International Law, Legal Status of Bougainville - Math Problem Example

INTERNATIONAL LAW STUDENT NAME PROFESSOR’S NAME COURSE TITLE DATE Briefing to the Foreign Minister The aim of the briefing is to discuss the position of Papua New Guinea (PNG), Bougainville and Australia in terms of their treaty obligations and their obligations under international law. International law is the law governing relationships between states, the rules emanating from the free will of states expressed in conventions or treaties and usages for a common aim1. International law is thus the collection of rules that civilized states abide by in dealing with relationships amongst them. In international law, treaties are a source of international law, since it becomes binding on parties upon the parties consenting to that particular treaty. Australia and PNG being parties to international treaties implies they have to abide by their obligations under that particular treaty. Legal Status of Bougainville The Montevideo Convention on the Rights and Duties of States 1933 states that a State needs to possess the following elements: a permanent population, a defined territory, a government and the capacity to enter into relations with another state or states2. It is important to consider whether Bougainville Island is a state and whether it has the capacity to enter into legal relations with other states. The Autonomous Region of Bougainville is the easternmost province in Papua New Guinea (PNG), mainly composed of Islands with a land area of 9, 300 km2 with a population of about 234, 000 in 2011. In international law, the occurrences of the elements of statehood are simultaneous in order to create sovereignty and the absence of these elements over a period of time does not deprive a state its international personality3. In international law, there is no requirement on the minimum number of people that make up the population, which is a stable population living within a given geographical area. In the Pitcairn Island, the population of its inhabitants was about 90 and the UN Special Committee stated that the Pitcairn Island people have the right to determine their political future4. A fixed territory is the basic requirement for statehood. In the case of Duetsche Continental Gas-Cesselschaft v Polish State5 that is order to say that a state exists, there has to be a territory that is consistent even though the boundaries of the state have not been accurately delimited. A state can therefore not exist if it has no area of land generally defined. The Bougainville Revolutionary Army (BRA) having taken arms against PNG, and the PNG and BRA forces fighting led to the closure of the mine in 1989 and in 1990 BRA declared independence for Bougainville and a ceasefire was reached in 1997. A government according to Malcolm Shaw a state needs to have some degree of governmental control that maintains a degree of stability and order within the territory6. The fact that the BRA rebels are in control of Bougainville and that Bougainville gained their autonomy in 2000, it implies that there is a government in control. The sovereignty of a state signifies independence. In the case of Island of Palmas Arbitration7 that sovereignty signifies independence of a state and as a result of the independence a state has the right to exercise to the exclusion of any other state the functions of that state. As a result of Bougainville’s independence from PNG, it has the capacity to enter into legal relations with other states including Australia and PNG. Possibility 1: Civil Unrest to secure or resist Bougainville secession If there is civil unrest, then this amounts to acts similar to “regime change” which is the use of military force by a state or states to overthrow the de facto or de jure government of another state or to enforce the secession of foreign territory8. The referendum in Bougainville is guaranteed under the constitution, and it is upon the Bougainvilleans to decide whether or not they should secede. International law as a general rule does not grant a sub-state entity a general right to secede from its parents state but is does not prohibit secession9. Despite arguments that secession dismembers a territory, interoperating the scope of secession is both restrictive and expansive. There is a general obligation on states intervening in a conflict to establish security in the host territory, promote creation of a representative government, and ensure human rights protection, reconstruction and safeguarding minority rights. The fact that PNG and Australia are negotiating a treaty that would lead to the reopening of the Panguna copper mine are acts to support the reconstruction of Panguna in Bougainville, but the uncertainty of the referendum outcome creates a dilemma on the legality of the treaties. The intention of PNG is to avert and deter the secession vote since re-opening of the mines will stimulate economic prosperity. PNG and Bougainville had created a peace agreement in 2000 where it was agreed that Bougainville had gained autonomy in PNG. This meant that Bougainville