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Memorial MGU.doc
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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.

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