Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


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North Korea: Actions, Not Words

Christian Kim

On February 7, 2016, North Korea drew heavy criticism from the United Nations by launching the Taepo Dong 3, a long-ranged missile.(1)  North Korea’s defense to the launch was that this was not a sign of aggression but, rather, a peaceful satellite test.(2)  This was not the first time that North Korea launched a missile test.  North Korea launched seven separate missile tests ever 1993, three of which occurred in the past four years.(3)  Although the first series of missile tests were unsuccessful, North Korea their success rate increases with every launch.  The missile test prior to the Taepo Dong 3 had the capability of reaching 10,000km, with the potential to target over 38% of the United States.(4)  With Taepo Dong 3, the coverage extended to 13,000km, allowing North Korea to target as far as New York City and Washington D.C. (5)

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The international community needs to take North Korea’s recent missile launch as a serious threat.  North Korea has consistently spewed hostile rhetoric of annihilating the United States, as well as the “puppets” of the United States, South Korea. (6)  Further indication that the Taepo Dong 3 missile test was far from innocent is North Korea’s past acts of aggression towards South Korea.   Even though the two Koreas signed an armistice agreement in 1953, they are still technically at war.(7)  In 2002, North Korea launched a surprise attack on a South Korean vessel, resulting in the death of six South Korean sailors.  (8)  In 2010, North Korea sunk the Cheonan, a South Korean naval vessel, in the Yellow Sea.(9)  Over 46 sailors were killed in this belligerent attack from the North.(10)  Despite North Korea’s denial of these attacks, South Korea had proof that North Korea was responsible.(11)   Almost eight months after the sinking of the Cheonan, North Korea unleashed an artillery attack on Yeonpyeong Island, destroying over 70 buildings and killing two South Korean soldiers as well as two civilians.(12)

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Although the United Nations Security Council unanimously condemned North Korea’s long-range missile test, this condemnation along with their proposed economic sanctions will not change North Korea’s attitude.(13)  Past economic sanctions on luxury items were unsuccessful because the North Korean regime managed to smuggle luxury items in through their biggest ally, China.(14)  Even though China’s relationship with North Korea has significantly deteriorated in the past few years, they still consider each other as important allies.  This is evident in the amount of trading that goes on between the two countries: 57% of North Korea’s imports and 42% of their exports are with China.(15)  It is unlikely that China will follow in the steps of the international community since China will have a lot to lose if they agree to the economic sanctions.  To convince China will take a lot more than simple persuasion and the change will not occur overnight.  For now, the most immediate step the international community can take is to convince South Korea to shut down the Kaesong Industrial Park indefinitely and to continue blasting anti-North Korean messages on their DMZ loudspeakers.

The Kaesong Industrial Park (“Kaesong”) is a joint economic collaboration between North and South Korea.  Kaesong is located in North Korea, approximately six miles north from the Demilitarized Zone.(16)  Over a hundred South Korean companies set up factories in Kaesong to employ over 50,000 North Korean workers.(17)  These North Korean workers work for a significantly cheaper wage than their Southern counterparts, so this is a profitable venture for the South Korean companies.(18)  Even though the South Korean companies pay wages directly to the North Korean workers, these workers are forced by the North Korean government to give the majority of their pay to the government.(19)  As a result, the North Korean government sees this region as a very important source of income.  There have been proposals in the past to have watchdogs ensure that wages stay with the Kaesong employees; however, the Kaesong employees were picked by the regime for their loyalty.(20)  It does not matter how many measures South Korea takes to ensure the wages go where they belong, it will eventually end up financing the very programs that South Korea is adamantly against. Although South Korea has pulled out of the Kaesong complex because of Taepo Dong 3 missile test, this is most likely a temporary decision.  Kaesong has been prone to shut downs and re-openings depending on the fluctuating tensions on the Korean peninsula.(21)  As soon as North Korea “apologizes” in regards to the missile test, it is almost certain that South Korea will restart operations at Kaesong.  Since these South Korean companies are indirectly financing the North Korean regime’s missile and nuclear tests, the South Korean government should step in and force these companies to shut down their operations in Kaesong indefinitely.  Even though the indefinite shut down of Kaesong will dampen the relations on the Korean peninsula, North Korea will realize that their neighbors down South are done playing games.

