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An International Law paper prepared as a ‘Legal Brief’. Essay Example

  • Category:
    Law
  • Document type:
    Research Paper
  • Level:
    Undergraduate
  • Page:
    3
  • Words:
    2245

Summary of Relevant Facts

Koala Island became a German colony in 1815. Unease over relations with Germany led to the signing of a treaty of Barcelona which divided the island into two with Germany retaining 16km2 and England taking the rest. The declaration of Eurasian independence leads to issues concerning the territorial boundaries of the Koala Island since part of it was governed by the English and thus at the declaration of Australian independence fell upon Australian jurisdiction. The 1932 Koala Acceptance Act adopted by Australia effectively declared not only the English occupied part as belonging to Australia but also the entire island1. This goes contrary to the maps of the German empire which show the entire Koala island to be under Eurasian jurisdiction. Australian claim on Koala island are rooted in the ratification of the 1982 United Nations Convention on the law of the sea to which Eurasia is not a party Eurasia claim on Koala island is based upon the maps of the German empire issued in 1872 and claims that the whole island is an inherent part of Eurasian tradition as evidenced by a variety of artifacts And monuments which are indigenous to Eurasians on the island2. The dispute concerning the ownership of the island can be referenced to the Treaty of Amity and Cooperation in the region of Koala island which was signed in 1987 and binds many south East Asian Nations which are party to the treaty. Since both Eurasia and Australia are signatory to the treaty, it becomes a valid reference point for both countries.

Legal Issues Relevant to Australia’s Claim

The island of Koala dispute has very similar aspects to the case of divided nations such as North and South Korea and Northern Ireland. Divided nations the world over have always had a hard time reconciling the disputes between the divided countries. These issues range from constitutionality issues to issues of culture and language. The claim on Koala Island by Eurasia is based upon the notion of commonality of artifacts and cultural ties to the island3. Eurasia bases its actions against Australia Oil Co to be as a result of the disregard for international law by Australia.

Eurasia as a member of the United Nations is bound by the rules and principles of the United Nations. According to the principles of the United Nations, Koala Island is a territory which is under the trust system. Article 77 of the trusteeship system outlines a system through which territories in trust are to be governed. These territories include; territories currently held under mandate, territories which were detached from the enemy states as a result of the Second World War, and lastly territories which are placed under the system by states responsible for their administration. Subsequent agreement will determine the terms of the trusteeship system4. The trusteeship system place upon the country’s which are mandated to govern the territory under trust to provide amenities and facilitate the development of the territory. The Koala Island was put under the mandate of Eurasia and Australia by the Treaty of Amity for the region of Koala Island
5. The treaty put upon the two parties to participate equally in all matters pertaining to the Territory of Koala Island until the territorial dispute is resolved. The participation in the matters of the territory was to include developing the territory, providing economic and social support. Since 1932 Australia has been the most active participant in matters concerning the territory by building roads, making laws and offering administration. Eurasia after attaining independence in 1962 has been conspicuously absent regarding the matters of the island until now6. The development of the territory through prospecting for minerals and resources was left to Australia which makes Eurasia seem to want to benefit from the efforts of Australia in claiming the island after the finding of oil7. One of the principles of the United Nations Charter obliges all nations to adhere to their obligations which Eurasia has flagrantly flouted8.

Eurasia claim on the island rests with its claims that many artefacts and objects indigenous to Eurasians can be found on the island. While this claim holds water, the island has always been sparsely populated and the Eurasian government has never made any attempt to populate the island as opposed to the Australian government which has the majority of Koalans with Australian citizenship. Legitimate territorial claims in international law in many instances are backed by majority of population in an area not simple cultural and historic tie as was the case of the Bakassi peninsula in Cameroon9.

The Commonwealth constitution of Australia as originally written by the English colonial power mandates it to take control of Koala Island. Australia is in its constitutional right to take over the entire island since its procedures consider the island as part of the commonwealth. Australia not taking up its mandate of governing the island would amount to a breach of its constitution. The ratification of the 12 mile nautical territory by Australia in 1996 raised no objection by Eurasia and this plays against them as not raising an objection is tantamount to sanctioning the action. An important aspect of international law also concerns the period in which action can be brought to court. The Australian commonwealth declared the Koala island to be part of Australian in 1932 yet it has taken Eurasia 79 years to bring up the matter10. Australia could invoke the rule of common law in international law which forbids unfair gain from the effort of another. Australia having administered and developed the entire territory of Koala island without the input of Eurasia has a right under common law to reap any benefits accruing from such an investment11.

