National Integrity, Sovereignty, UNSC Resolution, Self Determination, Humanitarian, and Self-Defence - Essay Example

Introduction This paper applies elements of international law to the case of two sovereign nations (Goumi and Keule) that are in a conflict over a disputed region (Boquila). Boquila was incorporated into Goumi as a territory after a treaty signed in 1957. However, a secession uprising by the people of Boquila has caused Keula to intervene in the matter. This has led to widespread military aggression which has caused numerous violent and fatal clashes and disturbances in the region. A matter of this magnitude is beyond the legal systems of either nations since it involves two sovereign nations contesting over a region that is potentially distinct from both countries. This paper therefore utilises fundamental concepts in International Law to examine the facts of the case and draw conclusions on the actions taken by both nations. This paper aims at resolving the conflict through international law and how these legal principles can be applied to resolve the conflict in the Goumi-Kuele war in relation to Boquila. In arriving at this end, the following objectives will be met: 1. Examination of the rights to self determination amongst the people of Boquila. 2. An assessment of the use of force in Boquila and 3. Evaluation of the occupation of Goumi territory by Kuele forces. A SELF DETERMINATION & THE PEOPLE OF BOQUILA Issue From the case, Boquila is a province in Goumi and this has been recognized since 1957 when Goumi acquired control of the territory after a Peace Treaty with Keule. The people of Boquila are ethnically Keulan and Christian. This means that Boquilans are religiously, socially and historically different from other citizens of of Goumi who are predominantly Hindu. The people of Boquila are known to be aspiring for an independent State. This has been the basis for the current disturbances under review. Based on these facts, the issue under discussion is whether the people of Boquila have the right to self determination or not. Rules of Self Determination Under International Law The UN General Assembly Resolution 1514 issued on 14th December 1960 stated amongst other things that: 1. “Subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation”. 2. A group of distinct people have a right to self determination. This means that a people have the right to choose the most ideal way of attaining economic, social and cultural development. 3. It is not allowed for a foreign government ruling a particular group of people to use the excuse that the people are not prepared economically, politically and socially for self governance. 4. Any form of armed repression or suppression of calls for independence by a people dominated by a foreign government is illegal and the integrity of their national territory must be recognized. Thus, power must be granted to the people through peaceful means. 5. … 6. “Any attempt aimed at partial or total disruption of the national unity and territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.” These major pointers are fundamental elements of international law. And these laws define and grant legitimacy to nations and states. The first article of this Resolution indicates that it is illegal for a group of people to be subjected to a government that is foreign. This implies that every group of people who are distinct need to be grouped and governed in a state that they choose. This means that it is illegal for a group of to live under a government that is alien to the majority of people. Also, in a case where a people live under a foreign government, there is a contravention of the UN Charter on Human Rights which is a fundamental law of the United Nations. This UN Charter on Human Rights supersedes all national constitutions. Secondly, a group of people who are distinct from the government and are a significant population group in a nation should be granted the right to self determination. In the broader context, self determination means that a group of people have the right to decide which legal, political and governmental structure they would want to cede their allegiance to. In the narrow sense, self determination means deciding whether a group of people will want to have a government that is run by their own people or live under a foreign government. In the event where a people decide to be ruled by their own and draft their own constitution, a ruling government judged to be foreign will NOT have the right to use force to suppress the people. The ruling foreign government will have to respect the decision and preferences of the people in question and grant them independence and respect their national and territorial sovereignty. However, Section 6 of Resolution 1514 provides a clog and a limitation to this. It states that any attempt to use this law as a sword rather than a shield is illegal. In other words, any group that rises within a nation and claim the right to self determination for the purpose of disrupting national unity is illegal. This Resolution therefore comes with some elements of ambiguity. This is because granting the right of self defence to dominant groups and at the same time denying uprisings seem to present some kind of contradiction. This contradiction