International Public Law
Question one relates to the International Laws of the Sea. (1500 words) (Problem Question)
The question (title) is in the attachment from page 20-23, International Public Law (Level three).
(1) In advisement of the Government of Ambrosia over the actions of Julia, a Mercurian national, and the counteractions by Mercuria, Ferrisland and Ambrosia, there are a number of gray lines that must be distinguished and disputed according to the United Nations Convention of the Law of the Sea (UNCLOS). UNCLOS is the legal framework for which all activities in the oceans and seas must be carried out. Specifically it is the balance between the rights and obligations of coastal maritime zones under their sovereignty or jurisdiction and the rights and obligations of other States in those maritime zones. Important provisions are established over the navigational rights, passage of ships within the territorial sea, conservation and management of living marine resources, a marine scientific research regime and a binding procedure for settlement of disputes between States Parties.
The instrumental use of the convention is a changing effort to implement the rules that will create a stable and peaceful use of the seas and oceans. UNCLOS was established in 1982 after years of attempts to regulate the use of the oceans had been completely undermined. The force of UNCLOS has nearly become universally accepted since its initial enforcement on November 16, 1994. Furthermore, the International Tribunal for the Law of the Sea was created as an initial judicial body usable to interpret and apply the necessary guidelines under UNCLOS and deal with any arising disputes. Under the tribunal a number of chambers have been created to specifically deal with more central elements: the Chamber of Summary Procedure, the Chamber for Fisheries Disputes and the Chamber for Marine Environment Disputes. The jurisdiction of the Tribunal embraces all disputes submitted in accordance with the Convention and beyond that covers any matter of agreements, which confers jurisdiction on the Tribunal. The jurisdiction of the Tribunal should be used in cases such as the dispute over Julia's actions and her capture. The Tribunal specifically deals with matters that concern any release of vessels and crews, under article 292 of the Convention. The disputes chamber also serves as an advisory for all legal questions arising within the scope of the activities of the International Seabed Authority.
The importance in understanding UNCLOS is relevant to the case concerning Julia because it lays out the boundaries for which states and countries can exercise their rights and jurisdiction over matters within their boundaries. Unfortunately under UNCLOS there are three concepts that have served as loopholes for certain negative activities including pirate fishing. These concepts are the authority of flag states, the freedom of the high seas and the non-signatory exemptions meaning that states are only responsible for rules under the treaties for which they consent to. Under flag state failures the UN Law of the Sea relies on flag states to enforce laws but the obligations of the flag states for enforcement is quite vague. The freedom of the high seas is compromised as the unregulated use of a common resource such as fisheries can largely lead to overexploitation and mutual loss. Under non-signatory exemptions the limit of sanctions available to concerned states is evident as regional fishing management organizations (RFMOs) are unable to carry out their treaties over states that do not adhere to the same treaties. These three components all have contributed to the conflict that has arisen in the case against Julia and the territorial disputes that remain.
To clarify the restraints of territorial jurisdiction one can confer with the theory of national territory authority. The theory exclaims that universal jurisdiction allows states, in this matter Ambrosia, to claim criminal jurisdiction over persons, in this case Julia the Mercurian national, whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country. In this crime against humanity, specifically in contrast to the 1937 Ambrosian Public Obedience Act, the matter of jurisdiction is relevant in that States can exercise jurisdiction over foreign nationals over acts in foreign territories under three bases. This is crucial to the Ambrosian case as even if found that Julia's acts took place outside of Ambrosian territory the charges will still stand. The most relevant basis is that a state can exercise jurisdiction over acts, which affect the fundamental interests of the state. In this instance the act committed by Julia was considered detrimental to the peace of Ambrosia and jeopardized the economy of the state as the Amber Turtle Industry provides 22% of the national income of Ambrosia.
Also under the power and duty of international law to exercise universal jurisdiction it is recognized that courts of a state could exercise jurisdiction on behalf of the international community for which the acts of the accused are committed, in this case the welfare of the economy of Ambrosia and Ferrisland, over certain crimes under international law that are matters of international concern.
Now in the process of trying Julia, Ambrosia must present a public trial in the presence of International monitors. This is to ensure that fairness of the proceedings is carried out under the best interests of the International community as a whole. Another aspect of this public hearing is that besides having a monitor for the trial, the justice of the trial will also be respected in the International community as being a fair and legal procedure with no bias by the state of which the trial is held. Another major faction that was compromised is the protection of the accused, victims and or the families involved in the trial. This was not carried out in the case against Julia as Ambrosia, who is responsible to protect Julia allowed her to be attacked and injured. Ambrosia under international law is required to protect Julia before, during and after the trial until the threat of a security breach ends. However since the investigation involves matters of an international measure all states are responsible to assist in the protection process. The Ambrosian government has a responsibility to charge the turtle fisherman whom attacked Julia, not charging these attackers is an act of negligence against Ambrosia.
