QUESTION
My assignment topic will come out on the 6th of June. It consists of a short essay and a problem solving.
I need to have it referenced with Australian Guide to Legal Citation, 3rd edition – footnotes and bibliography. For the problem solving, the best way would be to follow the IRAC method.
SOLUTION
Answer 1
Issue: Several issues of public International law that are involved in this case are obligation of a state in an armed conflict not international in character; freedom of speech and expression; obligation of state towards foreign investment; diplomatic protection to naturalized citizens; rights of journalists during internal armed conflicts and use of force by state to curb internal conflicts.
Relevant Law: Article 3 (i) of the Geneva Convention which states that in armed conflicts which are not international in character the wounded need to be treated humanely. The Article 1 of the 1977 Additional Protocol II to the Geneva Convention of August 12, 1949 is also applicable in the armed conflict within a state. This article supplements Article 3 of the Geneva Convention in those cases wherein intensity of armed conflict is too high. Certain criteria which are required for the application of this article are being required to be satisfied in the case of an internal Armed conflict are (i) there is a confrontation between the government armed forces and the non government factors (ii) the non government entity has a properly organized command (iii) a part of the territory is controlled by the government. These disputes need to be admitted to the Security Council of the United Nations or General Assembly as these are threat to the international peace.[1] Initially there were regulations for the international armed conflict only which was between different states though there were internal armed conflicts as well at that time. The Rome Statute states that an armed conflict does not include internal disturbances and tensions and includes an armed conflict between the government and any other organized armed group within the territory of the state.[2]
The Article 19 of the Universal Declaration of Human Rights provide freedom of speech and expression and this freedom extends to expression and opinion expressed on social media like facebook and twitter and any curtailment of this right lead to the fundamental breach of this obligation of the state. Article 19(3) of the International Covenant o Civil and Political Rights puts certain restrictions on this right in matters such as to safeguard the national security and public order. In the matter of Lingens v Austria (1986)[3] it was held by the European Court of human rights that freedom to debate on political issues is the basic concept of a democratic society and the limits imposed on such criticism are more on a politician than on a private individual. The International Special Rapporteurs on Freedom of Expression representing Americas Europe, Africa and the United Nations issued a declaration on the Freedom of Expression and Internet and imposed criminal liability on the person who tried to restrict this fundamental human right unless with a necessity to do so.[4]
It was held by the International Court of Justice in the matter of Belgium v Spain (1970) popularly known as the Barcelona Traction Case that a state that has allowed within its territory any investment by a foreign country or any foreign national whether that person is natural or juristic than the state is bound to protect such persons by way of law and has an obligation for any treatment met to them in their territory.
In the matter of Liechtenstein v. Guatemala (1955) I.C.J 4 popularly known as Nottebohm case it was held by the International Court of Justice that effective nationality that is to bring an action against the state and to claim diplomatic protection it is required that the national has a meaningful connection with that state.
In the armed conflicts which are not international in character the journalists are not provided any special status as is provided in case of international conflicts. The Prisoner of War status which is provided under international armed conflict is not so in internal conflicts. Article 3 of the Geneva Convention is applicable as it is applicable to any other civilian that is humane treatment.
The use of force by non government entity is considered as illegitimate use of powers as only the state has the right to use powers. In an internal armed conflict the use of force by the non government entity is considered as illegitimate as only the state has the right to make use of powers within the territory. The state government will always maintain that it has a right to treat belligerents as criminals and can prosecute them under the domestic criminal law but under international human rights the fighters are given some legal sanctity and have some rights and duties as the belligerents.[5]
Application to facts: In Ispia there was clear violation of the Article 3 of the Geneva Convention as on 29 May 2012 it was published by the Human Rights Watch that 750 patients were tortured which were civilians and Free Ispian Army supporters. There were other atrocities taking place in Free Ispian Army control area by the Government and its insurgents. Ispia is a member of the United Nations and Geneva Convention is binding on Ispia even if it is not a signatory to this particular Convention.
The Ipsian government is criminally liable for imposing restrictions and banning social media sites like facebook and twitter as per the report of International Special Rapporteurs on Freedom of Expression.
PourOver is incorporated under Belgian law and is having its head office in Brussels but its chain is there in Ipsia as well. Ipsian government has allowed investments by PourOver to open its cafe in Ipsia and thus as the rule laid in the Barcelona traction case has a liability to render protection to this chain of cafes in their territory.