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While shutting down Kaesong indefinitely is one solution, restarting the DMZ loudspeakers would be an even better move.  In 2015, two South Korean soldiers were injured by landmines while patrolling the DMZ.(22)  These bombs were planted by North Korean soldiers with the intent to harm South Korean soldiers.  Once again, North Korea denied any involvement and refused to apologize.(23)  In response, the South Korean government reactivated their loudspeakers on the DMZ border.(24)  These loudspeakers can be heard up to 7.5 miles past the DMZ during the day and almost 15 miles past the DMZ at night.(25)  The loudspeakers are a source of concern for the North Korean government since news is broadcasted that the regime has attempted to keep from its citizens.(26)  These broadcasts, often, highlight the reality of the terrible conditions in North Korea.  At other times, the loudspeakers blast news stories from daily lives in the South or K-Pop music.(27)  North Korea has constantly threatened to fire at these loudspeakers, but were warned by the South that any attacks would be reciprocated.(28)  In order to have the South Korean government turn off the speakers, North Korea begrudgingly agreed to claim their sorrow at the South Korean soldiers’ injuries.(29)  Even though this wasn’t the best apology one could have hoped for, it was nevertheless an apology from a country that rarely acknowledges their mistakes.  If these loudspeakers made North Korea agree to take responsibility for the planted bombs, perhaps the continuation of these loudspeakers could make the North fess up to their “peaceful” missile tests and to take action against any future tests.

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Whether or not China agrees to apply economic sanctions to North Korea, the first step for the international community is to urge South Korea to take immediate action against the North.  Once South Korea has implemented the previously suggested measures, the next step should be for the entire international community to place harsh economic sanctions on North Korea.  Aside from medical and food sanctions, the international community should place a ban on any trade of non-essential goods.  The North Korean regime relies on the idea of self-reliance (“Juche”). If the citizens of North Korea realize that the government is no longer self-sufficient, the North Korean regime’s façade of a successful country will deteriorate.  When this realization occurs, the regime will have no choice but to listen to the demands of the international community.

Christian Kim is a 2L at the University of Baltimore School of Law and graduated from the University of Maryland with a Bachelor of Arts in Criminal Justice. He currently serves as the President of the Asian Pacific American Law Student Association as well as the 2L Rep for the Student Bar Association. His interests are East Asian politics, international conflicts, and human rights.  Before Law School, Christian has worked for the Korean Ministry of Education as a TaLK (Teach and Learn in Korea) Scholar and Coordinator for two years. He is currently a legal intern at the Hermina Law Group and a law clerk for the Law Office ofHayley Tamburello.

(1) http://www.usatoday.com/story/news/world/2016/02/07/north-korea-missile/79963198/#

(2) http://www.usnews.com/news/articles/2016-02-08/north-korean-missile-launch-prompts-new-calls-for-sanctions-tough-response

(3) http://www.bbc.co.uk/news/world-asia-pacific-15278612

(4) http://www.cnsnews.com/commentary/bruce-klingner/north-koreas-missile-launch-shows-it-could-target-us-homeland

(5) Id.

(6) http://www.theguardian.com/world/2016/jan/09/north-korea-says-souths-propaganda-broadcasts-taking-it-to-brink-of-war

(7) http://www.bbc.com/news/10165796

(8) https://medium.com/war-is-boring/north-koreas-history-of-violence-b9af3d35c17a#.rvt3ch8e0

(9) http://www.bbc.com/news/world-asia-32013750

(10) Id.

(11) http://www.bbc.com/news/10130909

(12) http://www.theguardian.com/world/gallery/2010/nov/24/south-korea-north-korea-pictures

(13) http://www.cnn.com/2016/02/07/asia/north-korea-rocket-launch-window/

(14) http://www.huffingtonpost.com/2013/03/20/north-korea-sanctions-luxury-goods_n_2910005.html

(15) http://www.anser.org/babrief_nk-economy-feature

(16) http://www.bbc.com/news/business-22011178

(17) Id.

(18) Id.

(19) http://www.rfa.org/english/news/korea/north-koreans-make-less-money-than-their-counterparts-at-kaesong-08142015164241.html

(20) http://www.cnn.com/2013/04/09/business/north-korea-economy-explainer/

(21) http://www.cbsnews.com/news/north-south-korea-resume-work-at-joint-kaesong-industrial-park-after-5-month-shutdown/

(22) http://www.dailymail.co.uk/news/article-3192103/South-Korea-accuses-North-Korea-planting-landmines-maimed-two-soldiers-patrolling-volatile-border-threatens-make-Pyongyang-pay-harsh-price.html

(23) Id.

