INTERNATIONAL LAW IS SUBSERVIENT

TO INTERNATIONAL POLITICS

NAME: KANAAD CHINTAMANI BHAT

ROLL NO.: 15A

CASES DISCUSSED:
1) EAST TIMOR
2) DISINTEGRATION OF YUGOSLAVIA
3) ENRICA LEXIE
4) GREAT POWER POLITICS IN THE SOUTH CHINA SEA

5) INDIA-BANGLADESH MARITIME DISPUTES

6) THE SIR CREEK BOUNDARY DISPUTE: A VICTIM OF

INDIA-PAKISTAN LINKAGE POLITICS
 INTERNATIONAL LAW IS SUBSERVIENT TO INTERNATIONAL POLITICS

International law is the universal system of rules and principles concerning the relations
between sovereign States, and relations between States and international organisations such as
the United Nations.
Although international law is mostly made between States or in relation to States, its effects are
broader and can also affect other entities. Sometimes these are called non-State and include
individuals, corporations, armed militant groups, groups that wish to secede or break away
from a State, and other collective groups of people, such as minorities (ethnic, religious,
linguistic) and Indigenous peoples.
The modern system of international law developed in Europe from the 17th century onwards
and is now accepted by all countries around the world. The rules and principles of international
law are increasingly important to the functioning of our interdependent world and include
areas such as:

telecommunications, postal services and transportation (such as carriage of goods and

passengers)

international economic law (including trade, intellectual property and foreign

investment)

international crimes and extradition

human rights and refugee protection

the use of armed force by States and non-State actors

counter-terrorism regulation

Nuclear technology

protection of the environment, and

use of the sea, outer space and Antarctica.

