Wednesday, April 24, 2024

Documenting of the border violations in the United Nations

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By Dr. Ali Hilal, Minister Plenipotentiary/ Charge d’affaires Embassy of Iraq in the Netherlands

The settled rule in both international and domestic laws is the obligation to respect the sovereignty and territorial integrity of other states by neighboring or non-neighboring states and not to commit aggression against them. This is obvious in international treaties, Security Council and General Assembly resolutions, and International Court of Justice decisions, based on respect for the provisions contained in the United Nations Charter.

At the domestic level, most constitutions have stipulated the principle of non-interference in the internal affairs of other states, and one of the most prominent examples of applying this constitutional article is respecting the sovereignty and territorial integrity of other states. That means refraining from any act that may constitute a violation or breach (materially or morally) of the sovereignty of other states. What concerns us here is the material violation of state sovereignty, i.e., physical aggression by carrying out an act that international law defines as an attack or material breach of the sovereignty of a neighboring state by a state that has assigned the act of violation to one of its national authorities.

When such border violations occur, the aggrieved state is supposed to file a complaint with the aggressor state. Documenting the violation (bilateral) is the weakest type of documentation due to the difficulty of proving it in case the other party denies receiving the complaint. Such documentation is usually done through several means that the government of the aggrieved state may use individually or collectively, depending on the severity of the breach, the strength of the bilateral relations between the two states, and the number of times such a breach is repeated. The following are some of the most prominent of these methods:

– Call the foreign ministry of the aggrieving state to the accredited head of the mission of the aggressor state and informing them of its objection to the violation with a brief overview of it and its results.

-Sending a NOTE VERBALE that includes the objection against the act attributed to the aggressor state through diplomatic channels or delivering it to the head of the mission of the aggressor state upon summons.

The report should include the date of the breach (year, month, day, hour, minute) and the duration of the breach. It should also provide a detailed description of the breach location and the incident location to document the border points where the attacking aircraft entered and the sites that were targeted. Additionally, the report should document the casualties (deaths and injuries) and categorize them by gender and civilian or military status. The report should also document the material losses resulting from the breach based on reports from the relevant civil defense directorates.

-The above methods may be used when the violation is significant, according to the assessment of the relevant national authorities.

Firstly: The purpose of documenting the violation:

As we mentioned above, bilateral documentation mechanisms are not sufficient to protest when there is a desire to go further due to the violation not stopping or the attack state is not responding to demands. Therefore, some states go for documenting violations internationally, especially if they are repeated, in order to achieve one or more of the following purposes:

1.International documentation of violations allows the attacked state to easily refer to and rely on them when claiming the right to self-defense or compensation resulting from such violations.

2.International documentation serves as a moral (artificial) deterrent with an international character, based on the United Nations’ notification by the attacked state of the violations against it and the disclosure of these border breaches to the international community.

Secondly: The ability to report border violations to the United Nations:

1.According to the United Nations Charter, any state has the right to document and report violations to the United Nations, depending on the issue at hand. In such cases, the government of the attacked state may send identical litters to the President of the Security Council and the Secretary-General of the United Nations regarding the border violations.

2.The mechanism of reporting and documentation is linked to specific requests from the attacked state, which vary depending on the issue at hand. These requests range from (notification) to a request for a Security Council resolution (depending on the attacked state’s ability to convince the Security Council of the seriousness of the incident).

3.The notification or reporting of violations may be for the sole purpose of international documentation, and the responding party may either respond to these claims or remain silent. In such cases, and according to the rules of international law, the lack of response from the other party cannot be considered as a legal admission of the occurrence of the violation for several reasons, including the fact that the notification in such cases is of a political nature and not judicial. In all the aforementioned cases, this notification (complaint) cannot be considered as independent evidence sufficient alone to issue a judgment in a specific legal case in accordance with the rules of international law. Rather, it is a corroborating indication that can be used to support any future claim by the attacked state for compensation, or to exercise the right of self-defense, or to refer the matter to peaceful settlement mechanisms as stipulated in the United Nations Charter.

