- •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
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
The Andler regime is not the government of Aprophe and cannot vest the Court with jurisdiction since it has no democratic mandate from the Aprophian people or since it does not exercise sufficient de factocontrol over Aprophe.
Customary international law has evolved through the practice of States and international organizations so as to deny standing to regimes which come to power by unconstitutional means, as Andler did. Alternatively, the manifestly unpopular and repressive nature of the Andler regime justifies denial of standing under international law.
In any event, the Andler regime has failed to secure effective control over Aprophe since the Green government has not been completely displaced and since the population has not accepted the new authorities.
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
The use of force is attributable to the ENI, and not to Rantania, since the former exercised effective control over the military forces involved in the Operation. The fact that Rantania played a major role in the Operation is not a valid ground for attribution in the light of the separate legal personality of the ENI.
The Court may not assess the legality of the Operation in the absence of the ENI from the present proceedings since, under the Monetary Goldprinciple, the rights and obligations of the ENI would form the very subject-matter of the decision.
The use of force did not violate international since Rantania acted upon invitation by the legitimate President of Aprophe or since it relied on the authorization issued by the ENI. Due to exceptional circumstances, the ENI was permitted under international law to commence OUD without prior UN Security Council authorization. The Resolution of the Council dated March 1, 2011, implicitly authorized the Operation ex post facto.
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
Neither the waiver of claims in the 1965 Treaty nor the doctrine of sovereign immunity precluded the exercise of jurisdiction in the Turbandocase.
The waiver clause is of no legal force, since it effectively contradicts the human rights obligations undertaken by both Rantania and Aprophe. Alternatively, the waiver does not cover claims arising out of violations of international humanitarian law.
Sovereign immunity claimed by Aprophe did not impede the exercise of jurisdiction either, since there is no firmly established rule of international law requiring a State to grant immunity in proceedings regarding violations of jus cogensnorms. Alternatively, the fact that the wrong occurred in the Rantanian territory justifies refusal of immunity which would have otherwise been granted. In any event, rules on immunity should be interpreted in a manner consistent with human rights, and such an interpretation confirms lawfulness of the exercise of jurisdiction by Rantanian courts.
As long as jurisdiction was exercised lawfully, Rantanian authorities are allowed to take post-judgment measures of constraint against Aprophian assets used for non-governmental purposes.