In terms of bringing suit against Julia, Ambrosia should have passed the suit onto the Tribunal, specifically its Seabed Disputes Chamber, as this is a dispute relating to the international seabed area. This action would have diluted the conflict that had been created between Ambrosia, Mercuria and Ferrisland as the area and matter of conflict is of such a variety that it is hard to distinguish who is in the right and which state is at fault, and if this is taken to an international court the bias between the parties will be eliminated. This would have played a significant part in the request for Julia's release as where the authorities of a State Party, Ambrosia, have detained a vessel flying the flag of another State Party, Mercuria, and it is alleged that the detaining State has not complied with the provisions of the Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security, the question of release from detention may be submitted to the any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining state or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree.
In this case the worst scenario is the inability to hold trial under peaceful terms as the interstate attacks against non-partisan members is an element that cannot be allowed. The use of the Tribunal would have added an element of composure as neither party could blame the other for acting irresponsibly. Especially in the case where no settlement can be reached between the State parties involved within the suit.
A case that should be looked at, although it is from 2004, is Guyana Invoking Annex VII of United Nations Convention on Law of the Sea against Suriname for disputed maritime boundary. The problem that exists here as it does among Ambrosia, Mercuria and Ferrisland is that from the colonial time when these states separated from each other, no firm border was created among them. As in the case against Julie, this dispute is over the territorial sea, Exclusive Economic Zone, and onto the Continental Shelf. The economic factor may be Amber Turtles for Ambrosia but the disputed area is petroleum reserves, and has gained significant international attention since the Suriname navy evicted a Guyanese-licensed oil platform in June 2000. A request by Guyana, pending the decision of the Tribunal, that the following provisional measures be granted: Suriname should refrain from any threat or use of armed force in the maritime zone, refrain from reprisals against the Guyanese citizens, in particular fishermen, refrain from activities which hinder the resumption of exploration in the disputed areas, and stop all conduct which could hinder the exploitation of deposits. These requests are all matters that were compromised between the relationship of Ambrosia and Mercuria. These are elements that restrict peace and cannot be afforded.
Once the Tribunal begins its procedures it will follow the basic rule of interpreting the Law of the Sea Convention and the1969 Vienna Convention on the Law of Treaties in good faith. The Tribunal will consider all elements including the treaty, its preamble and annexes, but also other relevant instruments, such as protocols, made in connection with the treaty. Any subsequent agreement between Ambrosia and Mercuria must be taken into account, as must any current practices of parties in the application of the treaty, which establishes their agreement concerning its interpretation. In all the Tribunal must decide on the action of Ambrosia arresting Julia, the territorial jurisdiction of where the arrest took place, the justification of Ambrosia's acts, the inability of Ambrosia to protect Julia, the counteracts carried out by Mercuria and the foundation for these matters to be resolved. These factors cannot be accomplished in an impartial manner in the courts of Ambrosia, especially with the conflict of interests that followed between Ambrosia and Mercuria. The intervention of UNCLOS is necessary to fairly enforce the necessary elements to restore legal activities and elements of Ambrosia and Mercuria.
Question Two: How effective has international law been in regulating the use of force by states and organizations since the end of the Second World War? How should international law develop to respond to such issues? (750 words)
(2) The effectiveness of international law regulating the use of force by states and organizations since the end of World War II has varied. The most fundamental principle within the United Nations Charter is the principle prohibiting the use of force in the behavior of international relations. However there are exceptions that disregard the regulation and allow for force to be permitted. Force is allowed by states in providing self-defense and the charter allows the Security Council to use force in order to maintain international peace and security. However, the ability to determine when these lines of exclusion are rightly crossed has created a great deal of debate, as another party does not necessarily consider a threat to one party a threat. Another key effort in regulating force is to protect the due process rights of the weak not merely to facilitate the moral or ethical values of the militarily strong. It can be argued that disturbances of peace and violations of human rights within sovereign states are often rooted in the conflict between the right of self-determination of a group of people and the territorial rights of the nation in which they reside. Any rule of international law claiming to resolve human rights violations, which disregards the sovereignty issue will remain unacceptable to countries with concentrations of ethnic minorities, especially in view of actual or perceived susceptibility of minorities to manipulations by foreign political powers. An example of the United Nation's inability to resolve conflict of human rights affecting innocent people is the Kosovo crisis, where as it can be argued that the democracies of the world illegally used force to enforce law including the rampant use of force by NATO.
