International Law and Global Justice - Problem Question

PROBLEM SCENARIO

1. The states of Rivendell, Shire, and Gondor are neighbouring states on the island of Midgard. Midgard is also home to an indigenous people, the Aesir who live along the River Asgard, which flows through Rivendell, Shire and Gondor. The River Asgard is an essential part of the Aesir way of life and is a focal point for many cultural practices. It is also the only natural habitat of the StarLight fish which, in addition to providing the main source of food for the Aesir people, is in great demand on the global food market.

2. Demand for StarLight has increased exponentially in recent times, Gondor as the primary exporter of StarLight on the island of Midgard, increased fishing of StarLight to meet demand. This has resulted in depleted stocks, threatening the Aesir way of life. Consequently, Rivendell, Shire and Gondor concluded the Treaty on Cooperation and Friendship in June 2009 which amongst others provides:

Preamble

Recognising and affirming the vital contribution of the Aesir people to the diversity and richness of cultures on the island of Midgard;

Considering the importance of the River Asgard and StarLight to the way of life of the Aesir people

Concerned at the adverse impact on this way of life by commercial fishing of StarLight

. . .

Article 1. State parties undertake to safeguard and protect the Aesir way of life, specifically in relation to the River Asgard and StarLight.

Article 2. To this end:

(a) State parties grant unimpeded access to the River Asgard to the Aesir people,

(b) State parties grant exclusive fishing rights of StarLight to the Aesir people,

(c) State parties undertake not to fish StarLight commercially, unless and until such a time that the Aesir people consent to such fishing and in agreement with states party to this treaty.

. . .

Article 9 States party to the treaty may, upon signature and ratification, enter reservations, provided that such reservations are not contrary to the object and purpose of the treaty.

. . .

Article 11 (1) In settling any disputes arising from the interpretation, application or fulfilment of this treaty, state party to the treaty shall act in accordance with the principle of the peaceful settlement of disputes.

Article 11 (2) In furtherance of the peaceful settlement of disputes, states party to the treaty hereby consent to the jurisdiction of the International Court of Justice to settle any dispute relating to the interpretation, application or fulfilment of this treaty.

. . .

Article 15 This treaty shall enter into force upon the signature and ratification of each of the states: Rivendell, Shire and Gondor

3. Rivendell, Shire and Gondor signed and ratified the Treaty in November 2009 with President Boromir of Gondor lamenting the loss of revenue from sales of StarLight. Gondor also appended a reservation upon signature and ratification of the Treaty which reads:

The state of Gondor does not consider itself bound by the provisions in Article 11, specifically those relating to the jurisdiction of the International Court of Justice.

4. In January 2010, King Thrandiul of Rivendell objected to the reservation as undermining the spirit of the Treaty and the principle of the peaceful settlement of disputes. Prime Minister Baggins of Shire objected more strenuously in December 2010, opposing the entry into force of the Treaty unless the reservation is withdrawn.

5. By 2012, Gondor was in the throes of an economic recession. President Boromir, in a televised address to the island of Midgard, announced

The people of Gondor have suffered long enough. Today, we are taking back control ? we are resuming commercial fishing of StarLight and let the world know that we are open for business! We also invite forward looking construction companies to build our dam on the River Asgard which will keep StarLight within our territory and so increase our economic prosperity. Together we can make Gondor great again!

The contract for building the dam was won by ?Elven Construction?, a Rivendell company, with the explicit support of King Thranduil.

