LAWS2250

International Law

2nd Semester 2013

LAWS2250 – International Law – Semester 2 2013 Exam

82 (HD)

Essay Question - B2

Legality of US Intervention in Syria

Introduction

Despite the potential for the developing doctrines of humanitarian intervention and anticipatory self defence to provide justification, United States intervention in Syria without UN Security Council authorisation would be unlawful under international law. [ü] One of the basic principles of international law is the prohibition on the threat of use of force. While the UN Security Council can authorise force, other suggested doctrines such as humanitarian intervention and anticipatory self defence have little authority in international law. Therefore, despite these potential justifications, US intervention in Syria as proposed by President Barack Obama would be unlawful under international law. [Excellent intro!]

Basic Principles

One of, if not the most fundamental principles of international law is the prohibition against the threat or use of force. Article 2(4) of the UN Charter thus states that ‘all members shall refrain in their international relations from the threat or use of force.’ This principle represents customary international law – Nicaragua, and has been affirmed by the UNGA Friendly Relations Declaration. [ü] As such, prima facie US intervention in Syria would be unlawful in international law. Although Chapter VII allows the UN Security Council to authorise force under very specific circumstances – once they’ve identified a threat to or breach of international peace and security (Art39), and allow ‘all necessary measures’ in combination with chapter VII (SC Res 687) – Obama is specifically indicating the possible of intervention without Security Council authorisation. As such, US intervention in Syria would be in breach of a fundamental principle of international law.

However, the doctrine of humanitarian intervention may provide justification. Oppenheim suggested that when a state commits terrible acts against their nationals (as is happening in Syria), ‘even intervention in the interests of humanity might be legally permissible’. This suggestion has been used by some to provide authorisation for intervention in Bangladesh, Kosovo etc. Indeed NATO’s Kosovo intervention was justified by Belgium through the doctrine of humanitarian intervention compatible with Art 2(4) of the UNC. However, there is little conformity in this state practice (Britain for example defended the Kosovo intervention on completely different grounds) and certainly no consistent opinio juris necessary to suggest humanitarian intervention was a customary international law doctrine. In recent years, the emergence of a concept of responsibility to protect (R2P) has gained credence, and that may provide justification for a US intervention. Deng et al suggested an attempt to re-characterise sovereignty from a right to a responsibility , and thus intervention would be allowed when the state is unable or unwilling to discharge this responsibility. The 2005 World Summit [+ requires UNSC authorisation] and the ICISS Responsibility to Protect Report support this notion. However, neither humanitarian intervention nor the emerging subdoctrine of R2P would authorise US intervention in Syria. Neither has consistent support of the international community, and neither represents customary international law. In Nicaragua, the ICJ pre-emptively dismissed the R2P doctrine, suggesting ‘adherence by a state to any particular doctrine does not constitute a violation of customary international law; to hold otherwise would make nonsense of the fundamental principle of State sovereignty.’ Therefore, despite the doctrine of humanitarian intervention, US intervention in Syria without UN Security Council authorisation would be unlawful under international law.

Anticipatory Self Defence

Furthermore, the controversial anticipatory self defence (ASD) doctrine similarly would not justify US intervention in Syria. The doctrine of ASD has been used to justify the use of force in anticipation of an armed attack so as to strike first and disable the enemy – such as Israel’s strike v Iraq. [ü] The Webster Formula from the Caroline exchange has even been used to support the doctrine, suggesting it will be authorised when there is a ‘necessity of self defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation’. However, the ASD doctrine would not provide justification for intervention in Syria by the US. Firstly, the doctrine (and similar – such as the US’s National Security Strategy) [= inequitable] has been heavily criticised and has dubious status under international law. Furthermore, even if it was accepted – and Rothwell and Abadee accept ASD in forming with the Charter and under customary international law if several criteria are satisfied – the US position does not justify ASD. Despite Obama’s comments as to the risks US troops could face in the future, and the potential for terrorist to exploit chemical weapons, the US can hardly be said to be in a position where ‘instant, overwhelming’ action needs to be taken as per the Webster Formula. The US is geographically removed from Syria to such an extent so that even if Turkey or Jordan could justify ASD, the US could not. They are also not responding to a ‘clear, imminent and overwhelming threat and the intent to use force by another state’, as suggested by Rothwell and Abadee – despite the comments of Obama, no threat has been made by the Syrian dictator at the US. Therefore, the doctrine of ASD would not justify US intervention in Syria.

