Laws 6243 Written Submission Word Count - 3421

Arbitration of Issues Arising from the Florian Occupation of Spoletta and the Exploitation of Endangered Species of Spoletta

Zorba J Parer

Original Work
Subject to the provisions in the University of Sydney student Handbook

Background
A breach of the peace occasioned by a State in the Gulf of Puccini occurred on 14 December 2009 when Scarpian forces landed on the island of Spoletta, killing 14 persons of Toscan nationality who had claimed to be forming the independent nation of Spoletta. Tosca permitted its citizens to have in their possession a significant arsenal of weapons, and equipment which they used to depart Tosca without notice and commit acts of murder and destruction upon the facilities and persons of Scarpia in the international territory of Spoletta. Scarpia took military action in international territory against nationals of Tosca, claiming self defence of their facilities and personnel on the Island of Spoletta. The action has caused devastating damage to the unique environment on Spoletta. The Scarpian nationals have been freed and the Toscan nationals incarcerated and indicted on charges of terrorism, murder, and hostage taking. Tosca has asserted that they should be returned to Tosca to face trial as Toscan nationals.

The roots of this conflict have their origins in colonial attitudes dismissing native peoples and their attachment to the land and environment. Scarpia has held a general disregard for the environment, endangered species, and the unique island environment of Spoletta, despite, and in contradiction to, the promptings of the UN General Assembly and the nations of the Puccini Gulf. This unfortunate series of events has highlighted the need for nations to listen to each other and to be sensitive to each cultural difference. The alternative is a disenfranchising of cultural groups, who are then driven to violent action.

Applicable Law
UN Charter Article 1 of the UN Charter outlines the purpose of the UN, which includes maintenance of international peace and security, and the development friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples. Both Scarpia and Tosca have committed to this purpose. Article 2(4) commits all members to refrain in their international relations from the threat or use of force in any other manner inconsistent with the purposes of the United Nations.

Article 51 provides that nothing in the UN Charter, ergo Article 2(4), impairs the inherent right of self-defence. Relevant Regional Treaty Agreements 1999 Puccini Islands Treaty of Friendship (here after the Friendship Treaty) has been signed by all five states in the Puccini Island cluster. Scarpia and Cavaradossi have not ratified the treaty; however it has entered into force with the ratification by the other three states. This treaty having entered into force in accordance with the provisions thereof is binding on all parties1. The Friendship Treaty prohibits military movements (Article 7(1)), other than for peaceful purposes (Article 7(4)), on Spoletta. The Friendly Treaty permits the States party to the treaty to issue a permit to kill, capture, take and/or treat any number of animals or plants for the purpose of scientific research. 2005 Convention on the protection of Unique Island Flora and Fauna (here after The Convention) has been signed by 90 nations including Tosca, Cavaradossi, Sciarrone, but not Scarpia or Angelotti. This provision of the convention relating to the capture or dealing in spotted lemurs and pink willow for any purpose (including scientific) has been entered into the national legislation by 110 nations, including all of the Puccini islands except Scarpia.

See ergo, DJ Harris, Cases and Materials on International Law, p.805.

Given the wide international acceptance of The Convention, noting in particular the enactment of the relevant provisions into national legislation by the members of the Puccini islands, gives great weight to the notion that the capturing or dealing in spotted lemur or pink willow for any purpose is accepted as customary international law. Customary International Law Responsibility of States for Internationally Wrongful Acts 2001, Yearbook of the International Law Commission, 2001, vol. II (Part Two): Article 2 provides that there in an internationally wrongful act of a State, where an action or omission is attributable to the State and breaches an international obligation, whether explicit by treaty, a preemptory norm, or a customary international law. Article 4 of the ILC Draft Articles on Diplomatic Protections 2006, provides that a state may exercise diplomatic protection over natural persons who have acquired nationality by birth or descent. Article 5 requires that the natural person have been continuously a national from the date of injury to the date of the presentation of the claim. Draft declaration on Rights and Duties of States (Article 11: Every State has the duty to refrain from recognising any territorial acquisition by another State acting in violation of Article 9 [prohibition of resort to war as an instrument of national policy])