Janet Sands the citizen of Ispia by way of naturalization has certain rights granted to her by way United Nations Charter, Universal Declaration of Human rights, International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The International Covenant on Economic, Social and Cultural Rights grants that everyone is supposed to have reasonable and just working conditions[6] and it is also guaranteed that there should be social security for everyone.[7] Rights of the Janet sands have been violated by the Ispian government as PourOver café were seized which was the livelihood of Janet Sands and her citizenship was stripped even without informing her and when she tried to come back to Ispia she was arrested and kept in detention meant for illegal immigrants. While in detention there was violation of her fundamental rights as she was beaten, denied food and access to her lawyer and her business associates. This is an atrocity on the part of the Ispian government and clear violation of the human rights. Under Article 13 of the Universal Declaration of Human Rights there is freedom of movement granted to all citizens and non citizens. Everybody has right to leave a country and return back to it. Janet Sands had all the rights to move from Ispia to Aproprus and to return back to Ispia but she was denied entry into Ispia and it is a clear violation of her right to freedom of movement as granted to her by Universal Declaration of Human Rights. Janet Sands can claim diplomatic protection from the Ipsian government as she has acquired its citizenship by naturalization and at that time has no other citizenship.
As in armed conflicts which are not international in character the journalists are not provided any special status so the journalists who have been missing and beaten cannot claim any special right other than those as granted to any other civilian.
Conclusion: The situation in Ispia is very critical and there are several claims that can be made against the government by the various people and corporation who suffered due to these atrocities within the state.
Answer 2
Sovereign originated from the French word soverain which means supreme or the unsurpassed. A sovereign state has its own government, legislature and judiciary and has full authority within its territory and no foreign State or law has any jurisdiction over that State except the public international law. With sovereignty a state gets entitlement for any non-interference in its internal matters.
Human rights are deeply embedded in sovereignty but at the same time sovereignty is a strong concept and remains unchallenged regarding human rights. The human rights are universal rights which are equal and inalienable to all individuals in the world and cannot be opposite to the sovereignty that is the supreme power of the state. The legal and political norms have made both the sovereignty and human rights as compatible to each other. The international human rights are contained in the Universal Declaration of Human Rights of the year 1948 and in the International Human Rights Covenants of the year 1966. State sovereignty needs to be interpreted keeping in view the basic principles established by international law with respect to human rights such as prohibition of abuses of right, respect to the sovereignty of the other States and adopting the adopting the minimum standard of civilization. In the present times especially after the year 1945 the freedom of the sovereign states to deal with human rights has become little restrictive than ever before. The Charter of the United Nations is basically deals with keeping peace and not directly with human rights but human rights still falls within its purview. Several Conventions have been accepted both at the regional and the global level for protecting human rights, some dealing with specific rights like genocide, apartheid and some other on different categories of human beings like women, workers, children etc. Some of the rules contained in international conventions have become binding on the States even if they have not ratified the Conventions of those rights. There is no certain response to the violation of human rights by the states as it is solely dependent on as to how far the right was binding on the State. In case where a rule is not binding on a State then the responsibility cannot be entailed of that State which fails to act in compliance with that rule. Situation is totally different in cases where the right which is violated is not only binding but also peremptory in nature. Preemptory rule is that rule which has got internationally recognized and accepted and the derogation of such rules are not permitted. Peremptory rules can be modified by any other subsequent norm of the same nature that has also been recognized and accepted internationally.[8]
The duties of the States with respect to international human rights are on their own citizens and those which fall under the territorial jurisdiction of the State. States are not obliged to enforce and implement international human rights of the foreigners or of a foreign state. International society has usually sovereign states and the international law requires for its implementation and enforcement the willingness of the sovereign states. The way a state handles people within its territory has become an international debatable topic. States have the final word in human right issues within its territorial jurisdiction and States have not lost its power regarding implementing and enforcing human rights within its jurisdiction.
