Territorial Sovereignty as a Fundamental Principle of International Law
Discuss whether the March 2018, X-Y-Z joint strikes against Tarragon were lawful under international law.
Whether the joint strikes made by states X, Y, Z against Tarragon were unlawful under the International law
Humanitarian intervention
In the context of international law, territorial sovereignty of individual states is considered as a fundamental principle. The concept of the territorial sovereignty has emerged from the concept of state according to which the prevailing government is perceived as the supreme authority within its territory without any external interference with respect to such supremacy. The international law requires every state to respect the territorial sovereignty of other states except under circumstances where a particular state infringes human rights or commits human right abuses against its citizens (Dinstein 2017). Under such circumstances, external states may intervene into the sovereignty of a particular state to safeguard the citizens on the ground of humanitarian intervention.
Fundamental principle of International law: Article [2(4)]
The legal provision embedded in Article [2(4)] of the UN Charter prohibits the Members of the UN from using or threatening to use force against the political independence or the territorial integrity as well as political sovereignty of any state in any way that is contrary to the purpose of the UN. This principle was upheld in the Congo-Uganda case. The provision set out under Article [2(4)] of the UN Charter is considered as a crucial element of International law as was held in the Tehran Hostages case and Nicaragua case.
Exceptions to Article [2(4)]
Self-Defence [Article 51]
The exception principle known as right to individual or collective self-defense as a response to aggression exhibited by another state has been incorporated under Article [51] of the Charter. The provision is subjected to an exception, which is the principle of self-defense and the authorization of the UN to apply the force under conditions, or jus ad bellum where states are permitted to resort to war or use armed force on humanitarian grounds to reduce sufferings in armed conflicts. This is achieved by providing assistance and safeguarding the victims of the armed conflicts to the extent possible.
Further, based on Chapter VII of the Charter, the UN Security Council is empowered to decide whether collect use of force should be resorted to as a response to any act that poses a threat to the peace or amounts to violation of peace as well as an act of aggression. Furthermore, considering the concept of ‘responsibility to protect’ in the context of international humanitarian law, it is already deeply-rooted in the international legal system that the international community must not fail to take necessary measures in case of genocide and other forms of abuses of human rights (Teson 2018).
Prohibition of the Use of Force under Article [2(4)] of the UN Charter
As per the ‘responsibility to protect’ principle, states are legally obligated to safeguard their citizens against mass atrocities and the international community must extend every possible assistance to the states. Moreover, in the event of failing to undertake any reasonable measures, international community becomes responsible to safeguard the concerned population from four specific crimes namely, war crimes, crime against humanity, ethnic cleansing and genocide. Nevertheless, as a reasonable protective measure, application of force may be used but only as a last resort and upon the authorization of the UN Security Council (Scott 2017). Prior to the use of forces, it is important that the international community use humanitarian and diplomatic measures to resolve the issue.
There is a clear distinction between jus in bello and jus ad bellum where the later seeks to restrict the application of force apart from cases of self-protection or any decision adopted by the Security Council. On the other hand, the former refers to a law that merely addresses the reality of a conflict regardless of the legal reasons for resorting to application of force (Gray 2018). It deals with only that aspect of conflict that is related to a humanitarian case. The principle of jus in bello is applicable to the war or military parties regardless of the reasons for conflict or the justifiability of such application of force.
The concept of ‘armed attack’ was defined in the Nicargua case. In Nicargua case, the International Court of Justice defined armed attack as an stroke by regular State armed forces across the international border or any armed groups, mercenaries and irregular armed forces when they are sent by or on behalf of a nation for executing an armed attack against any other country. The attack must be so severe that it would have amounted to an armed attack if it were executed by regular armed forces of a nation (Herman 2015).
