acceptance of Country A does not have legal validity or justification. What constitutes a national emergency?: In the United Kingdoms, under Section 19 of the CCA 2004, emergency could be declared if an event or situation which risks significant damage to human welfare or risks environmental damages in the UK or in part or region, or spells war or terrorism, which threatens serious damage to the security of the United Kingdoms, or any part of area constituting the UK. (Part2: Emergency Powers. 2004). It is seen that multifaceted and intricate multifaceted border issues need to be treated according to the degree of its complicity. In the internet age, it is seen that novel and varied political means are resorted to, and accepted through new techniques, such as alternative dispute resolution (ADR). “The international law of dispute settlement may be envisaged as a network of obligations.” (Peters, 2003). Again, the law is clear on the aspects of apparent aggression by Country B through Article 75 which states that the provisions of the present Convention are without prejudice to any obligation in relation to a treaty which may arise for an confrontational State, in consequence of measures taken in conformity with the Charter of the United Nations with reference to that State's antagonism. Hence, it is seen that Country B’s alleged aggression on Country A is entirely the risk and responsibility of that country, and is against the spirit of UN peace accord and the provisions of the Vienna Convention. It is surmised that Country A’s military incursions in her borders with Country B need to have been taken after international consultations, especially with concerned peace brokers. In the case of UNO vetoes emergency needs: In case, State A’s claim is not justifiable and vetoed by the United Nations Organisation or the ICJ, the following situation remains: 1. The entire treaty could be repudiated and withdrawn with consent of all the signatories to the existing treaty. 2. The countries opposing the reservation, that is Country C, could either withdraw from the treaty, or bring action for its repudiation and cancellation. 3. State A could withdraw from it, or enter into negotiations with Countries B and C 4. A fresh treaty could be drafted approved and confirmed by all the parties. However, the laws state that the new treaty should follow the earlier treaty except to the extent of clauses for which mutual consent was not gained by them. Therefore, in this case, the parties to the new treaty should confirm acceptance of all the clauses, except the one relating to reservation which due to dispute, has not been acceptable to the other signatories. Reservation issue: Further Article 20(1) considers whether the Reservation is authorised by the said treaty or not. Article 20(2) relates to the application of the treaty in Toto. In a case of treaty of this kind, the aspect of reservation has to be considered before the signing of the treaty by the countries A, B and C. Although it is seen that initially, C had agreed to the reservation, later on, after a period of 7 months, it withdrew its support to the reservation action and deemed it against the objects and purposes of the Treaty. In this case, however, the main aspects relate to whether Member C’s stand could be vindicated in the International Court of Justice (ICJ) where such disputes are referred, heard and adjudicated. It is seen that initially, Country C had accepted the reservation of A, but reneged o n it within the 12 month period. As mentioned earlier, Country C may opt out (if the treaty provides) of this peace accord if it deems it necessary to do so. (International Law: Treaties). Threat of war is not tantamount to imminent war: It is seen that Country A’s state is not tenable in law since only a threat of war has taken place, and there is nothing to suggest imminent war. Hence, Country A needs to accept responsibility for committing the wrong of violating the UNO Conventions. Breach of contractual agreement: Thus, it could be seen that by remilitising its border areas in defiance of the Vienna Convention could lead to the following: Remaining signatories, Countries B and C could foreclose the treaty, or place it under suspension either fully or partially; with regard to the reservation aspects significant violation of the convention on the party of Country A signifies that: (a) Countries B and C, by mutual agreement, may defer the operation of the treaty, either totally or partially, or to conclude it either: (i) In the dealings between themselves and the violating State; or (ii) As between all the parties, A B. and C; (b) Country C, being a party specially affected by the contravention, to treat it as a basis for suspending the operation of the treaty, either fully or partly, in the relations between itself and the defaulting State; (c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty, wholly or partly, with respect to itself if the accord is of such a nature that a substantial infringement of its clauses by Country A, conspicuously changes the status of every party, with respect to future discharge of its responsibilities under this treaty. Role of UNO in brokering peace within the region: The laws that need to be stated would be with reference to the border agreements that are signed between the parties, and in the event of no written laws, the aspects of unwritten laws or regional canons. It is often debated whether internal laws need to claim precedence over international laws, but the fact remains that international border problems, involving two or more countries need to be resolved through arbitration or by intervention of third persons, for seeking a lasting solutions. Moreover, internal laws may be in conflict with international laws, or may claim supremacy over them. Need for UN peace keeping forces and observers along the international borders: However, in this case it is seen that the UNO had brokered a peace treaty between the disputants, Country A, B and C. Since UNO is also drawn in, it is necessary that this world body need to be approached for a final solution to this multifaceted problem. This is because only a large and strong international organization could ensure peace and stability in the region and also, it would be in a position, to have UNO