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Memorial MGU.doc
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IV. Aprophe violated international law by destroying a building of the Temple of Mai-Tocao

Rantania has standing to bring claims in relation to the Mai-Tocao Temple since the destruction was in violation of the 1965 Treaty, or since Rantania qualifies as a specially affected state, or since obligation breached is of erga omnescharacter.

Under customary international law cultural property of outstanding universal value, such as the Mai-Tocao complex, enjoys absolute protection, including in the event of an armed conflict. Alternatively, even if derogation from the obligation to protect cultural property is allowed when military necessity so requires, Aprophe cannot rely on this exception since the Mai-Tocao was not, and could not have been, a military objective.

Furthermore, Aprophe cannot justify its unlawful actions by relying on the concept of countermeasures because reprisals against cultural property are prohibited by customary international law.

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

It is respectfully submitted that this Court lacks jurisdiction over the present case since the agents of the Andler government do not have locus standito act in the name of Aprophe, as required by the Statute and the Rules of the Court.1The Andler regime does not qualify as the government of Aprophe since it has no democratic mandate from the Aprophian people(A.)or, in the alternative, since it does not exercise sufficientde factocontrol over the territory and the population of Aprophe(B.).

A. The Andler regime is not the government of Aprophe since it has no democratic mandate from the Aprophian people

The interim administration established by General Andler is not entitled to represent Aprophe since it has gained power in a military coup d’etat(1).In the alternative, denial of standing to the Andler regime is justified because of its manifestly unpopular and repressive nature(2).

1) Customary international law has evolved so as to deny standing to regimes installed incoups d’etat

The Respondent acknowledges that international law has traditionally remained neutral as to unconstitutional overthrow of governments.2However, customary international law has recently evolved to the effect that authorities which unconstitutionally seize power have no right to represent their respective States.

Firstly, in the recent years States have consistently condemned coups d’etatagainst democratically elected governments. These include the governments of Haiti,3Burundi,4Nigeria,5Myanmar,6The Gambia,7Sierra Leone,8Pakistan,9São Tomé and Príncipe,10Mauritania,11Madagascar,12Honduras,13and Niger.14Notably, resolutions of the UN General Assembly (“UNGA”) explicitly “affirming as unacceptable any entity resulting from [thecoup]”15and “calling firmly and unequivocally upon States to recognize no Government other than that of the Constitutional President”16were met with no objection.17In line with the settled case law of the Court, these collective pronouncements provide strong evidence as to the new rule of customary international law.18

Secondly, a wide range of international organizations and groups of States have declared coups inadmissible and have developed legal mechanisms protecting democratically elected governments from unconstitutional overthrow. Instruments to this effect have been adopted by the Organization of American States,19the African Union,20the Organization for Security and Cooperation in Europe,21the Economic Community of West African States,22the Commonwealth,23the Common Southern Market24and the Non-Aligned Movement.25It is significant that UNGA has welcomed the adoption of these legal frameworks by an overwhelming majority, thus reaffirming the universalopinio jurisas to the illegality of unconstitutionally established authorities.26

Thirdly, evidence of a new customary rule may be derived from the change in the UN practice with regard to accreditation of Member States’ representatives. While questions of representation are decided on a case-by-case basis “in the light of the Principle and Purposes of the [UN] Charter”,27practice of the Credentials Committee has gradually shifted from the principle of effectiveness28to the principle of constitutional legitimacy of the authority claiming to be the government of the Member State.29

The Applicant is likely to argue that questioning the legitimacy of the Andler regime would amount to unlawful intervention in the domestic jurisdiction of Aprophe.30However, the sphere of domestic jurisdiction is being gradually reduced in scope.31The regular adoption by UNGA of resolutions proclaiming genuine elections to be the basis of government authority,32coupled with the unequivocal rejection ofcoups d’etatby States, confirms that legitimacy of a government is no longer a purely internal matter.33In line with this development of international law, the Court should find that the sole authority entitled to represent Aprophe is the democratically elected government of Green, and not the Andler regime.

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