An important aspect of international law is resolving international disputes, but it is only one
part. Like any legal system, international law is designed to regulate and shape behaviour, to
prevent violations, and to provide remedies for violations when they occur.
International law differs from domestic law in two central respects:
1. The law-making process: There is no supreme law-making body in international law. Treaties
are negotiated between States on an ad hoc basis and only bind States which are parties to a
treaty. The General Assembly of the United Nations is not a law-making body, and so its
resolutions are not legally binding. However, UN Security Council resolutions to take action
with respect to threats to peace, breaches of the peace, and acts of aggression, are binding on
the 192 member States.
In Australia, domestic law is made by legislation passed by the parliaments of the
Commonwealth, states and territories, and by or common law principles developed by the
courts. Parliaments are the supreme law-making bodies with power to make the laws, while
courts are empowered to interpret the law and apply it to individual cases.
2. Enforcement: International law has no international police force to oversee obedience to the
international legal standards to which States agree or that develop as international standards
of behaviour. Similarly, there is no compulsory enforcement mechanism for the settlement of
disputes. However, there are an increasing number of specialised courts, tribunals and treaty
monitoring bodies as well as an International Court of Justice. National laws and courts are
often an important means through which international law is implemented in practice. In
some instances, the Security Council can authorise the use of coercive economic sanctions or
even armed force. For example, in 1990 91 when Iraq invaded and occupied Kuwait the
international community used armed force to enforce international law (resolutions of the
Security Council). Subsequent controversy about the use of armed force against Iraq highlights
how difficult it can be to obtain the necessary authorisation from the Security Council under
the United Nations Charter. In international law, that is the only legitimate way that collective
armed force can be used. In general, international law is enforced through methods such as
national implementation, diplomatic negotiation or public pressure, mediation, conciliation,
arbitration (a process of resolving disputes other than by agreement), judicial settlement
(including specialised tribunals.
 CASE STUDIES
A) EAST TIMOR
East Timor was colonised by Portugal in the 16th century. The western side of the island
was colonised by the Netherlands, and when Indonesia became an independent state it gained
control of that part of the island, although the un-sponsored process by which West Papua
became part of Indonesia has been criticised for not properly reflecting the self-determination
choice of the local people.
1970s WITHDRAWAL AND INVASION
In Mid 1975 Portugal withdrew from East Timor and in November Fretilin, one of a number
of independence movements, proclaimed independence. On 7 December 1975 the Indonesian
army invaded East Timor, and claimed sovereignty over East Timor. Australia recognised
Indonesias sovereignty over East Timor in 1979, one of few states to do so. Resolutions of the
UN General Assembly and Security Council condemned the invasion and reaffirmed East
Timors status as a non-self governing territory under chapter xi of the UN charter, with
Portugal as administering power.
1999 TRANSITION TO INDEPENDENCE
In May 1999 Indonesia and Portugal agreed that the secretary-general of the UN should
conduct a referendum of the people of East Timor to determine whether they would accept or
reject a proposed constitutional framework for special autonomy within Indonesia. A large
majority of the East Timorese voted against special autonomy and in favour of independence.
Pro-Jakarta elements went on a rampage that saw villages burnt down and tens of thousands of
Timorese fleeing their homes to escape the violence. The UN authorised the establishment of
INTERFET (international force for East Timor) led by Australia, and Australian troops arrived in
September to keep the peace and assist in rebuilding. On 20 October 1999 the Indonesian
peoples consultative assembly ratified the ballot result and accepted the separation of east
Timor from Indonesia. On 25 October 1999 the UN Security Council voted to establish the UN
transitional administration in East Timor (UNTAET) to administer East Timor until its
independence. The INTERFET deployment ended in February 2000 and elections were held in
2001. East Timor gained formal independence in 2002, with Xanana Gusmo as the countrys
President. East Timor became a member of the UN on 27 September 2002.
ISSUES RAISED
The transition to independence raises many issues, including the status of East Timorese
individuals. An individual born in East Timor in 1969, arrived in Australia on an Indonesian
passport in 1994, and applied for a protection visa. While East Timor was not recognised at that
time as a sovereign independent state, the administrative appeals tribunal found that it fulfilled
the criteria of a country. The individual, known as SRPP had an unqualified right of entry and
residence in East Timor, had lost Indonesian citizenship, and had no right to Portuguese
citizenship. The tribunal was satisfied that SRPP had a well-founded fear of persecution if he
was to return to East Timor, because of his Chinese ethnicity. He was therefore a person to
whom Australia had protection obligations under the refugees convention, and was entitled to
a protection visa: Re SRPP and minister for immigration and multicultural affairs.
THE TIMOR GAP TREATY
In 1989, Australia and Indonesia entered into a treaty in relation to an area of the
continental shelf between the coast of East Timor and the coast of Mainland Australia, where
both Indonesia and Australia claimed sovereign rights (the Timor gap). The Timor gap treaty
designated the area a zone of co-operation and established arrangements for exploration for
and exploitation of petroleum resources. When East Timor became independent from
Indonesia, Australia and East Timor entered into a new treaty to replace the treaty that had
been operating between Australia and Indonesia. This treaty was the Timor Sea Treaty (20 may
2002). It provides for the sharing of the proceeds of petroleum in a particular area of the
seabed; and does not determine any maritime boundary or sovereignty over the seabed, since
the two countries were unable to agree on the disputed boundary. East Timor is entitled to 90%
of the proceeds, and Australia to 10% with the exception of one contentious area. A further
treaty, the treaty on certain maritime arrangements in the Timor Sea, was entered into in 2007
and extended the effect of the Timor Sea Treaty until 2057. It also settled the apportionment of
revenues in relation to the contentious area of the seabed giving each party 50% of the
proceeds.
B) DISINTEGRATION OF YUGOSLAVIA
Yugoslavia came into existence as a state after the First World War when areas which had
not been part of pre-war Serbia sought unification with Serbia to form the Yugoslav state. By
late 1991, the socialist Federal Republic of Yugoslavia was in the process of dissolution. The
European community established an arbitration commission, headed by the French lawyer
Robert Badinter. The commission ruled that where federal units of a state gain independence,
the existing internal federal borders of those federal units are transformed into international
borders. The first independent states were Croatia and Slovenia, which were recognised by the
European community in January 1992. The European community then recognised
Bosnia-Herzegovina in April 1992, and the Former Yugoslav Republic of Macedonia in 1993.
Until 3 June 2006, when Montenegro declared independence, Yugoslavia consisted of the two
republics of Serbia and Montenegro. Now, Yugoslavia does not exist. Its members have become
independent states. The application of the principle of uti possidetis to maintain internal federal
borders as new international borders has not prevented conflict over those borders.
 C) ENRICA LEXIE
On April 29, 2016, the arbitral tribunal constituted under Annex VII of the UN Convention on
the Law of the Sea (UNCLOS) to consider the dispute between Italy and India over the Enrica
Lexie incident issued an order on the Italian application for provisional measures of relief for
its two marines facing murder charges in India.