observers to ensure that the parties are following the verdict passed by the UNO and there are no further violations. Therefore, in the present case, it is necessary to approach the UNO, or the International Court of Justice, (ICJ) to seek a mutually acceptable solution to this dilemma. Conclusions: It has been deliberated in this case study that the deciding authority needs to take stock of the entire picture with regard to border disputes and the multiplicity of implications it would bear upon the different players who form part of the issues. In this case study, it is seen that, based upon the fact that during the drafting of the treaty way back in 1976, the right of reservation of action in the event of national emergency could be used to move out military personnel and arsenals into the demilitarised zones to counter, what they termed as aggressive and hostilities directed by Country B towards Country A. But what constitutes national emergency has not been stipulated. Raising a threat for commencement of hostilities and waging a real war are two entirely different aspects and threats of war, are not synonymous to mounting military aggression on Country A. Even if it were, this decision needs to be best decided by the UN observers and not arbitrary decided by Country A. Country C, on the other hand wished to restrain A from using its reservation rights, which it feels is against the aims and objectives of this treaty. The alternatives solutions open to Country C would be in terms of 1. Rescinding the treaty being voidable at the option of the parties, due to coercive tactics employed by UN Security Council in adopting the peace accord 2. Drawing up a fresh treaty in place of the present treaty. 3. Country C withdrawing from Treaty and allowing Country A & B to continue with it. It is mandatory that the counties need to submit to verification and inspection of border assets along their commonly shared international borders in the best interests of peace and security in these areas of the world. They also need to honour the new peace accorded by the international peace bodies and seek healthy dialogue and not military warfare as permanent solutions for their problems. Bibliography Cases. [online]. International Court of Justice. Last accessed 4 August 2008 at: http://www.icj-cij.org/docket/index.php?p1=3 General Assembly adopts UN Convention Against Corruption, Opens Treaty for Signature at High- Level Conference in Merida, Mexico, 9-11 December. (2007). [online]. United Nations Information Service. Last accessed 3 August 2008 at: http://www.unis.unvienna.org/unis/pressrels/2003/ga10199.html Practical Information: Frequently asked Questions. (2008). [online]. International Court of Justice. Last accessed 4 August 2008 at: http://www.icj-cij.org/information/index.php?p1=7&p2=2#2 Situation of Human Rights in Egypt. (2007). [online]. P. 2. Last accessed 14 July 2008 at: http://www.fidh.org/IMG/pdf/note_Egypt_Feb2007.pdf Chapter VI: Pacific Settlement of Disputes. (1945). [online]. UN Documents Cooperation Circles: Gathering a Body of Global Agreements. Last accessed 14 July 2008 at: http://www.un-documents.net/charter.htm Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression. [online]. Last accessed 14 July 2008 at: http://www.un.org/aboutun/charter/chapter7.htm Vienna Convention on the Law of Treaties: Article 52. 1969: Coercion of a State by the threat or use of force. [online]. Last accessed 14 July 2008 at: http://www.law.berkeley.edu/faculty/ddcaron/Documents/Treaties/Vienna%20Convention%20on%20the%20Law%20of%20Treaties.doc WATTS, Arthur. (1999). The International Law Commission, 1949-1998: Final Draft Article. [online]. Oxford University Press. P. 739. Last accessed 14 July 2008 at: http://books.google.co.in/books?id=QmgRDV-cKFIC&pg=PA737&lpg=PA737&dq=A+treaty+is+void+if+its+conclusion+has+been+procured+by+the+threat+or+use+of+force+in+violation+of+the&source=web&ots=dXy7CAwEOP&sig=YGURJBgEvkmtmqWRgKq4swBUbIw&hl=en&sa=X&oi=book_result&resnum=1&ct=result Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America). (1986). International Court of Justice Reports of Judgments. Advisory opinions and orders. [online]. Merits: Military and paramilitary activities (Judge ) P. 19. Last accessed 14 July 2008 at: http://www.icj-cij.org/docket/files/70/6503.pdf Opinion: In the Matter of the Potential use of Aarmed Force by the UK Against Iraq and in the Matter of Reliance for that use of Force on United Nations Security Council Resolution 1441: Legal Background. (2002). [online]. Campaign for Nuclear Disarmament. Last accessed 14 July 2008 at: http://www.cnduk.org/pages/binfo/opinion.html BURROUGHS, John. (2002). The United Nations Charter and the Use of force against Iraq. [online]. Last accessed 14 July 2008 at: http://www.lcnp.org/global/Iraqstatemt.3.pdf Part V- Invalidity, Termination and Suspension of the Operation of Treaties: Section 2: Invalidity of Treaties: Article 52 - Coercion of a State by the Threat or use of Force. (1997). [online]. Lex Mercatoria. Last accessed 14 July 2008 at: http://www.jus.uio.no/lm/un.law.of.treaties.convention.1969/52.html GINSBURG, Tom., and ULEN, Thomas S. Odious Debt, Odious Credit, Economic Development and Democratization. [online]. Law and Contemporary Problems. Last accessed 14 July 2008 at: http://www.law.duke.edu/shell/cite.pl?70+Law+&+Contemp.+Probs.+115+(summer+2007 Part2: Emergency Powers. (2004). [online]. Office of Public Sector Information. P.3. Last accessed 14 July 2008 at: http://www.opsi.gov.uk/acts/acts2004/ukpga_20040036_en_3#pt2-l1g21 PETERS, Anne. (2003). International Dispute Settlement: A Network of Co operational Duties. [online]. European Journal of International Law. Last accessed 14 July 2008 at: http://ejil.oxfordjournals.org/cgi/content/abstract/14/1/1 Vienna Convention on the Law of Treaties: Article 73: Cases of State Succession, State Responsibility and Outbreak of Hostilities. [online]. International Law of Treaties. Last accessed 14 July 2008 at: http://www.walter.gehr.net/wvkengl.html International Law: Treaties. [online]. Last accessed 14 July 2008 at: http://academic.umf.maine.edu/~erb/classes/1law5.htm Vienna Convention on the Law of Treaties 1969. [online]. Last accessed 14 July 2008 at: http://www.worldtradelaw.net/misc/viennaconvention.pdf Read More