Eurasia’s Breach of the Treaty of Amity

The treaty of Amity for the region of Koala Island was signed between Australia and Eurasia in order to prevent conflict till the issue of possession of the island is determined. The treaty is based upon several principles which were agreed upon by the two parties regarding the island. The preamble of the treaty stresses the significance of maintaining the consciousness of the existent historical, and geographical ties which mesh them together12. It also emphasizes the promotion of stability and peace through respect for law. The treaty is grounded in peace friendship and mutual cooperation as enshrined in the U.N Charter, the principles of the African Asian conference of 1955 and the ASEAN Declaration of 196713. Lastly the treaty calls for peaceful settlement of disputes through established mechanisms14.

The state of Eurasia actions have been illustrated a flagrant breach of the provisions of the treaty. Eurasia goes against the purpose and principles set out in chapter one of the Treaty of Amity. Article one of the treaty obliges signatories to the promotion of peace and cooperation in order to have solidarity friendship, and a closer relationship. The second article calls upon the contracting parties to exercise respect for sovereignty, equality, and territorial integrity of each other in addition to the peaceful resolution of conflicts among themselves15. Eurasia has not adhered to any of these principles as it has taken matters into its own hands by sanctioning its citizens in the destruction of the property of Australian company. While Eurasia may claim to be aggrieved by the unilateral decision taken by Australia in rigging an oil well in a disputed region, it would have been proper to submit their complaints to a dispute resolution mechanism instead of using force and violence in breach of the treaty’s principles.

Chapter two and article three of the treaty concerns amity. In this endeavor the contracting parties are obligated to strive for the strengthening of ties of culture, tradition, history, friendship and cooperation which bring them together. All the signatories to the treaty commit to the fulfillment of their obligations in good faith as stipulated in the treaty. The treaty facilitates closer cooperation and understanding between the parties by the encouragement of frequent contact between them the parties. Eurasia has breached the amity principles by stirring up differences among the people on Koala Island. Eurasia has been a constant voice in discouraging cultural ties by staking claim on the whole island and tying this to cultural artifacts of indigenous Eurasian without due regard for the Australian interests and residents of Koala island. The actions committed by Eurasia in perpetrating violence and not fulfilling their obligations is, a show of bad faith16.

Chapter three of the treaty concerns cooperation between the contracting parties. Article four obliges all the parties to ensure active cooperation in the areas of economy, social, technical, scientific and administrative issues. Signatories to the treaty must strive to ensure commonality in ideals and aspirations in order to foster stability and peace in matter of mutual interest. Article five of the treaty puts an obligation upon the signatory states to enforce relations of non discrimination, equality and mutual gain. Eurasia has gone against the principles of cooperation in economic, social, technical, scientific and administrative issues. Eurasia has been unable or reluctant to perform its obligations in regard to this17. All the development of roads, administrative economic and social issues has been left to Australia. Eurasia has shown a lack of interest regarding the provisions of the treaty on Koala Island. The insistence on Koala Island being inherently part of Eurasia also defeats the intents of commonality of aspirations as set out in the treaty.

Chapter four of the treaty deals with the peaceful resolution of conflicts arising between the contracting parties. The parties signatory to the treaty are to ensure that they are geared towards the prevention of disputes. In instances of the arising of disputes which would lead to a destabilization of regional peace and harmony, all parties are to act in a manner that is devoid of force or the threat of force. The resolution of all disputes shall thus be settled through mechanisms that foster good and friendly relations. Eurasia is in breach of this principle by resorting to taking the law in its own hands. The action undertaken by the Eurasian activists is a threat to the peace and harmony of the entire region as Australia may be provoked to respond with force18. Mechanisms set up to resolve the disputes through friendly negotiations were not exhausted before Eurasia took the drastic action of Attacking and destroying the Australian mining operations. Eurasia has also been clearly coming out to stake a claim on the entire island while the issue was still being negotiated thus increasing tensions between the two countries.

