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. [] 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.
[] 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. [] 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. []
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. []
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. []
CCART Art 20
Such jurisdiction arises when the states have already committed to ICJ jurisdiction within a preexisting 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. [ + 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. [] 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. [] 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 [], 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 [] 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. [] 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
Before a state asserts the right of diplomatic protection on behalf of its victim nationals, [] local
remedies must first be exhausted by the victim – ILC Drat Articles on Diplomatic Protection Arts 14 &
15. [Nice!] However, this only appears to any available effective local remedies – Art 44 ASR. Local
remedies where determined in Ambatielos Arbitration as the whole system of legal protection
essential to establish the claimant’s case before local courts. Furthermore, to show ineffectiveness,
it must be proven that such remedies would have been obviously futile if resorted to – Interhandel.
[] Therefore, Fiji could only claim diplomatic protection and therefore make a state responsibility
claim if the victim nationals affected by the appropriation had made a claim in the Land Disputes
Tribunal (which excludes judicial review, so this would be the only necessary claim). [] On the facts,
it appears local remedies have not been exhausted as the affected nationals do not appear to have
made a claim in the tribunal. However, it is possible Fiji could establish that resort to the tribunal
would have been obvious futile (Interhandel). It has been alleged that the tribunal is bias against
Fijians and few decisions have upheld land claims from Fijian nationals. [] Nevertheless, alleged
bias may be insufficient to prove ineffectiveness, especially without any evidence. Therefore, it
would be open to Kiribati to dispute Fiji’s state responsibility claim on the basis that local remedies
had not been exhausted. [good]
Circumstances Precluding Wrongfulness [not really relevant]
Numerous justifications or excuses can be claimed to preclude wrongfulness, such as consent (art 20
ASRT), force majeure (Art 21), distress (A 24), and necessity (A 25). However, of these circumstances
only necessity is remotely applicable, and in Gabcikovo Nagymaros it was held that the test for
necessity is very high. Thus no circumstances precluding wrongfulness would apply.
Therefore, state responsibility may be proven against Kiribati if Fiji can prove its nationals have
exhausted local remedies or that such remedies would be ineffective.
Conclusion
Several international law issues have arisen on the facts, including the ICJ’s jurisdiction, treaty
interpretation and state responsibility.
[79]