The Stimson Doctrine of non-recognition of territorial claims gained through violent action, and the Caroline Case requirements for determination of self defence (Necessity and Proportionality) are relevant to this case. Identification of Legal issues The unilateral use of force is forbidden within the modern international legal system. The primary basis for determining the existence of this law is by reference to the UN Charter article 2(4). Given that the large majority of States are signatory to the UN Charter without reservation to 2(4) is a strong indication of the validity of this law. Additionally the fact that state practice eschews the use of force, and when it is used, is justified on the basis of recognised exceptions to the law, also clearly supports the prohibition on the use of force. Self defence is one of the recognised exceptions to the law prohibiting the use of force in international disputes. Self defence is recognised by the UN Charter Article 51 and has been clarified by state practice and the clarified by internationally renowned jurists2. The exception regarding self defence applies to self defence against aggression on a States territory and also on a States interests and personnel in international waters and territories. The right to use force, on the basis of self defence of citizens in foreign States territories, is not as clear as other circumstances.

Title to territorial is not a simple matter of claim, and the recognition of a claim to territory based on an acquisition through force is generally forbidden. States have an obligation of non-recognition of a territorial claim made on the back of an act of aggression3. Self determination as a general international legal principle began with the UN declaration granting independence to colonial territories. Irrespective of the acceptance of this law, it remains cogent of uti posseditis4, that is to say existing territorial boundaries are not extinguished by the assertion of a people to the right of self determination. State responsibility applies to all states as a pre-emptory international legal norm. No treaty commitment is required for this responsibility to exist. The rules applying to state responsibility are generally considered to be codified by, the ILC Draft Articles on State Responsibility. In order for State responsibility to be engaged two conditions must be met5; the act must be attributable to the state and; the act must constitute a breach of an international obligation Obligations of States are either explicit in the entry into force of a treaty, or implied by pre-emptory norms of customary international law

See, ergo ICLQ vol 55, October 2006 pp 963.972 Chatham House Principles of International Law on the Use of Force in Self Defence 3 See, DJ Harris, Cases and Materials on International Law, Sixth ed., page 219 4 Id, page 112
5 Responsibility of States for Internationally Wrongful Acts 2001, Yearbook of the International Law Commission, 2001

Diplomatic protection is, in a sense, the right to self defence of a national in foreign territory and generally consists of the right to representation, and provision of access to the legal system in the foreign state.

Conclusions
On the use of Force by the Scarpian State The use of force is generally accepted as prohibited in international law with a very few exceptions. The clear exception that must be considered in this case is the right to self defence of a States Nationals, whether domestically or abroad. Clearly the killing and capture of Scarpian Nationals presents a right of the Scarpian state to assert self defence of the remaining Scarpian nationals. An existing line of court decisions6, and the writings of internationally renowned scholars7, have consistently found that in the case of self defence, force must be demonstrated as necessary8 and proportionate9. In determining necessity the threat must be imminent, and there must be no other reasonable line of action open for self defence. In order to demonstrate proportionality the force must be only that level of force necessary to bring about the right of self defence.

6 7

See, e.g. the Caroline Case, DJ Harris, Cases and Materials on International Law, p. 921 See, ergo ICLQ vol 55, October 2006 pp 963.972 Chatham House Principles of International Law on the Use of Force in Self Defence 8 Id, Principle D, p.967 9 Id, Principle E, p.968

In this case the Good Offices of the UN Secretary General had been engaged to draft a solution, however over a month had transpired since the first action occurred. The threat was not only imminent, some violence against the Scarpian nationals had occurred. It remained imminent in that Scarpian citizens were being held by an armed and independent force, not clearly under the direction of any central political control. On the basis that no clear indication was available to Scarpia at the time as to the well being, or level of threat to, its citizens, I find that there existed a real and imminent threat to the citizens of Scarpia. Scarpia had given warning, and allowed time for the release of its citizens. On this basis I find that Scarpia had the right to use force in international territory in order to defend its citizens. On the question of proportionality a different series of considerations apply. The force holding the Scarpian citizens was relatively small, being only 70 in number. It was also relatively lightly armed, only with small arms, not including heavy artillery, armoured vehicles, aircraft, anti-aircraft, guided missiles or rockets, or other sophisticated weaponry. They held a limited number of positions in a well defined area. The use by Scarpia of aerial bombardment, and heavy artillery, was not only disproportionate with the counter force at hand, but indeed threatened to a significant degree those Scarpian citizens whose well being was at the core of the defensive action.

