The Use of Military Force by Yudonia and Zackstralia - Essay Example

Assignment Supervisor Lilliput, Yudonia and Zackstralia: Evaluate the international law issues in the scenario, payingparticular attention to the use of military force by Yudonia and Zackstralia. ‘It is clear that “a people” may include only a portion of the population of an existing state.”1 The view that, within a recognized state, a group of people may want to identify themselves as a defined, independent nation is acknowledged in international law. At the same time, the United Nations Organisation (UNO) has declared that the territorial integrity or political unity of sovereign, independent states is to be protected, if a government represents the whole people belonging to a geographic area without distinction as to race, creed or colour.2 Lilliput, within the federal state of Yudonia, is a province in which the population is distinct from the majority population. Lilliputians, since their first overt assertion of independence five years earlier, had been operating as a constitutional democracy within Yudonia, without interference from the Yudonian federal government. This self-determination may have continued indefinitely but on 1 January this year, Lilliput’s elected assembly unilaterally declared independence and applied for membership of the UNO. 1 SC Res. 217 (1998) Ref: Secession of Quebec, para. 124 2 UNO Declaration Friendly Relations in Shaw, ‘International Law’ (2008) 6th Edition, Chapters 20 and 22 Cambridge: Cambridge University Press and Brown-John, ‘Self-Determination and Separation’ in Options Politiques (Septembere 1997) at 40-43 When a people are prevented from the exercise of self-determination, internal to a state, that people’s right to secede is recognised in international law, to some degree.1 Lilliput was, at the time, self-determining, in contrast to the period before the uprising, when Yudonia’s theocratic constitution had prevented Lillitputians even from voting, due to their religious and ethnic difference (writer’s italics). But the attempt by Lilliput to gain international recognition as a state prompted a Yudonian invasion of the province, and, once, again, the Yudonian state controlled Lilliput. While Lilliput may have had common racial and ethnic identity, a common religious affinity and a defined territorial connection,2 the province may have been considered to be threatening the sovereignty of Yudonia by seceding. Further, GA Resolution 1541 (XV) declares that a minority who are distinct culturally and ethnically may have a right to secede: only, however, if there is clear constitutional denial of political, constitutional, cultural and religious rights.3 Within Yudonia, Lilliput had, for five years, been governing itself, free of interference from the federal government. Subsequent actions by Yudonia – military invasion and serious widespread human rights abuses in the province – cannot be justified, either, though. In the International Court of Justice case, Katangese Peoples’ Congress v. Zaire, the decision held that the territorial integrity of a state can be called into question as a result of serious human rights violations and the denial of a people’s right to political participation in their own state. A similarity can, too, be found in the Kosovo case, where NATO intervened in 19994 Kosovo also became a UNO governed territory. When Kosovo unilaterally declared its independence from the Serbian Government on 17 February 2008, the international community, particularly the USA and Western European States, chose to recognise the 1 SC Res. 217 (1998) Ref. Secession of Quebec 2 According to UNESCO experts, these are legitimate characteristics whereby a group are able to define themselves as ‘a people’. 3 Brown-John, ‘Self-Determination and Separation’ in Options Politiques (Septembere 1997) at 40-43 4 SC Res. 1244 (1999) and Article 6, NATO (1949) in Akehurst, ‘Custom as a Source of International Law’ in British Yearbook of International Law (1976) at 1-53, Oxford: Oxford University Press independence of Kosovo.1 This may not always be the case, however. Lilliput, for five years at least, had been part of a federal state, in which its diverse ethnicity and religion was not at all constrained. While their rights to self-determination were not protected under law in the Yudonian constitution, the province had acted without restriction or interference from the central theocracy. It was only the declaration of independence that prompted the federal government’s response. The 1989 UNESCO Meeting of Experts on the Concept of the Rights of Peoples concluded that no automatic right to secession exists – states do not encourage the breakup of other states.2 Lilliput might find it difficult to argue, after five years of contrary evidence, that their rights were consistently being violated. Zackstralia, a neighbouring state of Yudonia, came to the rescue (writer’s italics) of Lilliput, by moving troops into the province and removing the Yudonian troops. Lilliput, in effect, had become an independent state, operating under the military protection of their neighbour. Justification for this secondary act of invasion may have been possible under the international rule represented by Article 2(4) of the UNO Charter protecting human rights. But the justification Zackstralia claimed, based on a General Assembly resolution, requires some examination.3 In reality, the protection the UNO gave Kosovo, through NATO, mentioned previously, and may have set a precedent whereby external forces may consider their occupation of a state as legal in order to protect (writer’s italics) or to defend human rights. But a General Assembly resolution does not represent an international law.4 Rather, the International Court of Justice has commented that moral considerations, not set 1 GA Res. 63/3 (8 October 2008) 2 Brown-John, ‘Self-Determination and Separation’ in Options Politiques (Septembere 1997) at 40-43 3 and 4 Sloan, ‘General Assembly Decisions Revisited’ in British Yearbook of International Law (1982) at 39-150, Oxford: Oxford University Press into law, cannot be considered even customary international law: Throughout this case (the South West Africa case) it has been suggested ... that humanitarian considerations are sufficient in themselves to generate legal rights and obligations ... the Court does not think so. It is a court of laws, and can take account of moral principles only in so far as these are given a sufficient expression in legal form.1 Lilliput may even have consented to the occupation, but Yudonia, whose territorial sovereignty Zackstralia has threatened, has not. An important stated purpose of the UNO, and of international law generally, is to prevent war. The UNO Charter, Article 1, and further, Article 2(4), explicitly state the intention to prevent