Public International Law - Assignment Example

Public International Law Introduction: The territory of Eastern Asterix is not at issue in this scenario, since it has been declared as part of an independent state by the referendum of 1975 and has been recognized by the United Nations as a sovereign state. The major issue that arises is the question of Western Asterix which is a part of the newly constituted independent state of Asterixia. This part of Asterixia refuses to accept the administrative authority of the State of Asterixia and civil conflict ha sbroken out as a result. The major issues that rise in this scenario are (a) Does Western Asterixia have the right to secede from Asterixia and be declared as an independent state on its own, in view of the right to self determination of al peoples? (b) Is the Security Council acting ultra vires and overstepping its authority in declaring that Western Asterixia should be recognized as an independent State? The right to self determination: Self determination has been deemed to be a human right and the rights to self determination of states and peoples has been clearly spelt out in the provisions of (a) the International Covenant on Civil and Political Rights and (b) the International Covenant on Economic, Social and Cultural rights, both of which were framed in 1966. Article 1 common to both these Covenants states as follows: “All peoples have the right of self determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development.” The right to self determination1 of the people of East Timor was also upheld by the International Court of Justice2 as an erga omnes principle, i.e, a statutory enforceable right. In the sphere of international law, the application of the erga omnes principle therefore describes the obligations owed by individual states towards the international community of States as a whole. The Court first spelt out this distinction from the diplomatic obligation owed by one state to another in the Barcelona traction case3 and clarified that the right to self determination is erga omnes and must concern the international community of all states as whole. For example, the obligation placed upon States in matters such as apartheid or violation of basic human rights in any aspect would evoke the erga omnes obligation – prohibition of torture was also deemed to belong under this category of obligation.4 The case of East Timor is especially significant in the context of the civil war raging in Asterixia, because it concerned the question of one state bringing action against another states for erga omnes violations. The important aspect of the common article 1 is that self determination is a collective right, that belongs to a group of “peoples” rather than to individuals. As clarified by Hannum, the history of self determination through the 1960s has largely dealt with the recognition of the rights to self determination of colonized peoples5, so that there was not much attention paid to ethnicity, language or religion and “territory, not nationhood was the determining factor.”6 However, later developments have allowed for secession, as is the current case scenario, where western Asterixia wants to secede from the territory of the newly formed state of Asterixia. The definition of “peoples” as outlined in the charter has shifted from merely colonized peoples to include both populations in non self governing territories, as well as the population of sovereign states7. In the case of Asterixia, the human rights violations that are taking place and the large number of deaths that have taken place within the State indicate that an erga omnes obligation has arisen. However, such violations are occurring not by one state upon another, rather they are occurring internally within the territory of the new state of Asterixia. But in the matter of secession, it has been clearly spelt out that “a people’ may include only a portion of the population of an existing state……… the reference to ‘people’ does not necessarily mean the entirety of a state’s population”.8 As a result, where the right to self determination of a peoples is concerned, it is not strictly necessary, or illegal, for people within a State that has already been constituted to aspire to a separate right to self determination. The newly constituted state of Asterixia that gained its independence from UK qualifies as a person of international law since the “population and territory are as found under the control of an independent Government.”9 It also possesses the four qualifications of a State as spelt out in the Montevido Convention10 which are (a) a permanent territory (b) a defined territory (c) a government and (d) a capacity to enter into relations with other States. As opposed to this, Western Asterixia does not enjoy the status of a State; however it does have the right to secede from the existing state of Asterixia on its right to self determination as a peoples and on territorial grounds11. The GA resolution recognizes a territory as a separate state when it is “geographically separate and is distinct ethnically and/or culturally from the country administering it.”12 Applying this criterion, it may be noted that the territory