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Memorial MGU.doc
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2) Alternatively, denial of standing to the Andler regime is justified because of its manifestly unpopular and repressive nature

Should the Court find that unconstitutional origin per seis not detrimental to governmental status, the Respondent would still argue that international law, as an exception, allows denial of standing tocoup-installed regimes if they are manifestly at odds with the will of the people.34Such a denial has been widely regarded as permissible in cases where (i) thecoup-based regime is apparently unpopular in comparison with the deposed government,35or (ii) where thecoup-based regime resorts to systematic repression against the population.36The Andler regime fits squarely into both of these categories.

Mig Green was elected President of Aprophe in a landslide victory,37and maintained the support of the stable majority of the population.38In contrast, the Andler regime was met with “widespread and growing opposition”39and remained in power only by resorting to force.40Not only did the Andler regime cause an “imminent humanitarian crisis”41in Aprophe, but it also tried to evade accountability for human rights violations by denouncing the Eastern Nations Charter.42

The unpopular and repressive nature of the interim administration was confirmed by UNGA and the ENI Council. Recognition vel nonby international organizations is regularly taken as reliable evidence of whether a putative government indeed represents the population.43Refusing to recognize the Andler regime, the ENI specifically urged Andler to stop the assault against the opposition,44and resolution by UNGA stressed the exceptional character of the Aprophian situation by appealing to the UN Security Council (“UNSC”) to consider “immediate action”.45As long as the international community recognizes the grave implications of the military rule in Aprophe, denial of governmental status to the Andler regime is justified.

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

Even if the Court would rely on the traditional test of effectiveness when deciding on the status of government, the Andler regime does not meet the requirements of this test. In particular, it has failed to displace the Green government completely (1)and has not been accepted by the Aprophian population(2).

1) The Green government has not been completely overthrown

International law presumes continuity of the established government unless it is definitely overthrown, and therefore a coup-installed government, in order to prove its effective control over the country, needs to demonstrate non-existence of any viable rival authority.46However, Andler did not succeed in completely and decisively expelling the Green government, since pro-Green forces continue to hold outposts in the north of Aprophe.47Moreover, with numerous ministers, parliamentarians and ambassadors remaining loyal to Green,48his government remains fully functioning and appears to be far more viable on the international arena than the isolated Andler regime.49As long as Andler has failed to secure exclusive control over Aprophe, it has not achieved the status of a government.

2) The Andler regime has not been accepted by the population

Under international law “obedience of the bulk of the population”50is taken as evidence of effective control. When assessing this criterion, courts and tribunals look for certain positive signs of popular acceptance, as opposed to mere “tacit submission to coercion”.51Meanwhile, the interim government was from the very outset subjected to public disapproval.52In order to suppress opposition, Andler dissolved parliament53and used brutal force against those who openly challenged her rule.54It can be inferred from these facts that the silence of the majority of Aprophian population55rests on fear rather than on conscious acceptance of the military regime.

In the light of the foregoing, the Andler regime cannot act in the name of that State and cannot therefore vest the Court with jurisdiction.

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