The Novida Autonomous Region (NAR) in the Republic of Felix (ROF) declared its independence as a new state to be known as Felice Novida. It was formed in the 2012 and till 2016, there have been fighting erupted between Felice Novida pro-independence militias and pro-Felix militias but none of the forces were able to assert effective control over the NAR territory. The issue here to be considered is whether Australia should consider the statehood of Felice Novida when there is intel that the treatment of civilians on the ground of Felice Novida may be a breach of international law.
To determine this question one must take the view the current position of Felice Novida which has been recognised by 20 states already. The separate position of Felice Novida must be recognised by certain fundamental rights and obligations of the State in international law according to the United States Charter. These fundamental rights and obligations are based on three important principles- liberty, equality and fraternity. According to Hobach, Lefeber and Ribbelink, this means that to consider statehood, Felice Novida must have its independence, the sovereign equality and obligation to co-exist peacefully. The independence means that the State can choose their own constitution, exercise jurisdiction in the state and can defend itself from armed conflicts (Article 2, Para 7 of the UN Charter). The obligation to co-exist peacefully implies that the state should not intervene in the matters of other states or does not do any act that violates the rights of other states. If such a state becomes a threat to international peace and security, it will not be considered as a State. Georg Jellink in the year 1905 stated three ingredients necessary to form a State, they are: A territory, Population and Public Authority. These ingredients are similar to the criteria laid down in Article 1 of the Montevideo Convention on Rights and Duties of States.
One of the cornerstones of the U.N. Charter is the principle of territorial integrity and the post-Second World War lawful order. Territorial Integrity is considered to be the most significant barrier to overcome for achieving statehood. A reference to this integrity is provided in Article 2(4) of the UN Charter with regards to the restriction of use of fore towards other nations. But in the context of claims and for being an independent State, the U.N. Contract is silent and is limited to not including the utilization of force in global relations.
In the Kisovo Advisory opinion, the International Court of Justice clearly stated that principle of territorial integrity only applies in State’s relations with each other. The right of self-determination as held by the people of Felice Novida does not apply to the States. Thus, this rule of territorial integrity goes beyond relations between the States as well as use of force. It restricts people groups' privilege of self-assurance, so the elaboration mirrors the regulation that, after colonisation, the privilege of people groups to self-determination will be typically fulfilled inside the international borders of the parent State and hence won't bring about another State. The situation is hand is similar to that of Somalia and Somiland. Somalia is popularly known as a failed state or a collapsed state (The case of Somiland). Somiland also declared itself as an independent State. It made its own constitution, elected its own government, took care of its borders for security. Based on all this, it should be recognised a State as all the three requirements are fulfilled. Somiland was not recognised by other states as an independent state. According to the declaratory theory of international law, a State can fulfil the criteria of being recognised as an independent State but it is not necessary that other States will form relations with it. The factual criteria for statehood are independent of the State’s relations with other states. In the case in hand too, Felice Novida fulfils the criteria of being a State but only 20 nations have recognised it. There is no obligation on any State to recognise Felice Novida as an independent State. It will only be considered as a ‘de-facto’ State if the international community does not recognise it.
Australia should not consider Felice Novida as an independent State as it may prove as a theat to the international community. According to the intel received, the civilians are not treated properly and the State is in armed conflict from past 4 years. There is no obligation on Australia to recognise Felice Novida as a State.
The most important question that arises in this situation is that should Wakanda release the militants of Glorius Hulkious who helped the Thanos to coup in the country and gain control over the government. It should also be considered that Glorius Hulkios also violated the agreement entered into between itself and the Thanos. The militants detained by Wakanda are the prisoners of war under Article 4 of the Geneva Convention. Taking prisoners has a number of military advantages, the most obvious of which is the tactical benefit gained by depriving the opponent of manpower and increasing one’s own advantage in terms of the ratio of troop numbers. This advantage can even be increased by inducing captives to join one’s own armed forces. Additionally, taking prisoners affects the adversary’s morale as well as the morale of one’s own troops. Also there is violation of Vienna Conventions on Law of Treaties by Glorius Hulkios.
