Legal Implications of Boko Haram and Somaliland Case Study

Background of Boko Haram and Somaliland

1.Prepare a 1000 word ‘options paper’ indicating the legal implications of the options available to Australia for the rescue of the nuns.

2.RWP Construction seeks your advice as to whether it can bring an action in Australia against the Somaliland government to recover the outstanding debt. In particular, it would like to know whether, in the event of a judgment against Somaliland and non-payment by Somaliland, the company can obtain an order to attach Somaliland-owned property located in Australia.

1.This argument can be developed on the basis of these following facts:

The Boko Harem rebel force is one of the most notorious groups that are active in the states like Nigeria and Africa. They have a mentality to kill people who are not abiding by their rules. They are wanted for their anti-social activities and the Nigerian government has no control over their acts[2]. To stop the anti-social movements, United Nations has taken certain measures through the charters and according to Article 2 (4) of the charter no member state can take any action against the interest of other state regarding any threat or use of force[3]. However, it has been learnt from the study that the rebellions had kidnapped three Australian nuns and threatened Australia to kill them. After a meeting, the Australian government had decided to cancel the water transportation system to Nigeria and also move the Australian troops from certain parts of Nigeria. Nigerian government had criticised the steps and stated that the step is against the policy of the UN charter.

According to many scholars, the provision of Article 2 (4) of the charter can be interpreted as to protect the territorial integrity in between the international states[4]. However, all the encompassed sections provided under the Article have certain exceptions that can be taken by the member states to defend them against the use of force or threat. Any member state can take the help of the measures provided under chapter VII that has been implemented by the United Nation Security Council. However, all the provisions mentioned under Article 2 or Article 51 is not applicable in case of war.

The legal implications in this case that can be taken by the Australian government are the interpretation of Article 2 (4) and Article 51 of the charter. It has been stated under Article 51 of the Charter that any member state can take effective actions against any individual or collective force for maintaining peace and security. The process under Article 51 can be taken for self defence and in case of humanitarian intervention also. Further, it has been observed by the UN Security Council that member states can take all the preventive measures to protect their territory or their nationality against all the force or threat. As an example, it can be stated that the action taken by North Korea against South Korea by withdrawing their armed force from that territory is considered as a matter of self defence. The legal implication of resolution 1441 of Security Council that any weapon-based force will be treated against the international peace policy and therefore, should be banned at any cost[5].

Interpretation of Article 2 (4) and Article 51 of the Charter

Article 51 gives the member state an inherent right to take action for self defence and it has also been stated that the action should not go against the mandate of the council under the charter[6]. The charter provides that the member states are required to enjoy their power in good faith. In this way, the provision of self-defence has been limited by the council. The International Court of Justice has divided the term self defence in three parts such as preventive, anticipatory and interventionary[7]. According to the brief of the case study, Australian government can take certain measures to ensure protection to their citizens and can take effective actions for defend them from the use of force.

Certain rights are also been imposed on the member state regarding the protection of their nationals. Many states have their nationals who are resided in abroad. The state have certain responsibility to them and the state must protect them at any cost. In the study, it has been learnt that the Boko Harem rebel force had kidnapped the Australian nuns and therefore, Australia is bound to release them from the rebellions and Australia can take certain relative measures to ensure justice and protection to the nuns.

There are certain legal implications faced by the Australian government in this case. The legal implications can be divided into positive and negative implications. A close interpretation of Article 2 (4) of the charter reveals that the member state must follow the mandates of the UN charter and should raised their voice against any unlawful force. It has also been mentioned that the term war is not coming under the purview of this provision. The member states are restrained to take any steps against other states that are illegal in nature and against the moral provision of human kind. Therefore, it can be stated that the main objective of UN for implementing the rules is to retain integrity among the member states. The positive implication is that the possibility of rebel or illegal force will be reduced and the integrity among the international states will be increased. On the other hand, there are negative implications too. Other states can inappropriately take the advantage and can pose them as a threat to the peace and security.

The legal implication of Article 51 is that the affected state can take all effective measures to protect its nationals and security; but the actions could not go against the mandates of UN[8]. Therefore, all the measures taken by Australia on this behalf are permissible until they are exercised with good faith.