(24) http://www.thestar.com/news/world/2015/08/17/north-and-south-korea-turn-up-loudspeakers-to-blare-propaganda-at-each-other.html

(25) http://www.bbc.com/news/world-asia-35278451

(26) Id.

(27) Id.

(28) http://www.telegraph.co.uk/news/worldnews/asia/northkorea/11813728/North-Korea-attacks-South-Korea-military-border-unit-and-fires-shots-at-loudspeaker.html

(29) http://fox6now.com/2015/08/24/tensions-eased-as-northsouth-korea-reach-deal-on-apology-loudspeakers/

 

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Houthis’ Rising Power Spears Turbulence in Yemen

Suzanne De Deyne

On January 22, 2015, Yemen’s President, Abdu Rabu Mansour Hadi, resigned shortly after his prime minister and Cabinet stepped down.[1]  The sudden resignation came only one day after Houthis rebels struck a tentative UN brokered deal with President Hadi aiming to halt days of turmoil.[2]  The deal reportedly agreed to a power sharing between the government and, in exchange, Houthis would relinquish control over government facilities seized last September[3]  and would release President Hadi’s chief of staff, whom the rebels kidnapped.[4]  Nevertheless, President Hadi stated he had to resign so as “to avoid being dragged into an abyss of unconstructive policies based on no law…We don’t want to be a party to what is happening or will happen.”[5] This blog will set forth the concerns arising out of Yemen’s change in political leadership, discuss the role of the UN during Yemen’s time of turmoil, and explain how this change in regime to the Houthis directly affects U.S. counterterrorism in the Arabian Peninsula.

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The Houthis adhere to the Zaidism branch of Shia Islam as members of Ansar Allah (Partisans of God).[6]  Their slogan translates to, “Death to America, death to Israel, curses to the Jews and victory to Islam.”[7]  As Shiite Muslims, in a majority Sunni country, Houthis wanted more power and elimination of marginalization.[8]  Under international law, it is true that the people of Yemen have the right to self-determination when denied rights amongst the political spectrum, but claiming authority via a coup d’état is not the proper legal method to convene political rights.  So, as the Houthis dissolved parliament and announced plans for a new interim assembly and five-member presidential council,[9] they claimed more than they bargained for – the responsibility to govern.

Conversely, Sunni and southern leaders will, most likely, not recognize their assertion to power, thus intensifying the country’s descent into chaos.  UN Secretary General Ban Ki-moon urged Yemen to reinstate President Hadi and told Council, “Let me be clear, Yemen is collapsing before our eyes.  We cannot stand by and watch.”[10]  It is the job of the UN Security Council to act in accordance with Chapter VII of the UN Charter (Action with Respect to the Threats to the Peace, Breaches of the Peace, and Acts of Aggression) during this time of hostility and take measures to promote peacekeeping. Due to safety concerns, the U.S. even closed the American embassy in Yemen, placing it in similar circles as Syria and Libya where U.S. diplomatic presence has been removed.[11] Similarly, other states have closed their embassies due to security concerns.[12]

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Yemen is a fractured country on the brink of a civil war and the recent struggle for power also generates opportunity for al-Qaeda to establish a stronger foothold.  For a long time Yemen’s government has been considered a key ally in the fight against al-Qaeda in the Arab Peninsula (AQAP).[13]  Houthis claim to be anti-al-Qaeda and have driven the extremists from the areas they control, but Saleh Ali al-Sammad, second in command for the Houthis rebel group and former advisor to President Hadi, alludes to other conclusions by stating, “We are not against the missions or individuals themselves, but against policies adopted by America.”[14]  A common disdain for American diplomacy means the U.S. lacks a key counterterrorism ally in the region while al-Qaeda’s influence expands.  The effective boost for al-Qaeda was affirmed when al-Qaeda fighters completely captured the Yemeni National Army’s 19th Brigade, an important oil-producing area in southeastern Yemen.[15]  The strategic position of Yemen next to Saudi Arabia, a top oil exporter, and its access to shipping lanes in the Gulf of Aden make the stability of the country a U.S. priority.[16]  Also, Saudi Arabia, as the main Sunni power, believes the Houthis are backed militarily, financially and politically by its Shia regional archrival, Iran, although these allegations have been denied.[17]

