- •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
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.