Question A2 – 78 The legal issues arising from the actions of the aff and Atlantis
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- Question A2 – 78% The legal issues arising from the actions of the AFF and Atlantis
- Dispute Resolution for Pacifica and orders it may seek
- Legal Issues A may raise
- Question B2 – 16/20 Introduction
- Prohibition on the Use of Force
- Options for individual states or groups of states
- Options for UN members collectively
- Conclusion
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LAWS2250
Intern    ational Law
Semester 2 2012 Question A2 – 78% The legal issues arising from the actions of the AFF and Atlantis Does AFF’s action constitute an internationally wrongful act? AFF attacked and killed people within Pacifica. If this constitutes an internationally wrongful act of Atlantis, Atlantis will be internationally responsible (ILC Articles art 1). This area of the law is governed by the ILC articles on state responsibility. This is not a treaty, but has been endorsed by the UN General Assembly and is considered to be reflective of CIL. [✓] To prove that there has been an internationally wrongful act, it must be proved that there have been a breach of international obligations (ILC art art 2(b)) which is attributable to Atlantis (ILC arts art 2(a)). [✓] Attributability Conduct which is not carried out by a State is nonetheless attributable to them if the State ‘acknowledges and adopts the conduct’ as their own (ILC arts, art 11). Here President Snow of Atlantis states that all Atlanteans will understand the motives of the AFF. This can be analogised to a statement of Ayatalloah Khomeini, approving the actions of taking hostages, which was held to be adoption of this action in the Tehran Hostages Case. [How? Explain] Further, Atlantis did not take action against the AFF until some days later and hence only to take control of the territory taken by the AFF for Atlantis. It could be argued that Snow’s statement was only about the motives of AFF, however overall it seams that Atlantis acknowledged the acts as their own, given the approval implicit in this statement and lack of condemnation. [Is this sufficient for attribution??? – the marker circled the word ‘implicit’] Hence AFF’s acts are attributable to Atlantis. Breach of international obligation Under art 2(4) of the UN Charter there is a prohibition on the use of force ‘against the territorial integrity … of any State’. Atlantis is a member of the US and is hence bound by this. The acts of AFF were crossing the borer and seizing by force territory in Pacficia so it appears that this falls under use of force against territorial integrity. Hence there has been a breach of int obligation. [✓] Hence there has been an internationally wrongful act. Wrongfulness precluded? The act of Atlantis cannot be precluded as a countermeasure against Pacifica because counter measures do not effect the obligation to refrain from the use of force (ILC arts art 50(1)(a)). Nor can it be an act in self-defence because it was in response to PCC constructing a mine, not to an armed attack, which is required to give a right of self-defence (UN Charter art 51). [✓] Hence Atlantis has committed an int wrongful act for which they are responsible. Does Atlantis’ military intervention constitute an internationally wrongful Act As Atlantis’ action consisted of a military intervention using force within Pacifica’s borders, it has clear that there has been use of force in breach of art 2(4) of UN Charter. The act is clearly attributable to Atlantis as it was carried out by their military, an entity exercising elements of governmental authority (ILC arts, art 5). [✓] The issue is whether the use of force was lawful, and hence not a breach of Atlantis’ int obligations. Valid use of force under Chapt 7 UN Charter? The UN security Council (SC) may decide on measures to be taken to maintain peace and security (UN Charter art 39). These may involve measures not involving use of force (art 41) or involving the use of force (art 42). In SC res 3000 the use of the words ‘all of the powers at its disposal’ probably authorises the use of force, given the similar wording ‘all necessary means’ istaken to have meant that in SC res 1441 on Iraq [? No such expression in res 1441!!] Hence Atlantis is empower to use force in some respects However Atlantis has not complied with res 3000, because the res that the powers to be used ‘include its diplomatic capabilities’. This suggests Atlantis must first use diplomatic means of resolution which it has not done. Further Atlantis’ actions were in breach of para 4 of the res, to respect the 1885 treaty of Utrecht which sets out borders. Rather, Atlantis has used res 3000 to take land that belongs to Pacifica. Hence Atlantis’ acts were arguably not sanctioned by res 3000. Valid use of force as self-defence (s-d)? The use of force cannot be justified as s-d as it was taken against an actor coming from within Atlantis’ territory, and this was not seen to justify s- in the case of the wall in occupied Palestine. Therefore Atlantis has committed an int wrongful act. Dispute Resolution for Pacifica and orders it may seek Peaceful settlement Pacifica has a duty to resolve its disputes peacefully (UN charter art 2(3)). [✓] They may wish to engage in negotiation or mediation, or judicial settlement (UN Chart art 33(1)). Can the dispute be referred to the ICJ? Atlantis and Pacifica have declarations under art 36(2) of the ICJ Statute submitting to the ICJ’s jurisdiction. [✓] However these declarations are, and can be (art 36(3) ICJ Statute) conditional. Pacifica’s declaration excludes matters relating to ‘territorial limits’. Atlantis may take advantage of this condition (Norwegian Loans). [✓] It could be argued that this dispute relates to territorial limits as all acts were around and regarding the border. [✓] It could also be argued that the dispute is about use of force so it is immaterial that a border was involved. It is unclear. However, the ICJ may not resolve the dispute regardless because it is no longer an existing dispute. The ICJ could not make a ruling in the Nuclear Tests Case because the French had complied with what Australia was requesting and hence the claim had disappeared and there was no dispute. [✓] Here, Atlantis has completely withdrawn from the territory of Pacifica and hence it seems a dispute no longer exists. However