was an independent state in PNG and recognized under the peace agreement. The Constitution of PNG under section 289 (2) states that the functions and powers of the national PNG government in and in relation to Bougainville include foreign relations (aid) and international trade. The legality of origin of a state is an important factor, if a state is formed by force or coercion. In international law, a putative state created out of an illegality such as violation should be denied recognition10. A state is illegal if it is in violation of the prohibition of aggression, the acquisition of territory by force, the right to self-determination and the prohibition of racial discrimination and apartheid11. The fact that the Bougainvilleans have decided that it will not secede from PNG, the acts of violence by PNG constitutes International law since it is an act of aggression. Further, Article 2 (4) of the United Nations Charter prohibits an act of aggression and the acquisition of territory by force therefore no entity created by violent means will not be recognized12. In the case of the Turkish Republic of Cyprus, the Turkish Cypriots was denied recognition since it was created as a result of an illegal military intervention in 197413. International law can legitimize actions of secession if it succeeds. International law gives the due procedures for secession, but not whether it substantively occurs14. However in case of violence, international law needs to protect secession process from an unthreatening path. The success of secession according to Tancredi15 secession needs to occur without any military intervention from foreign states, the citizens of the seceding state needs to democratically approve the secession and that the secession needs to respect the principle of uti possidetis16. It is important that during secession, the right to self-determination needs to be balanced with the importance of national unity and territorial integrity. Possibility 2: Bougainville’s successful secession either constitutional or non-constitutional means In international law, declaratory theory states that recognition of a state is a formality and that recognition is an acknowledgment that a state exists. The existence of a state under international law stems from the actual control of its territory and not from recognition from its members. In this case PNG cannot stop Bougainville from successfully either through a constitutional or an unconstitutional means. The United Nations Declarations of Friendly Relations in 1970 self-determination is available in situations of colonialism, subjugation, domination and exploitations. The international community can easily recognize the secessionist government especially where the predecessor state has committed gross violations on the seceding unit. Despite the fact that secession does not cure majority oppressive behaviour against minority, it is an option of ensuring that the minority self-determine itself. The principles of self-determination under international law are that the state decision procedure allowing people to participate in the conduct of its common affairs and the aspects of nationhood which involves more than a decision-making procedure17. The right to secede in international law is allowable in exceptional circumstances that are a remedy of last resort when the state refuses to grant minimum protection to the community. Article 1 (2) and Article 55 of the UN Charter clearly states the rights of a people to self-determination and protection from interference by other states or governments dependent on the equality of states rather than dependent peoples being independent18. In international law, constitutive theory argues that recognition of a state is purely a political affair and is determined by the political expediency. The recognition of Bosnia and Herzegovina, the Badinter Commission recommended a referendum which would demonstrate whether the people of Bosnia –Herzegovinia wished to constitute a sovereign independent state. A similar situation was evident in Bosnia-Herzegovina and the Yugoslav National army was ready to defend the Serbian minority, however the Yugoslav army kidnapped the president and Bosnia-Herzegovina was recognized despite being torn by violence. Civil unrest in international law will not be a bar to recognition of a state and sovereignty especially after the successful passage of the referendum or not. In consideration of the constitutional theory, recognition on this basis is a political affair. When Bougainville gain autonomy and independence to form its own state and is recognized, then it acquires the status of an independent state. A state once created, it enjoys sovereignty and has the same rights and duties and are subjects to international law. The rights enjoyed are the political autonomy of the state is inviolable, it can freely pursue its socio political, economic and cultural rights obey international law and live in peace with others. The legality in international law of whether an act of secession conforms to international law does not negate the