- •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
B. Cultural heritage of outstanding universal value enjoys absolute protection
Customary international law charges States with an obligation to protect cultural heritage of peoples during armed conflicts without any exception, i.e.provides for the absolute protection for such property. Development of this customary rule is evident through treaty practice of States. This rule was fixed in its ultimate form in Art.53 of Protocol I and Art.16 Protocol II to the Geneva Conventions, currently ratified by the overwhelming majority of States.181States which are not parties to the said two instruments follow the rule established therein as well.182Judicial decisions and scholars uphold that absolute protection of the cultural heritage of mankind is a principle of customary nature.183
Aprophe is likely to argue that the standard of protection under customary international law is not absolute and that damage to cultural property is allowed when it is dictated by military necessity, basing its claim on Art.4 of the Hague Convention on Protection of Cultural Property in the Event of Armed Conflict.184However, that treaty provision does not reflect the state of customary law. During the diplomatic conference of 1954 States displayed clear disagreement about inclusion of the military necessity exception into the Hague Convention: a proposal to delete any reference to military necessity was rejected by 22 votes to 8 with 8 abstained and 8 being absent.185In the course of the adoption of the Second Protocol of 1999 to the Hague Convention sound resistance to the military necessity exception was again clearly declared.186Thus, the treaty rule in question is no more than a highly disputable diplomatic compromise and not a codification of custom.
Absolute protection of cultural heritage is further established in WHC, to which both Rantania and Aprophe are parties.187Art.4 of WHC imposes a duty to protect cultural property without providing for any possibility of derogation. Therefore, both customary international law and treaty law demanded that Aprophe grant absolute protection to the Mai-Tocao Temple. However, Aprophe blatantly disregarded this requirement.
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
Even assuming that customary IHL permits to derogate from the obligation to protect cultural property where military necessity so requires, this rule cannot be invoked in the case at hand since it only applies to attacks as opposed to “all other acts of hostility against cultural property”, the latter being absolutely prohibited.188
Waiver in cases of military necessity in principle cannot apply to international destruction of cultural heritage already in the hands of the party to a conflict since the fundamental precondition for applicability of the waiver, namely, that the cultural property be a “military objective”189would never be fulfilled.190
The requirement that cultural property should “by its function, [be] made into a military objective” 191means that such property makes “an effective contribution to the military action” of the adverse party.192The Mai-Tocao Temple was never used to support the military activities of ENI forces. Quite the contrary, it was used by the Andler’s forces to shield itself from ENI attacks.193In such circumstances the waiver could not have been applied, and therefore Aprophe is responsible for the unlawful destruction of one of the building in the Mai-Tocao complex.