Houthi Child

The international community, especially the UN, must coordinate a response to Houthis’ newfound control and aim to terminate AQAP’s influence in the Arabian Peninsula.  Bruce Riedel, senior fellow at the Brookings Institute stated, “Yemen was supposed to be a role model for this smarter approach of building local capacity and getting our allies to do more.  It’s a sobering reality that it’s not working.”[17]  With the Houthis in power, Yemen, a dominant player in an especially geo-strategic location, is now a pro-Iranian, anti-American Shia militia.  The Houthis’ rebellion has not only put Yemen at a political crossroad that concerns the international community, but has now also caused the U.S. to reevaluate its commitment to the poorest country in the Arabian peninsula as al-Qaeda’s infectious presence intensifies.

Suzanne De Deyne is a second year student at the University of Baltimore School of Law (candidate for J.D., May 2016) concentrating in International Law. Suzanne graduated cum laude from the University of Massachusetts-Amherst with a Bachelor of Arts in Political Science and a minor in Economics. She also received a Honor’s International Relations Certificate from Mount Holyoke College.

Currently, Suzanne is a staff editor on the Journal of International Law and represents the International Law Society as the Alumni Relations Director. As a CICL Fellow, Suzanne conducts legal research for International Rights Advocates on human rights and corporate accountability. She is also a member of Phi Alpha Delta and the Women’s Bar Association. This summer she will be a legal intern at Gibson, Dunn, & Crutcher in the firm’s Brussels office, which is focused on Competition Law practice in Europe.

[1] Nick Paton, Yemen’s President, Cabinet Resign, CNN (Jan. 23, 2015), http://www.cnn.com/2015/01/22/world/yemen-violence/.

[2] Id.

[3] Nadia Prupis, Yemeni President, Cabinet Resign Amid Deal with Rebels, Common Dreams (Jan. 22, 2015), http://www.commondreams.org/news/2015/01/22/yemeni-president-cabinet-resign-amid-deal-rebels.

[4] Nick Paton, supra note 1.

[5] Nadia Prupis, supra note 3.

[6] Yemen Crisis: Who are the Houthis?, BBC News Middle East (Feb. 6, 2015), http://www.bbc.com/news/world-middle-east-29319423.

[7] Bruce Ridel, SOTU: U.S. has Little Leverage to Influence the Outcome in Yemen, Brookings (Jan. 20, 2015), http://www.brookings.edu/blogs/up-front/posts/2015/01/20-sotu-us-little-leverage-to-influence-outcome-in-yemen-riedel

[8] Nick Paton, supra note 1.

[9] Yemen Crisis: Who are the Houthis?, supra note 6.

[10] Shuaib Almosawa & Rod Nordland, Qaeda Fighters Gain in Yemen as United Nations Warn of Country’s Freefall, N.Y. Times (Feb. 12, 2015), http://www.nytimes.com/2015/02/13/world/middleeast/al-qaeda-yemen-military.html.

[11] Shuaib Almosawa & Rod Nordland, U.S. Embassy Shuts in Yemen, Even as Militant Leader Reaches Out, N.Y. Times (Feb. 10, 2015), http://www.nytimes.com/2015/02/11/world/middleeast/yemen-houthi-leader-pledges-to-pursue-power-sharing-accord.html?_r=0.

[12] Japan closes embassy in Yemen over ‘security concerns’, PRESS TV (Feb. 16, 2015) http://www.presstv.ir/Detail/2015/02/16/397791/Japan-closes-diplomatic-mission-in-Yemen

[13] Nick Paton, supra note 1.

[14] Shuaib Almosawa & Rod Nordland, supra note 11.

[15] Shuaib Almosawa & Rod Nordland, supra note 10.

[16] Yemen Crisis: Who are the Houthis?, supra note 6.

[17] Id.

[18] Bruce Ridel, supra note 7.


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Sweden and Finland – To Join NATO or not to Join NATO? That is the Question!