Legal Implications for Australian Government

It is therefore recommended to Nigeria that they must take possible action against the rebellions and rescue the nuns. The Australian government must take the action with an intention to protect the interest of the nationals without harming the interest of the international pacts.

2.Somaliland is a self-declared state which was a part of the Republic of Somalia[9]. It is located at the North-western part of Somalia and bordered by Djibouti and Ethiopia. After the collapse of 1991, Somaliland gets separate from Somalia and established a democratic government there and get international recognition. However, the state of Somaliland has made international relations with many states and signed strategic and infrastructural agreement with the countries. However, Somaliland had to face lots of trouble at the time of international recognition. The main problem regarding the same is the active rebellion group in the state and any military support can bring threat to international peace and security to this state. Germany has established a naval base and Israel had supported the republican movement in Somaliland, but every state wanted to keep a close vigil on Somaliland by maintaining a diplomatic relation with the state[10]. Somaliland had made a contract with the Australia[11]. However, it has been observed that the country has done certain diplomatic relation with the continent of Australia and during the pact; one businessman has constructed a building for using the same pacts in Australia that has been treated as the cultural building of Somaliland.

However, it has been observed that the relation in between the two countries has not been remained or lasted and the government of Somaliland has stopped to fund the building and the agency wanted to file a case against the government of Somaliland by vacating the building area. However, as the international law is governing the relation, both the government are required to stay calm regarding slinging mud to each other. It is advised to the company to see whether the building has been constructed by maintaining all the relevant rules of the Building Code or not. Further, it is also to be considering that whether the relevant Articles of the UN charter has been maintained here or not. There are certain rules that should be maintained in case of concocting a building in the national territory of Australia. According to the Building Code, the standard of the building construction should be maintained and build up according to the rules. In case of any foreign embassy, prior information and permission from the government of Australia is required. Therefore, it is the duty of the aggrieved RWP Construction to verify whether all these things have been done by the government or by the diplomatic agent of Somaliland regarding the same or not. Further, it is also the duty of the company to see whether the building has promised to protect the health of the workmen and whether all the risk related to construction have been verified or not[12]. Considering the federal government structure in Australia, the rules of Building Code is different in different provisions and the affected company must be sure for itself regarding the proposed rules and terms of the Code regarding the particular area. It has been observed from the recent changes in the building rules that the Australian government has changed various provisions of Building Code in order to attract the foreign investment in such area. However, according to the Foreign Ownership Legislation, the land purchaser should mention his name “foreign person” and in such cases, they need to take an approval from the Foreign Investment Review Board (FIRB)[13]. The aggrieved company must have to keep an eye that whether all these provisions has been followed up by the government of Somaliland or not. In case of any breach, the company can informed the government of Australia regarding the same and take necessary step accordingly.

Legal Implications for Somaliland and RWP Construction

Further, it has been learnt from the case study that an agreement cum contract has been signed in between both the Government of Somaliland and RWP construction and the nature of the contract can be considered as international contract and should be governed by the International Commercial law. It has been held by the Hague Principle that both the contracting parties can choose their governing laws in case of International Commercial Contracts based on the concept of party’s autonomy. It is required for the parties to the contract can clarified the option regarding best position for determining the suitable legal options for their transaction. According to the Hague Conference, both the parties should have to get fair chances to file their grievance before the authority having territorial jurisdiction and in this case, a choice of law agreement is required[14].

However, it is to be noted that the Hague Conference only intended to encourage the parties to apply their choice of law regime according to the circumstances. According to Article 2 (2) and Article 2 (3) of the Conference, the contracting parties can modify their choice of law and therefore, the company is allowed to choose its governing law and file a case before the appropriate court having territorial jurisdiction. However, it is not clear from the study that whether any agreement on the choice of law has been signed in between the parties but in case of absence, the company can choose their governing principles and file a case in the Court of Australia.

On the other hand, it is to be determined whether the building that is working as a foreign embassy can be vacated by Australian government or not. It is also to be determined whether the foreign country like Somaliland can construct building in Australia or not. According to Article 13 of the UN charter, it is the duty of every international state to promote the universal integrity to each country and they can be get engaged with that country either socially or culturally or economically. The main objective of such act should be based on good faith and peaceful adjustment. However, all the member countries has an option to choose their ways in order to protect their rights and interest. If any dispute has been arisen to this regard, it is the duty of the parties to pray their claim before the Security Council. The Security Council will investigate into the matter as per Article 34 of the said charter.