existence of a state. An illegality in the formation of an effective government where the masses are denied a chance to choose whether to remain a state or not, international law does not punish it with disappearance of the statehood if it violates norms of ius cogens19. The materiality of an illegality or legality of secession in the impact on a state depends entirely on the particular circumstances that exist within that particular territory. However there is a real likelihood that if the referendum is conducted in a legal way, international community will likely to recognize the state. Uncertainty of Bougainville future and Australia’s desire to fulfil international obligations Article 38 of the Statute of the International Court of Justice (ICJ)20 states that there are five distinct sources of international law, treaties, customs, general principles of law, judicial decision and the writing of publicists. Treaties are thus a source of international law and since PNG and Australia have entered into a bilateral treaty, then it is a source of law in international law. A treaty signals a direct source of obligations for parties and that the binding force comes from consent of the parties and not from the subject matter or the form of the treaty. In the North Sea Continental Shelf Cases the court held that a treaty rule could not become binding on third parties as a rule of custom if the third parties had not shown their consent to the rule. The Vienna Convention at Article 53 and 64 clearly states that a treaty that is in conflict with international law or ius cogens the peremptory norms of international law will be void and international customary law will prevail over an inconsistent treaty provision21. It is important to note that where there is a conflict between international obligations and national law, international law prevails22. The Vienna Convention at Article 27 clearly states that “ a party may not invoke internal law to justify its failure to perform a treaty without prejudice to Article 46”23. This means that Australia as a state needs to carry out in good faith its obligations under international law and cannot rely on provisions in its constitution or laws as an excuse from performing its international obligations. In the Alabama Claims Arbitrations24 it was held that the British government could not justify its itself for having failed to carry out due diligence and escape liability due to its municipal law. This position was reiterated in Polish Nations in Danzig case25 that a state cannot adduce against another its constitution to evade obligations incumbent upon it under international law26. In consideration of the Vienna Convention on Secession of States in respect of Treaties and the Vienna Convention on Secession of State Property, Archives and Debts, Lowe27 summarises its provisions. Lowe asserts that states are not automatically bound by the treaties of their predecessors states except in defining borders since the borders become international boundaries and in case of debts the states would agree to apportion the public property and debts. In case of successor states international law has always asserted that the emerging states are obliged to fulfil their treaty obligations of their predecessor states28. However, the new states are entitled to a de novo review of its treaty commitments and are not to immediately assume the treaties of the predecessor state. When a state breaks up, it can either be characterized as a continuation, separation or a dissolution, and a continuation occurs in cases where one or more-sub entities breaks away from the predecessor state and forms an independent state. The remaining state retains the rights and obligations, the continuing state while the new state cannot be considered as bound by all the treaty obligations. Inclusion of the Amendments PNG proposes to include an article in the proposed treaty: “that in the event of efforts to secure secession of Bougainville from Papua New Guinea by non-constitutional means Australia undertake that it will refrain from lending or seeking to lend any form of assistance to those efforts, with consultations with PNG it will impose sanctions to hinder those efforts and will refrain from recognizing Bougainville as a separate sovereign state until such time as such recognition is approved by PNG”. Further PNG seeks to include in the treaty that if the security situation warrants removal of personnel and detainees from detentions centres in Bougainville island and Australian personnel from the Panguan mine then Australia shall evacuate such personnel to a place of safety at Australia’s expense. Article 24 (2) of the Vienna Convention expressly stipulates that states must expressly consent to be bound by a treaty for the treaty to enter into force. The introduction of the amendments contravenes the constitutional provisions of 2000 whereby PNG was limited to concluding agreements that deals with foreign relations and international trade. The amended provisions touch on secession of Bougainville from PNG by non-constitutional means and asks