makes it difficult for the law to be applied in any nation where there are two or more distinct groups of people. A question therefore arises as to the meaning of the word people in the resolution. The UN Covenant on Civil & Political Rights Article 1 states that people can freely decide their political status and pursue their economic, social and cultural goals and manage and control their own resources (Joseph et al, 2005). This again uses the word people in a vague context. This shows that there is an unclear nature or interpretation of who a people are. It therefore indicates that the definition of people can be relative and can be explored in several different contexts. India vetoed against this article in 1992 by saying that “with reference to Article 1 of the International Covenant on Civil & Political Rights, the Government of the Republic of India declares that the words “the right of self determination” appearing in that article applies only to peoples under foreign domination and that those words do not apply to sovereign independent states or to a section of a people or nation – which is the essence of national integrity” (UN DOC CCPR/C/2/Rev.3, 12 May 1992 p18) (Mullerson, 1994). France, Germany and Netherlands objected to this claim by India. In other words, India was arguing that in a sovereign independent nation where there are different ethnic and cultural groups, the concept of self determination cannot be applied. Rather, in such a nation, the definition of the right to self determination must relate to a situation where there is a foreign domination led by a group that originates from a faraway country. It can be reasonably inferred that the Government of India was arguing that a ruling government is foreign if it is made up of people from a different continent. This will therefore mean that nations that independent nations are of made up of significantly different people will have to stick together and live together if they share similar geographical origins, common continental histories or perhaps the same racial features. The position of India is one that many European governments rose against. This is because the position of defining foreign based on the Indian idea is potentially racist. This makes the Indian definition of people a bit problematic. To support the Indian position, UN Secretary General, Boutros-Boutros Ghali stated that “any adventurist venture in any country could be defended with the right to self determination and this could mean increasing the UN membership by a factor of 2 or 3” (Fawcett & Newcombe, 1995). This therefore draws ones attention to a significant portion of the Indian argument – the essence of national integrity and national integration. “National integration means the reduction of socio-economic differences or inequalities and strengthening national unity and solidarity in a context where national identity is supreme and supports cultural unity” (Ali & Rehman, 2001). In other words, the idea of self determination can be problematic in some countries with multiple ethnic, cultural and social identities like India, Nigeria and Congo. These nations are made up of hundreds of distinct groups that were unified by colonialism and are now represented in the United Nations along lines defined by the former colonial powers. It is therefore important for the idea of national integration to be placed over and above the concept of self determination in such situations. Application of Laws to the People of Boquila. In this case, the people of Boquila are ethnically and religiously different from the people of Goumi who rule and govern the nation. Being religiously different, comes with a lot of implications for the two nations. Clearly, Christians and Hindus have very different and distinct cultures, social systems and philosophical tendencies and inclinations. This means that Goumis and Boquilans are distinct groups that have different ideas of nationality, religious observances, social values, holidays and various distinct ideas and conceptions about significant elements of life. Also, the ethnic differences between the people of Boquila and Goumi means that they have distinct historical, tribal/or racial features that separates them. Also, both nations speak different languages. As a federal state, it appears that the people of Boquila are a significantly different minority in the state of Goumi. And thus, the events of the Peace Treaty, which occurred over 50 years ago might not be sufficient to keep them as a part of Goumi. Based on the cultural and ethnic distinctiveness of the people of Boquila, they can be classified as a people and hence they can claim the right to self determination. This is because they share very little in common with the majority of people in Goumi. Therefore, under Section 1 of UN Resolution 1514, they have an inherent and inalienable right to break away from the administration of the government of Goumi. Section 2 of the Resolution also allow the people of Boquila to exercise their right to self determination. And hence, they can decide whether they want to remain as part of Goumi or take up another alternative form of government such as self governance or even join the nation of Keule. Section 3 and 4 of Resolution 1514 places a limitation on Goumi