1. Introduction
This essay will argue that the act of North firing a missile over the Iron Islands, an overseas territory of Rock amounted to a threat to use of force as per Brownlie’s definition. Further, it will consider the tweets posted by President Terry of Mountain in light of being a threat to use of force as well as self-defence and collateral intervention.
The essay will then go on to consider the referendum conducted by the leadership council in Storm. It concludes that a unilateral declaration is not legal for internal-independence and is limited to cases of colonial occupation or alien domination. Lastly, it considers whether the force used by the Mountain army troops on the people of Storm classifies as oppression and could therefore give the people of Strom the right to unilateral declaration of independence.
2.1 Conflict between North and Rock
Article 2(4) of the UN Charter, prohibits use of force and the threat to use of force by States in their international relations from the threat or use of force against another state or in any other matter that is with regard to territorial integrity and political independence. The prohibition on the threat or use of force is recognised as being customary international law and jus cogens by the ICJ in the Nicaragua case. The court has concluded in the Nicaragua case that the threat to use of force would be unlawful if the use of force in such circumstances would itself be unlawful.
Brownlie’s definition of illegal threat to use of force was also adopted by the ICJ in the Nuclear Weapons case. He defined it as “an express or implied promise by a State of a resort to force conditional on non-acceptance of certain demands of that State”. Further, the ILC Report on the Draft Code of Offences against Peace and Security of Mankind defines the word ‘threat’ with a view of making a State believe that force will be used against the State if certain demands are not met by the State. If this definition is read in light of tensions between North and Rock and North’s claim to the overseas territory of Iron Islands, it can be concluded that even a stray missile flying across these Islands even could be construed as a threat to use of force as per the above definition. It would amount to an implied promise by a State to resort to force Rock to handover the territory of Iron Islands.
2.2. President Terry’s tweet
i) The tweet could constitute a threat to use of force
President Terry’s tweet would constitute a threat to use of force as well as per the definition given above. It could constitute an express promise by a State to resort to force if a certain condition is not met.
However, it may fall short of the gravity threshold that is said to have been recognised by the court in the Corfu Channel case where the court did not consider minesweeping to meet the threshold of use of force under article 2(4). But this is not a principle that receives unequivocal support in international law. In the Oil Platforms case the court decided that the mining of a single military vessel could constitute a use of force. Therefore, not too much should be inferred from the Corfu Channel.
The tweets are considered official correspondence as in the case of Trump. Presidential tweets have been considered to have legal repercussions as in his tweets directed at the North Korean leader. Similarly, President Terry’s tweets could be said to have similar legal repercussions and can be said to constitute a threat to use of force.
ii) The tweet could also be an act of pre-emptive self defence
However, since President Terry is alluding to a use of force if he is prompted by any actions by North, it could also be an act of pre-emptive self-defence. But pre-emptive self-defence is only available when the threat is imminent. Since the firing of missiles by North in August 2017 there have been no more military actions that have taken place but tensions have continued to mount since. Therefore, it could be concluded that a threat was imminent in both temporal proximity and certainty and it could justify a pre-emptive act of self-defence.
Even as an act of self-defence a state is prohibited from using force in countermeasures. President Terry’s tweet stating that ‘he would have no choice but to destroy North’ suggests a threatened use of force. In the arbitration case of Guyana/Suriname the court laid down that States are prohibited from using acts of reprisal involving the use of force.
Similarly, a threat to use of force as a reprisal for the perceived threat due to North’s claim would itself be unlawful.
iii) The threat to use of force goes against the principle of jus ad bellum
Jus ad bellum tells us when one state is justified in using force against another state or interference with its sovereignty in questions of humanitarian law matters during peacetime. It only permits a use of force due to conduct and not status. Here, Mountain has not faced a threat or use of force by North through its conduct but merely through its association with Rock and its status as a state in that area. Further, the threshold for threats or use of force is jus ad bellum (peacetime) is higher than jus ad bello (law of armed conflict) and is only permitted when threat to life is imminent.
Therefore, President Terry’s threat to use of force is unlawful.
2.3 Self-determination?
In the case of Morocco v. Spain, the ICJ defined the right of self- determination as “the need to pay regard to the freely expressed will of peoples.” The main debate as with any matter regarding self-determination is the tension between protecting state sovereignty and giving groups within states the right to exercise their cultural and political will. The UN and other international governmental organisations are reluctant to recognise the right to secession as a part of self-determination as it would lead to attacks on the sovereignty and territorial integrity of their member nations.
i) Self Determination cannot imply secession
The principle of self-determination only implies the right to self-government and not the right to secession. The concept of self-determination as laid out in the Charter can be understood in a negative manner, and it clearly does not give the right of a group of people to secede.
Additionally, self-determination must only occur in the confines of other principles, the main one being territorial integrity, and has been reiterated in scholarly works throughout. Although we lack knowledge on the geographical location of Storm within Mountain, if it is centrally located it would violate the principal of territorial integrity.
By seceding under the garb of self-determination, there occurs a blatant violation of these settled principles of international law, as self-determination does not imply secession.
(ii) The citizens of Storm do not qualify as “peoples” entitled to self-determination.
The provisions relating to self-determination in the UN Charter, the Friendly Relations Declaration and the International Covenant on Civil and Political Rights give the right of self-determination to “peoples”. This term, although not explicitly defined, has been interpreted by multiple sources.