6. The Aesir people, outraged by the actions of Gondor and Rivendell, rallied in Shire and formed the Aesir Liberation Campaign (ALC) which amongst others, advocated the use of violence against Gondor and Rivendell. Prime Minister Baggins spoke at an ALC rally, stating:

The actions of Gondor are in direct contravention of the Treaty of Cooperation and Friendship. Make no mistake, Shire condemns Gondor unequivocally and we will bring this breach to the attention of the International Court of Justice. Moreover, Gondor is no friend of ours; the Aesir people are and, mark my words, Shire will do everything in its power to help the Aesir people

7. In April 2013 the ALC began a bombing campaign in Gondor and Rivendell which targeted government buildings and personnel, with the Shire government providing military and logistical support to the ALC. By the summer, with local news agencies putting the death toll in the thousands with many more wounded, President Boromir and King Thranduil authorized a series of coordinated airstrikes on key ALC positions within Shire. When announcing the successful ?first wave of airstrikes against the ALC? on Elven TV, King Thrandiul also declared the withdrawal of Rivendell from the 2009 Treaty, saying ?the situation has fundamentally changed ? our way of life is being threatened by the actions of the ALC?.

8. When the airstrikes begin, the International Court of Justice receives two applications from Shire. The first application alleges a material breach of the Treaty of Cooperation and Friendship 2009 and violations of the prohibition on the threat or use of force by Gondor. The second application alleges violations of the use of force by Rivendell. Notwithstanding, Gondor and Rivendell continue to bomb key ALC positions within Shire and with little sign of the airstrikes ceasing and with the loss of life increasing by the day, Prime Minister Baggins authorized the Shirean air force to strike at government buildings in Gondor and Rivendell. Elven TV reported that hospitals and schools had been bombed, while President Boromir tweeted ?Just been bombed by Baggins. Hospitals and houses hit. Hundreds dead?.

9. Rivendell, Shire and Gondor have made declarations under Article 36 (2) of the Statute of the International Court of Justice. Gondor?s declaration contains a reservation excluding disputes concerning the exploitation of natural resources. All three states are party to the 1969 Vienna Convention on the Law of Treaties.

Q1: Critically evaluate the law on the use of force, specifically whether the uses of force by Rivendell, Gondor and Shire are lawful

‘The use of force is one of the most controversial areas of international law’. This essay critically evaluates international law on the use of force in order to specifically answer whether the use of force by Rivendell, Gondor and Shire are lawful.

It is widely known that Article 2 (4) of the United Nations (UN) Charter is where the international prohibition on the use of force by members in the United Nations is legislated. It has been argued that the wide terms ‘use of force’ here were purposely chosen by the UN. However, the Charter does not appear to define what is meant by force so one could arguably do so by looking at Chapter VII of the UN Charter which is in place to authorise any threats or use of force. This chapter is titled, ‘Action with respect to threats of the peace, breaches of the peace and acts of aggression’. This title explicitly details that the UN Charter is concerned with three types of actions which could be deemed the use of force. Article 39 specifically states that the Security Council shall ‘determine the existence’ of such acts, therefore one would reasonably expect them to determine based upon their own textual criteria. It would therefore be fair to argue that a threat to the peace, a breach of the peace and an act of aggression are deemed the use of force. For the purposes of this essay this will be the definition drawn upon.

With reference to the definition of force established for the purposes of this essay, one needs to establish whether or not the states in question have used force. The potential acts of force in question are arguably firstly the announcement from Gondor regarding building the damn on the river, including potentially the invitation to other states to build it. It is arguable that this is a threat to the peace of the Aesir people. Secondly, a Rivendell company with support of the state’s king carrying out the building of the damn is arguably a breach of the peace as well as an act of aggression. Thirdly, the bombing of Gondor and Rivendell by the Aesir Liberation Campaign (ALC) with the support of Shire, could arguably be seen as an act of aggression. Lastly the latter two states responding with airstrikes against Shire could be seen as an act of aggression.

The prohibition on the threat or use of force by states at Article 2 (4) of the United Nations (UN) Charter is known to be absolute, therefore strictly prohibited unless the force is authorised by the United Nations Security Council under Chapter VII of the United Nations Charter, or is a use of force in self-defence. This has been termed the restrictive view where Article 2 (4) is an absolute restriction with the exception of self defence as laid out in Article 51. As far as one is aware none of the states received authorisation from the United Nations Security Council, therefore one needs to consider whether any use of force was a form of self-defence.

