- •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
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.