The marines, Salvatore Girone and Massimiliano Latorre, stand accused of the 2012 killing
of two innocent Malayali fishermen who they thought were pirates about to attack the
tanker Enrica Lexie, on which they were embarked as guards. Truth will be the third victim in
the mindless squabble that has now erupted between our government and the Congress party
over what the order means, but there are aspects of this case which should concern all of us as
citizens.

First, India is still so insular in the second decade of a century it claims as its own that
expertise in international law is almost entirely confined to the legal and treaties division of the
Ministry of External Affairs, where the quality is very uneven. It is telling that Neeru Chadha,
who retired as the head of the division, had to be brought back as Indias agent for both the
case filed by Italy in the International Tribunal for the Law of the Sea (ITLOS) and at the arbitral
tribunal in The Hague. It is even more telling that she simply spelt out the Government of
Indias response to queries from the two courts. The legal arguments for India were presented
by an American and a Frenchman. Two British QCs were the counsel for Italy, but that is
primarily because most Italians stumble over English and French, the working languages of the
tribunals. Indian lawyers are famously fluent in English, so that was not the problem. Clearly,
none knew enough international law, unlike the battery of Italian lawyers who were the
brains-trust for the QCs.

D) GREAT POWER POLITICS IN THE SOUTH CHINA SEA

For months, Beijing and Washington have been engaged in a mounting rhetorical war over
Chinese territorial claims and island building in contested waters of the South China Sea.
The Chinese Foreign Ministry has cautioned the U.S. military not to exacerbate tension in the
South China Sea by sailing naval vessels or flying aircraft near Chinese-held islands, many of
which are located in waters also claimed by Vietnam, the Philippines and Malaysia. The
Pentagon has countered that U.S. ships and aircraft will travel along any routes allowed by
international law at any time and has told regional allies that it will soon conduct patrols near
Chinese positions.

Though this standoff might seem like simple nationalist posturing between two Pacific
powers, maritime disputes carry a special significance in Asia. Unlike in Europe, water is the
organizing element of the continent, which wraps around the East and South China Seas, the
Bay of Bengal and Indian Ocean, as well as countless peripheral lagoons and bays. Ownership of
a particular island, reef or rock, and the right to name a body of water is more than a question
of sentimentality it is the foundation of many national policy strategies. Securing the right to
patrol, build bases and regulate trade through these waterways can mean access to resources
critical to sustaining economic growth and political stability.

PACIFIC RIVALS

Beijing's and Washington's divergent perspectives are rooted in radically different national and
regional strategies. On the world stage, China portrays the South China Sea dispute as
fundamentally a question of sovereignty. The United States, however, foregrounds concerns
about freedom of navigation. Since the end of the Cold War, the United States has been the
unquestioned pre-eminent power in the Pacific Rim, assisted by its allies, most notably
Japan and South Korea. Simultaneously, however, China has been emerging as a potential
regional hegemon, and the South China Sea has become the most visible area of tension.

A core but often unstated component of U.S. national strategy is to maintain global superiority
at sea. By controlling the seas, the United States is able to guarantee the secure movement of
U.S. goods and to deploy military power worldwide. This preserves global economic activity
feeding the domestic economy while ensuring that any threat to national security is
addressed abroad before it can reach the homeland. This state of affairs is enforced by the
powerful U.S. Navy, but it is undergirded by Washington's particular interpretation of
international law.

In China's near seas, the U.S. global imperative comes into conflict with China's emerging
regional needs. Since the early 1980s, China has undergone a transition from an insular,
self-sufficient pariah state to a major exporter. This has forced Beijing to reassess its maritime
risks and vulnerabilities. China is no longer able to protect its national economy without
securing the maritime routes it needs to maintain trade and to feed its industrial plant.

