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Raucus and Noisy are two island Statesthat achieved independence from the United Kingdom in 1975. Raucusisrich in mineral resources but these have been overexploited in the pasttwo decades. Raucus now findsitself debt ridden and in particular, unable to pay off large loansissued by Noisy on an inter State basis. These funds have effectively been squandered as Raucus has sought to maintain the life style to which it had become accustomed in more prosperous times. Noisys authorities are contemplating how to recover the over due amounts from Raucus. In December 2014 the head of Noisys military (Bang Bang), after close consultation with his military colleagues (only), decides to send a privately contracted aircraft pilot with instructions to photograph Raucus coastline and to otherwise explore and map the resources within and under the water column in the area extending from Raucus baseline out to 100km from its shore. To that end, Bang Bang picked up the office phone and called Skippy, the local private contractor, instructing him to take the old plane with registration number Noisy2, as it turns out long over due for service, from the Royal Noisy Air Squadron Head Quarters in order to conduct the survey. Seven kilometres from Raucus shore, the plane runs into engine trouble. Skippy just manages to land on Raucus principal highway that runs the length of Raucus coastline, but in doing the plane collides with the local traffic and 10 motorists on the highway are killed. Skippy himself emerges from the aircraft uninjured but he is immediately arrested by Raucus police. He is later charged with spying and is incarcerated in Raucus Gaol.
The Prime Minister of Raucus is furious upon learning news of these events and lodges a complaint with Noisy. Noisy in its defence claims first, that the plane is a privately owned and operated aircraft; and second, that even if it were not so, the plane was in a situation of absolute impossibility, with no choice but to land on Raucus highway. Finally Noisy demandsthat Raucusimmediately repay its debts to Noisy, to which Raucus retorts that repayment is not currently possible as its population is on the point of starvation; the little money it has available therefore being required to buy food.
Question 1: Please advise on the issues of international law arising from the above scenario.
Noisy decides to enforce its rights to repayment of the debt and enlists the support from third State, Timid. Timid allows Noisys airforce (as stated in the official correspondence between the two States) to use Timids air basesfor the purposes of proportionate forcible counter measures to recover the debts owed to Noisy. Noisy and Timid consider that thisforcible action, which begins on 15 April 2015 and would end on 30 April 2015, is equally and additionally justified on the same grounds as the 2003 use of force in against Iraq: an implied authorisation. Indeed the United Nations Security Council had, in 2001, determined, following the massacre of 20 people in Raucus by some disaffected locals against a neighbouring village, that the genocide in Raucus was a threat to international peace and security
and in the subsequent Resolution XXXX (2001)the Security Council authorised the use of all necessary meansto restore international peace and security to the Raucusregion. Subsequent to the successful deployment of Noisy troops in that instance, the Security Council adopted Resolution YYYY (2001) by which the Security Council, in termsreplicating in all relevant respects Resolution 687 (1991), imposed a conditional cease fire, one of the many conditions imposed being that Raucus acquit itself of all its debts in a timely manner.
Question 2: Please advise on the issues of international law arising from the above scenario.
Question 3: On 19 April 2015, Australia expresses its concern with the situation and asks you, as its legal advisor, whether it can adopt non forcible sanctions against Noisy and what other rights and obligations it might have in relation to the situation.
Question 4: Meanwhile, Skippy claims he is being ill treated in Raucus Gaol. Together with other inmates he is, as authoritatively determined by UN monitors, being intermittently tortured by the guards on duty. This practice started in January 2014 and persists until today. Itisreported that Skippy, who has been refused access to a lawyer or to the courts, is insisting that his native Noisy exercise diplomatic protection. Please assess this situation by reference to international law.
Question 5: Finally, in early May 2015 Noisys President undertakes a UN sponsored visit to Raucus to find a peaceful solution to the various differences which now plague the relations between the two States. Noisys President holds a press conference at the end of the first day of meetings. The press conference was held behind closed doors; only Noisys press corp being admitted. This is contrary to Raucus law. Please advise on the issues of international law arising in relation to the press conference.
Timid, Raucus and Noisy are partiesto the United Nations Charter. The only other treaty binding on the parties is the loan agreement between Raucus and Noisy. You are instructed not to deal with issues arising from the law the treaties.
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In this given case, there is no actual state of war between the two states, Raucus and Noisy. Raucus was already going through a debt-ridden situation, is overpopulated and has to fulfill the needs of the people as per the established state standards. Hence, with the aim of maintaining standards, it secured a loan from another state, Noisy. Raucus uses the money liberally for the state's benefits but fails to repay the loan amount to Noisy within the stipulated period. As there are no signs of further repayment of the loan amount from Raucus, Noisy decides to create ways of money recovery from Raucus.
With such intention, Noisy has a meeting with its military officials and hires a private aircraft in order to conduct survey the coastline of Raucus. This activity is done Noisy with the aim of military attacks on Raucus in future. Hence, Noisy plans the conspiracy in a careful and alert way. It doesn't send its own military officials to observe Raucus' coastline. But it carefully hires Skippy, the private contractor for performing the survey.
It is necessary to understand the legal issues behind this situation in this particular case. Though the like of 10 innocent motorists were killed due to negligence and the improper functioning of an aircraft engine, Noisy has attempted to apply force on Raucus by using unauthorized means. Noisy had no intention of taking lives of civilians and the accident was caused due to engine's sudden failure. For that purpose, it is essential to understand the legal issues in this situation as follows:
Has Noisy committed a breach of customary international law and relevant obligation?
Has Noisy used force to attack against Raucus?
Noisy undertook the assistance of private aircraft with the consultation of military officials. Does it amount to collective self-defense, in any case, a way to recover its debts from Raucus?
Has Noisy committed a violation of the sovereignty of Raucus by sending aircraft to observe its coastline?
Has Noisy committed an act of violence by sending private aircraft and interrupted the peaceful life of the innocent citizens of Raucus?
Following findings or observations can be made while answering the above-mentioned questions:
The customary international law mentions non-usage of force by one state against another.
If a government of a contracting power owes contract debts from the government of another contracting power, then this contracting power does not have the right to go for armed forces for its recovery.
As per the UN Charter, all members are not allowed to use threat or utilize force and interfere the territorial or political integrity of another State or go against any means as laid down by the Charter.
While discussing the case of Nicaragua and other cases which involved military and paramilitary activities, a necessity had arisen for distinguishing the grave and less grave forms of force. Serious forms of attack included an armed attack.