Conclusion

Despite the doctrines of humanitarian intervention and ASD, US intervention in Syria without UNSC authorisation would not be lawful under international law.

[Excellent! Covering a fair bit of ground and all the issues! 17.5/20]

Problem Question – A1

The Curiously Recurring Dispute Between Fiji and Kiribati [Too true!]

Introduction

On the facts, several international law issues arise as to International Court of Justice (ICJ) jurisdiction, treaty interpretation and state responsibility.

1)  ICJ Jurisdiction

One of the basic principles of international law as provided by Art 2(3) of the United Nations Charter (UNC) is the peaceful settlement of disputes, and thus Fiji should seek to avail themselves of ICJ jurisdiction to resolve its dispute. [ü]

Kiribati’s Statehood

While ICJ can only exercise contentious jurisdiction between state parties, and it is possible that Kiribati’s statehood could be questioned, it is obvious from Art 1 of the Montevideo Convention and Art 2 of the CCART that Kiribati retains statehood. [ü]

Contentious Jurisdiction

The UCJ is the principle judicial organ of the UN – UNC Art 92, and can exercised contentious jurisdiction on three bases (A 36(1) of the ICJ Statute) – by special agreement, by compromissory clause in a treaty, and by acceptance of a court’s compulsory jurisdiction. On the facts, given the disagreement between Kiribati and Fiji may preclude a special disagreement and there is no evidence of compulsory jurisdiction, the compromissory clause in Art 20 of the CCART would provide the best basis for jurisdiction. [ü]

CCART Art 20

Such jurisdiction arises when the states have already committed to ICJ jurisdiction within a pre-existing treaty such as the CCART. Although the dispute and jurisdiction must be within the scope of the agreement, the ICJ has taken a broad view on this issue – Tehran Hostages, Oil Platform. Art 20 of the CCART provides that a dispute not settled by negotiation shall at the request of any party to the dispute be referenced to the ICJ. As such, Fiji can use A20 to refer the dispute to the ICJ, especially as Kiribati has not agreed to any mode of settlement as per Art 20.

Proceeding Conditions

However, the treaty does provide that the matter can only be referred to the ICJ if it has not been settled by negotiation – Art 20. Further, it was said in Russia v Georgia that ‘the negotiations must relate to the subject matter of the treaty containing’ the clause. [ü + genuine effort] Given the Kiribati government has rebuffed Fiji’s efforts to discuss the matter, the ICJ may refuse to exercise jurisdiction until negotiations have been held. The Fijian government should therefore immediately seek negotiations with the Kiribati government so as to be able to claim ICJ jurisdiction.

Standing

Several other issues could preclude the ICJ from exercising jurisdiction. A state must have a legal right or interest in the subject matter of the claim (SW Africa) or an entitlement under a convention to make a claim (Obligation to Prosecute or Extradite Case). Either of these requirements is satisfied as A20 provides the entitlement and Fijian nationals are involved in the dispute. [ü] There appears to be no issue of indispensable third party under the Monetary Gold principle arising on the facts (East Timor)

Admissibility

Finally, academics have suggested several other limitations on the ICJ’s jurisdiction. It has been suggested that the ICJ can’t hear solely political disputes, although the ICJ has never accepted this argument (Wall Advisory Opinion) and there is clearly a legal issue arising on the facts as to the CCART. [ü] It has also been suggested the court has discretion to limit jurisdiction if there is an absence of practical consequence (Nicaragua Judge Oda dissent) or it could have detrimental effects for the ICJ’s authority, but nothing on the facts indicates that the parties would not obey any ICJ decision.

As such, Fiji can establish ICJ jurisdiction in relation to the seizure of land, one which its nations claim property rights, through the compromissory clause in Art 20 of the CCART.

2)  Kiribati’s Breach Under CCART?