damages exist (below), so in this sense a dispute will exists and can be adjudicated on. [✓] Orders that Pacifica may seek? If the ICJ can hear the dispute Pacifica can seek an order that A has committed int wrongful acts. + The acts have already ceased (ILC art 30(a)), but P may as for assurances of non-repetition of use of force (ILC art 30(b)) + reparation: wipe out consequences of wrongful act (Chorzow). This may involve money payments for loss of life and damage to property in Pacifica. This is restitution and compensation (ILC art 35-36) [✓] + Satisfaction: may ask for apology under ILC art 37 [✓] Legal Issues A may raise Pacifica’s Military Strike + Against prohibition on use of force (UN Charter art 2(4)) + Was not justified by res 3000, as this only allowed Atlantis to take any action + Was it in s-d? right of s-d only until ‘SC has taken measures necessary to maintain international peace’. The SC has decided to reconvene to consider, so it could be argued that it has taken measures. However clearly has not re-established peace so P action may still be justified Must be in response to armed attack (UN charter art 51). This is satisfied as A took control of P’s territory in a fully military intervention across border (Nicaragua) Necessity (Caroline): From Oil platforms, the target must be justified. This is arguable in case of gov building. Also for necessity, need to complain t the other state (Oil platforms) and this has not been done here. Overall does not appear to be an ‘overwhelming’ necessity, leaving ‘no moment for deliberation’, as considered in Caroline Proportionality (Caroline): Not satisfied given that attacks killed 5000 civilians and left A city in chaos UN charter art 51 requires reporting to SC for acts of s-d. This has not been done Hence P has carried out unlawful use of force, amounting to int wrongful act. A may claim reparations in restitution, compensation and satisfaction (ILC arts 35-37). Int Wrongful Act of PCC? A may also claim that PCC’s construction of the mine. However it seems this is not a wrongful act in the sense of being an infringement on A’s territory, because the mine was located in P, although close to the border. It would also be difficult to attribute the acts to P because it did not assume responsibility and PCC is not gov body [But approved by the govt?] Question B2 – 16/20 Introduction Despite the nature of the situation in Syria with continued human rights abuses and threats to the civilian population from their own government, there do not seem to be any legal ways for the international community to militarily intervene without approval from the UN Security Council (SC) to do so. [✓] Prohibition on the Use of Force International law includes a broad prohibition on the use of force, found in both the UN charter and in CIL, as expressed in Nicaragua. [✓] Art 2(4) of the UN Charter state that ‘use of force against the territorial integrity or political independence of any state’. A military intervention in Syria would clearly fall under this as it would be an invasion of Syria’s territory, as well as an intervention against the actions of its government (political independence). Therefore, any legal military intervention in Syria must be found in an exception to this. Options for individual states or groups of states Individual states or groups of state may argue that they have a right to intervene in Syria through the principle of Responsibility to Protect (R2P). This principle argues that use of force is justifiable to protect citizens from arbitrary and abusive treatment from the government (Boas). The ICISS report 2001 stated that such a right to intervention would be triggered by ‘large scale los of life … which is the product of deliberate state action’. This would seem to be satisfied in Syria. However, the concept of R2P is greatly criticised. The UK foreign Office notice that humanitarian intervention is not a charter exception to the prohibition on the use of force. [✓] Hence when it is not directly authorized by a SC resolution, it cannot be seen to be lawful under the Charter. Neither is R2P yet adequately reflected in state practice to constitute a CIL norm. It has only arisen recently, and it would be difficult to find state practice and opinio juris sufficient to justify it as a legal practice. Further there are policy reasons why an acceptance of R2P by the international community would be unwise, and hence why states should refrain from using it. Firstly, the UK foreign office notes that reasons for humanitarian intervention are often coupled with less laudable goals. Hence there is a danger that R2P may legitimize invasion of countries in circumstances that are not justified. Secondly, Boreham notes that R2P will almost always involve regime change, and the manner of the exercise of self-determination is generally something that int law does not engage in. [✓] Options for UN members collectively The Un SC can authorize the use of force, as considered in art 42 of the UN Charter. Res 1973 of the SC authorized some use of force in Libya byt this fell short of use of foreign occupation force. Hence, for UN members collectively to military intervene an additional SC res would be required which authorized it to do so. It should be noted that the SC can make such a resolution based on humanitarian motivations and this appears to have been what was envisioned by the 2005 World Summit Outcome. If the UN SC were to do this, military intervention would be perfectly legal. [✓] Conclusion Hence, it seems that military intervention in Libya at this stage is not justified, as R2P is not an established legal norm. Given the prohibition of use of force in int law, the only legal means of intervention would be an authorization from the SC. Directory: wp-content -> uploads -> 2012 2012 -> The Case Against the nypd’s Quota-Driven ‘Broken Windows’ Policing What Is It? 2012 -> Aa and na members Dying from Tobacco 2012 -> [Baby Crying] 01: 04 [Ching 2012 -> Unit Name / Nom de l’unité uic / ciu dates 2012 -> What We Owe Jehovah’s Witnesses 2012 -> Oceans Challenge Badge 2012 -> Canadian cycling olympians 2012 -> Greg landry, june olkowski and tom lysiak 2012 -> William goldman 2012 -> Does translocation and restocking confer any benefit to the European eel population? A review Download 86.81 Kb. Share with your friends:
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