first issue is whether Chalky remaining as part of Moscalia is consistent with
the international law of self-determination.
Article 2 of the United Nations Charter recognizes the principle of
equal rights and self-determination of peoples.
The case Reference Re Secession of
Quebec provides the framework from when self-determination may arise. Firstly, there is a threshold inquiry of
whether the group seeking self-determination are a “people”. There is not precise definition of a people,
but typically include their language and culture. Therefore, the people of Chalky appear
satisfy the first element, because they do not share the same culture and
language as the people from Minskia. The
next element in the framework of self-determination is the scope of the
right. This right is only available to
those in situations of “former colonies, where those people are oppressed, as
in under foreign military occupation, or where a definable group is denied
meaningful access to government to pursue their political, economic, social and
cultural development.” (p.608) In this
sense, the facts indicate that Chalky should argue they have been denied a
meaningful part in government and have shown their wish to succeed from Minskia
by an 85% vote.
The second issue relates to the
General Assembly asking the International Court of Justice for an advisory
opinion. There are some reasons why the
court may refuse to issue an opinion. In
the advisory opinion issued in the Kosovo case, the General Assembly referred a
question of whether Kosovo’s declaration of independence was in accordance with
international law. The ICJ held that
international law does not prohibit unilateral declarations of independence,
therefore Kosovo’s declaration was not in violation. The problem that the General Assembly has
with rendering such opinions is that amount of influence it has over other
countries. For example, the number of
states that recognized Kosovo doubled after the opinion was issued. A question that should be submitted to the
ICJ is whether Moscalia engaged in threatening Minskia with force. In the Kosovo case, the court cites that the
Security Council condemned several other declarations of independence because
they were “all connected with the use of force or other egregious violations of
norms of general international law, in particular those of a perementpory
character.” (p.616) The riots,
propaganda, and military presence all seem to raise this issue. However, this is all relative to the fact
that the opinion is not binding and Moscalia and Chalky are under no obligation
to recognize the courts opinion.
The third issue involves
international criminal law. The
International Criminal Court has jurisdiction over genocide, crimes against
humanity, and the crime of aggression.
Therefore, the required substance matter is satisfied because Moscalian
military personnel are committing war-time atrocities. The Rome statute is the
governing treaty for the ICC and those who signed the treaty have compulsory
jurisdiction. In this case Moscalia is
not member of the court or treaty, thus there is no compulsory jurisdiction
over the country. However, the ICC may achieve jurisdiction by a referral from
the Security Counsel, or the state parties may refer cases them. Therefore, if the matter is submitted to the
ICC by the Security Counsel or a state party, the ICC would a basis to proceed
against Moscalia and have the power to investigate the criminal activity.
The fourth issue is…
The fifth issue is whether or not
Chalky residents could bring claims against Moscalia under the ATS in federal
court in the US. This question involves
a similar fact pattern to the case previous discussed, Kiobel. Similar to that case, the tort has happened
outside the territorial boundaries of the United States, and therefore the
court is unlikely to confer jurisdiction.
However, there court may take into consideration that the defendant is a
person, unlike Kiobel where the defendant was a corporation.