Article 51of the UN Charter 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’. However it also states that when self defence is used the member must immediately report this to the Security Council. It is arguable that the bombing by the ALC with the support of Shire was an act of self defence against the possible threat to the breach of peace by the building of the damn. However, according to Article 51 self defence is permissible where an armed attack occurs. In this light it is possible that the air strikes in response to the bombing could be seen as a lawful form of self defence. However, as Article 51 states that any use of self defence must immediately be reported to the Security Council. Potential use of self defence was not reported and therefore it is questionable as to whether any act of force could strictly be construed as a lawful form of self defence.

Further to Article 2 (4) of the UN Charter it has been argued that the prohibition of force is also prohibited through international customary law. In addition it has also been argued that it can be prescribed in treaties. In this light the Treaty on Cooperation and Friendship in June 2009 between the states on the island of Midgard must be considered alongside the United Nations Charter in determining whether there has been unlawful use of any force. Article two in this treaty states that parties to the treaty must ensure unimpeded access to the river Asgard to the Aesir people. The threat of, and building of the damn surely impinged this and was therefore a breach of the treaty. It is therefore arguable that this was an unlawful act of force.

Despite the use of force as internationally unlawful, it has been recognised that there have been recent debates on the use of force regardless of this. Specific reference has been given to the approach of the United States of America who developed a doctrine which allows the use of self defence in response to imminent attacks. This surely contradicts Article 51 which uses the express words where an ‘armed attack occurs’. With such actions by states it is not surprising that it has been argued that Article 2 (4) does not fully prohibit the use of force. It has been argued that states can use force providing they remain within the purpose of the Charter. This view has been described as the permissive view. In reference to this it is arguable that the ALC and Shire could be seen as carrying out lawful force as it could be seen that they were remaining within the purpose of the Charter which is to maintain security and peace. In terms of further critique on the law of force it has been claimed that the international regime such as the UN which is in charge of cross border force is in fact not quite present in reality and indeed slightly bizarre. This has been claimed in relation to the fact that states may stray from the internal rules on the use of force and when doing so it is seen as a legal violation where as at other times they may do so and whilst considered unlawful it is somewhat tolerated. In this light it has been described that there are two codes, one of which is termed the institutional code and the other the state code. Whilst it is claimed that both come from the United Nations, it is claimed that the former develops from structured decision making regimes of institutions and the latter from muddled decision making process where states react to specific cases.

The International Court of Justice (ICJ) is an organ of the United Nations. Article 92 of the UN Charter specifically states that it,‘shall be the principal judicial organ of the United Nations.’ Article 93 states that members of the United Nations are parties to the statute of the court and Article 94 states that where they are party to a decision which it makes they must comply with it. It is therefore helpful to discuss decisions made by the court in terms of the use of force by states in order to assist in a critical evaluation of the law of force. It has been pointed out that the court has made it clear that the opinions of the charter should not be contradicted but that they are dynamic and therefore over time state practice may pave room for reinterpretation. In terms of the use of force it has previously in case law been accepted by the court that this should be interpreted in terms of customary law, and that with regards to the use of self defence this should be read in terms of additional international law principles of necessity and proportionality. In this respect it has been argued that when bearing this in mind for self defence where for example force was used in relation to a previous attack may not be proportionate. In a further case, Yugoslavia claimed in the court that ten NATO states had breached their obligation not to use force by taking part in bombings in terms of Article 2(4) of the UN Charter was unqualified and therefore absolute. In the case of Nicaragua v Columbia concerning allegations within the Caribbean sea of violations of sovereign rights and maritime spaces where Nicaragua claimed that Columbia had breached Article 2(4) of the UN Charter, the judgement of the court found that Article 2 (4) had not been breached. This was on the basis that on the date which Nicaragua made the Application to the court that a breach had occurred all evidence prior to this pointed towards a dispute between the two nations which was peaceful. In the case of Nicaragua v Costa Rica, Costa Rica alleged that Nicaragua were in breach of Article 291 of the UN Charter on the basis that it had carried out a military presence in parts of Costa Rica’s territory However, interestingly when the court came to consider this point they pointed out that it was not necessary to consider it ‘given that the unlawful character of these activities has already been established, the Court need not dwell any further on this submission’ as the issue had already been found as unlawful in terms of it being in breach of Costa Rica’s territorial sovereignty.

