- •The 2012 philip c. Jessup international law
- •Statement of jurisdiction
- •Questions presented
- •Statement of facts
- •Summary of pleadings
- •I. The Court is without jurisdiction over the Applicant’s claims, since the Andler regime and its representatives cannot appear before this court in the name of the Republic of Aprophe
- •II. The use of force against Aprophe in the context of Operation Uniting for Democracy is not attributable to Rantania, and in any event, that use of force was not illegal
- •III. Since the exercise of jurisdiction by Rantanian courts in the Turbando case was consistent with international law, Rantanian officials may execute the judgment in that case
- •IV. Aprophe violated international law by destroying a building of the Temple of Mai-Tocao
- •Pleadings
- •I. The Court is without jurisdiction over the Applicant’s claims, since the Andler regime and its representatives cannot appear before this court in the name of the Republic of Aprophe
- •A. The Andler regime is not the government of Aprophe since it has no democratic mandate from the Aprophian people
- •1) Customary international law has evolved so as to deny standing to regimes installed incoups d’etat
- •2) Alternatively, denial of standing to the Andler regime is justified because of its manifestly unpopular and repressive nature
- •B. Alternatively, the Andler regime is not the government of Aprophe since it does not exercise sufficientde factocontrol over the territory and the population of Aprophe
- •1) The Green government has not been completely overthrown
- •2) The Andler regime has not been accepted by the population
- •II. The use of force against Aprophe in the context of Operation Uniting for Democracy is not attributable to Rantania, and in any event, that use of force was not illegal
- •A. The use of force against Aprophe in the context of Operation Uniting for Democracy is not attributable to Rantania
- •1) The use of force is attributable to the eni since the latter exercised effective control over the military forces involved in oud
- •2) Participation of Rantania in the decision-making process of the eni is not a sufficient ground to attribute the use of force to Rantania
- •B. Alternatively, the Court is precluded from assessing the legality of Operation Uniting for Democracy so long as the eni is not a party to the present proceedings
- •C. In any event, the use of force against Aprophe in the context of Operation Uniting for Democracy did not violate international law
- •1) The use of force was requested by the legitimate government of Aprophe
- •B) The un Security Council did not obligate the eni Member States to terminate oud after March 1, 2011
- •1) The waiver clause in 1965 Treaty did not preclude the exercise of jurisdiction by Rantanian courts in theTurbandocase a) The waiver clause is void as conflicting with ajus cogensnorm
- •B) Alternatively, the waiver clause is inapplicable since it is incompatible with the provisions of the subsequent treaties to which both Aprophe and Rantania are parties
- •C) In the further alternative, the waiver does not cover claims arising out of violations of international humanitarian law
- •2) Aprophe was not entitled to sovereign immunity in theTurbandocase
- •A) Rantania is under no legal obligation to provide immunity to Aprophe
- •B) Alternatively, Rantania legitimately relied on an exception to the general rule of immunity
- •C) In case of conflict between obligation to grant immunity and human rights obligations the latter shall prevail
- •B. Execution of judgment in theTurbandowas in accordance international law
- •IV. Aprophe violated international law by destroying a building of the Temple of Mai-Tocao
- •A. Rantania has standing to bring the claim against Aprophe in protection of the Mai-Tocao Temple
- •1) The destruction was in breach of obligations owed by Aprophe to Rantania under the 1965 Treaty
- •2) Rantania has the right of action since the wrongful act committed by Aprophe specially affects Rantania
- •3) Rantania is entitled to invoke responsibility of Aprophe by virtue of obligationserga omnes
- •B. Cultural heritage of outstanding universal value enjoys absolute protection
- •C. Alternatively, even if the military necessity exception constitutes a part of the customary international law, Aprophe cannot invoke it in the case at hand
- •D. Partial destruction of the Mai-Tocao site does not qualify as a countermeasure
- •Prayer for relief
C) In case of conflict between obligation to grant immunity and human rights obligations the latter shall prevail
The conflict between two customary obligations may be resolved only by virtue of restrictive interpretation.153It is respectfully submitted that in cases where, firstly, immunity is requested for breaches of peremptory norms committed in the territory of the forum State, and, secondly, victims of those breaches have no reasonable alternative prospective to obtain a remedy, it is the rules on immunity, and not the right of access to justice, that should be interpreted restrictively.154In this respect, UNGA clarified that access to justice must be provided “irrespective of who may ultimately be the bearer of responsibility”.155
The Rantanian claimants failed to obtain justice in Aprophe.156The ENI Court has no jurisdiction over Aprophe157and is therefore also unhelpful. The Applicant might claim that former internees could have obtained redress through diplomatic protection. However, according to this Court, diplomatic protection does not form an effective avenue for protecting individual rights due to its substantial political dimension.158Therefore, unlike in theArrest Warrantcase where alternative ways to bring those responsible to justice were available,159in the present case the civil proceedings in Rantania are indeed the last resort for the victims of forced labor.
The proposed interpretation of sovereign immunity is of very limited applicability and thus by upholding it the Court would accurately resolve the conflict of obligations without shaking the pillows of the international legal order.
B. Execution of judgment in theTurbandowas in accordance international law
Should the issue of jurisdictional immunity be decided in favor of the Respondent, it is submitted that Rantania could legitimately subject Aprophian assets to post-judgment measures of constraint.
Firstly, the principle that the forum which is competent to adjudicate is also entitled to enforce the judgment is well-grounded in the consistent case law of international tribunals,160State practice,161and scholarly writings.162Accordingly, since Rantanian courts rightfully exercised jurisdiction in theTurbandocase, Rantanian authorities rightfully applied post-judgment measures of constraint.
Even if the Court finds that the absence of jurisdictional immunity does not per seexclude immunity from enforcement, the claim of the Respondent as to the lawfulness of enforcement proceedings withstands since post-judgment measures of constraint against assets serving “other than government non-commercial purposes” are permissible.163The application of this rule is only conditional upon the presence of anexusbetween the seized property and foreign state. The requirement of the different type ofnexus, namely connection between the seized property and the underlying claim, was excluded from the final text of the UN Convention as too rigid and unrepresentative of custom.164It follows that insofar as Rantanian authorities are enforcing the judgment inTurbandocase against property used by Aprophe for non-governmental purposes, the execution is in full conformity with international law.