Before World War II human rights violations within a State was considered as a private matter of that State and even talking about it was an undesirable infringement of the privacy of the State. Multilateral treaties were not in existence and these were not addressed in the foreign policies of the states as well as transnational action was rarely in existence. In order to preserve themselves there were many aggressive wars launched by the states and states were successful in justifying their actions in judicial proceedings. There was nothing in international law that made it mandatory for states to behave in a certain way with their own nationals but now time has changed and sovereignty cannot be claimed to violate human rights. The norms of international law now make certain types of behavior as mandatory on the part of the States and make some as prohibitory behavior. It is a big change in giving international face to the human rights but it need not be overestimated or underestimated. Civilization standards in the nineteenth century led to complete participation from all states and to put an end to the barbarous treatment was in full compatibility with the sovereignty principles of the States. Even after these normative prohibitions in the way a State can treat its nationals there was nothing to enforce these restrictions. Any indifference to the normative restrictions was just considered as not fulfilling the international standards. It is not unusual that sovereign have some international duties as well even without any direct authority. Certain international norms have become binding on the states like the obligation of erga omnes and jus cogens. Till the time international norms do not create any higher authority to keep a check on the compliance of these norms and that these norms are in full compliance with the sovereignty of the states. It means that the authority of the states is not absolute and unlimited. Sovereignty is not static and states are facing many challenges, pursing new interest areas, elaborating on new norms and also learning from the past deeds. Last half century human rights are becoming more widely and deeply being a part of the international law and imply to our understanding of the concept sovereignty. Implementation of these international norms on human rights is mainly dependent on the sovereign states.
Genocide is an exception to the national implementation rule and is an accepted standard that armed interference to stop genocide can be permitted by the Security Council. Genocide is taken away from the wings of the sovereign states and it can be said that the enforcement authority in cases of genocide is now moved to the society of states and it is thus leading to loss of sovereignty to some extent. It is not a very radical change but those states committing genocide are in the same boat as those which are waging aggressive wars and not putting any implication for sovereignty. There is a fundamental change in the international enforcement of human rights leading to change in the sovereignty practices. When such politically important issues are being removed from the purview of the power of the states, sovereignty of the state is lost to some extent. For other human rights except genocide states have the supreme authority and it still keeps sovereignty on a strong footing. The new humanitarian sphere is being formed within the state sovereignty and is not an alternative to it. The present system which grants all the rights of enforcement and implementation on the states leaves the social and economic rights to solely dependent on the capabilities and resources of the state. United Nations General Assembly took the matter of human right violation in Bulgaria, Hungary and Romania in the year 1947. It also sorted out the question of colored people in South Africa which was at that time a serious struggle of apartheid in front of the United Nations.[9] France created human right violation in Algeria and was indicted for this treatment. It is established now that the principle of non interference is out of question in the matters of human right violations and to support this argument comes forth the recent judgment wherein international community could not be barred from acting by the sovereignty is the indictment of Soviet Union. The exclusive jurisdiction was given up by Soviet Union and discussions were initiated to resolve the problem.
In matters of human rights violations sovereignty cannot act as a defense and in serious violation of the fundamental human rights, sovereignty does not come into picture and it cannot be a hindrance to Security Council decision that violation of such human rights is posing threat to the world peace. Sovereignty can also not come in the way when Security Council finds consequences to remedy the wrong and rulers of the states cannot also be spared from international prosecution for their acts.[10] Intervention on the grounds and to protect the human rights should not be treated as an infringement or curtailment of the sovereignty of the state but state consider it otherwise and become offensive when there is any interference in their internal matters.
Bibliography
Books
- Bartelson, J. (1995) A Genealogy of Sovereignty Cambridge University Press
- Brownlie, I (2003) Principles of Public International Law Edn. 6th Oxford University Press
- Donald, K; Penelope, M; & Wayne, M (2005) International Law: Cases and Materials Oxford University Press
- Simpson, G (2004) Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order Cambridge University Press
- Moir, L The Law of Internal Armed Conflict
- Pictet, J (1975) Humanitarian law and the protection of war victims
- Wheaton, H (1866) Elements of International Law Edn. 8th
Cases
- Belgium v Spain (1970)
- Lingens v Austria (1986) 8 EHRR 407
- Liechtenstein v. Guatemala (1955) I.C.J 4
Others
[1] ICRC Commentary on the Four Geneva Conventions of 1949.
[2] Rome Statute of the International Criminal Court Article 8(f).
[3] (1986) 8 EHRR 407.
[4] Press Release R50/11.
[5] Moir, Internal Armed Conflict p. 274.
[6] Article 6 of the International Covenant on Economic, Social and Cultural Rights.
[7] Article 9 of the International Covenant on Economic, Social and Cultural Rights.
[8] Article 53 of the 1969 Vienna Convention
[9] Repertory of United Nations Practice, Supplement No. 2 122-23, U.N. Sales No. 64. V.5 (1963-64).
[10] Chapter VII of the Charter of the United Nations.
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