Clark Smith

Events this year, primarily those orchestrated by Russia, have again reignited the debate over whether Sweden and Finland should join the North Atlantic Alliance.  Most concerning to both NATO allies and Europe’s non-Alliance members alike was Russia’s annexation of Crimea earlier this year, followed by Russian activities in the east of Ukraine.  In scenes reminiscent of the Cold War, , Sweden embarked upon its largest maritime mobilization since the end of the frozen conflict in its search for a mystery vessel suspected of being some type of Russian mini-submarine in Swedish territorial waters.  The Swedish maritime search, along with repeated and recent violations of Finnish airspace by Russian combat aircraft, has these two nonaligned Scandinavian countries on edge and rethinking their defense postures.  Sweden and Finland both successfully navigated military nonalignment throughout and following the Cold War, though under very different circumstances. However, with a newly invigorated Russia that appears to disregard international law at every turn, now may be the time for Sweden and Finland to advance discussions on joining NATO.  

Finland NATO Sweden

Sweden, historically an adversary of Russia, lost the eastern third of the Kingdom of Sweden to Russia during the Finnish War from 1808 to 1809.  Thereafter, Sweden devised and maintained its military policy of nonalignment, which kept them out of both World Wars and the Cold War.  That eastern third of Sweden, however, became the Grand Duchy of Finland and remained under Russian control until Finland declared independence during the 1917 Russian Revolution. Finland fought Soviet aggression throughout World War II, even briefly aligning with Nazi Germany in what Finland calls the Continuation War Finland ended up paying reparations and ceding territory to the Soviet Union following the war and signed the Agreement of Friendship, Cooperation, and Mutual Assistance with the Soviets in 1948.  Left out of the Marshall Plan, Finland lagged economically behind its West European neighbors until the 1970s.  With the fall of the Soviet Union in 1991, Finland emerged from the Soviet shadow as truly independent.  So, while Sweden’s choice to pursue nonalignment was actually of its own accord, Finland’s had more to do with concern over possible Soviet retaliation.

Despite the two Nordic countries’ nonalignment policy, both maintain advanced, competent militaries and possess both NATO and US equipment, including, for example, the McDonnell Douglas (now Boeing) F-18C/D (Finland) and the Lockheed (now Lockheed Martin) C-130 (Sweden).  Additionally, both are part of NATO’s Partnership for Peace program, train frequently with NATO forces, and integrate well with NATO, US, and other European militaries.  Swedish and Finnish forces have even deployed to Afghanistan with NATO’s International Security Assistance Force (ISAF).  Thus, meeting the standards of and effectively integrating with NATO would not present the type of challenges similar to those of recent NATO, and former Warsaw Pact, countriesBoth countries would, however, need to increase their defense budgets if they wanted to meet NATO’s agreed target of two percent of a country’s GDP.  According to 2012 figures, Sweden’s defense budget was 1.2% of their GDP and Finland’s was 1.5%. However, it is not a precondition that the two percent figure be met prior to joining the Alliance, as many current NATO members regularly fall short of that target.

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More challenging than military interoperability would be mustering the political will in both countries to affect such a partnership in acceding to the Treaty.  Unlike the US, where the President and two-thirds of the Senate can commit the country to a treaty, the constitutions of Sweden and Finland require a referendum.  But neither country has the support from a majority of the voters, with recent polls indicating that just over one-fifth of Finns and just under one-third of Swedes favor joining NATO.  Those who prefer the tradition of nonalignment to a multilateral defense pact believe a better option is reinforcing bilateral defense cooperation or, preferably, even strengthening Nordic defense cooperation.  Entering into defense arrangements with regional partners can certainly reduce the financial impact of developing and sustaining a robust defense force, most notably in the areas of research and development and weapons and systems procurement. However, Sweden and Finland will be limited in their Nordic partnership pursuits since NATO members Norway and Denmark will continue to modernize their militaries first and foremost through the Alliance.  Despite the impediments to joining NATO, particularly from the voters, political and military leaders of both countries increasingly recognize the importance of advancing from debate to action the process towards membership.  In response to a discussion about whether or not Sweden could hold out even a week against a Russian attack, former NATO Secretary General Anders Fogh Rasmussen remarked that “Sweden cannot count on military support from NATO unless it becomes a member state.”Bear Finland Sweden

Though Russia has no legal basis for preventing the two countries from joining NATO, their threatening rhetoric would seem to indicate they believe otherwise.  In 2013, Russian Prime Minister Dimitri Medvedev stated that Sweden and Finland joining NATO would upset Europe’s balance of power and force Russia to respond.  A senior adviser to Russian President Vladimir Putin, in response to the possibility of Sweden and Finland joining NATO, remarked that “anti-semitism started World War II, [and] Russophobia could start the third.”  Russia’s former chief of their armed forces, speaking to a national defense audience at the University of Helsinki, asserted not only that Finnish-NATO cooperation threatens Russian security, but even questioned Finland’s right to hold military exercises on its own soil.  Following their annexation of Crimea, Russian forces in the north then held military exercises on Finland’s border.

