B. The use of force by the ENI was legal in all circumstances

There are many facts which prove that the ENI used force legally. First of all, pro-Andler forces initiated the conflict without any rational and lawful reason. Secondly, “sixty soldiers and 80 civilians were killed and hundreds more were wounded during…”^[27] artillery strikes launched by the QRF. Thereby, Andler and her representatives violated Article 6 of the International Covenant on Civil and Political Rights which states that “every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”^[28] Third, Andler and her army infringed the essential rights of people the full exercise of which is guaranteed by the ENC: “The States Parties to this Charter undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms…”^[29] Operation Uniting for Democracy was intended to protect people’s rights under the ENC.

That tense atmosphere and further actions of the QRF ground-forces could lead to humanitarian crisis that is why Green asked the ENI Council for help. It can be considered that the ENI used force in the situation of necessity. In other words the acts of the ENI were “…the only means for the organization to safeguard against a grave and imminent peril an essential interest of its member States or of the international community as a whole, when the organization has, in accordance with international law, the function to protect the interest in question”^[30].

Actually, there was a threat to an essential interest of the ENI members because Andler does not share the Green’s proposal to become a member of the ENI whereas the majority of Aprophian population supported this idea when it elected President Green. In addition, there was possibility that some citizens of ENI Member States could be in the conflict zone and could be injured. Then it is necessary to take into account that one of the ENI’s principles fixed in Treaty Establishing the ENI is protection of human rights. Moreover, an imminent humanitarian crisis could break stability and durable peace in the international community. To sum up, these facts indicate that the ENI used force to protect people’s right and to stop the disorder in the region. This use of force was legal.

[1] Compromis at para. 24.

[2] Ibid at para. 26.

[3] Compromis at para. 27.

[4] Edward Luttwak, Coup d'Etat: A Practical Handbook, 2nd ed. (Cambridge: Harvard University Press, 1979) at 27.

[5] Compromis at para. 28.

[6] Ibid at para. 31.

[7] Ibid at para. 33.

[8] Statute of the International Court of Justice, 26 June 1945, art. 38.

[9] Nkambo Mugerwa, “Subjects of International Law” in Manual of Public International Law ed. M. Sorensen (London: Macmillan, 1968) at 271.

[10] Compromis at para. 28.

[11] Tinoco Arbitration, Aguilar-Amory and Royal Bank of Canada claims (Great Britain v. Costa Rica) 18 October 1923, Reports of international arbitral awards, Vol. 1, at 380.

[12] Who is a legitimate government in exile? Towards normative criteria for governmental legitimacy in international law, in Guy Goodwin-Gill/Stefan Talmon (eds.), The Reality of International Law. Essays in Honour of Ian Brownlie (Oxford University Press, 1999) at 500 [hereinafter Talmon].

[13] Compromis at para. 29.

[14] Ibid.

[15] See Talmon, supra note 12 at 530.

[16] Digest of United States Practice in International Law 1989–1990 (Washington, DC: International Law Institute, 2003) at 371.

[17] Maureen Taft-Morales, Congressional Research Service Report, Haiti: Developments and U.S. Policy Since 1991 and Current Congressional Concerns, Updated January 19, 2005 at 6.

[18] Vienna Convention on Diplomatic Relations, done at Vienna on 18 April 1961, entered into force on 24 April 1964. United Nations, Treaty Series, vol. 500, art. 3.

[19] See Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)) Dissenting opinion of Judge Kreca, at para. 38.

[20] Vienna Convention on the Law of Treaties, 23 May 1969, UN Doc. A/Conf. 39/27 entered into force on 27 Jan. 1980, art. 7.

[21] Compromis at para. 31.

[22] Compromis Annex III art. 5.

[23] Compromis at para. 35.

[24] See International Law Commission, Official Records of the General Assembly, Sixty-third Session, A/CN.4/L.778 Draft Articles on Responsibility of International Organizations, art. 6 at 2 [hereinafter Responsibility of International Organizations].

[25] Ibid art. 7 at 3; Seventh Report on responsibility of international organizations, by Mr. Giorgio Gaja, Special Rapporteur, 27 March 2009, A/CN.4/610 at 9.

[26] European Court of Human Rights, Grand Chamber decision of 2 May 2007 as to the admissibility of App. No. 71412/01 Agim Behrami and Bekir Behrami v. France , and App. No. 78166/01 Ruzhdi Saramati v. France, Germany and Norway, at para. 141 and 143.

[27] Compromis at para. 34.

[28] International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, art. 6.

[29] Compromis Annex II art. 1.

[30] See Responsibility of International Organizations, supra note 24 art. 25 at 7.

Date: 2016-01-14; view: 540