Australia to refrain from lending assistance to those efforts, employ sanctions in Consultation with PNG and refraining from recognizing PNG government. Article 26 of the Vienna Convention states “every treaty in force is binding upon the parties to it and must not be performed by them in good faith”29. The proposed amendments violate the good faith obligations in formation since it bars Australia from intervening in any event secession turns violent. Article 34 of the Vienna Convention provides that “a treaty does not create either obligations or rights for a third state without its consent”30. The exception applicable to Article 34 of the Vienna Convention is contemplated by Article 35 that an obligation can arise for a third party if the parties to the treaty intend that the provisions to be means of establishing the obligation and the third party accepts”31. A treaty that provides for sanctions to be imposed on aggressor states violates international law. Article 2 (6) of the Charter of the United Nations (UN Charter) clearly states that states not members of the UN will act according to these principles so far as it is necessary for maintenance of international peace and security32. Article 2(4) of the UN Charter clearly prohibits a state from using threat or the use of force in international relations. The treaty being proposed by PNG is similar to that which is contemplated by the Estrada doctrine in international law. Gastro Estrada a former Mexican Foreign Minister stated that ‘recognition of a new state allows foreign states to pass judgment on legitimacy or illegitimacy of the regime resulting in legal qualifications or national status of governments or authorities that are subject to opinions of foreigners. The proposed amendment to the draft treaty attempts to define the obligations of Bougainville in international law. In conclusion, if the treaty is concluded and the secessionist movement is successful, then Bougainville will not be bound by the treaty entered into by PNG and Australia. This is because Bougainville was not a party to the treaty negotiations despite the fact that the 2000 Constitution allowed PNG to negotiate agreements for trade for Bougainville despite being an autonomous entity. If there is a civil unrest following secession, then there is real likelihood that Bougainville will not be recognized but it may continue to exists as an independent state until such time it gains recognition as either a de jure or de facto state. The legality of secession achieved either by constitutional or unconstitutional means will not affect the rights of Bougainville to determine whether they want to be independent or remain a sub-state of PNG but depending on circumstances the international community may decide to recognize it a state. A treaty imposes binding obligations to states bound by it, and is a source of international law and the fact that Australia is aware of the uncertainty of Bougainville’s future it must not negotiate a treaty with PNG since after secession, the new state may desire not to continue with the treaty at the detriment of Australia. Australia must have reservations included in the treaty to provide for any uncertainty in the future. Lastly, if a treaty amendment seeks to impose sanctions on a state, this amounts to acts of aggression and is in contravention of international law and the amendment will be illegal and not binding. Clause (a) and (b) of the treaty are likely to be illegal and unenforceable under international law. References Butler, J ‘Responsibility for Regime Change’ (2014) 114 Columbia Law Review 3: 503- 583 Brownlie, I. 2008, Principles of Public International Law, 7th edn, Oxford University Press, Oxford. Cassese, A. 2004, International Law,(Oxford University Press, 2nd edn, 2004) Duursma, J Self Determination, Statehood and International Relations of Micro States, (A WSijithoft, 1994) Higgins R Problems and Process: International Law and How We Use It (Clarendon Press 1995) ,p 12 Kohen, M, Introduction to Secession: International law Perspectives (Cambridge University Press, 2006) 6-9 Lowe, V International Law (Oxford University Press, 2007) Shaw, M., 2008 International law, 6th edn, Cambridge University Press, Cambridge Shaw M International Law (2nd ed, Cambridge University Press, 1986) 128 Tancredi, A “ A Normative Due Process in the Creation of States through Secession” In Secession: International Law Perspectives, ed ,Marcelo Kohen (Cambridge University Press, 2006) Williams P, The Treaty Obligations of the Successor States of the Former Soviet Union, Yugoslavia, and Czechoslovakia: Do they Continue in Force’ (1995) 23 Denver Journal of International Law & Policy (1) http://heinonline.org Cases Duetsche Continental Gas-Cesselschaft v Polish State (1929) 5 AD 11 Gabcikovo-Nagymaros Case (1997) ICJ Reports (1998) 37 ILM 162 SS Lotus Case: France v Turkey (1927) PCIJ Rep Ser A No. 10.18 The Netherlands v the US (1928) 2 RIAA 829 Statutes Statute of the International Court of Justice (ICJ) United Nations Charter 1945 Vienna Convention on the Law of Treaties 1969 Read More