Arguing against Sweden and Finland joining NATO because it antagonizes Russia is hardly a rational, if even a reasonable, argumentBut provocative or even hostile comments threatening a sovereign nation for exercising its political and military rights, along with both overt and covert actions that violate the territorial integrity of another sovereign nation, would seem to be both reasonable and strong evidence of behavior implicating Article 2(4) of the UN Charter.  As Russia and its president advance their anti-western rhetoric and activities, Sweden and Finland should advance their discussions around a defense posture that provides certain security in an increasingly uncertain environment.

Clark Smith is a third-year law student pursuing a concentration in International Law. He has undergraduate and graduate degrees in Political Science and International Relations. In addition to being a Student Fellow, he is the Submissions Editor for the Journal of International Law. His previous experience includes work in both security and policy and his previous overseas postings include Western Europe, the Balkans, the Middle East, and South Asia. His professional interests include international development.


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A Twisted Tale of Legitimacy – The ICJ’s Decisions in Latin America

Maya Zegarra

By agreeing to become member states of the United Nations (UN), states have accepted the legitimacy and authority of the International Court of Justice (ICJ). Chapter XIV of the UN Charter establishes the ICJ, as the “principal judicial organ of the United Nations”[1]. In fact, article 92 requires all members of the UN to comply with the decisions of any case to which they are a party.[2] Also, article 36 of the ICJ Statute states that the court has jurisdiction by special agreement or when member states agree to it. Additionally, article 2(3) of the UN Charter, requires all members to settle international disputes by peaceful means. In Latin America, most states have even gone a step further and have agreed to the jurisdiction of the ICJ via the Pact of Bogotá (April 30, 1948), agreeing that Latin American states should settle any disputes peacefully through the ICJ.

Peace-Palace

In theory, this seems to be a fair structure: a State agrees to be part of the UN, and therefore agrees to adhere to its Charter, which recognizes the ICJ as its highest judicial order. However, in practice, some states who were either unsuccessful or in disagreement with the ICJ’s decision in their case have rejected the ICJ’s ruling, questioned its legitimacy, or have gone as far as withdrawn from the ICJ’s jurisdiction.

On January 18, 1985, the U.S. informed the ICJ that it had withdrawn from the proceedings of Nicaragua v US,[3] arguing that the “the Court lack[ed] jurisdiction and competence.”  In 1986, the ICJ entered its decision on this case and found the U.S. in violation of international law, stating that the U.S. was “in breach of its obligations under customary international law not to use force against another State.”[4] The U.S. contested ICJ jurisdiction, claiming that the ICJ could not hear cases arising under multi-lateral treaties, and finally U.S. withdrew its consent to the Court’s compulsory jurisdiction.

On December 6, 2001, Nicaragua filed an application to introduce proceedings before the ICJ in order to determine whether Nicaragua or Colombia had sovereignty over a number of islands in the San Andrés Archipelago (Western Caribbean) and to determine the maritime boundaries between Colombia’s and Nicaragua’s continental shelf. This dispute goes back to the early 19th century, when Latin American states were fighting for their independence from Spain. On December 13, 2007, the ICJ delivered its opinion and concluded that the court had jurisdiction, under article XXXI of the Pact of Bogotá[5], and ruled that a group of the disputed islands belonged to Colombia, but extended Nicaragua’s maritime limits.

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Nicaraguan President, Daniel Ortega, gratefully stated, “The court has given to Nicaragua what belonged to us: thousands of kilometers of natural resources”. Meanwhile Colombian President Juan Manuel Santos openly rejected the ICJ’s judgment and stated that the ruling “cannot be implemented” claiming that new international borders can only be established by bilateral agreements.[6] Finally, President Santos decided to take extreme measures and announced that he was pulling Colombia out of the Pact of Bogotá, renouncing its membership on November 27, 2012.

