PRINCIPLES, CASES & EXAMPLES IN YOUR ANSWERS
Niallo and Zayn are neighbouring coastal states in Europe. The
population of Niallo are strict adherents of Lutheranism and the
population of Zayn are strict adherents of the Roman Catholic faith. Both
states are members of the Council of Europe and the United Nations. Both
states signed and ratified the Genocide Convention 1948, the European
Convention on Human Rights 1950, and the Charter of the United Nations
1950.
The Liamo Sea separates Niallo and Zayn. There are four islands in the
Liamo Sea, which Niallo claims to have discovered during the 18th
century. A large number of Niallan citizens took up residence on the
islands because of the fertile soil and large fishing stocks. In the 1890s, the
Niallan government established an administration on the largest Island,
Harryo. There were tensions between Niallo and Zayn over the Liamo
islands during the 19th century when Zayn citizens and traders settled on
the three remaining uninhabited Islands. In 1937, Zayn military and naval
forces invaded Harryo and took control of Harryo. Niallo complained to
the League of Nations about Zayn’s illegal occupation of Harryo. Zayn
rejects Niallo’s claim and counterclaims that Zayn occupied the Liamo
Islands for eighty years during the 16th century. Some Niallans leave
Harryo to return to the Niallo mainland whilst other Niallans remain on
Harryo. The population of Harryo comprises 77% Niallan citizens and
23% Zayn citizens. Zayn decides that Niallan citizens remaining on the
Liamo Islands should be reclassified as citizens of Zayn. Niallo claim that
this is a breach of Niallo’s state sovereignty. The Niallans on Harryo claim
that they are a distinct ethnic group entitled to recognition as such. Zayn
supported Germany during World War II and ceded the Liamo Islands as
part of a peace treaty with Russia in 1945. In 1957, Russia ceded the Liamo
Islands back to Zayn. Niallo protested at this cession maintaining its claim
to sovereignty over the Liamo Islands. In 1962, Zayn granted significant
internal autonomy to the Niallan Ethnic Movement (NEM) in Harryo.
Niallans are granted control over the practice of their religious faith,
education, cultural and family affairs.
In 2012, Louiso is elected as Prime Minister of Niallo who is an ultra
Niallan nationalist and believes that the Liamo Islands belong to Niallo.
Niallo declares the establishment of an Air Defence Identification Zone
(ADIZ) in the Liamo Sea. Zayn claims that Niallo’s ADIZ encroaches on
Harryo’s airspace. In addition, Niallo informs states that it will adopt
defensive military measures if any aircraft fails to provide flight
information on request. Niallo claims that it has a right under customary
international law to declare such an ADIZ. 19 states with ADIZs refute
Niallo’s claim. These states issue a declaration that it is customary law
that a state’s ADIZ cannot encroach on the territorial airspace of another
state and that an ADIZ is for flight information and identification
purposes. However, China has a similar ADIZ and supports Niallo’s
claim.
Tensions between ethnic Niallans and Zayn nationalists on Harryo are
raised by Niallo’s declaration of an ADIZ. There are clashes between these
two groups. There is widespread destruction of property belonging to
ethnic Niallans. A number of Lutheran churches are destroyed by fire.
Zayn parliament passes a law suspending NEM autonomy on Harryo
because of this civil unrest. This Zayn law imposed a 20-person limit on
gatherings of ethnic Niallans including for religious services. The NEM
claim that Zayn is failing to protect Niallans from abuse and that it has a
right of self-defence under international law. There is a series of armed
attacks by NEM on Zayn military bases on Harryo killing and injuring
over 150 Zayn soldiers. Zayn derogates from the European Convention
on Human Rights under Article 15 in relation to all of the Liamo islands.
There are reports that Niallo supplied weapons to NEM members who
also target Zayn citizens. There are reports of mass killings of Zayn
citizens by NEM. Zayn claims that NEM is trying to ethnically cleanse
Harryo of Zayn citizens. Zayn releases satellite images that it claims
indicates mass graves and decoded communications from the Niallan
Defence Ministry where the NEM are instructed to eliminate any Zayn
citizens of Harryo. Niallo denies these claims and counterclaims that the
Zayn Intelligence Agency forged the material. The Zayn military and air
force launch strikes against NEM members. Zayn defence forces capture
a number of men on Harryo who are members of the Niallan Secret
Service (NSS). Zayn believes that NSS members are responsible for
providing NEM members with weapons and tactical training and
encouraging genocide. There are reports that Zayn security forces
attacked, killed and injured ethnic Niallans. Zayn security forces impose
a curfew on Harryo and establish ‘re-education camps’ for ethnic
Niallans. Zayn security forces round up and detain thousands of ethnic
Niallans in these re-education camps. There are reports that there is
insufficient food and medical care in these camps. There are also reports
that ethnic Niallan children under 12 months are taken from their parents
and placed for adoption with Zayn families. During a press conference,
Louiso produces satellite photographs indicating what he claims to be
mass graves on Harryo containing ethnic Niallans who were summarily
executed or died in the re-education camps controlled by Zayn security
forces. Louiso produces a number of emails from the office of the Zayn
Prime Minister where he asks the military commander responsible for
Zayn security forces on Harryo to ‘liquidate’ ethnic Niallans.