The claim to self defence than can be shown as not meeting the test of proportionality and leaves open the question as to the true reason of the attack. Being disproportionate one might argue that the true reason was to discourage future actions by Florians to claim sovereignty, to punish the Florians by destroying their sacred tree, or to provide a show of force to Tosca in order to intimidate them in other forums. Any other multitude of reasons could be argued, however it is suffice to say here, for the purposes of this decision, that the level of force used was disproportionate with the level required to enforce the right of self defence. I therefore find that: The Scarpian State has acted wrongfully in the context of the Draft ILC Articles on Internationally Wrongful Acts, in contravention of the UN Convention prohibition on the use of force, and not in accordance with the right to Self Defence. On the claim to Territoriality by the Florians Whilst the right to self determination of a people is clearly enshrined in CIL, the claim to territory through use of force clearly is not. The Florians undertook a violent action in order to assert a claim over a territory which was never previously occupied by their people, nor had any claim previously been made, nor does any other state recognise a prior claim to the territory, and thus the Florian claim constituted a new territorial claim, and not an assertion of their self determination. Noting the general acceptance of the Stimson doctrine and the subsequent codification of this into the Draft Declaration of the Duties and Rights of States, it is clear that the claim to territory by the Florian break away group must not be recognized. To recognize this claim, made through the use of force, would

legitimize any number of violent actions by groups not motivated by a true and perpetual connection with that territory.

I therefore find that: The Florian claim to territory on the island of Spoletta was not, and is not, legitimate and any recognition of the claim by a State would have constituted a breach of an international obligation, and therefore would constitute an internationally wrongful act. On the rights and treatment of the captured Florians Members of the Florian break away group (here after the FBAG) were captured in international territory protected by treaty, after some members admitted to the killing and harming citizens of Scarpia, and damaging Scarpian property, within Scarpian facilities. The FBAG do not constitute an independent sovereign State as they lacked sufficient political structure, territory, and citizens. Nor were they members of the Toscan military, and therefore should not be treated as prisoners of war. The FBAG have committed criminal acts upon citizens of Scarpia, within facilities which were established and maintained by Scarpia, and should be tried in accordance with the laws of Scarpia.

Nothing in this decision should prejudice the guilt of any individual, or the right of each of the captured persons to a fair trail, with a presumption of innocence, and a right to just representation, in accordance with the UN Universal Declaration of Human Rights, and in accordance with CIL. I therefore find that: FBAG members who are citizens of Tosca (or other third State), by definition under article 4 of the draft articles on Diplomatic Protection, must be permitted diplomatic protection from the Toscan (or other third State) embassy. On the Scarpian Military Movements Scarpian military movements on the Island of Spoletta are in violation of The Friendship Treaty, Article 1. This act is attributable to Scarpia and constitutes a breach of a Treaty obligation. I therefore find that: Scarpia committed an Internationally Wrongful Act by ordering military movements on Spoletta, in contravention of commitments made under the Friendship Treaty. On the Environment

The destruction of flora and fauna during the military movements, by Scarpia, on the island of Spoletta constitutes a violation of international obligations under the provisions of the Friendship Treaty, Article 2, and a violation of obligations under CIL. The protection of endangered species, in particular the spotted lemur and pink willow, is clearly enshrined in CIL by the general global legislated prohibition on their destruction, and in particular the legislation of 4 of the 5 regions in close proximity to the island. I therefore find that: Scarpia must cease all activity which might harm the unique Flora and Fauna of Spoletta. Scarpia must provide restitution of the island to its original state, with particular regard to the Spotted Lemurs and the Pink Willow Tree. On the liabilities attracted by actions or omissions of Tosca Tosca failed to prevent its citizens from committing the acts against Scarpia, and supported their claim to Sovereignty. This constitutes an act of the State of Tosca IAW ILC Draft Articles on Internationally Wrongful Acts. Whilst the Florian citizens were not acting directly on orders from the Toscan government, it is clear that the Toscan government failed to prevent them from amassing sufficient armaments to undertake an extremely violent, and clearly illegal international act of terrorism.

The differentiation between revolution and terrorism is nowhere clearer than in this circumstance. A revolution is a legal act of citizens within a territory using force to pursue their individual right of self determination. Terrorism is a violent act of individuals against a foreign state for the purpose of obtaining an outcome. Whilst it might be argued that these Florians were exercising their right of self determination, they did not undertake these acts in Tosca, where they clearly had significant long term settlements, nor did they take action on clearly Florian territory. Spoletta has been traditionally utilised by both the Florians and the Baron people of Scarpia, yet occupied by neither. The state of Tosca not only permitted the Florians to amass arms, and launch this action from Toscan territory, they also publicly supported the FBAG during the period of the action. This is clearly in contravention of international obligations10.