breaches of the peace and acts of aggression among nations. This intention, in practice, is subject to exceptions when justifications for aggressive responses exist. Is Zackstralia able to effectively justify its aggression towards Yudonia? The Declaration of Inadmissibility of Intervention in the Domestic Affairs of State,2 and the Declaration of the Principles of International Law,3 confirm the territorial integrity of states. Hence, the military action on the soil of Yudonia by Zackstralia is a violation. Similarly, Yudonia’s internal affairs could be seen as untouchable by any external state and Lilliput’s request to join the UNO could be argued as ‘premature recognition’, while the principle of uti possideti juris insists that boundaries are what they were at independence.4 The Security Council of the UNO has, nonetheless, voted in favour of military occupation, on 1 ICJ Reports (1966) 3, 34 2 GA Res. 2131 (XX) (1965) in Gray, ‘International Law and the Use of Force’ (2008) 3rd Edition, Oxford: Oxford University Press 3 GA Res. 2625 (XXV) 1970 in Gray, ‘International Law and the Use of Force’ (2008) 3rd Edition, Oxford: Oxford University Press 4 Brown-John, ‘Self-Determination and Separation’ in Options Politiques (Septembere 1997) at 40-43 occasion. Perhaps, again, a precedent exists, and Security Council approval of Zackstralia’s actions could be implied, in light of previous decisions by the Security Council, for example, SC Res. 545, relating to South African military intervention in Angola in the 1970s and 80s; or SC Res. 332, relating to Israeli intervention in Lebanon.1 Unfortunately, though, Article 51 of the UNO Charter guarantees a state’s right to proportionate self-defence reactions, which would, in effect, condone the potential, retributive action by Yudonia: their stated intention to militarily re-establish control in Lilliput by expelling Zackstralian troops. Although a Security Council resolution (fictitious) has been passed to prevent Yudonia from any military retributive action against Zackstralia, the question remains whether Yudonia will adhere to this ruling. Their stated intention, again, is to withdraw from the UNO. Even if they do not do so, aspects of Article 51 are difficult to apply, according to Greig.2 It is difficult, if not impossible for the Security Council to act, even after measures taken in self-defence are ‘... immediately reported ...’ Again, according to Greig, the International Court of Justice has not made clear the conditions under which collective self-defence is permissible: should a state, firstly, be required to declare that it has been attached, and, secondly, should the responding state receive a request from the victim state for assistance, in order to justify protective action? Zackstralia’s responses would have to be measured against these criteria. This brings into sharp focus the difficulties inherent to ensuring that states adhere to international law. Perhaps the only way to ensure that a state does comply with commonly accepted rules is through pressure from the international community.3 1 Brownlie, ‘Principles in Public International Law’ (2008) 7th Edition, Chapter 33 Oxford: Oxford University Press 2 Greig, ‘Self-defence and the Security Council: what does Article 51 require?’in International & Comparative Law Quarterly (1991) at 17 3 Charney, ‘The Persistent Objector Rule in Public International Law’ in British Yearbook of International Law (1986) at 1-24, Oxford: Oxford University Press While it may be desirable that states do consent to international laws, in reality it is necessary to apply such laws with or without tacit, or explicit, consent of nations. The International Court of Justice had: ‘... numerous occasions to apply customary international law, and yet nowhere has it held ... that the defendant state must have consented to the rule in question in order to be bound by it.’1 Much in this scenario would be dependent on the perceptions of Yudonia’s actions, particularly by the superpowers, notably by those with veto powers in the Security Council, and the international community, generally. International law, after all, ‘... (cannot) be distinguished from international politics by virtue of being more objective.’2 The resolution by the Security Council, for example, on the Osirik Nuclear Plant,3 agrees that the Charter of the UNO was violated. But the superpowers affected ensured that the resolution only involved acknowledgement of the violation, not the apportioning of blame. At the same time, the Security Council has invoked the right of self-defence in the international war on perceived (writer’s italics) terrorism.4 It is likely, given the reasonably ‘fair and constitutional democracy’5 within the potential state of Lilliput, that the international community would support Zackstralia’s actions over those of Yudonia. Security Council Resolution 743 (21 February 1992), for example, allowed a peacekeeping force to be set up in Croatia, and for it to operate with the consent of the newly formed Croatian government.6 Lilliput, it is presumed, would welcome a UNO-sanctioned occupational force as they appear 1 Akehurst, ‘Custom as a Source of International Law’ in British Yearbook of International Law (1976) at 1-53, Oxford: Oxford University Press 2 Koshkenniemi, from ‘Apology to Utopia: The Structure of International Legal Argument’ (1989) Helsinki: Finnish Lawyers’ Publishing Company 3 SC Res. 487 (1981) 4 SC Res. 1368 (2001) 5 Question Scenario 6 ‘Recognition of States: Part Two’ in International & Comparative Law Quarterly (1993) at 2 to have welcomed the Zackstralians. The UNO Security Council has also, in recent years, passed resolutions which, it is hoped, will establish peaceful, democratic states to replace older regimes. Human rights have become a focus and undemocratic forms of government largely rejected. In the enactment by the USA of ‘Operation Iraqi Freedom’, for example, the action was made legal when use of force was authorized by the Security Council, already in 1991.1 Internationally, ‘rogue’ states have been identified by selected superpowers, and destined for so-called regime-change. It is, indeed, becoming more evident that world politics and hence international law is dominated by those nations powerful enough to enforce law. To a significant degree, the UNO and ICJ depend on these states for the implementation of their resolutions or the enforcement of their laws. Yudonia might, therefore, have no choice but to eventually give in and accept the independence of Lilliput. Before that, though, a long-term border skirmish may be sparked, with Zackstralia involved. Certainly, Yudonia would in the long term face regime-change, as current world politics would not countenance a theocracy involved in human rights abuses for long. 1 SC Res. 678 (1991) Read More