in any attempts to prevent the people of Boquila from exercising their right to self determination. Hence, the government of Goumi has to step aside and allow the people of Boquila to decide their future. However, the invocation of Section 6 of the Resolution brings some elements of confusion and potential conflict. This is because the Section means that it is illegal for groups to take up actions that disrupts a sovereign nation. This therefore means that excessive use of force by the people of Boquila to assert their right to self determination could be potentially illegal in international law. This conflict can best be resolved with the specifics of the situation on the ground. If the government of Goumi has taken reasonable steps to ensure the national integration of the people of Boquila, then Section 6 can be invoked. However, from the fact that the constitution states that the people of Goumi are a Hindu nation, it can be said that the people of Boquila are significantly excluded from the nation. Conclusion. It is therefore conclusive that the people of Boquila are distinct from the people of Goumi based on their ethnic, cultural, lingual, historic and legal differences. This therefore means that the people of Boquila have the right to self determination and they should be allowed to decide whether they will want to remain a part of Goumi or an independent nation or join neighbouring Keule. Goumi is weakened in demanding that the people of Boquila remain a part of their nation because there is significant evidence that the people of Boquila are not represented in the legal system of Goumi through sufficient efforts to enhance national integration. B THE USE OF FORCE IN BOQUILA Issue The people of Boquila seem to have been suppressed as a minority in Goumi. The Goumi constitution does not recognize their values and they are excluded in elections and the world has called for some more equality and inclusion of Boquilans in Goumi. The people of Boquila have shown significant evidence in unofficial polls that they want to have an independence state. A dominant movement has been formed in Boquila to seek the independence of Boquila. In reaction to the calls for independence, Goumi government forces have entered Boquila and massacred numerous Boquilans and left a humanitarian crisis in the region. Many refugees have entered neighbouring Keule and now the Boquila independence movement is demanding more support (including military support) to gain its independence. The issue here is about the legitimacy of the use of force by the government of Goumi in their efforts to suppress the secessionist uprising in Boquila. The Position of International Law As identified in Section 4 of UN Resolution 1514: “All armed action or repressive measures of all kinds directed against dependent people shall cease in order to enable them to exercise peaceful and freely, their right to complete independence and the integrity of their national territory shall be respected.” This law implies that it is not right for any nation to use force against a distinct group of people who live within its territory who demand the right to self determination. This therefore shows that any nation that uses force against a secessionist movement in its territory might be in contravention with some of the most fundamental international laws. Rather than using force to suppress a different people in the border of ones country, Chapter XI of the UN Charter for Non-Self Governing Territories mandates that: “Members of the UN who assume responsibility for the administration of territories whose people have not yet attained a full measure of self government recognize the principle that the interests of the inhabitant of those territories are paramount.... they need to: a. Ensure, with due respect for the culture of the people concerned, their political, economic, social and educational advances, their just treatment and their protection against abuses. b. Develop self government c. Further international peace and security” This therefore shows that aside the need to refrain from the use of force, nations that control territories that are not hegemonous with the dominant social structures of the nation will have to ensure that reasonable steps are taken to protect and help the people to build a form of self governance. Application to the Boquila Situation. In the case at hand, it is clear that the massacre that came with the suppression of the BNLF is illegal under international law. The use of force by Goumi to suppress the Bouquilan call for independence is not right. Rather, if there was any form of involvement of the Goumi military forces in this case, it should have been to protect the people of Boquila and not to kill them. It is conclusive that the massacre is illegal and is a denial of the inherent right to self determination that the people of Boquila are entitled to. C. OCCUPATION OF GOUMI BY KEULE FORCEs Issue The use of force by Goumi forces have been rightly condemned by the UN Resolution 5313. However, as a sovereign nation, Goumi forces had the primary responsibility of protecting its national space and this is backed by international law. It is therefore important to examine the possible defences that Goumi forces had in international law to justify the military action. Also, the call up to Keule forces to enter Boquila which is still Goumi territory as a form of defence for the Boquila people has some connotations under international law. Rules As identified earlier, Chapter XI of the UN Charter requires nations governing a people who have the right to self determination have the responsibility of protecting the people and safeguard their rights. Secondly, Resolution 1514 (4) makes it illegal for nations to use force against groups that lay claim to self determination. However, UN Resolution 2625 (XXV) on international law on friendly relations and cooperation among nations state that: 1. “The principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state....” 