It is largely believed that “peoples” encompasses the whole population of a given State or non-self-governing territory and does not, in particular, include ethnic groups or minorities. This can be inferred from the Declaration of Inadmissibility, whereby the General Assembly used the terms “nations” and “peoples” interchangeably, thus showing the all-encompassing nature of the term “peoples”. This can further be seen in the various States’ views where they all emphasized on the importance of not bringing ethnic groups or minorities under the ambit of “peoples”, for fear of there being instances of misuse of the provision, and ambiguous interpretations of the term. It is used exclusively in the context of all peoples and territories, which have not yet attained independence.
The point that minorities and ethnic groups do not fall under the ambit of the term “peoples” has been held by this Court in multiple cases. In the case of Åaland Islands, this Court held that the separation of a minority from its state is impermissible in international law. However the Court did state that the right to self-determination could be invoked ‘manifest and continued of sovereign power, to the detriment of a section of the population of a State’ and secession would be a last resort if the State lacks the will or power to enact effective guarantees of minority rights. It was a point of contention in Kosovo that “people” does not include minority or ethnic groups. This interpretation of the word “peoples” is widely accepted, as both the view of eminent scholars and uniform State practice.
Ethnic groups are those, which share particular characteristics such myths, histories, cultures, an association with a specific territory and a feeling of solidarity that distinguishes them from other ethnic groups.
Storm is a territory made up of ethnically distinct people from the majority population of Mountain. This makes them an ethnic group under the ambit of the definition mentioned above, and hence, would not constitute “peoples” that are entitled to the right to self-determination. It is, therefore, contended that the Sumerians cannot claim independence on the basis of self-determination.
(iii) Right to self-determination is limited to internal self-determination alone.
It is a well-settled principle of law that the right to self-determination is merely limited to internal self-determination, outside of the context of colonial rule. This principle is
highlighted by uniform state practice, and recognition by the resolutions passed by the United Nations.
It is further discussed in the Canadian case of Quebec that internal self-determination is the way in which the self-determination of the people is fulfilled. Other cases have also highlighted that even ethnic groups and minorities can claim internal self-determination, but that’s all.
It can be concluded that in this case, the Storm people have already a right of internal self-determination, since they have a leadership council in place with no apparent history of human rights violations, and freedom to have their own system of governance.
(iv) The people of Storm do not have the right to external self-determination, and hence the unilateral declaration of independence is illegal
As has been stated above, the right to external self-determination is solely limited to peoples under colonial and alien domination. In all other cases, self-determination does not imply the right to secede, and the same is in contravention to general principles of international law.
It has been held by the ICJ that remedial secession, which is the manifestation of external self-determination, does not amount to customary international law, since the history of this principle is marred with uncertainty, and has a certain lack of uniform state practice, and opinio juris, both of which are necessary for a principle to constitute customary international law. The uncertainty of this principle was even highlighted in Kosovo.
Furthermore, the threshold to be met with respect to situations that amount to remedial secession is extremely high, as a form of last resort. It can only be invoked in cases of gross violation of human rights, like there was in the cases of Bangladesh, and Bosnia & Herzegovina, wherein genocide transpired.
In the given facts, it is seen that there is no gross violation of any fundamental human rights, nor are any of the grave thresholds required in order to amount to external self-determination have been met. The citizens of Storm were given their own leadership council. In the lack of any derogation of fundamental rights, the extreme measure of remedial secession cannot be relied on, and invoking it would be going against the fundamentals of international law.
Hence, the act of unilaterally declaring independence for Storm has no backing in international law, and is hence illegal.
(v) The Leadership Council was not authorised to hold a referendum
In the recent Scottish referendum for independence, in order to ensure its legitimacy the government David Cameron and Alex Salmond provided for an enactment to ensure that the Scottish Parliament had the power to hold a referendum. The same was true in Taiwan and Quebec. Similarly, it follows that the leadership council of Storm should have been granted power to hold a referendum for the referendum to be considered legitimate.
2.4 Use of force by Mountain over the people of Storm
i)The force used by Storm could constitute oppression
Another recognised group of people that are given the right to self-determination are people who have faced oppression Although there is no said violence before the referendum, it could be argued that the use of force by the State following the referendum constitutes physical oppression.
Further as was contended in Re Secession Quebec, not allowing the ethnically distinct people to secede is in itself a suppression of its identity and so forms cultural oppression.
ii) It is every State’s duty to refrain from any forcible action depriving peoples of their right to self-determination
The Declaration on Principles of International Law Concerning Friendly Relations states that “Every State has the duty to refrain from any forcible action which deprives peoples referred to in the elaboration of the principle of equal rights and self-determination of their right to self- determination and freedom and independence.”
Therefore, the use of force is prevented in international relations and using armed forces against the people of Storm would go against this duty to prohibit the use of force in ‘international relations’ of any kind.
Although such use of force could constitute reasons for a right to self-determination, the injuries suffered by the people of Storm are only minor and would therefore not meet the high threshold.
3. Conclusion
In conclusion, this essay has established that the firing of missiles over the Iron Islands given the surrounding situation between North and Rock would constitute a threat to use of force. Further, President Terry’s tweet could be concluded to constitute a threat to use of force. And after having considered this act I terms of both pre-emptive self-defence and jus ad bellum, it is concluded that such a threat would be unlawful.
Secondly, in the case of self-determination, it has been concluded that the people of Storm do not have a right to the same as a) self-determination does not include secession b) do not fall under the definition of ‘peoples’, c) they only have a right to internal self-determination and not external. The leadership council was not authorised to hold a referendum.
Lastly, although the people of Storm did not have a right to self-determination the government of Mountain had a duty to refrain from depriving any peoples of self-determination by forcible action. This could be said to constitute oppression. However, the minor injuries suffered by the people would not be sufficient to meet the threshold.