International Commercial Law and Choice of Law Agreement

However, the said company has all the rights to sue the building as the allegation made by the government of Somaliland is not based on strong facts. Additionally, the government of Somaliland could not refuse to pay the company the stated sum on the basis of bad workmanship as the government has made a contract with the company and made an agreement with the company for carrying out the projected renovation. Any infringement to the rule of the agreement could be held as the breach of the agreement and in this case, the company has every right to file case against the other contracting parties. However, it is not clear from the study that what the condition of the agreement was. The government had cancelled the order on the basis that that the contracting company had failed to depict the national symbol of Somaliland on the face of the building and the works have not been completed on the day of the Somaliland national day. However, the government could not stop the payment without giving a fair chance to the company. It is against the rules of International policy.

It has also been observed that the government of Somaliland has stopped the payment of proposed amount to the company. It is therefore, the duty of the affected company to see whether the government or any official has informed the company prior to take such decision or not. Further, the company should analyse the statement made by the government to this aspect. Further, it is to be determined whether the government of Somaliland has maintained the rules of Australian foreign policy and UN rules on International Commercial Contract as well. The company may make an approach to the Australian government with a prayer to get their proposed money back as per the provision of Hague Conference. The Australian government can move the case before International Court of Justice so that the dispute can be resolved by way of mitigation.

Allison, Simon. "Somaliland at the Crossroads Protecting a Fragile Stability." (2015).

Arend, Anthony Clark, and Robert J. Beck. International law and the use of force: beyond the UN Charter paradigm. Routledge, 2014.

Bowyer, Kevin W., Estefan Ortiz, and Amanda Sgroi. "Trial somaliland voting register de-duplication using iris recognition." Automatic Face and Gesture Recognition (FG), 2015 11th IEEE International Conference and Workshops on. Vol. 2. IEEE, 2015.

Ching, Francis DK, and Steven R. Winkel. Building Codes Illustrated: A Guide to Understanding the 2015 International Building Code. John Wiley & Sons, 2016.

'Foreign Investment Review Board' (Firb.gov.au, 2018) <https://firb.gov.au/> accessed 18 February 2018

Kaczorowska-Ireland, Alina. Public international law. Routledge, 2015.

Kibert, Charles J. Sustainable construction: green building design and delivery. John Wiley & Sons, 2016.

Lister, Tim. "Boko Haram: The essence of terror." CNN. Retrieved at 13 (2014).

Mangel, Marc. "Whales, science, and scientific whaling in the International Court of Justice." Proceedings of the National Academy of Sciences 113.51 (2016): 14523-14527.

Morrison, T., et al. "Terrorist Activities and Foreign Direct Investment in selected African States (1970-2010)." Equatorial Journal of Finance and Management Sciences 1.2 (2016): 16-29.

Ruys, Tom. "The Meaning of “Force” and the Boundaries of the Jus Ad Bellum: Are “Minimal” Uses of Force Excluded from UN Charter Article 2 (4)?." American Journal of International Law 108.2 (2014): 159-210.

Sands, Philippe. "Climate Change and the Rule of Law: Adjudicating the Future in International Law." Journal of Environmental Law 28.1 (2016): 19-35.

Scott, Shirley V. International law in world politics: An introduction. Lynne Rienner Publishers, 2017.

Seabrooke, Leonard. "Diplomacy as economic consultancy." Diplomacy and the Making of World Politics (2015): 195-219.

Sloss, David L. "How International Human Rights Transformed the US Constitution." Human Rights Quarterly 38.2 (2016): 426-449.

Thirlway, Hugh. The International Court of Justice. Oxford University Press, 2016.

'Welcome' (Uncitral.org, 2018) <https://www.uncitral.org/> accessed 18 February 2018

Wood, Michael. "The Interpretation of Security Council Resolutions, Revisited." Max Planck Yearbook of United Nations Law Online 20.1 (2017): 1-35.