2. Nations must resolve their differences in a peaceful manner. 3. The right to self determination and equal rights must be respected. This shows that nations should not use force against other nations and must try to use dialogue and other peaceful means to settle disputes. Also, nations will have to respect other peoples rights to self determination and should not use force against such people. Exceptions however come up with this sovereignty law. Chapter VII of the UN Charter indicate that there might be the need to use force to intervene in a sovereign nation where there are breaches of human rights. Articles 41 and 42 of the Chapter states that the UN Security Council might decide to take measures to deploy the military of member nations in situations where the need arises. This is usually necessary in a case where humanitarian intervention is necessary. Humanitarian intervention is defined as “a state using military force against another state when the chief publicly declared aim of the military action is ending human rights violations being perpetrated by the state against which it is directed” (Marjanovic, 2011). This therefore shows that although nations are prevented from invading other nations unlawfully, there are some exceptions where nations can be allowed to intervene militarily in other nations. However, Chapter VII of the UN Security Council states that “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”. This implies that a nation can take reasonable steps to defend its territory if it is attacked by another state. Application Clearly, the declaration of independence by Boquila is a unilateral venture and it goes against the territorial sovereignty of Goumi. As a Member of the United Nations, Goumi has the right to defend its national territory. With the history of massacre in the region, it could be logical to infer that the crackdown that would follow could lead to a humanitarian crises. This therefore requires the United Nations to act quickly and come up with another resolution that will avert a humanitarian crisis. However, without any intervention, Boquila decided to act in self-defence by calling upon Keule to act to avert a bloodshed. Keule was therefore right under Articles 41 and 42 to avert a humanitarian crises. Although this action of Keule is deficient of a formal UN Security Council backing, it could be permitted by Article 43 to come up with such an action to defend a neighbouring land from a humanitarian problem. It will be expected that the UN will intervene early enough to take over from where Keule has gotten to. However, the expansion of Keule troops into deeper sections of Goumi under the pretext of defending Boquila is a potential source of provocation and Goumi could act militarily to protect its territorial sovereignty. References Ali Shaheen Sardar & Rehman Jawaid (2001) Indigeneous People and Ethnic Minorities in Pakistan London: Routledge, Taylor & Francis Group Crawford James (2006) The Creation of States in International Law Oxford: Oxford University Press Evans, Malcolm D (2010) International Law Oxford: Oxford University Press Fawcett Eric & Newcombe Hanna (1995) UN Reform: Looking Ahead After 50 Years Dundurn Press Ltd. Joseph Sarah, Shultz Jenny & Castan Melissa (2005) The International Covenant on Civil & Political Rights: Cases, Materials & Commentary Oxford: Oxford University Press. Marjonovic Marko (2011) Is Humanitarian War the Exception Mises Institute. Mullerson Robert (1994) International Law, Rights & Politics. London: Routledge, Taylor & Francis Group. Shaw Malcolm (2008) International Law Cambridge Cambridge University Press UN Charter Chapter XI (1945) Charter of the United Nations: Chapter XI: Declaration Regarding Non-Self Governing Territories Available online at: http://www.un.org/en/documents/charter/chapter11.shtml Accessed: 13th December, 2011. UN Charter Chapter VII (1945) Charter of the United Nations Chapter VII: Action With Respect to Threats to the Peace, Breaches of the Peace & Acts of Aggression Available online at: http://www.un.org/en/documents/charter/chapter7.shtml Accessed: 13th December, 2011. UN General Assembly Resolution 1514 (1960) Declaration on the Granting of Independence to Colonial Countries Available online at: http://www2.ohchr.org/english/law/independence.htm Accessed 13th December, 2011 UN General Assembly Resolution 2625 (1970) General Assembly Resolutions 25th Session Available online at: http://daccess-ods.un.org/access.nsf/Get?Open&DS=A/RES/2625(XXV)&Lang=E&Area=RESOLUTION Accessed: 13th December, 2011. Read More