Louiso claims that these NSS members went rogue and denies any state
responsibility for these NSS members. Zayn places NSS and NEM
members on trial for genocide Some are acquitted for insufficient
evidence of dolus specialis for genocide, whilst others are convicted. Zayn
courts sentence those responsible for genocide to death. Niallo institutes
proceedings against Zayn before the International Court of Justice for
breaches of the Genocide Convention. Zayn refuses to participate in these
proceedings because Zayn claims to have withdrawn from the Genocide
Convention.
A number of Niallan citizens protest outside the Zayn embassy in Niallo
in response to the events of Harryo. Niallan citizens hurl fireworks, rocks,
Molotov cocktails and bottles at the Zayn embassy compound. The
Niallan soldiers guarding the embassy make no attempt to prevent this
attack on the Zayn embassy. The Zayn embassy catches fire. The Zayn
government issues an immediate demand to the Niallan government to
honour its international legal responsibilities to protect the Zayn
embassy. Five Zayn diplomats die in the fire at the embassy. The Zayn
embassy is protected by a detachment of Zayn marines. Zayn marines fire
at the baying Niallan mob because they believe that the mob intends to
kill every member of the embassy staff. 38 Niallan citizens are killed and
over 40 are injured. A number of Niallan soldiers and Zayn marines are
killed during a fire fight when Niallan soldiers storm the Zayn embassy
compound. The remaining Zayn marines are arrested and charged with
shooting Niallan citizens. Zayn claims that Niallo was responsible for
organising the protest outside the Zayn embassy and failing to provide
adequate security to protect the embassy compound. Niallo refutes
Zayn’s claim.
The United Nations Secretary General (UNSG) calls for calm. Niallo and
Zayn agree with the UNSG’s proposal to permit a team of Irish police
officers to travel to Niallo and investigate the riot at the Zayn embassy
compound. The Irish Times publishes a draft report of the Irish police
officers indicating that some of those responsible for starting the riot
outside the Zayn Embassy were undercover Niallan soldiers and other
rioters had been paid by the Niallan government to participate in the riot.
Niallo claims that this draft report is a tissue of lies.
Zayn demands that Niallo release the Zayn marines because they are
protected by state immunity. Niallo refuses to release the marines because
state immunity does not extend to gross violation of human rights. Niallo
states that it intends to prosecute the Zayn marines for the murder and
injuries to Niallan citizens. Zayn claims that the marines are entitled to
state immunity and must not be prosecuted in a Niallan court. Zayn
claims that Niallo was responsible for riot at the Zayn embassy and its
aftermath by relying on the draft report of the Irish police officers. Zayn
decides to sue Niallo in the International Court of Justice for breaches of
the diplomatic conventions and state immunity. Niallo counterclaims that
Zayn breached international law when Zayn marines killed Niallan
citizens outside the Zayn embassy.
The Zayn defence forces round up thousands of ethnic Niallans on
Harryo and the other islands. There are reports that Zayn defence forces
physically abuse ethnic Niallans during detention. Louiso claims that
Zayn has breached the principle of self-determination by suspending
autonomy of the islands and used disproportionate force in its attacks on
NEM members. The United Nations Special Rapporteur for Ethnic
Groups issues a report that there is evidence that Zayn defence forces are
abusing the rights of ethnic Niallans on Harryo. There are reports of
indefinite detention, inability to engage in peaceful protest, forced labour
and the arbitrary removal of ethnic Niallan children from their parents.
Zayn claims that these measures are necessary in order to restore law and
order on Harryo. Niallo claims that the Zayn’s actions constitute a threat
to international peace and security. Three non-permanent members of the
United Nations Security Council sponsor a draft resolution that demands
that Zayn restore the rights and freedoms of the ethnic Niallans on
Harryo. The draft resolution reminds Zayn of its responsibility to protect
all citizens on the island of Harryo. The draft resolution is dropped when
Russia, a permanent member of the United Nations Security Council,
indicates that Russia will veto the resolution as it considers Zayn is an
ally. Niallo claims that there is a customary principle of international law
permitting a State to take military action against another State that is
abusing the rights of an ethnic minority. Niallo substantiates the existence
of this customary principle by pointing to NATO’s military intervention
in Kosovo in 1999 and Libya in 2011. Niallo claims that this principle is of
jus cogens standing.
The Niallan navy engage in manoeuvres close to Harryo. Zayn deploys
its air force to monitor the movements of the Niallan navy. The Niallan
navy and Zayn air force clash. Niallan paratroopers and marines land on
Harryo under the cover of darkness. Niallan and Zayn forces engage in
sea, air and land battles. Niallan forces beat Zayn forces and capture
Harryo. Louiso claims that the use of military force was lawful, necessary
and proportionate. Niallo claims that it is entitled to sovereignty over
Harryo because of the responsibility to protect doctrine, the principle of
self-determination for ethnic Niallans resident on the Island and Niallo’s
claim to sovereignty dating from the 18th century. 152 states in the United
Nations General Assembly vote for a resolution condemning the invasion
of Harryo and refusing to recognise Niallo claim of sovereignty over
Harryo. Niallan military forces are accused of harassing Zayn citizens on
Harryo. Niallo places Zayn citizens from Harryo onto barges, which are
set adrift in international waters.
Question
You are a legal adviser to the Commissioner of Human Rights for the
Council of Europe.
(a) Explain the relationship between state sovereignty and international
human rights law. [10%]
(b) You are asked to identify and discuss the potential violation of rights
of the European Convention on Human Rights and Fundamental
Freedoms 1950 arising from the facts of this case study. [90%]
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