The South China Sea is one such essential waterway, made more important by the value of the
sea's fisheries and subsea resources such as natural gas. But addressing the risks of its near seas
means tackling the time-consuming and costly project of building, training and deploying a
stronger blue-water navy while also establishing a greater maritime buffer along the Chinese
coastline. China's assertion of ownership and control in the South China Sea, coupled with
liberal interpretations of its rights within its claimed exclusive economic zone, gives Beijing at
least a modicum of greater security. With neighbors unable or unwilling to directly challenge
Chinas concrete actions in the sea, and the United States hesitant to use force to halt Chinese
expansion, Beijing is reshaping the status quo unimpeded.

LEGALIZING NATIONAL STRATEGY

In pursuit of their respective interests, the United States and China have chosen to interpret
international maritime law differently. The precise legal nature of various landforms has
become key. There are four basic geographic terms at play: island, rock, low tide elevation and
artificial island. Understanding the ambiguity of each of these terms is key to understanding
conflict in the South China Sea.
According to international law, an "island" is a naturally formed elevation that is always above
the high-tide level and is habitable and/or capable of sustaining economic activity. A "rock" is
also naturally formed and above the surface but not necessarily suitable for habitation or
economic exploitation. By contrast, a "low tide elevation" can be covered by water at high tide
but is exposed at low tide. An "artificial island" differs from an island in that it is not naturally
formed. Disputes are further complicated when considering submerged rocks, seamounts and
other subsea landforms.

The designation of a landmass determines precisely how the surrounding water can be used
and who can use it. An island is granted a 12-nautical-mile territorial sea and a
200-nautical-mile exclusive economic zone, and it can be used to delineate a continental shelf,
which has implications for access to subsea resources. A rock is granted a 12-nautical-mile
territorial sea, but no exclusive economic zone. A low tide elevation is not granted a territorial
sea, but it may be used as a base point in claiming territorial waters if it is within 12 nautical
miles of land. An artificial island is granted nothing other than a 500-meter safety zone. Even
conduct within another persons exclusive economic zone is open to interpretation. The United
States argues it is within international legal rights to conduct military patrols inside exclusive
economic zones; the Chinese counter that this is considered hostile action and is thus
forbidden.

Beijing and Washington each have their own interpretations. China asserts that its South China
Sea holdings are islands and are part of sovereign Chinese territory, giving them the full
12-nautical-mile territorial sea and a 200-mile exclusive economic zone. The United States says
that while it has no official stance on maritime disputes, it interprets the holdings as either low
tide elevations or artificial islands. This reading gives U.S. vessels the right to sail within the
12-nautical-mile limit.

E) INDIA-BANGLADESH MARITIME DISPUTE

The much-awaited verdict on the dispute regarding the delimitation of the maritime boundary
between India and Bangladesh was delivered on Monday, with a United Nations tribunal
awarding Bangladesh 19,467 sq. km of the 25,602 sq. km sea area of the Bay of Bengal.
The arbitral tribunal had informed both the parties of the verdict on Monday but an embargo
prevented it from being made public before 24 hours. The content of the verdict of the
long-standing dispute was announced by Bangladesh Foreign Minister A.H. Mahmood Ali at a
press briefing here on Tuesday.
The verdict of the Permanent Court of Arbitration (PCA) came after nearly five years of
arguments and counter-arguments, spot visit by judges and examination of survey reports.
Bangladesh Ambassador to the Netherlands Sheikh Mohammed Belal and Indian Ambassador in
The Hague, Rajesh Nandan Prasad, received the copies of the verdict.
The tribunal verdict is binding on all parties and there is no option for appeal. However,
according to the rules of procedures, if any party needs any interpretation of the verdict, it can
make a request to the court within 30 days of receiving the verdict and the interpretation
would be made available within 45 days.
Bangladesh went in for arbitration over the delimitation of maritime boundary under the
United Nations Convention on Law of Sea (UNCLOS) on October 8 2009.The court concluded its
hearings on December 18, 2013 in The Hague.
The argument focussed on issues including the location of the land boundary terminus,
delimitation of the territorial sea, exclusive economic zone, and the continental shelf within and
beyond 200 nautical miles.
Bangladesh Foreign Minister Mahmud Ali said: This is a victory of friendship between
Bangladesh and India. The maritime dispute between the two countries has come to an end
following the verdict. The verdict would take the relationship between the two countries one
step forward, he added.
During External Affairs Minister Sushma Swarajs recent visit to Dhaka, spokesperson of the
Ministry Syed Akbaruddin said both the countries would act in accordance with the verdict
since they went to the court voluntarily.
We are committed to abiding by the outcome of that process, the spokesperson had said.

