Legal Validity of Peace Treaties: Use of Force and Jurisdiction in International Law, Exams of International Law

Download Legal Validity of Peace Treaties: Use of Force and Jurisdiction in International Law and more Exams International Law in PDF only on Docsity! Diploma Examination Public International Law Prof. Schmalenbach / SS 2012 Case I) State A and State B (both members of the UN) share a common border but their relation is tense. One day, three border guards of State A provoke the border guards of State B by using heavy weapons across the border, injuring one soldier of B. As a consequence State B launches a counter attack that leads to a bloody one-month armed conflict. In the end, State A is completely defeated. State B then insists that State A signs a peace treaty (a) to end all armed activities between A and B, and (b) to cede a certain part of A’s territory to State B. Is this peace treaty in all its parts legally valid? (20 Points) 1. Art. 52 VCLT a) Has State B used force in violation of the UN Charter? • The Prohibition of the Use of force (Art. 2 (4) UN Charter) • Self Defense (Art. 51 UN Charter) b) Has the conclusion of the peace treaty been procured by the use of force? c) Interim Result 2. Legal Consequences: Invalidity of the treaty in all its parts? 3. Result Legal assessment of the case: Is the peace treaty in all its parts legally valid? The law of international treaties between States is outlined in the Vienna Convention of the Law of Treaties (VCLT). Most of the content of the VCLT is considered to be customary international law and because of this it does not matter if State A and State B have ratified the VCLT or not. This is especially true for Art. 52 VCLT which is of special interest in the given case. 1. Art. 52 VCLT Generally speaking a peace treaty, as any other treaty in international law, binds the signature states (pacta sunt servanda). Section 2 of the VCLT contains rules concerning the invalidity of treaties. According to Art 52 VCLT “a treaty [is] void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.” First there has to be a threat or use of force in violation of the UN Charter and second the conclusion of the treaty has to be in some kind of casual relationship (“procured”) with this use of force. Generally speaking a peace treaty imposed by an aggressor state on a victim of aggression has no legal force. In the case given, the questions arise if B has used force in violation of the UN Charter and (when the answer is yes) if the conclusion of the peace treaty has been “procured” by the use of this force. a) Has State B used force in violation of the UN Charter? The counter attack of State B could be a violation of the prohibition of the use of force (Art. 2 (4) UN Charter). It is well accepted that Art. 2 (4) is a universally recognized rule of customary law. • The Prohibition of the Use of Force (Art. 2 (4) UN Charter) State B has violated the prohibition to use force when the legal requirements of Art 2 (4) UN Charter are met and when no legally recognized exception is applicable. − Duty Bearer Art. 2 (4) UN Charter obliges all member states of the UN to refrain from the threat or use of force. State B is a member State of the UN and therefore has to refrain from the threat or use of force. − Right Holder Art. 2 (4) UN Charter prohibits the threat or use of force against any state. State A is a UN member State and therefore has rights (and duties) according to the UN Charter. − Threat or use of force The counter attack of State B qualifies as use of military armed force against State A. 2. Legal Consequences: Invalidity of the treaty in all its parts? Such an imposed treaty has no legal force (Art. 69 (1) VCLT). This affects the whole treaty not just parts of it (Art. 44 (5) VCLT). (Would the peace treaty only contain the obligation to end all armed activities between A and B it would not be void as this is generally seen as too extreme with regard to the necessity to end wars.) Although the peace treaty as a whole is void this does not affect the duty of any State to fulfill any obligation embodied in the treaty to which it would be subject to under international law independently of the treaty. One such obligation is to refrain from using force in violation of the UN Charter. The nullity of the peace treaty therefore does not reinstate the state of war between the two states. One may now think of Art. 75 VCLT which says that the VCLT is “without prejudice to any obligation in relation to a treaty which may arise for an aggressor State in consequence of measures taken in conformity with the UN Charter with reference to that State’s aggression.” This article would allow a State to impose a peace treaty on another state in course of exercising its right of self defense. The counter attack of State B however was an unjustified violation of the prohibition of the use of force and therefore not in conformity with the UN Charter. 3. Result The peace treaty as a whole has no legal force. This does not affect other obligations the states A and B have like to refrain from using force in violation of the UN Charter. The nullity of the peace treaty therefore does not reinstate the state of war between the two states. Case II) C, a citizen of State T, is kidnapped and severely beaten by a member of the secret police of State T during official interrogation in the state prison of T. Unfortunately this is a common practice in State T which has neither ratified the International Covenant on Civil and Political Rights (ICCPR) nor the Convention against Torture (CAT) or any other international human rights treaty. C seeks justice before domestic criminal courts of State U where the member of the secret police who carried out the beating is currently residing. The criminal code of State U contains a provision that allows the exercise of jurisdiction “in accordance with international law”. The arrested member of the secret police of State T claims jurisdictional immunity. Has the criminal court of State U jurisdiction in the given case? (20 Points) 1. Territorial Principle 2. Active and Passive Personality Principle 3. Protective Principle 4. Principle of Universal Jurisdiction 5. Is State U allowed to exercise jurisdiction in the given case? a) Ius Cogens b) Customary International Law c) Treaty Law 6. Result Legal assessment of the case: Has the criminal court of State U jurisdiction in the given case? State U’s criminal code allows the exercise of jurisdiction “in accordance with international law”. According to international customary law a State can claim jurisdiction over an activity if there is a legitimate connection between the state and the event. International law knows several principles with different connecting factors. 1. Territorial Principle Ordinarily jurisdiction is based on the territorial principle under which a state has jurisdiction over activities within its territory or an activity that affects its territory (Lotus Case). As the kidnapping and the severe beating of C took place within the territory of State T, there is no connection between the activity and the territory of State U. Therefore State U cannot claim criminal jurisdiction under the territorial principle. 2. Active and Passive Personality Principle According to the active and passive personality principle a state can extend its jurisdiction over their nationals even when they are outside the states territory. Regarding criminal jurisdiction the active personality principle sees the nationality of the culprit as a connecting factor whereas the controversial passive personality principle ties the jurisdiction to the nationality of the victim. As neither the secret police member nor the victim C is a citizen of State U, the jurisdiction cannot be based upon the active or passive personality principle. 3. Protective Principle Under the protective principle a State can assert its jurisdiction over acts committed outside its territory that are prejudicial to its security or interfere with the operation of its government functions. Such acts are for example treason or espionage. (United States v. Zehe, 1985) As there is no indication that the kidnapping and severe beating of C threatens the security or governmental functions of Stat U the criminal jurisdiction of State U cannot be based upon the protective principle. 4. Principle of Universal Jursidiction As neither the territoriality principle nor the personality principle nor the protective principle can be applied, the criminal jurisdiction of State U can only be affirmed if the principle of universal jurisdiction can be applied. According to the principle of universal jurisdiction national courts may exercise jurisdiction under international law over certain serious crimes even when the connecting factors mentioned above are not given. The severe beating of C during the official interrogation is an act of torture (The definition of torture in Art. 1 CAT is considered to be customary international law). The prohibition of torture is part of customary international law and ius cogens. The UN Convention against Torture requires its parties to exercise universal jurisdiction over torture which can be found in Art. 5 (2) CAT. Universal jurisdiction over torture is nowadays considered to be part of customary international law (see