Prisoners in a warfare turn-out to be a trammel and/ or burden. They need to be safeguarded and nurtured which can be notably challenging in peril situations or when logistic support is fragile in genre. In the old days, prisoners in such situations were often to be a situation warranted by military necessity. Releasing prisoners or exchanging them or enslaving them, either of them are alternative methods of avoiding the difficulties of holding them captive. International law might be extensively characterized as the variety of law that administers the lawful relations between or among individuals from the worldwide network States and worldwide associations made by States. International law holds a structure which is generally not the same as the city law or public lawful request of a State concerned. The significant contrast is that international law is an assent put together law concurred with respect to by concerned States, wherein civil law is made by the administrations of concerned States and is made mandatory upon its residents. Consequently international law is official upon the States just on the off chance that they concur upon them, aside from in instances of Customary International Law and Jus Cogens.
Detainees of War as referenced under Article 4 of the Geneva Convention and Article 44 of the Additional Protocol I are qualified for explicit assurance and treatment. Detainees of War are agreed with this exceptional status perceiving the way that soldiers are following up on the enthusiasm of their nation, and once they are out of battle they are qualified for be secured. Global Humanitarian Law arrangements set out explicit standards for the treatment of the Prisoners of War. The Geneva Convention III 143 Article(s) necessitate that Prisoners of War be dealt with others consciously, enough housed and get adequate food, garments and clinical consideration. Its provision(s) additionally build up rules on work, order, entertainment and criminal preliminary.
It has now been more than 60 years that the Geneva Convention came into force but till now it could not gain popularity if compared to United Nation Convention on Law Of the Sea (UNCLOS). There are many conventions and treaties such as Mare Clausum, Mare Liberum, Geneva Convention, UNCLOS, etc. The question to be considered now is which provision of these conventions or principles will be customary international law. The law of the sea has seen high and low tides since its inception. During the Roman period, there was a principle of Mare Nostrum which used to govern the claims related to the sea. These claims were made by disputant States. Seas have always been a part of conflict between the States. The breadth of the Mediterranean Sea was undertaken by the Roman Empire in view of the principle of Mare Nostrum. Since then, that breadth of the Mediterranean Sea is governed by Roman laws. In view of this England also claimed jurisdiction over English Channel and Norway claimed jurisdiction over North Sea.
Thereafter in the 17th century, the principle of Mare Clausum emerged in the work of John Seldon which referred to ‘closed seas’. According to this principle, the seas can be used and exploited by those States having a Navy or naval abilities. John Seldon was of the view that when naval States protect all of us from perils of the Sea, they should only get the right to exclusive jurisdiction over the sea. At that point of time, England was a Naval Power due to which it exercised jurisdiction over the English Channel and the sea surrounding for over 200 years. But there emerged one more principle for law of the Sea in the 17th century itself by Hugo Grotius through his work which came to be known as the principle of “Mare Liberum”. According to this doctrine, the seas should not be used by only some States having naval capabilities but the Seas should be open to every State so that the can also start exploring other States and trade can be given a boost by this way. There were two significant principles behind the doctrine of Mare Liberum which are as follows:
Till now, Mare Liberum continues as a principle which governs High Seas. In spite of Mare Liberum being in place, power over regional waters in any case stayed a significant concern. States kept on perceiving entitlement of coastal states to shield waters reaching out from their coasts, regardless of inescapable acknowledgment of the freedom of the high oceans. Customarily, this acknowledgement extended to just three miles from the shore, since this was the greatest separation that could be reached by a historical canon (The case of Mediterranean Basin). The present laws administering the ocean advanced from the battle between those upholding the freedom of the oceans and those advocating sovereign domain over them.
In the year 1982, the third United Nations conference on the law of the ocean at long last closed. The subsequent UN Convention on the Law of the Sea (Unclos) served to reinforce power over the oceans, as it stretched out state's territorial sea to 12 nautical miles and perceived their selective location over their inner waters. Past the regional sea, coastal states were broadened extra rights 24 nautical miles and 200 nautical miles outward from their baselines, separately, in their bordering zone and select monetary zone (Article 2, 3, 5, 7, 10, 13 of UNCLOS). Further, waters running between islands of an archipelagic state are presently dependent upon its jurisdiction. The special economic zones or exclusive economic zones as well as contagious zones (Articles, 1, 2, 4, 11, 12, 14 of UNCLOS) were added in the Convention which dwindled the jurisdiction of High Seas. However, the freedom of High Seas is intact under UNCLOS. It specifically provides that no State may be subject of any part of High Seas but every State can use it according to their own purpose and need. UNCLOS also reserves the right of all the Nations to fish equally in the High Seas.
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