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1. Introduction

Since the end of World War II and the establishment of the United Nations (UN), the principle of peace and security has come to occupy a place of primacy in Public International Law. The principle was seen as one of the primary motivations behind the UN Charter and the establishment of the UN with a strong Security Council. It is accordingly recognised as the first purpose of the UN in Article 1 of the UN Charter, which provides as a purpose of the UN

To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and inter- national law, adjustment or settlement of inter- national disputes or situations which might lead to a breach of the peace.

Towards the attainment of this purpose, the UN Charter makes several provisions and has established primary organs like the General Assembly (UNGA), Security Council (UNSC) and the International Court of Justice (ICJ), which are entrusted with powers and functions to this end. Other international efforts such as the Geneva Conventions 1949 and establishment of the International Criminal Court are also relevant to the maintenance of peace and security. Despite the efforts of the UN and its primary organs, it is inevitable that at times disputes, armed conflicts and wars may threaten or breach international peace and security. The problem studied in this essay is an example of such a situation. Shepherd, Orangeland and Hound are involved in a situation that involves breach of international peace and security and violations of international humanitarian law and human rights.

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This essay examines the issues raised by Shepherd’s acts of genocide and use of force against the Orange people and Hound’s use of force against Shepherd. The essay analyses the jurisdiction of the ICJ over the dispute between Shepherd, Orangeland and Hound. The essay also examines the powers of the UNSC and to what extent the UNSC can exercise its powers in the given situation.

The first section of this essay briefly explains the general concepts of international law that are involved in the problem. The next section discusses the jurisdiction of the ICJ and whether the ICJ can admit the cases against Shepherd. The section following that discusses UNSC powers, particularly under Chapter VII of the UN Charter, and evaluates the extent to which these powers can be exercised by the UNSC in the given situation.

This essay argues that the ICJ cannot exercise its jurisdiction over Shepherd unless Shepherd consents to such jurisdiction. However, the UNSC can definitely take coercive measures under Chapter VII of the UN Charter under collective security provisions.

2. International Law Concepts Involved in the Situation

Some of the central concepts of international law that are involved in this case are discussed briefly in this section.

(A) Self-determination

Self-determination has become relevant in the wake of freedom movements and anti- colonialism, particularly after the Second World War. It is not only seen as a principle, but also as an important collective or third generation right. Brownlie writes that self- determination has been understood as the right of peoples under colonial, foreign, or alien domination to self-government, whether through formation of a new state, association in a federal state or autonomy or assimilation in a unitary or non-federal state. 2 In the late 20th century, most of the states in the world that had hitherto been under colonial occupation, had now become independent. Due to this the continued application of the right to self determination has been doubtful and subject to much debate.

(B) Prohibition of Use of Force

TThe UN Charter prohibits use of force, 3 save for self defence and actions taken under UNSC authorisation for collective security. However, in recent times, certain actions have been justified by states or international organisations or commentators on humanitarian grounds.

(C) Principle of Non-intervention

The principle of non-intervention is provided in the UN Charter to ensure that no state shall intervene in the matters if any other state. 5 The scholarship and international law on the issue of intervention on humanitarian grounds however, is as yet not clearly definitive.

(D) Genocide

The Convention on the Prevention and Punishment of the Crime of Genocide 1948 (Genocide Convention), article II defines the crime of genocide to include killing, causing serious bodily or mental injury, inflicting conditions of life calculated to bring about physical destruction, or force measures to prevent births with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. 6 In this case, Orange people are a ethnic minority in Shepherd. Therefore, the Convention can be applied to the situation.

(E) State Recognition and Admission into the UN

A new state or a territory that has declared itself a state needs admittance into the UNGA tas per the provisions of the UN Charter. The final call on this matter is of the Security Council and the General Assembly. 7 In this case, Orangeland has not been admitted into the UN and it has received recognition only from Hound.

3. Jurisdiction of the International Court of Justice

The International Court of Justice (ICJ) is the principal judicial organ of the UN. 8 All the state parties to the UN Charter are ipso facto parties to the Statute of the Permanent Court of International Justice (ICJ Statute). 9 The ICJ judgements are binding upon the states who are the parties to the decision. 10 In case a state does not comply with the decision, the UNSC is empowered to take necessary and appropriate steps to enforce the judgement.

Despite the laudatory provisions with respect to the ICJ in the UN Charter, the ICJ’s jurisdiction is actually restricted and limited. In the Armed Activities on the Territory of the Congo, the ICJ stated:

one of the fundamental principles of [the Statute of the Court] is that it cannot decide a dispute between States without the consent of those States to its jurisdiction; and . . . the Court therefore has jurisdiction only between States parties to a dispute who not only have access to the Court but also have accepted the jurisdiction of the Court, either in general form or for the individual dispute concerned.