10

1970 Declaration on Principles of international Every state has the duty to refrain from acquiescing in organised activities within its territory directed towards the commission of such acts [civil strife/terrorist acts], when the acts referred toinvolve a threat or use of force.

The reason for the support by Tosca for the Florian cause is subject to conjecture. Whilst the Toscan official position is one of non-violent support of Florian sovereignty, the fact that they did not cede territory to this claimed state, within their own territorial regions, clearly undermines this overt support. Discarding then the overt claim, one opens the discussion as to whether the Toscan state provided indirect or direct support to the Florian cause, for the purpose of reprisal against Scarpia for the use of Spotted Lemurs and Pink Willow for research and commerce. Here again I do not have permission or jurisdiction to investigate the reasons, but it is clear that Tosca attracts some level of liability for the actions of its citizens. I therefore find that: Tosca has committed an internationally wrongful act by its omission to prevent and suppress an internationally criminal act by its citizens. Tosca must take action to disarm any national who is a member of an organised group with the intention of threatening or using force to undertake terrorist acts on Scarpia, Spoletta, or other international targets. Tosca must provide reparations to Scarpia and its Nationals for damaged property, injuries incurred, and life lost. Tosca must provide reparations to Spoletta for damage incurred by the Florian breakaway group during their assault on Spoletta. Summary of Primary Findings 1. The Scarpian State has acted wrongfully in the context of the Draft ILC Articles on Internationally Wrongful Acts, in contravention of the UN Convention prohibition on the use of force, and not in accordance with the right to Self Defence.

2. The Florian claim to territory on the island of Spoletta was not legitimate and any recognition of the claim by a State would have constituted a breach of an international obligation, and therefore would constitute an internationally wrongful act. 3. FBAG members who are citizens of Tosca (or other third State), by definition under article 4 of the draft articles on Diplomatic Protection, must be permitted diplomatic protection from the Toscan (or other third State) embassy. 4. Scarpia committed an Internationally Wrongful Act by ordering military movements on Spoletta, in contravention of commitments made under the Friendship Treaty. 5. Scarpia must cease all activity which might harm the unique Flora and Fauna of Spoletta. Scarpia must provide restitution of the island to its original state, with particular regard to the Spotted Lemurs and the Pink Willow Tree. 6. Tosca has committed an internationally wrongful act by its omission to prevent and suppress an internationally criminal act by its citizens. 7. Tosca must take action to disarm any national who is a member of an organised group with the intention of threatening or using force to undertake terrorist acts on Scarpia, Spoletta, or other international targets. 8. Tosca must provide reparations to Scarpia and Scarpian nationals for damaged property, injuries incurred, and life lost. Tosca must provide reparations to Spoletta for damage incurred by the Florian breakaway group during their assault on Spoletta.

Additionally recognising the deep and binding religious connection of the Florian people to the pink willow tree and the environment in general the parties are to have the greatest regard and concern for the unique environment of Spoletta.

On whether claimed scientific acts undertaken by Scarpia attract any liability, or are rightfully instituted The scientific activities undertaken by Scarpia do not violate any of their existing obligations under the Friendship Treaty. However given the global consent to The Convention, and the national legislative provisions of the states with a significant stake in the Puccini region, there exists an obligation to protect the spotted lemur and pink willow tree.

I therefore find that: The killing, taking and/or treating, and trade or dealings, of animals, plants or derivative products, from the island of Spoletta is contrary to international law. Tosca and Scarpia must cease any and all activities which directly, or by reasonable causality indirectly, harm the spotted lemur, the pink willow tree, or their environment on the island of Spoletta. Additionally given the grave harm done by Tosca and Scarpia to the Spoletta environment, the nations are to establish a joint scientific program with the specific goal of restoring the Island of Spoletta to its natural condition, and ensuring the continued survival of the spotted lemur and the pink willow tree. Nothing in this finding prohibits the humane, and non-detrimental, research into medicinal uses of products derived from the spotted lemur or the pink willow tree, or other plants and animals in the environs of Spoletta.