In Nicargua case, it was held that self-defense could be collective or individual self-defense. In order to exercise the self-defense right, the following requirements must be satisfied:
- the state must be a victim of an armed attack;
- the state must affirm itself to be an injured party of an armed attack and the state that had been subjected to the attack must assess whether such attack amounted to an armed attack or not;
- the third state is not responsible for exercising a right of collective self-defense on the basis of the self-assessment of the state;
- in the event of exercising collective self-defense, the victim state must request the third state for assistance. As per the rule of the court, no third state can exercise collective self-defense unless the victim state asks for its assistance against the armed attack;
In the context of customary international law standard, the Caroline test is conducted to determine the validity and legality of a self-defense action. As per the Carolina test, the third state exercising such right must apply forces that are proportionate and necessary to safeguard the victim against the armed attacks (Scott 2017). The Carolina test or the customary international law prohibits application of force but permits the right of self-defense under conditions when proportionality and necessity is fulfilled and the Security Council had undertaken every possible measure to maintain international security and peace.
Self-Defense under Article 51 of the UN Charter
As per the facts of the given case, states X, Y and Z launched missile strikes on multiple government targets in Tarragon altogether relying on the self-defense principle and on humanitarian intervention grounds. The third countries (X, Y, Z) alleged that their attacks were made in response to the suspected Nutmeg chemical attack resulting in numerous deaths.
The third countries initiated the attacks based on the following incidents. Tarragon has been alleged to have been accused of using sarin gas and responsible for the chemical attacks on the city of Cinnamon in 2013. This allegation resulted from the public declaration made by Tarragon regarding its possession of chemical weapons. The international community has also accused the Tarragon government for conducting several other related chemical weapon attacks.
The second incident was the Nutmeg incident that took place in 2018 where Tarragon was alleged to have caused the incident. However, in both the incidents, it is not clearly established that the attacks amounted to armed attacks as was defined in the Nacaragua case. The attacks were not carried out by or on behalf of Tarragon against any other country and it had denied about taking responsibilities for the incidents.
Further, the UN ambassador of State X stated that they would carry out the air strikes against Tarragon as a collective self-defense. However, in the Nicaragua case, the court explained that the right under Article [51] of the Charter, the collective self-defense right could be exercised on fulfillment of certain requirements.
The victim states like Cinnamon and Nutmeg did not declare of being subjected to an armed attack by the Tarragon state and that the states neither any assessment about being subjected to armed attack. State Y itself made self-assessments regarding the country carrying out the armed attacks. Further, as per the requirement, the third state is not supposed to initiate actions in the form of collective self-defense based on self assessments which was exactly done by state X, Y, Z. Lastly, the States X, Y, Z were not requested by the victim states for assistance and as the court ruled in the Nicaragua case that it is important to request the third countries for assistance otherwise the right to self-defense cannot be exercised.
Further, the States X, Y, Z contended that they intervened on the ground of humanitarian ground but the actions that were undertaken as interventions were neither proportionate to the need nor was necessary. Thus, it failed the Caroline tests as well which requires under the customary international law, the proportionality and necessity test must be fulfilled to exercise the principle of self-defense. The airstrikes and missiles that were made by states X, Y and Z also led to the death of number of people, thus, failing the proportionality test. The humanitarian ground as also failed as the consequence of their response caused devastation whereas humanitarian interventions usually purport to reduce the sufferings of the victims.
Most importantly, besides failing the requirements set out in the Caroline tests in the context of customary international law, the airstrikes also contravened provisions of the UN Charter as such actions were not authorized by the Security Council. Thus, this resulted in contravention of Article [2(4)] of the Charter that prevents states from applying force into other states on grounds contrary to the purpose of the UN.
Conclusion
Hence, the X-Y-Z joint strikes against Tarragon were unlawful under the international law
References
Caroline v. United States, 11 U.S. 7 Cranch 496 496 (1813)
Dinstein, Y., 2017. War, aggression and self-defence. Cambridge University Press.
Gray, C., 2018. International law and the use of force. Oxford University Press.
Herman, J., 2015. The Right to Reparation in International Law for Victims of Armed Conflict.
Republic of Nicaragua v. The United States of America (1986) ICJ 1
Scott, S.V., 2017. International law in world politics: An introduction. Lynne Rienner Publishers.
Solis, G.D., 2016. The law of armed conflict: international humanitarian law in war. Cambridge University Press.
Teson, F., 2018. A philosophy of international law. Routledge
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