Paper Example: The Position of International Law

If you were the Prime Minister of Spain, would you Recognise the Independence of Kosovo?

Spain is placed in a very precarious position concerning the recognition of Kosovo’s independence. That is because its stance on Kosovo can easily be interpreted to be a stance on its semi-autonomous region of Catalonia. Kosovo’s former prime minister insisted, “there is no possible comparison between Kosovo and Catalonia” (Sánchez-Vallejo, 2018, n.p). However, the fact that he felt the need to address the issue means that there was already a perceived similarity between the situation of Kosovo and Spain’s semi-autonomous region of Catalonia. Recognition of Kosovo independence would be misconstrued as a recognition of its techniques and subsequently, an admittance that Catalonia’s actions in their quest of self-governance are legal under International Law.

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Unsurprisingly, Spain, through its then foreign minister Miguel Ángel Moratinos, refused to recognise Kosovo’s independence because according to Spain, the process did not adhere to international law. He further added that the independence of Kosovo would only be legal if it were a result of an agreement between all parties involved or through a United Nations Security Council (UNSC) resolution.

The position of international law on the issue of creating a country or secession is slightly blurry because of various reasons. One reason is that these laws are open to multiple interpretations and that leaves room for argument on whether a move I right or wrong. Another reason is, most laws on self-determination of a region and its people were written in the mid-20th century, which was a period of decolonisation. As a result, some of them have become outdated or may not be practical in the modern world.

However, the right to self-determination is one that is enshrined in the UN Charter, where it is stated that people have the right to determine their destiny, including the political status (United Nations, Charter of the United Nations, 1945). The same powers have been clarified in the International Covenant on Civil and Political rights and could be taken to mean the right to sovereign statehood recognised by the international community. However, the law mentioned above is often interpreted as people’s right to determine how they are governed and the person that administers them. That means that self-determination in the modern world pertains to decisions and choices within an existing state instead of a guide to new statehood.

However, the most controversial issue in regards to the international law on the road to statehood is that for a particular region to become a new country, another sovereign state that already exists mush lose part of its territory. Such an outcome violates the norms and laws of territorial integrity, which prohibits another country or an international body such a UN from taking away the region of another country, without the parent state’s permission. As much as that principle seems to provide an answer to the issue of statehood, it still comes up short because of the contradictory law principles.

An action where a country is formed through separation from a territory or a population of another state without the parent state’s consent is secession. Secession can also be a region’s or a population’s separation from the parent state to join another already existing country without the permission of the latter. However, Kohen and Kohen (2006), term the process through which a new state is formed after separating from a parent state with the latter’s consent as devolution rather than secession. That shows that international law doesn’t necessarily use the permission of the parent state as the basis for granting of statehood. It also lacks a precise mechanism for determination of statehood.

As a result, it would be beneficial to use the recently formed states as the basis for establishing the foundation of statehood. South Sudan and East Timor remain the latest nations to be created. They were formed as a result of efforts to solve another problem, which in both cases, was violence. It is also the same case with Eritrea which fought a decade long war with Ethiopia before being granted independence. The parent state in all the three cases, Ethiopia for Eritrea, Sudan for South Sudan, and Indonesia for East Timor, gave their consent to gain long-term peace.

In a way, the independence of these countries was made possible by the consent of the parent state. But at the same time, these moves by the parent states were political, rather than a response to a legally laid out process. The UN Charter outlines the requirements for admitting new members, but such rules apply to already existing countries. The method of transitioning from a territory or part of the region to an internationally recognised state lacks a clear process in international law. It is mostly affected by the political forces, both international and local, that are at play at the moment. That means that the Spanish prime minister cannot, with absolute certainty, refuse to recognise Kosovo’s independence for failure to adhere to international law. On the other hand, he or she cannot recognise Kosovo’s sovereignty under the argument of following international law because international law doesn’t provide a clear guideline for such a process. It is up to the Spanish prime minister to act in a way that would protect the Spanish’s government’s interests within its territories and beyond.

Furthermore, the cases of Eritrea, South Sudan and East Timor indicate that a new state will need the parent state to abandon their claim on the territory before they would become internationally recognised. Therefore, in the position of Spanish Prime Minister, I would not recognise Kosovo’s independence because of they lack Serbia’s still lays claim on the territory, and such a move would not be in the best interest of Spanish government in respect to their relationship with Catalonia.