Thirdly: Types of documentation at the United Nations

1.Send a letter of protest from the Minister of Foreign Affairs documenting all the details related to those violations, this letter attached usually with a Note Verbal issued by the attacked state’s permanent mission to the United Nations in New York, addressed to both the President of the Security Council and the Secretary-General of the United Nations. As we mentioned, one of the most important issues to be mentioned in the letter is the coordinates of the breach (date, time, location, duration of the breach, number of air or ground strikes, casualties, etc.) and the sender usually requests the adoption of this letter as an official document of the United Nations.

2.Sending a Note Verbal or letter from the permanent mission of the attacked state in New York to the President of the Security Council and the Secretary-General of the United Nations, stating the violations and the impact of these violations on the destabilization of international peace and security, and calling for the international community to take immediate action to stop or condemn these violations, as well as  to activate the Security Council’s mandate under the United Nations Charter and requesting the Security Council to take action on the matter, and the powers of the Security Council in this case are as follows:

A – Security Council Resolution: The Security Council may issue a resolution regarding border violations that includes both operative and preamble paragraphs, this type of resolution requires affirmative vote of nine members of the Security Council, including the concurring votes of the permanent members, and this procedure requires international support from the attacked state. B – Presidential Statement: This is a less severe action than its predecessor and is issued by the Security Council on an issue that member states agree to issue a statement on without rising to the level of a resolution.

C– Press Statement: This is another action taken by the Security Council by issuing an official press statement after the session dedicated to discussing a particular topic has ended, which requires issuing a statement on the position of the member states in the Council on the matter.

Fourthly: The consequences of reporting violations to the United Nations

1.Positive consequences: A. Reporting this violation as a first step to gain international support to prevent or criminalize the violation and compensate for the damages caused. B. Diverting the issue from a bilateral relationship between the aggressor and the attacked state to the international arena by presenting the issue to one of the United Nations bodies, generating international momentum and more pressure on the aggressor government. C. This action is an obligation and duty on the government of the attacked state imposed by its constitutional duties to preserve the rights of the state, ensure its sovereignty, and enforce its authority over its territory in accordance with international law. D. Finding a moral deterrent that governs the relationship between the parties, contributing to prompting the aggressor government to reconsider its border violations in the future.

2.Negative effects: they are divided into two main groups: The first group: negative effects in the bilateral relationship with the aggressor state: A. There is a high possibility of tension in the bilateral relations between the two parties and the use of specific pressure means by the affected state towards the government of the aggressor state, economically, politically, or any other escalatory steps that can be avoided bilaterally. B. Resorting to documenting border violations to the United Nations may not ultimately lead to tangible results, in return, it will definitely lead to the loss of part of the political pressure that the affected state can exert on the aggressor state through bilateral diplomatic channels (the Joint High Committee, Foreign Ministers, embassies of both countries, meetings of security experts, etc.).

The Second group: Negative effects on the position of the state that has been internationally violated: Internationalizing such border violations often leads to a desire to find urgent regional or international solutions and interventions to resolve the conflict or stop the violations through peaceful means. This may open the door for regional intervention in a bilateral issue, especially if the issue of the violation or its location is linked to certain sensitive issues, such as the presence of ethnic, religious, or national minorities in more than one neighboring state of the violated state.

In conclusion, it must be said that resorting to such a measure should be preceded by a wide-ranging international media campaign that sheds light on these border violations and mobilizes possible regional and popular support for such a step to be a supportive factor in increasing international mobilization against these violations. It should not be the first choice for deterrence against aggression, considering that such violations may be repeated and ongoing. Therefore, there must be documented (bilateral) and (regional) mechanisms that are accountable and coordinated first for these violations before moving to the level of the United Nations, as there may be negative aspects if all positive and negative aspects of this escalation are not taken into account.

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