F) THE SIR CREEK BOUNDARY DISPUTE: A VICTIM OF INDIA-PAKISTAN LINKAGE POLITICS

Most of the time and energy of the negotiators and policy makers of India and Pakistan are
spent on resolving the conflict in Kashmir and, in particular, in defusing the confrontation on
the Siachen glaciers. As a result, other conflicts such as Sir Creek and Tulbul/Wular navigation in
Kashmir tend to be accorded a lower priority and are, in effect, neglected. This article deals
with the dispute over Sir Creek, in the Kutch area, located in the western most part of India
bordering with Sind in Pakistan. The Sir Creek issue also has a direct bearing on the as yet
undelimited maritime boundary between India and Pakistan because the definition of the land
boundary in the Sir Creek area will in turn determine where the maritime boundary intersects
the coast.

The dispute over Sir Creek can be traced back to the pre-independence period, to around 1908,
when an argument ensued between the rulers of Kutch and Sind over a pile of firewood lying
on the banks of a creek dividing the two principalities. The dispute was taken up by the
government of Bombay state, which, in 1914, resolved the dispute supported by Map Number
B44 and subsequently B74.1 Nothing significant happened in the next 40-50 years, and the
dispute came alive again only in the 1960s.

Sir Creek, can be called a fluctuating tidal channel or an estuary, which is sixtymiles-long,
situated in the marshes of the Rann of Kutch. The Rann lies on the border between the Indian
state of Gujarat and the Pakistani province of Sind. In 1965, after armed clashes, Pakistan
asserted that half of the Rann along the 24th parallel was Pakistani territory. India countered
that the boundary ran roughly along the northern edge of the Rann. The matter was referred to
international tribunal for arbitration. The Tribunal known as the Indo-Pakistani Western
Boundary Case Tribunal announced its Award on 19 February 1968, upheld 90% of Indias claim
to the entire Rann, conceding small sectors to Pakistan.

In recent years, interest in the delimitation of a maritime boundary in this area has been
heightened by the prospect of oil and gas being discovered offshore. In light of the high
commercial potential of the area, Pakistan is insisting on defining the extremity of its land
frontier in the Sir Creek area in a manner which will give it control over a larger EEZ. The
Pakistani EEZ will be enlarged by around 250 square miles if India accepts the Green Line
showing Sir Creeks eastern bank as the land boundary and then subsequently equidistant line
used as the basis for the delimitation of the maritime boundary. Pakistan has rejected the
mid-channel principle as proposed by India, pointing out that this principle applies only to a
navigable channel and Sir Creek, it says, is non-navigable.

Unfortunately, over the years the conflict in Kashmir has overshadowed all other
Indo-Pakistan disputes.

However, it should be noted that the differences of opinion on this issue are not so intractable
and deep that they cannot be resolved. There is another greater and larger reason for this issue
still remaining unresolved the Kashmir dispute. Unfortunately, over the years the conflict in
Kashmir has overshadowed all other Indo-Pakistan disputes. The insistence of Pakistan that
progress in resolving the Kashmir conflict is a pre-condition for moving ahead on other issues
has hindered all chances of a compromise so far and India for its part has not shown any real
urgency in resolving the dispute. Despite separate working groups being formed to deal with all
pending issues separately, as a part of a composite dialogue process, the linkage with the
Kashmir conflict has derailed all negotiation efforts to date. Because of the prevailing tension in
Kashmir, any talks held on other issues are hardly getting any serious attention at all. They start
with the Kashmir conflict and end with it as well. As a result of the nuclearisation of the
subcontinent, conflict in Kargil in 1999, military take-over in Pakistan in October 1999, regular
cross-border shelling and the recent spurt in killings in the Kashmir valley the tension graph has
risen in New Delhi and Islamabad. These events have further poisoned the relations and eroded
all possibilities of a compromise on any of the pending issues. This can be regarded as the
reason for lack of progress on the pending issues in the recent past, and unfortunately, is going
to be the status quo for some time.