The ICJ has two kinds of jurisdiction- contentious and advisory. Contentious jurisdiction is confined to state parties and the decision given here are final and binding. 13 Advisory jurisdiction of the court involves the court giving an opinion at the request of any body that is authorised to seek such opinion.

As mentioned above, the jurisdiction of the ICJ is limited and restricted. In the first place, the contentious jurisdiction of the court can only be exercised where both the parties to the disputes have accepted such contentious jurisdiction of the court. Such acceptance can be given under the optional clause.

States may even accept the jurisdiction of the ICJ in bilateral treaties as between themselves, where they agree to submit disputes arising out of the treaty to the ICJ. 16 Or states may give their consent after the dispute has arisen between them to admit the dispute to the ICJ jurisdiction. This is also called a compromis.

To summarise, the two principal bases of ICJ’s compulsory jurisdiction are: (a) treaties in which jurisdiction over disputes between the parties is provided to the Court (ICJ Statute, Art. 36(1)); and (b) the ‘optional clause’ whereby states ‘may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court ....’ (ICJ Statute, Art. 36(2)).

Where consent has been given in a prior treaty, whether bilateral or multilateral, which is still in force when Court proceedings are commenced and which is applicable to the dispute in question, the Court has jurisdiction even if the respondent State is opposed to the Court hearing the case. The requirement of consent is satisfied by the prior agreement which cannot be overridden by subsequent opposition. 19 Thus in Questions of Interpretation of 1971 Montreal Convention arising from Aerial Incident at Lockerbie (Libyan Arab Jamahiriyah v. U.K.), 20 and Questions of Interpretation of 1971 Montreal Convention arising from Aerial Incident at Lockerbie (Libyan Arab Jamahiriyah v. U.S.A.), 21 .the court shot down objections to its jurisdiction as it had already been accepted by the parties prior to the arising of the dispute.

Alexandrov summarises the way in which ICJ’s jurisdiction can be exercised over a state in two essential steps. First step is membership of the Statute of the Court. The second step is an independent act of consent or acceptance of the Court’s jurisdiction. In Ambatielos Case 22 the ICJ observed that “in the absence of a clear agreement between the Parties, . . . the Court has no jurisdiction to go into . . . the merits’’

In the present situation, both Orangeland and Hound seek to bring proceedings against Shepherd for the various allegations of violations of international law (genocide, international humanitarian law, human rights of the Orange people). Hound and Shepherd are parties to the ICJ Statute. Orangeland is a part of Shepherd and has unilaterally declared itself independent. But that by itself will not give it membership of the UN and ICJ. A new state’s membership of the UN and consequently ICJ depends upon the admission of the state into the UN as per the UN Charter. In this case, that has not happened, therefore Orangeland not being a state cannot be a party to a contentious case before the ICJ.

ICJ can only admit the case by Hound against Shepherd, if Shepherd consents to the admissibility of this dispute to the ICJ. Merely by being parties to the ICJ Statute, the compulsory jurisdiction of the ICJ cannot be invoked by Hound against Shepherd. As we have established in this section, irrespective of the violations of international law, ICJ’s jurisdiction in contentious cases can only be allowed if both the state parties to the dispute consent to it. Such consent may have been given under article 36 (1) or (2). That is not clear at this point. Even now that the dispute has arisen, ICJ’s jurisdiction may be consented to by Shepherd. Unless that happens, ICJ cannot admit the cases against Shepherd.

One point is pertinent here. As per Article IX of the Genocide Convention, all disputes including those related to state responsibility for genocide are to be submitted to the ICJ. Moreover, even where the states may have made reservations to Article IX but have accepted the general jurisdiction of the ICJ under the optional clause, the ICJ may hear the case against such a state. 24 In the present case, Shepherd has made a reservation to Article IX but has not accepted the general jurisdiction of the ICJ under optional clause.

4. Security Council - Powers under Chapter VI and VII of the UN Charter

The UN Charter, art. 24(1) gives the primary responsibility for the maintenance of international peace and security to the UNSC. Under Chapter VII of the UN Charter, UNSC can take certain measures involving use of military force against states who have breached peace or threatened to breach peace. These are collective security functions of the UNSC. Adam Roberts and Dominick Zaum define collective security as a system in which each state “accepts that the security of one is the concern of all, and agrees to join in a collective response to threats to, and breaches of, the peace.” 25 The UNSC is the bedrock of collective security in the UN and to that end the UNSC has been given special and additional powers that are not given to any other organ of the UN.

