This advice will assess the lawfulness of the actions of State A as presented in the scenario. It will be divided into two main parts. The first part will analyse the legality of the treaty concluded between State A and State B, which purports to suspend the right to self-determination. The second part will evaluate the lawfulness of State A’s subsequent transfer of people belonging to minority group X from their traditional area of residence. The analysis will be based on key principles of public international law, including the law of treaties, international human rights law, and international criminal law.
The Lawfulness of the Treaty
The first issue concerns the validity of the treaty concluded by State A and State B in June 2022. The fundamental principle of the law of treaties is *pacta sunt servanda*, which is codified in Article 26 of the Vienna Convention on the Law of Treaties 1969 (VCLT). This principle states that ‘every treaty in force is binding upon the parties to it and must be performed by them in good faith’. However, this principle is not absolute. The VCLT provides for grounds upon which a treaty may be considered invalid. The most relevant ground in this scenario is outlined in Article 53 VCLT, which deals with treaties that conflict with a peremptory norm of general international law, also known as a *jus cogens* norm.
A *jus cogens* norm is a fundamental principle of international law that is recognised by the international community of states as a norm from which no derogation is permitted (Cassese, 2005). Article 53 VCLT states that ‘a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law’. Therefore, if the right to self-determination is a *jus cogens* norm, the treaty between State A and State B would be void from the outset.
The right of peoples to self-determination is firmly established in international law. It is enshrined in Article 1(2) of the Charter of the United Nations and in common Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). This right entitles a ‘people’ to freely determine their political status and pursue their economic, social and cultural development. The International Court of Justice (ICJ) has repeatedly affirmed the fundamental nature of this right. In the *East Timor (Portugal v. Australia)* case, the ICJ described the right of peoples to self-determination as ‘one of the essential principles of contemporary international law’ (ICJ, 1995, para. 29). More recently, in its Advisory Opinion on the *Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965*, the ICJ confirmed that the right to self-determination was a recognized norm of customary international law at the time of the decolonisation of Mauritius (ICJ, 2019, para. 162).
While the ICJ has been cautious about explicitly labelling self-determination as *jus cogens* in its judgments, the characterisation is widely supported by legal scholars and in the separate or dissenting opinions of ICJ judges (Crawford, 2012). The International Law Commission has also identified the right to self-determination as a leading example of a *jus cogens* norm.
In the given scenario, the treaty between State A and State B has the explicit purpose of ‘suspending the right to self-determination of peoples in the area where minority group X lives’. This purpose is in direct conflict with the fundamental character of the right to self-determination. As a peremptory norm, no derogation is permitted, whether by treaty or by any other means. An agreement between two states to suspend such a right for a group of people is a clear violation of this principle. Consequently, the treaty falls foul of Article 53 of the VCLT. The treaty is therefore void *ab initio* (from the very beginning) and has no legal effect. Neither State A nor State B can rely on this treaty to justify their actions.
The Lawfulness of the Transfer of Minority X
The second issue is the lawfulness of State A’s conduct in forcing people belonging to minority X out of the area they inhabit. The facts describe this conduct as escalating into the ‘systemic transferring’ of people. This action can be assessed under several branches of international law.
International Human Rights Law (IHRL)
IHRL applies to all individuals within a state’s territory and jurisdiction at all times. State A’s actions appear to violate several fundamental human rights. The forcible transfer of individuals from their homes constitutes a clear violation of the right to freedom of movement and freedom to choose one’s residence, as protected by Article 12 of the ICCPR. It is also a grave interference with the right to private and family life and the home, which is guaranteed by Article 17 of the ICCPR.
Furthermore, as minority group X is identified as a distinct minority that has lived in the area ‘since time immemorial’, the transfer engages the rights of persons belonging to minorities. Article 27 of the ICCPR provides that persons belonging to ethnic, religious or linguistic minorities ‘shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language’. The forced removal of a minority group from the land to which their culture and community are intrinsically linked effectively denies them this right. The Human Rights Committee has interpreted this right as requiring states to take positive measures to protect the identity of minorities and the rights of their members to enjoy and develop their culture (General Comment No. 23, 1994). Systematically transferring them to other areas is the opposite of such protection. Therefore, State A’s actions are a serious breach of its obligations under international human rights law.
International Criminal Law (ICL)
The conduct of State A may also amount to an international crime, specifically a crime against humanity. The Rome Statute of the International Criminal Court (ICC) defines crimes against humanity in Article 7. To qualify, an act must be committed as part of a ‘widespread or systematic attack directed against any civilian population, with knowledge of the attack’. The scenario states that the transfer was ‘systemic’, which directly corresponds to this contextual requirement.
Article 7(1)(d) of the Rome Statute lists ‘deportation or forcible transfer of population’ as one of the acts that can constitute a crime against humanity. ‘Forcible transfer of population’ is defined as the ‘forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law’ (Article 7(2)(d)). State A’s actions in forcing people belonging to minority X from their homes and moving them to other areas perfectly match this definition. Given that the action is described as ‘systemic’, it strongly suggests that the threshold for a crime against humanity has been met. This would not only make the action unlawful at the state level but could also trigger the individual criminal responsibility of the state officials who planned, ordered, or carried out the transfers.
It is also worth briefly considering whether the acts could constitute genocide. Under Article 6 of the Rome Statute and the Genocide Convention, genocide requires a specific intent to destroy, in whole or in part, a national, ethnical, racial or religious group. While forcible transfer can be an act of genocide if it is calculated to bring about the group’s physical destruction (Article II(c) of the Genocide Convention), the facts provided do not explicitly mention an intent to destroy the group. Proving this specific intent is a very high bar (Schabas, 2009). On the available facts, a charge of crimes against humanity is more straightforward to establish than one of genocide.
Conclusion
In conclusion, the advice is as follows:
1. The treaty concluded between State A and State B in June 2022 is unlawful and void. The right to self-determination is widely regarded as a *jus cogens* norm, and a treaty that aims to suspend such a right is void under Article 53 of the Vienna Convention on the Law of Treaties.
2. The subsequent transfer of people belonging to minority X by State A is a grave violation of international law. It breaches fundamental obligations under international human rights law, including the rights to freedom of movement, respect for the home, and the rights of minorities. Furthermore, the ‘systemic’ nature of the transfer strongly indicates that the act constitutes a crime against humanity under international criminal law.
References
Cassese, A. (2005) *International Law*. 2nd edn. Oxford University Press.
Crawford, J. (2012) *Brownlie’s Principles of Public International Law*. 8th edn. Oxford University Press.
*East Timor (Portugal v. Australia)*, Judgment, I.C.J. Reports 1995, p. 90.
Human Rights Committee (1994) *General Comment No. 23: The rights of minorities (Art. 27)*, UN Doc. CCPR/C/21/Rev.1/Add.5.
*Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965*, Advisory Opinion, I.C.J. Reports 2019, p. 95.
Schabas, W. A. (2009) *Genocide in International Law: The Crimes of Crimes*. 2nd edn. Cambridge University Press.
United Nations (1945) *Charter of the United Nations*.
United Nations (1966) *International Covenant on Civil and Political Rights*.
United Nations (1966) *International Covenant on Economic, Social and Cultural Rights*.
United Nations (1969) *Vienna Convention on the Law of Treaties*.
United Nations (1998) *Rome Statute of the International Criminal Court*.