of Western Asterixia is geographically separate by location and has also been administered separately, therefore it has remained distinct from eastern Asterixia. Moreover, the results of the referendum as examined separately for Western and eastern Asterixia show that it is the eastern part that wanted its own State, while the Western part wanted to remain under the territorial umbrella of the UK, thereby providing an indication that from a cultural perspective, the peoples of the two areas have different aspirations and goals for themselves, thereby giving rise to a cause for self determination of Western Asterixia. The OSCE Helsinki Final Act has clearly laid out that by virtue of the right to self determination which must be granted to all peoples, they can determine “their internal and external political status” therefore their right to secede is clearly established.13 Political status is clearly linked to the recognition of western Asterixia as a distinct sovereign entity. Before the recognition of Asterixia as a sovereign state, the eastern and western parts of Asterixia were administered separately with each having its own Governor and therefore to some extent, have enjoyed territorial sovereignty, despite being administered by the external authority of Britain. They are also culturally separate and distinct in their political goals. Therefore, the refusal of the authorities of Western Asterixia to accept the administrative authority of Eastern Asterixia can be seen to represent the will of the people of Western Asterixia, especially since there has been a civil war/conflict situation that has broken out within the territory of Asterixia pursuant to the decision. There are two aspects that rise in conflict to western Asterixia’s right to secede and administer itself as a separate political state. The first is the territorial integrity of Asterixia as recognized by the UN declaration of Asterixia as a State. As per the GA resolution14, activities that would “dismember or impair...the territorial integrity or political unity of sovereign and independent States…” would not be authorized. However, there is also a qualification to this requirement and this is, the state should be conducting itself in a manner that upholds the right of self determination of the peoples. Is the State of Asterixia mindful of the right to self determination of Western Asterixia? The indications are that it is not, since it is trying to force its administrative authority on western Asterixia and also refuses to accept the Security Council mandate on the sovereignty of Western Asterixia. The territorial integrity of the State of Asterixia can therefore be preserved only if it “respects the principles of self determination in its own internal arrangements”15 and this is one aspect that can be contested. As a result, question of territorial integrity appears debatable. Another issue that arises in this context is the impact that the claim for self determination can have on human rights. Hannum discusses this in the context of Kosovo’s claim for independence from Albania16. He points out that there is one obvious danger wherever claims of self determination arise – there is a resultant and sometimes destructive confusion in political goals, human rights issues and humanitarian norms which present scenarios that are complex and difficult to solve. Petrov argues that recommendations on the future status of Kosovo as an independent state should be made on the basis of a formula of “status with standards”17 He also contends that allowing political independence for Kosovo violates two major principles of international law (a) inviolability of state borders and (b) the territorial integrity of the states of the European Union. Politically, the UK has declared that it no longer administers the territory of Asterixia. Therefore he concludes that there can be additional autonomy granted to the people of Kosovo, however this should not extend to complete independence of the territory, since it would be in violation of the European territorial integrity of States. In the context of Asterixia, there can be a similar argument extended against the granting of sovereign status to Western Asterixia, especially in view of the fact that sovereignty as a State has been granted to it by the United Nations, and there would be a violation of the territorial integrity of the State of Asterixia if the sovereignty of the western part is recognized, which would be akin to a declaration of independence. However, there is an important distinction that must be made in the application of the example of Kosovo to the question of Asterixia. This is in the period of formation of the State. As opposed to Kosovo that is claiming independence within Albania that has been an established European State for a long time, the establishment of the state of Asterixia has been contested right from the beginning, from the time the United Nations declared it as a separate State, hence its territorial integrity has been in question right from the beginning. The people of Western Asterixia have not accepted the administration of the Government of Asterixia but have contested it since its inception, therefore there