- •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
Statement of jurisdiction
The Republic of Aprophe (Applicant) and the Federal Republic of Rantania (Respondent) submit the present dispute to the International Court of Justice by Special Agreement pursuant to Article 40(1) of the Court’s Statute, subject to Rantania’s objection to the jurisdiction of the Court. Rantania disputes that the de factoauthorities of Aprophe are entitled to seize the Court of the present dispute in the name of Aprophe. The parties have agreed to join Rantania’s jurisdictional objection to the merits phase of the proceedings. In accordance with Article 36(6) of the Court’s Statute, the Court is invited to resolve the dispute as to whether it has jurisdiction.
Questions presented
The questions presented before the Court are as follows:
Whether the Andler regime and its representatives may appear before the Court in the name of Aprophe and can therefore vest the Court with jurisdiction;
Whether the use of force against Aprophe in the context of Operation Uniting for Democracy is attributable to Rantania;
Whether the Court is precluded from assessing the legality of Operation Uniting for Democracy in the absence of the ENI from the present proceedings;
Whether the use of force against Aprophe in the context of Operation Uniting for Democracy was consistent with international law;
Whether the exercise of jurisdiction by Rantanian courts in the Turbandocase was consistent with international law
Whether the seizure of Aprophian property in execution of the judgment in the Turbandocase is consistent with international law;
Whether Rantania is entitled to bring the claim in relation to the Mai-Tocao Temple;
Whether the partial destruction of the Mai-Tocao complex violated international law.
Statement of facts
Aprophe and Rantania are two neighbouring States with developing economies. Rantania has close ties with Lamarthia, Verland, and Pellegrinia, three countries located in the same region. These four States comprise the Eastern Nations International Organization (“the ENI”).
Policies of the Green Government in Aprophe
After winning a landslide victory in elections in 2000, President Green instituted a series of measures aimed at joining the ENI.Inter alia, Aprophe acceded to the Eastern Nations Charter of Human Rights (“the Charter”). The Charter provided for a human rights court (“the Eastern Nations Court”), but Aprophe negotiated an exemption to the jurisdiction of the Court until it achieved full membership in the ENI.
By 2006 the Aprophian opposition routinely protested against Green’s ENI-oriented policies. Dissident factions stagedseveral nationwide strikes throughout 2010 calling for Green’s resignation. Nevertheless, by 2011 Green enjoyed support of 55% of the population, and 60% supported his effort to join the ENI.
The Mai-Tocao Temple
The Mai-Tocao Temple complex consists of six small buildings and one central temple dating to at least 2000 BCE. It is among the world’s most famous religious and archaeological sites. The Temple was inscribed on the World Heritage List in 1988 with the support of the Rantanian representative in the UNESCO. Both Aprophians and Rantanians regard the site as central to their cultural heritage.
The Mai-Tocao War
Sovereignty over Mai-Tocao and the surrounding territory was disputed up until 1965 and became a cause of a war in 1962-1965. The Aprophian army secured the Mai-Tocao site, occupied undisputed Rantanian territory, and interned five hundred Rantanian civilians. Uncompensated labor of military internees was used to provide goods and services to the army. Internees worked in shifts of 12 hours a day, were lodged in barracks near the labor sites, and received three meals a day.
The war ended in 1965 with the conclusion of the Peace Agreement (“1965 Treaty”) which contained a provision whereby all claims arising out of the war were waived by the parties. The boundary delimitation was entrusted to an arbitral tribunal which awarded the disputed territory and a small portion of previously undisputed Rantanian territory to Aprophe.
Claims of Military Internees
In 2001 the International League for Solidarity and Access (“ILSA”) instituted proceedings against Aprophe in an Aprophian court on behalf of former Rantanian military internees, including one Mr. Turbando (“Turbando case”). The complaint alleged that the plaintiffs had been subjected to forced uncompensated labor. The decision of the trial court dismissing the claim in the light of the statute of limitations was affirmed by the Aprophian Supreme Court.
ILSA instituted similar proceedings in Rantania. Aprophe moved to dismiss the case on two grounds: the waiver clause in the 1965 Treaty and the doctrine of sovereign immunity. The trial court applied the waiver clause and dismissed the case. The decision was confirmed by the Rantanian Supreme Court.