What is jus cogens?

Before the formation of the United Nations Charter, the international community needed a framework on which they could base the new organisation and its rules. The context was provided by certain principles which formed the basis on which all the charter laws were established. These principles are internationally accepted and cannot be overridden. An exemption cannot be created for whatever situation, because they form the fabric on which international law survives. Furthermore, the principles are also supreme and therefore take principle in the solving of any international dispute. Their existence is memorised in the Vienna Convention on Law of Treaties (United Nations, Vienna Convention on the Law of Treaties, 1969). That is, “a treaty is void if, at the time of its conclusion, it conflicts with the peremptory norm of general international law,” (United Nations, Vienna Convention on the Law of Treaties, 1969, Article 53).

The topic of jus cogens was included in the International Law Commission program of work to classify specific rules, duties and rights as peremptory norms. The inclusion was based on the working group on the long-term plan of action. The commission had before it the special rapporteur by the sixty-eighth session. The special rapporteur established a general approach to the topic by addressing the issues related to jus cogens, such as their definition and nature. However, the existence of jus cogens created a complication on the precedence of some laws.

Article 103 of the United Nations Charter stipulates that an obligation under the Charter overrides any commitment that arises from any other international agreement (United Nations, Charter of the United Nations, 1945). A question arises on whether the charter obligations can override the obligations that arise from jus cogens. To answer that question, one has to look at the concept of jus cogens from the angle of its pre-emptive nature, and the United Nations Charter reflection of the norm of jus cogens as its fundamental principle.

The literal meaning of jus cogens is “compelling law.” The doctrine of jus cogens was strongly influenced by the concepts of natural law, which hold that countries cannot be free to establish their international relations (Hossain, 2005). Within the jus cogens are rules necessary which act as pre-conditions for any international activity. Repudiating a law such as pacta sunt servanda, common in treaties, is not possible. Pacta sunt Servanda means that the agreement’s clauses are the law for the parties. Failure to fulfil the treaty’s obligations amount to contract breach.

The jus cogens gained their nature of international constitutional rules for two reasons. One is that they restrict the ability of a state to alter or remove specific regulations of international law. Second, they prevent countries from violating essential rules of international public policy because the disregard of such provisions would likely cause a collapse of the entire international legal system (Hossain 2005).

Jus cogens have taken precedence in several cases involving international law at the International Criminal Court (ICC). Judge Lauterpatch expressed his opinion in the 1993 Bosnian case where he stated that the Security Council might have violated the genocide prohibition; therefore, cited jus cogens when placing an arms embargo on both Bosnia and Serbia. Resolution 713 of the Security Council had imposed an arms embargo in 1991. A decision that had disregarded the state’s right to defend itself and take necessary measures to maintain peace and security in Bosnia. Therefore, the argument on the alleged violation of jus cogens had some potential weight because what the Security Council resolution had done, was that it had facilitated ethnic cleansing, genocide and large-scale human suffering.

According to Hossain (2005), there are four criteria for a norm to qualify as jus cogens. The first one is that is should have status as a norm in international law. The second is that it should gain acceptance by the whole international community. Thirdly, the rule needs immunity from derogation. Finally, the norm should be such that it can only be modified by a new law that has the same status (Hossain, 2005).

Do you agree with diplomatic immunity?

My understanding of diplomatic immunity is that it is a legal system that shields diplomats from lawsuits and prosecution from the host country’s laws and grants them safe passage. The concept practically excludes the representatives of foreign states and international organisations from the jurisdictions of the country in which they operate at the moment. The immunity extends to the family members such as children and spouses, provided the diplomat continues to occupy the post. The activities covered under diplomatic immunity can either be official or personal. However, the host country is allowed to expel the diplomat from the state. As a result, diplomatic immunity has proven to be a somewhat controversial topic.

Although international law is a rather recent development in human society, diplomatic immunity is an age-old practice. The ancient Roman and Greek empires were known to provide special status to envois, hence allowing the practice to evolve into what it is today (US Dept of State and the United States of America, 1998). However, the issue of diplomatic immunity has grown to be very controversial because of the precedence it presents in regards to diplomats appearing as people who are above the law of the land. According to the US Dept of State and United States of America (1998), immunity should not be understood as a total exoneration, mean pardon, or complete release from responsibility to comply with the law.