is a good likelihood that the argument about territorial sovereignty of Asterixia may not hold good in this case. On an overall basis therefore, it appears that this scenario raises the prospect of the legitimate right to self determination of the people of West Asterixia and the fact that it may not be deemed to violate the territorial integrity of the state of Asterixia, since the authority of the Government of Asterixia has been in question right from the beginning. The authority of the Security Council: The second major aspect that arises in connection with this scenario is whether or not the recognition by the Security Council of Western Asterixia as an independent and sovereign state is valid. The question is how much power the Security Council can be ascribed to have in this conflict and whether or not the right to self determination of the newly constituted Asterixia have been violated. According to Herbst, the Security Council is bound by general international law18 and the UN Charter. The Security Council has been accorded a broad mandate under the UN Charter, in ensuring that international peace and security are maintained. Chapter VI of the Charter enables it to make recommendations for the peaceful settlement of international disputes; however Chapter VII also authorizes the Security Council to make binding decisions in connection with an international dispute19. MacPherson points out that under Article 24(2) of the UN Charter, the authority of the Security Council is not unrestricted; it is expected to adhere to the principles of the UN, which include maintaining international peace and order and ensuring that international treaties and international law are complied with. However, on an overall basis, member states are indeed obliged to comply with the decisions taken by the Security Council under Chapter VII of the UN Charter. In the case of Asterixia, the decision that the Security Council has taken in order to recognize Western Asterix as a separate and sovereign state in the interest of international peace and order is therefore likely to stand, since it is in accordance with the goals and principles of the United Nations, which is to ensure international peace and order. Sometimes, a deviation from the intention that underlies the framing of the Charter may be valid in the interest of preservation of law and order, if it can be classified as an imaginative form of adapting to the needs of the day, however when the Security Council steps too far out of the provisions of the Charter, it could be regarded as a move that oversteps the bounds of legality and is therefore an ultra vires act.20 In the context of the violence and conflicts that have erupted in Asterixia, the Security Council has to act in a manner that can preserve the intention of the Charter to maintain peace and order. Since the source of conflict is the desire of the people of Western Asterixia to self determination and freedom from the rule of the Government of Asterixia, therefore the decision taken by the Security Council appears to be well within the parameters of the control that has been allowed to it. Article 39 of the UN Charter would be relevant in the context of the conflict between the two regions in Asterixia and this Article authorizes the Security Council to make such recommendations as it deems necessary in the interest of peace21. Furthermore, Article 40 also allows the Security Council the right to call upon the parties concerned to arrive at a peaceful resolution of the conflict. However, in this instance, since Western Asterixia refuses to recognize the authority of the Government of Asterixia, there appears to be little room for mediating an agreement between the parties. Under Article 25 of the Charter, the Security Council is also authorized to use force, and may also enlist the assistance of regional organizations in carrying out its objectives, as stated in Section 53(1): “The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority.” In the case of the war in Iraq, the Security Council has resorted to the use of force, but this has forever changed the manner in which the Security Council operates and has unleashed the latent powers of this body in an international crisis22. In view of the fact that the conflict in Asterixia has already caused 6000 deaths, there is a crisis of peace and order which the Security Council has a duty to resolve. While the war on Iraq has legitimized the use of force by the Security Council, however in this instance, the choice of passing resolution SC 3000 appears well founded. The Security Council could, in certain instances, be found to be guilty of overstepping its limits. For example, Wheatley discusses the process of political transition that has taken place in Iraq and concludes that the Security Council resolutions that were passed Iraq, purportedly to maintain order and peace, violated the rights of the Iraqi people to self determination.23 In a similar manner, this is one of the strongest arguments that the State of Asterixia can raise against the resolution SC 3000 passed by the Council, which authorizes independence for western Asterixia and thereby undermines the sovereignty and right to self