Art 3 of the CCART provides that states receiving land (such as Kiribati) shall respect existing property rights in land which is granted to them. Thus if Fiji can prove that Kiribati has no respected such property rights Kiribati will be in breach of its commitment under CCART.

Treaty Interpretation

The question is therefore what constitutes a breach of Art 3, or in other words, can Kiribati’s actions be deemed as not respecting the existing property rights in the land that is granted to them. [+ art 2 read vs art 3] Under art 31(1) of the Vienna Convention on the Law of Treaties (VCLT), which represents customary international law – Libya v Chad, a treaty shall be interpreted in accordance with the ordinary meaning given to the terms of the treaty in question and in light of its object and purpose. [which is?] The ILC has suggested the process is a single combined operation, and McHugh J in A v MiA described it as an ‘ordered yet holistic approach’. Under the ordinary meaning of Art 20 of the CCART, ‘respect’ is somewhat ambiguous [ü], and the context (Art 31(2) of the VCLT) and object and purpose can provide interpretive assistance.

Supplements of Interpretation

Under Art 32 of the VCLT (CIL: Libya v Chad), recourse to supplementary materials including the preparatory materials can be had to confirm the meaning or if the meaning, according to Art 31, is ambiguous or obscure as it is in this instance. Recourse to the travaux preparatoires and particularly Fiji’s comments [ü] and the response of the other states suggests the term ‘respect’ has a definite and serious meaning and that these rights being respected can be protected by Fiji. [Bring “understanding” in here, not as reservation] As such, Kiribati’s decision to acquire the land and pay compensation which is not fair, by an objective meaning of ‘fair’, ‘with the limited recourse of the KCD’ would not satisfy Art 2 of the CCART and Kiribati would thus be in breach of its commitments.

Reservations [not really arguable here]

Furthermore, Fiji’s statement of understanding as to the interpretation of the CCART may further demonstrate Kiribati’s breach. Under VCLT A2(d) (CIL: Genocide Convention Advisory Opinion and ILC Commentary), a reservation is a unilateral statement made by a state when signing or ratifying a treaty that purports to modify or exclude the legal effect of certain treaty provisions. Under the CCART, there is no suggestion that the reservation is prohibited (A19 VCLT). Although it is important to beware of declarations and look behind the substantive content (Belios Case), Fiji’s statement of understanding purports to modify the interpretation of Art 2 so that ‘respect’ includes that the grant of land is without prejudice to the rights of the existing private land holders. As Fiji’s reservation was not objected to, and more than 12 months have passed, it can be considered to have been accepted – VCLT A20(5) (codification of Genocide Convention Case). Therefore, respect can be understood as meaning ‘without prejudice to’ and thus Kiribati’s decision to seize the land – clearly prejudicial to the land rights of the Fijian owners can be seen as a breach of Kiribati’s CCART obligations.

3)  State Responsibility of Kiribati

State responsibility is the legal consequence flowing from breaches of international law and obligations by states. It has been codified by the Articles on Responsibility of Internationally Wrongful Acts (GA Res 56/83 2001) (‘ASR’) and has been cited with approval in Palestine Wall and Bosnian Genocide. [ü] A state will be held responsible in IL if an act or omission is attributable to a state (ASR Art 2(a)), the act or omission violated a rule of IL (Art 2(b)), a victim state is entitled to make a claim and the state responsible cannot claim any deterrence or justification.

Attribution

Under the ASR, acts of state organs (art 4) and those empowered by the law of the state (art 5) are attributable to the state. As the KMC is a wholly government owned corporation created by the Kiribati government, it appears to be a state organ [is probably (? Marker’s writing unclear) not] or in the alternate It may be a body empowered by the law of the state – as the corporation would have been established under legislation, and thus under art 4 and 5 of the ASR, Kiribati would be attributable for the acts of the KMC. [or article 8]

Entitlement to Make a Claim

Under Art 44 of the ASR, state responsibility cannot be invoked if the claim is not brought in accordance with nationality rules or the claim is one to which the exhaustion of local remedies rule applies and such remedies have been exhausted.

Nationality

On the facts, no issues arise as to the nationality of the Fijian nationals, as there appears to be a genuine link or real and effective connection between them and Fiji - Nottebohm

Exhaustion of Local Remedies