The UN charter requires that international disputes be settled by peaceful means in order for international peace, security and justice are not compromised. The UN also has set Articles that requires that force not be used in an a manner that is inconsistent with UN purposes and also requires that the parties with a dispute must first seek to accomplish a resolution through negotiation, inquiry, mediation, conciliation, arbitration judicial settlement, resort to regional agencies, or other peaceful means. Not until all such means are exhausted can force be used! In broader terms, no nation can plan and make war nor can they authorize war. The UN can authorize once and only when all means of settlement have been exhausted. However, as stated earlier the line of determining when all of these measures have been accomplished is very hard to define. For example, claims can be made that the United States set up war with Iraq. In October 1989 there is suggestions that the United States had prepared an elaborate war plan prior to the Iraqi evasion of Kuwait. Also in order to push Iraq, whose economic status was significantly declining, to agree to the demands of Kuwait, the United States persuaded Kuwait not to negotiate with Iraq, despite the requirements under the UN charter. Also the United States claimed to have no commitment to assist Kuwait in the event of a war with Iraq, claiming it was an Arab matter that was not of U.S. concern. Even if these claims are unjustified and the United States did not intend to go to war nor had prepared to go to war, the United States did in fact not go through all means of negotiation before committing to war. Iraq did make an offer to negotiate and try to settle the crisis but was ignored, even when offering to withdraw from Kuwait. This is a complete contradiction to the articles set by the UN that pushes every peaceful resolution possible before the aspect of war is considered. However, the U.S. did quite the contrary preaching no negotiations aiming to settle the crisis by force. I believe that force was the right method to counteract the actions of Iraq, however my ideals play no part in this and the fact that stands is that the UN has established an international system to maintain peace throughout the world. The system calls for steps to be carried out to prevent war and no country or state should dictate their own path to resolution, when a country such as the U.S. takes action without following rules it blurs the ability of having an organization like the UN create rules to keep peace.
In developing international law to respond to all issues that create uncertainty and disputes, it is very tough to create and enforce rules that involve so many parties. The ability for the rules established by the UN to be carried out is put on the shoulders of the countries that are the world powers because it is these dominant figures that must be the examples for the rest of the world. This is why it is so crucial when a dominant country such as the United States does not adhere to UN regulations because it sets a pattern for smaller countries to dictate their own views of the UN doctrine as well.
Question three: Critically evaluate the role of the doctrine of state sovereignty in the development of international law. To what extent is the doctrine crucial to the effective operation of international relations? (750 words)
(3) State sovereignty has been a defining principle of interstate relations and a foundation of world order. This concept is an essential component of the maintenance of international peace and security and a defense of weak states against the strong. As in regulating the use of force, sovereignty has also been occasionally taken advantage of by powerful nations as in present times the restrictions by borders nor the requirement of entry visas is necessary no enforced. This has created a conflict over territorial boundaries, as was disputed in question 1, creating poor relationships between bordering states or countries. The infusion of technology and rapid communications has also thinned borders creating a perspective on state sovereignty that is quickly evolving.
The major strain in international law and international relations is that the idea of sovereignty has become very delicate and difficult to define. It is a very broad term that has been defined as the basic constitutional doctrine of the law of nations bearing little neutral ground. State sovereignty signifies the competence, independence and legal equality of states encompassing all matters in which the state is permitted by international law to decide and act without intrusions from other sovereign states.
The 1933 Montevideo Convention on the Rights and Duties of States created the basic elements for state sovereignty. Under this Convention there are three main requirements: a territory, which is defined, a permanent population, and a functioning government. It is crucial that under sovereignty a state displays an authority to act over their territory. Article 2 (1) of the UN Charter even states that the world organization is based on the principle of all member states having sovereign equality. Territorial statehood also serves as a position of international order in state-to-state relations.
The development of international law has been guided by the doctrine of state sovereignty. The state is the internal or local establisher of the guarantee of appropriate human rights. On a larger scale protection is offered to weaker states from pressures of the more powerful. Under the UN Charter, a difficult line is walked to create sovereignty, independence and equality of individual states but also be able to maintain international agendas that strictly adhere to the rules of keeping peace and providing security on a global level. It is stated under the UN Charter, that the sovereignty of a state does not take priority over any effort to keep peace and security on an international level. States are responsible to fulfill their legal obligations under their membership within the UN. Under international law, sovereignty exclaims that states are required to cooperate internationally in solving problems of an economic, social, cultural or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms for all. (UN Charter Article 1 , "Purposes and Principles") The UN plays the role of mediator in promoting that all actions carried out by the states are in line with the international goals of peace and security.
Specifically sovereignty gives states a responsibility to protect persons and property and to carry out the necessary governmental functions. However sovereignty has met many challenges crucial to the effective operation of international relations. Such challenges include a collapsing state authority, increasing importance of popular sovereignty, a continuing demand for self-determination, and international peace and security taking on a more expansive conceptual definition. These factors have become much maligned due to two factors that have continually eroded, the sacredness of borders and the illegitimacy of secession. This is creating new problems that are in need of critical evaluation to maintain international relations. As is apparent in question 2, the difficulty of defining the broad terms that illustrate what state sovereignty is makes it a complex element to determine what, where, why and when the UN intervenes to account for actions of states and relations between states.
The UN has also been met with a problem when an existing state is incapable of effectively exercising authority over its population and territories. This disappearance can lead to an evidential failure of state sovereignty that can result in an internal insurgence, which ultimately leads to the states inability to carry out its responsibility to maintain peace and security. What has developed is a state sovereignty that must adhere to two separate entities, the people of the territory and international responsibility of the state to comply with humanitarian agreements. This has pushed sovereignty to expand beyond solely the leaders of the state to encompass all of the governance that is based upon the democratic standards and humanitarian rights of the international community.
Other References used but not cited:
Dixon & McCorquale; Cases and Materials on International Law (4th ed., OUP, 2004)