Bibliography

Australia v Nauru (1993) ICJ REP 576

Botswana v Namibia (1999) ICJ REP 294

Indonesia v Malaysia (2002) ICJ REP 2002

Libyan Arab Jamahiriya v Chad (1994) ICJ REP 357

Malaysia v Singapore (2008) ICJ REP 13

Nicaragua v Honduras (1987) ICJ REP 765

Qatar v Bahrain (2005) ICJ REP 235

ANU College of Law, Connecting International Law with Public Law, 2007, http://law.anu.edu.au/cipl/

Australian National University, International Law, 2011, http://www.weblaw.edu.au/display_page.phtml?WebLaw_Page=International+Law

Christopher Schreuer, Investm,ent Treaty Arbitration Over Contract Claims – The Vivendi Case Considered (2001) 15(2) UNIVIE, pdf http://www.univie.ac.at/intlaw/pdf/cschapter_76.pdf

Crown, Treaty of Amity and Cooperation in Southeast Asia, as amended by the First Protocol amending the Treaty of Amity and Cooperation in Southeast Asia, 1987, and the Second Protocol amending the Treaty of Amity and Cooperation in Southeast Asia, 1998, UK, http://www.official-documents.gov.uk/document/cm71/7196/7196.pdf

Glen Plant The American Journal of International Law (Jan., 2002), 67-70

Lea Brilmayer, Secession and Self-Determination: A Territorial Interpretation, (2009) 35(7) elaw journal Yale Law School Legal Repository 134http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3429&context=fss_papers&sei-redir=1#search=%22determination%20nof%20territorial%20claims%22

Shelton Dinah, Righting Wrongs: Reparations in the Articles on State Responsibility (ASIL, 2009)

United Nations, Declaration on Principles of International Law Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, 1970, http://www.hku.edu/law/conlawhk/conlaw/outline/Outline4/2625.htm

United Nations, International Trusteeship System, United Nations, (2011) http://www.un.org/en/documents/charter/chapter12.shtml

Vicuna Francuisco, Of Contracts and Treaties in the Global Market, MPIL, (3 September 2011) http://www.mpil.de/shared/data/pdf/pdfmpunyb/orrego_8.pdf

William Park and Yanos Alexander, Treaty Obligations and National Law: Emerging Conflicts in International Arbitration, 2005 http://www.arbitration .icca.org/media/0/12584292944710/park_treaty_obligations.pdf

1
Dinah, Shelton, Righting Wrongs: Reparations in the Articles on State Responsibility, ASIL, (2009)

http://www.arbitration-icca.org/media/0/12584292944710/park_treaty_obligations.pdfWilliam Park and Yanos Alexander, Treaty Obligations and National Law: Emerging Conflicts in International Arbitration, ICCA, 2005
2

3 Malaysia v Singapore (2008) ICJ REP 130

4
United Nations, International Trusteeship System, United Nations, (2011) <http://www.un.org/en/documents/charter/chapter12.shtml>

5
Crown, Treaty of Amity and Cooperation in Southeast Asia, as amended by the First Protocol amending the Treaty of Amity and Cooperation in Southeast Asia, 1987, and the Second Protocol amending the Treaty of Amity and Cooperation in Southeast Asia, 1998, UK, <http://www.official-documents.gov.uk/document/cm71/7196/7196.pdf>

6 Botswana v Namibia (1999) ICJ REP 294

7 Australia v Nauru (1993) ICJ REP 576

8 Libyan Arab Jamahiriya v Chad (1994) ICJ REP 357

9
Christopher Schreuer, Investm,ent Treaty Arbitration Over Contract Claims – The Vivendi Case Considered (2001) 15(2) UNIVIE, pdf http://www.univie.ac.at/intlaw/pdf/cschapter_76.pdf

10
Vicuna Francuisco, Of Contracts and Treaties in the Global Market, MPIL, (3 September 2011) <http://www.mpil.de/shared/data/pdf/pdfmpunyb/orrego_8.pdf>

11. Indonesia v Malaysia (2002) ICJ REP 2002

12 Qatar v Bahrain (2005) ICJ REP 235

13
United Nations, Declaration on Principles of International Law Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, 1970, http://www.hku.edu/law/conlawhk/conlaw/outline/Outline4/2625.htm

14
Lea Brilmayer, Secession and Self-Determination: A Territorial Interpretation, (2009) 35(7) elaw journal Yale Law School Legal Repository 134http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3429&context=fss_papers&sei-redir=1#search=%22determination%20nof%20territorial%20claims%22

15
ibid p2

16
Australian National University, International Law, 2011, http://www.weblaw.edu.au/display_page.phtml?WebLaw_Page=International+Law

17
Nicaragua v Honduras (1987) ICJ REP 765

18 ANU College of Law, Connecting International Law with Public Law, 2007, http://law.anu.edu.au/cipl/