determination of the people of the state. However, as pointed out above, there is undoubtedly resistance from the people of Western Asterixia to the rule of the Government and since Western Asterixia is a distinct geographical area, which has also been governed separately before the period of independence, the legitimacy of the authority of the Government is questionable. Moreover, since the administrative authorities of western Asterixia have resisted the Government ever since UK released the territory, the will of the people does not appear to be in favor of unity with eastern Asterixia. Ultimately, it is the right to self determination of the people which must be balanced with human rights issues. Therefore, in order to prevent more violence and bloodshed, the peaceful mode of resolution adopted by the Security Council may be valid under the principles of international law and the goals of the charter. Conclusions: On the basis of the above, it must be concluded that the territory of Western Asterixia may have a right to secede from the state of Asterixia, despite the referendum and the ascribing of the status of a territorial state to Asterixia. The grounds for such secession are the rights to self determination of the group of peoples who live in the territorial boundaries of Western Asterixia. In considering the confusion between political goals, human rights and self determination, the important aspect that must be kept in mind is the crisis like situation that prevails in the state of Asterixia and the need to put an end to the violence prevailing there. Since the cause of the violence is the refusal of the people of the Western region to submit to the Government of Asterixia, their right to self determination must be honored to prevent more human rights violations. On these grounds, the resolution passed by the Security Council may also be a valid one, since it is a peaceful option as opposed to the use of force which may be mandated when the parties cannot reach an amicable situation. The UN Charter authorizes the Council to adopt creative measures where necessary in the interest of maintaining order, therefore the challenge to the authority of the Council which is posed by Asterixia is unlikely to stand. Asterixia itself does not have a seat on the Council and therefore no veto powers and there is inadequate evidence to back up the claim that the Security Council has acted beyond its authorization, since the UN Charter does authorize the Council to make recommendations and take action as necessary to bring about international peace and order. Since no force has been used and the right to self determination of the people of Western Asterixia has been upheld, the Resolution SC 3000 is likely to stand. Bibliography Articles/Books: * Brilmayer, Lea 1991. “Secession and self-determination: a territorial interpretation” 16 Yale Journal of International Law 177 * Chapter VII of the U.N. Charter [online] available at: http://www.un.org/aboutun/charter/chapter7.htm * GA Res. 1541 (XV), adopted 15 December 1960, ‘Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73e of the Charter’ * GA Res. 2625 (XXV), ‘Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations’, adopted October 24, 1970 * Hannum, Hurst, 1998. “Right of Self determination in the twenty first century.” Washington and Lee Law Review. * Hannum, Hurst, 1998, “Whose Rights in Kosovo, and Just What Rights? It is Unclear What is Being Demanded of Serbia” Boston Globe, Apr. 1998, at D2. * Hurst Hannum, 1990. “Autonomy, Sovereignty, and Self-Determination” PA: University of Pennsylvania Press at pp 36: * Herbst, Jochen, 1999. “Rechtskontrolle des UN-Sicherheitsrates”. Frankfurt: Peter Lang, at pp. 449. DM 128 * MacPherson, Bryan, 2002. “Authority of the Security Council to exempt peacekeepers from International criminal Court proceedings.” American Society of International law, July 2002. [online] available at: http://www.asil.org/insights/insigh89.htm * OSCE Helsinki Final Act: Principle VIII, Final Act of the Conference on Security and Co-operation in Europe (1975) 14 ILM 1292 * Principle VIII, Final Act of the Conference on Security and Co-operation in Europe (1975) 14 ILM 1292 * Petrov, Vladimir, 2006. “Independnece for Kosovo or a domino effect?” International Affairs,52(3): 76-85 * Quane, H, 1998. “The United Nations and the Evolving Right to Self-Determination”. 47 ICLQ 537 at 571 * Reference re Secession of Quebec [1998] 2 SCR 217, para. 130 * [1998] 2 S.C.R. Reference re Secession of Quebec 217 atpara. 124 * Roth, Brad, 2000.”Governmental Illegitimacy in International Law” Oxford University Press: 130. * Sarooshi, Danesh, 1991. The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers. Oxford: Clarendon Press at xi * Wheatley, Steven, 2006. “The Security Council, democratic legitimacy and regime change in Iraq” 17(3) European Journal of International Law: 531. * Yoo, John, 2003 ‘International Law and the War in Iraq’, 97 American Journal of International Law : 563 Cases: * Case Concerning East Timor (Portugal –v- Australia) ICJ Rep 1995 90, at para. 29. * Belgium v Spain ICJ rep 1970 at 32 * Prosecutor v Anto Furundzija (1998) decision of 10 December at para 151 Read More