Conclusion

Following the critical evaluation on the law of force it is possible to conclude on whether or not there has been an unlawful use of force. In terms of Gondor’s threats to and later building of the damn it is arguable that they have used unlawful force. The same could be argued for Rivendell in terms of their participation in this. This appears to breach the UN Charter both in terms of the act of force as well as in terms of a lack of claim for self defence. In addition it appears to breach the treaty between the states on the island which has been argued as another potential form of law on the use of force. In terms of the potential use of force by the ALC and Shire of bombing the other two state it would appear to be an unlawful use of force according to the UN Charter. However, it is possible that it could be perceived to be within the purpose of the charter in terms of protecting security and peace. In terms of the air strikes by both Rivendell and Gondor it would appear that according to the Charter they would be deemed acts of force but according to Article 51 they could be seen as a form of self defence in response to the bombing and therefore not necessarily unlawful. However it appears that neither state immediately notified the UN Security Council that they were using force as a form of self defence which could arguably make any claim of self defence unviable.

Q2: Consider whether the International Court of Justice has jurisdiction in both of the following:

a. to decide the case brought by Shire against Rivendell?

b. to decide the case brought by Shire against Gondor?

It has been argued that the lack of a positive attitude towards the potential use of the court by States has increased. However, further to this, the ability of the court to settle disputes and the contribution it makes to the expansion and explanation of international law has been acknowledged. This essay will consider whether or not the International Court of Justice (IJC) has the jurisdiction to decide either case in terms of the applications made by Shire. It will do so by carefully considering the ways in which a state accepts the jurisdiction of the ICJ. This essay will consider the issue in question as the essay progresses rather than conclude at the end.

The International Court of Justice (ICJ) is an organ of the United Nations. The manner in which the ICJ functions are contained in the Statute of the International Court of Justice. Article 36 (1) of the Statute states that, ‘The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.’ Therefore when Shire sent two applications to the IJC regarding breaches by both other states of the use of and threat of the use of force one would anticipate that this would be in within the remit of the court because the matter of the use of force is a within the remit of the United Nations. One could also argue that it would be within the remit of the ICJ to deal with a material breach of the Treaty of Cooperation and Friendship 2009 on the basis that it is a case which has been referred to it.

Article 36 (2) states the areas of legal disputes which the court can deal with when member states have declared that they recognise the jurisdiction of the court. The issues concerning the use of, and threats of the use of force which Shire has spelt out in the applications to the courts are arguably caught by the parts of Article 36 (2) which state, any question of international law; ‘ and ‘the existence of any fact which, if established, would constitute a breach of an international obligation;’. In terms of the application made by Shire concerning a material breach of the Treaty of Cooperation and Friendship 2009 this could arguably fall within the interpretation of a treaty which is listed at Article 36 (2). Rivendell, Shire and Gondor have made declarations under this Article. Article 36 (3) allows such declarations to be made with or without considiotns and for certain time lengths, and Article 36 (5) states that any deceleration made are compulsory for the duration of their time. It is not clear whether the declarations made by the States were for specific periods or with specific conditions.

In addition to declarations made under Article 36 (2) of the Statue of the ICJ, treaties are also methods for accepting the jurisdiction of the Court. The Treaty on Cooperation and Friendship 2009 which was signed by all the states in question also reaffirms the jurisdiction of the Court as applying to the state, but with particular reference to the current treaty where Article 11 (2) states:

In furtherance of the peaceful settlement of disputes, states party to the treaty hereby consent to the jurisdiction of the International Court of Justice to settle any dispute relating to the interpretation, application or fulfilment of this treaty.

It has been noted in academic commentary that the term dispute in such instruments can cause issues such as for example whether or not a dispute has arisen and whether or not the nature of it falls into the category defined by the instrument.