On January, 27, 2014, the ICJ issued its judgment regarding the maritime dispute between Peru and Chile, which dates back from the Pacific War of (1879-1883). The ICJ decided that a maritime boundary already existed between Peru and Chile, and created a new method not offered by either party to create the demarcation.[7] The ICJ created a starting point (Marker 1) and a parallel maritime boundary line that extended 80 nautical miles (Point A), and then extended the boundary to 200 nautical miles (Point B), then dropped down the border at a Point C, where the maritime boundary would end for both states.

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Because the ICJ did not use the solutions proposed by either Peru or Chile, the judgment was received with nationalist reactions by both states. Former Chilean President, Sebastián Piñera said he “profoundly disagree[d] with the decision…and the economic loss of an area of between 20,000 and 22,000 km2 in favor of Peru.”, while the current President, Michelle Bachelet, stated this was a “grievous loss.” Peruvian President Ollanta Humala stated “the country will benefit from the exploitation of one of the richest marine areas in the world”. However, unlike in the Nicaragua-Colombia conflict, both states have agreed to implement the ICJ’s ruling gradually.

A more controversial case is Bolivia v. Chile, which is currently pending before the ICJ. Bolivia hopes to reclaim coastal access to the Pacific Ocean that it had lost after the Pacific War. Bolivia is requesting the ICJ to compel Chile to negotiate, in good faith, an agreement that would grant Bolivia access to the Pacific Ocean.

Bolivian President Evo Morales Ayma speech delivered on March 23, 2013 stated: “The sea we are claiming as a matter of justice is a sea for the people […] a sea for the Great Fatherland; the Bolivian people shall never renounce the sea, Bolivia shall never be at peace so long as the maritime issue remains unresolved, because giving a solution to this kind of issues is a part of integration”.[8] In fact, Chilean President Bachelet stated on national television that Chile will contest the ICJ jurisdiction in this case.[9] This is despite the fact that Chile had already accepted the ICJ’s judgment in the Peru v. Chile case.

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It is reasonable and understandable for a State to defend its sovereignty; this is in fact a well-known principle of international law, which supports the idea that a State has the ability to exercise control over its land and people. However, it is important to remember that International Law is based on consent and, importantly, good faith (pacta sunt servanda). If States agree to be bound by an agreement or treaty, it is central that they actually follow through and act according to what they have already agreed. The UN Charter and the Pact of Bogotá have acquired legitimacy because parties have voluntarily accepted them and agreed to act based on them.

The ICJ was created to help states peacefully resolve their conflicts and states agreed to be bound by the ICJ’s decisions. So, it is vital that countries who agreed to be bound by an agreement or treaty, act according to the principle of pacta sunt servanda (“agreements must be kept”). After all, international law has been created from the free will of states as expressed in conventions or by usages generally accepted as laws (i.e. customary international law). Withdrawing participation from the ICJ in these types of situations gives the impression of adopting a sore-loser attitude – if a country cannot win before the ICJ, then they will stop participating. When this happens, it chips away at the legitimacy of the ICJ and stops international law from advancing.

 

Maya Zegarra is a third-year student at the University of Baltimore School of Law, planning to graduate in May 2015 with a concentration in International Law. She has a Sociology degree, and is fluent in Spanish, German, English and French. Maya grew up in Peru and attended a German high school, where she participated in a student exchanged program and lived in the Baden-Württemberg area in Germany for four months.

During the summer after her first year of law school, Maya studied abroad in France, where she focused on French Law, European Union Law, and Comparative Fundamental Rights. While in France, she interned with an international and criminal defense attorney. Most recently, she participated in the Annual International Humanitarian Law Seminar, hosted by University of Virginia Law, in March 2014. Her primary interests are international law and international humanitarian law. Through her internships Maya has worked on cases related to asylum, refugee, and immigration law.

In addition to being a Fellow at the Center for International and Comparative Law, Maya currently serves as the Publications Editor for the Journal of International Law, President of the Latin American Law Student Association, Vice-President of International Law Society, Treasurer of the Immigration Law Association, and 3L Representative of the University of Baltimore Students for the Public Interest. Maya is also a Maryland Rule 16 Student Attorney at the Immigrant Rights Clinic.

 

[1] U.N. Charter art 92.

[2] U.N. Charter art 94.

[3] Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27).

[4] Id.

[5] American Treaty on Pacific Settle “Pact of Bogotá”, Apr. 30, 1948, 449 U.N.T.S. 30.