Whether an acts constitutes a threat to peace is a question for factual and political judgement, and not just a legal one. 26 The UNSC can consider and determine whether an act of the state amounts to a threat to peace or a breach of peace under UN Charter, art.39. The UNSC has in certain situations made declarations under art.39. Thus, intrastate violence (Balkan War before Yugoslavia’s fragmentation), 27 violation of human rights or international humanitarian law 28 and acts of terrorism, 29 have been held to be threats or breaches of peace by the UNSC under art.39. 30 The Argentine invasion of Falklands was declared to be a breach of peace by the UNSC and the Iraqi invasion of Kuwait was also similarly declared to be a breach of peace.

An important consideration at this time is whether a state has committed an act of aggression against the other state. The UNGA Resolution 3314 in 1974 is relevant here because it defines aggression. It provides that aggression is:

the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state or in any manner inconsistent with the Charter of the United Nations, as set out in this definition. the planning, preparation, initiation or execution by a person in a position effectively to exercise control over or to direct the political or military action of a state, of an act of aggression, which by its character, gravity and scale, constitutes a manifest violation of the Charter.

There is an important distinction between the two definitions. The UNGA definition is addressed to state, while the ICC definition is addressed to a ‘person in position’, therefore refers to the political leaders of a state or even military generals who may be in an effective power position. As far as the UNSC is concerned, once it determines that there is a threat to peace or breach of peace under article 39, it may then decide upon the measures that it will take to correct the situation. These measures may be those that do not involve use of force (article 41) or measures that involve the use of force (article 42). Measures under article 41 are usually in the nature of economic sanctions. Measures under article 42 involve use of force. Since 1991, the measures involving use of force have been used repeatedly by the UNSC. An example of the same is Operation Desert Storm, 33 that was the name given to the military action taken under UNSC to repel the Iraqi forces from Kuwait in 1990. In actuality these actions of the UNSC have been carried out by member states who have been authorised by the UNSC through its resolutions under the UN Charter, Chapter VII provisions. This is a model of ‘delegated enforcement action’, and although it is not specifically mentioned in the UN Charter, the UNSC has authorised military action against an ‘aggressor’ state by other able and willing states. 34 The UN Charter, article 43 provides:

All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.

As per this provision, the UNSC is to ask member states to make their armed forces available to the UNSC for collective security purpose. However, no such agreements as envisaged by article 43 have ever been concluded. 36 It is clear that the UNSC has the necessary powers to deal with the present situation in Shepherd, Orangeland and Hound. However, whether the UNSC will actually take the measures or not will depend on the declaration of the UNSC under article 39 that there is a threat or breach of peace. As this decision requires the concurring votes of each of the five permanent members, a veto by any one of the members can stop the resolution for being passed. It is also a fact that the UNSC members are motivated by realism and world politics, due to which collective security has also been called at times ‘selective security’. 37 These criticisms of the UNSC notwithstanding, the UNSC is capable of making a declaration against both Shepherd and Orangeland under article 39 and take appropriate economic or military measures against them.

Conclusion

In the present situation, the ICJ’s jurisdiction over Shepherd, despite the genuine allegations of human rights violations or the violation of international humanitarian law, is limited. Shepherd must consent to the ICJ jurisdiction before the case can be admitted against it. However, the UNSC will be well within its powers and functions if it declared Shepherd’s actions as breach of peace and subsequently takes coercive or military action under collective security provisions of article.

Bibliography

    1. Alexandrov SA, ‘The Compulsory Jurisdiction of the International Court of Justice: How Compulsory Is It?’, Chinese Journal of International Law (2006), Vol. 5, No. 1, 29–38.
    2. Anderson K, ‘United Nations Collective Security and the United States Security Guarantee in an Age of Rising Multipolarity: The Security Council as Talking Shop of the Nations.’, Chicago Journal of International Law 10, no. 1 (Summer 2009), 55-90.
    3. Blokker N, ‘Is the Authorisation Authorised? Powers and Practice of the UN Security Council to Authorise the Use of Force by ‘Coalitions of the Able and Willing’’, EJIL (2000) Vol 11 No 3, 541-568.
    4. Chesterman S, Just War or Just Peace: Humanitarian Intervention and International Law (Oxford University Press, 2001).
    5. Crawford J (ed.), Brownlie’s Principles of Public International Law (8th ed., Oxford University Press, 2012).
    6. Greenwood C, ‘The Role Of The International Court Of Justice In The Global Community’, University of California, Davis, (2011, Vol. 17.2). Accessed <http://jilp.law.ucdavis.edu/issues/volume-17-2/Greenwood.pdf> Hillbruger C, ‘The Admission of New States to the International Community’, EJIL 9 (1998), 491-50.
    7. Llamzon AP, ‘Jurisdiction and Compliance in Recent Decisions of the International Court of Justice,’EJIL 18 (2007), 815−852.
    8. Roberts A and Zaum D, Selective Security: War and the United Nations Security Council since 1945 (Routledge 2008).
    9. Schabas WA, Genocide in International Law: The Crime of Crimes (2nd ed., Cambridge University Press 2009).

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