Although Shire’s applications to the Court are mainly concerning a breach of the use of force which is arguably a breach of an international obligation, this also arguably breaches the Treaty in terms of the function of the Treaty. This is spelt out in Articles One and Two where it is stated that the Aesir way of life should be protected and safeguarded which includes ensuring these people have full access to the fishing waters and that no commercial fishing takes place. The nature of the applications from Shire to the Court concern a use of force which has affected the function of the Treaty so arguably the application concerns a dispute related to the fulfilment of the Treaty. In Nicaragua v Honduras, the latter disputed the jurisdiction of the ICJ regarding the alleged use of force of them by Nicaragua. However it was found that the ICJ did have jurisdictions the Pact which both countries were signatories to sated at Article 31 that the ICKJ had jurisdiction.

Gondor has appended a reservation to the Treaty specifically in terms of the jurisdiction of the Court which it does not consider itself to be bound by. The other two states objected to this where Rivendell did so on the basis that it undermined the spirit of the Treaty. It is not clear whether or not the reservation was allowed and although Article Nine of the Treaty states that reservations can only occur as long as they are not contrary to the object and purpose of the Treaty it is arguable that the ICJ not having jurisdiction is not contrary to the purpose of the Treaty. However, one may argue that it is contrary in terms of the fact that the purpose of the Treaty is for peaceful purposes and therefore if there is an issue with resolving disputes at the outset it arguably may not function according to the purpose.

Article 2(d) of the Vienna Convention on the Law of Treaties 1969 details what a reservation to a Treaty is and describes it as a ‘unilateral statement’ which modifies or excludes specific provisions of the treaty in terms of their legal effect. All of the states have signed up to this Convention. Section Two of the Convention specifically details reservations where Article 19 states when reservations cannot be made. One reason is specifically when a treaty provides for only certain reservations to be permitted and the reservations in questions is not one of these. As discussed it is arguable whether the reservation made by Gondor is contrary to the purpose of the Treaty or not. If it is contrary to it then it would not have been allowed. However if it was allowed on the basis that the nature of the reservation was permitted, the objections by the other two States amy have affected it as according to Article 20 (4) b the objection will not prevent the Treaty coming into effect unless a state specifically expresses the contrary. Shire’s objection specifically expresses this in terms that if the reservation is not withdrawn the country opposes entry. Therefore it is arguable that regardless of whether or not the reservation should have been allowed, the Treaty may not actually be in force and therefore not of relevance to the issue regarding the Jurisdiction of the ICJ.

A further issue in terms of the Treaty as prescribing the jurisdiction of the ICJ for the applications to the Court is that Rivendell withdrew from the Treaty when it began the use of force. Article 56 of the Vienna Convention prescribes when withdrawal can occur from a treaty where the treaty is silent on withdrawal grounds within the treaty. It details that withdrawal is only allowed where it can be established that the parties to the treaty intended to allow withdrawal to be able to take effect or where withdrawal can be permitted due to the nature of the treaty . It is arguable that neither of these are occur within the Treaty in question therefore Rivendell would remain in the Treaty.

Bibliography

Primary Sources

Legislation

Charter of the United Nations 1945

Vienna Convention on the Law of Treaties 1969

Statute of the International Court of Justice

Case Law

Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016, p3

Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015, p. 665

Secondary Sources

Books

Gray C, International Law and the Use of Force (Oxford University Press, 2018)

Journals and Case Commentary

JK Cogan and M Hakimi, ‘The two codes on the use of force’ (2016) European Journal of International Law 27 (2) 257-291

J Rodger, ‘Parallel intentions, contemporary disparities: the prohibition of the use of force in conventional and customary international law’ (2016) 1 (1) 22-23

H Thirlway, ‘The International Court of Justice: cruising ahead at 70’ (2016) 29 (4) 1103-1119

Westlaw, ‘Nicaragua v Honduras’ [1988] International Court of Justice (analysis)

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