[6]  UN ruling gives Colombia isles but Nicaragua more sea, BBC (Nov. 19, 2012), http://www.bbc.com/news/world-latin-america-20391180.

 

[7] Peru v. Chile, 2014 I.C.J. 137 (Jan. 27).

[8] Minister of Foreign Affairs of Bolivia, The book of the Sea 6 (Strategic Management For Maritime Vindication Edition, 2nd rev. ed. 2014).

[9] Bachelet: Chile will challenge ICJ jurisdiction in Bolivia case, The Santiago Times (Jul. 8, 2014), http://santiagotimes.cl/bachelet-chile-will-challenge-icj-jurisdiction-bolivia-case/.

 

 


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Syria and US (In)Action – The Time is Now

The Time is Now – Why the US should consider a swift humanitarian intervention in Syria with limited use of force and no “boots on the ground”

Rafiq Gharbi

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Image Source: The Malta Independent

As an American law student the crisis in Syria presents itself as a familiar hypothetical posed by your beloved international law professor: the Syrian government is killing its own citizens – is this a violation of international law? Millions of refugees flee their homes as Assad’s regime bombards cities and towns – is this enough to warrant humanitarian intervention? Saying yes or no to these questions and providing an explanation citing the UN Charter will earn you a check in class participation or a symbolic gold star for the day. Unfortunately, the crisis in Syria cannot be so easily shelved away once class is over. Nearly 3 years have passed as millions are forced from their native country and a civil war destabilizes an already volatile region. So what do we do? As the UN and its Member States use international law and diplomacy to achieve peace, there are others simultaneously undermining their efforts.

The United States faces several issues in dealing with Syria. Force will result in fraying (if not severing) the fragile ties between Russia and Iran, while continued inaction effectively condones Assad’s aggression towards the people of Syria.

Inaction simply cannot be the course taken by President Obama for the United States to uphold its position and reputation as the world’s police power. It may very well be possible that the United States does not wish to continue, or even acknowledge, this role that it plays. But, the fact remains that the world’s strongest nation has traditionally intervened in foreign conflicts and more or less brought them to an end, albeit whatever end is politically expedient FOR the United States. There is no sensible end in sight for Syria. No game plan or long-term rehabilitation as there might have been for Iraq and Afghanistan. Nevertheless, any end is better than the continued destruction of Syria and its people.

Diplomacy has failed and America cannot continue to lean on this crutch to bide time. The United States needs to intervene militarily in Syria to bring stability. Critics of using force in Syria point to diplomatic issues arising between those who support Assad’s regime and the United States. Would it be so awful to strain ties with Russia and Syria in the name of humanitarian intervention? Russia’s recent invasion of Ukraine is further testament to its own disregard of international law. The Security Council remains flawed in its framework, especially as a Permanent Member refuses to abide by the international law and the UN Charter (i.e. Russia). As for Iran, its nuclear programs will continue with or without Assad in power.

Syria Blood

Image Source: Al Jazeera

For those who fear a more widespread destabilization of an already unstable Middle East, the force used must be limited and concise. We can all agree that another ground war is not something that is preferable or practical for the United States. Iraq and Afghanistan have left their mark and Syria would be the next long and costly war if ground forces were deployed. Calculated attacks to depose Assad and his regime would be the most effective means of ending the situation. Without aiding the, also dangerous, rebels and without sacrificing troops, drones could effectively cease the widespread and systemic destruction brought by the Syrian government. Now, could this destabilize the region? Sure. Could tensions rise? Yes, but with Assad gone, the majority of the fighting would stop there.

The aftermath would leave Syria with rebels that want to preserve their country and the same people that lived their prior to the intervention. A swift operation during a limited timeframe would be the sort of action that can be applauded, and if unsuccessful, will not be a critical blow to the country. America doesn’t have a duty to rebuild Syria, but it does have a duty to protect human life in situations such as this.

For better or worse, America has lived up to its prophecy as a “city upon a hill.” The nation should own this role and do what is good for the betterment of the world.

 

Rafiq Gharbi is a second year law student (’15) at the University of Baltimore School of Law and a CICL Fellow. He graduated from Salisbury University in May 2012. While at Salisbury, he majored in Political Science with a minor in Philosophy and was active in the Muslim Student Association. Rafiq is also an avid soccer player and hopes to play for the Tunisian national team in the future.