ILSA then complained to the Eastern Nations Court which decided in 2009 that invocation by Rantania of the waiver clause had amounted to a denial of justice. Complying with that decision, a Rantanian court reconsidered the Turbandocase, found that Aprophe was not entitled to sovereign immunity, established that forced labor had occurred, and awarded damages to the plaintiffs. Aprophe did not participate in these proceedings.
The enforcement was initially stayed upon the request of the Rantanian Foreign Ministry. However, in February 2011 the Rantanian government withdrew its objections as to the stay of enforcement proceedings, and bailiffs seized Aprophian assets amounting to US$10,000,000 which are being currently held by the Rantanian judicial authorities.
Coup d’etat in Aprophe
Presidential elections in Aprophe were due in March 2011. However, in January 2011, in the wake of the strikes, President Green invoked his constitutional emergency powers and postponed the elections, trying to restore stability. He also ordered the Aprophian military to begin armed patrols in major urban areas to prevent civil unrest.
On January 15, 2011, General Andler, chief of the Aprophian army, refused to carry out the presidential order. President Green immediately revoked all military authority of Andler and ordered her arrest which ultimately failed. The next day army units loyal to Andler forcibly entered major government installations. Andler proclaimed herself “interim president” of Aprophe. She declared a state of emergency, dissolved parliament, and suspended President Green’s pro-ENI policies. Andler’s government established order in the capital and in over 90% of Aprophian territory comprising approximately 80% of the population.
President Green, his ministers, and several parliamentarians formed a “government in exile” in Rantania. Forty Aprophian Ambassadors declared their allegiance to Green. Moreover, 800 members of the army and several hundred civilians loyal to Green established two bases in the north of Aprophe. Andler sent elite military forces to quell the opposition, but for the next three weeks they were unable to accomplish the task.
Operation Uniting for Democracy
Green urged the ENI and Rantania to restore his government in Aprophe. The ENI Council passed a resolution which recognized Green as the lawful President of Aprophe. Furthermore, the United Nations (“UN”) General Assembly adopted Resolution A/RES/65/598 condemning “the coup d’état” and calling upon the UN Security Council (“UNSC”) to consider “immediate action” under Chapter VII.
On February 10, 2011, the Aprophian army launched artillery strikes against the pro-Green forces, causing multiple casualties and numerous injuries. Green urged the ENI Council to react promptly to prevent an “imminent humanitarian crisis.”
On February 15 the ENI Council approved “Activation Orders” for air strikes against military installations in Aprophe. Major-General Brewscha, a Rantanian national and a reserve officer in the Rantanian army, was appointed to head the campaign with the power to take all operational decisions under the direction of the ENI Defense Committee.
The “Operation Uniting for Democracy” (“OUD”), launched on February 18, was conducted almost entirely by the Rantanian Air Force as only Rantania had the requisite airborne military capability among the ENI members. By February 25 the Aprophian military had effectively been destroyed. On February 27 Andler and her staff fled to the Mai-Tocao National Park. The ENI announced that, in order to minimize the risk to the Mai-Tocao Temple, it would pursue Andler by ground forces.
Destruction of the Mai-Tocao Temple
On February 28, 2011, General Andler announced that if OUD continued she would destroy the Mai-Tocao Temple by detonating its buildings. On March 1 the UNSC condemned OUD on the ground that advance notice was not provided to the UNSC. The air strikes continued for the next two days. On March 3 Andler ordered to detonate one of the smaller buildings in the Mai-Tocao complex.
On March 4 the UNESCO World Heritage Committee called the detonation at the Mai-Tocao Temple “tragic”. On March 5 the Rantanian President condemned the detonation. She nevertheless ordered to cease the air strikes, and the ENI Council suspended OUD thereafter.
Proceedings before the International Court of Justice (“ICJ”)
Andler instituted proceedings against Rantania on May 12, 2011. Rantania initially refused to engage Aprophe before the ICJ unless Aprophe was represented by the legitimate authorities. The parties subsequently agreed to submit their respective claims jointly, and Aprophe withdrew its application on July 20, 2011. The parties ultimately submitted their dispute to the ICJ on September 12, 2011.