- •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
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
It is respectfully submitted that the use of force against Aprophe in the context of Operation Uniting for Democracy (“OUD, Operation”) is not attributable to Rantania (A.). In the alternative, theMonetary Goldprinciple does not allow the Court to assess the legality of OUD(B.). In any event, the use of force in the context of OUD did not violate international law(C.).
A. The use of force against Aprophe in the context of Operation Uniting for Democracy is not attributable to Rantania
So long as the ENI exercised effective control over the military contingents engaged in OUD, the use of force is attributable to this international organization, and not to Rantania (1), notwithstanding that Rantania participated in the decision-making process of the ENI(2).
1) The use of force is attributable to the eni since the latter exercised effective control over the military forces involved in oud
Under customary international law the conduct of a State organ placed at the disposal of an international organization is attributable to the latter if it exercises effective control over that organ.56The criterion of effective control has been interpreted in the practice of national57and international58courts as meaning “ultimate authority and control”. OUD was undertaken pursuant to the legal mandate granted by the ENI Council,59and was regularly directed by the ENI Defense Committee.60Since the ENI at all times retained ultimate authority and control over the forces participating in OUD, all air strikes against Aprophe are attributable to the ENI.
However, should the Court prefer to rely on the test of “operational command and control”61in order to determine effective control, the Respondent would argue that the ENI indeed exercised such control through its agent.62
The ENI-appointed Force Commander Brewscha63took all operational decisions regarding OUD64and devised the major tactical steps of the Operation.65The fact that Brewscha was a Rantanian national66and a reserve officer in the Rantanian Air Force67did not in any way subordinate him to Rantania, because as agent of the ENI he enjoyed immunity, applicable also against his State of nationality,68for all acts performed in his capacity as ENI Force Commander.69Equally, the fact that the air strikes were terminated by the Rantanian President70did not compromise the operational control of the ENI since the right of a troop-contributing State to withdraw its contingents is not taken as a factor which negates effective control of an international organization.71
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
Rantania’s leading role in the ENI action72does not affect the attribution of OUD to the ENI. Separate legal personality of international organizations73excludes attributability of their acts to member States.74Accordingly, a view that member States which “played a major or leading role in the commission of an act by an international organization”75should bear responsibility for that act was rejected by the International Law Commission (“ILC”) during the codification of customary international law on the matter.76
Existing exceptions to the general rule of non-responsibility of member States for acts of international organizations are inapplicable in the present case. While all of these exceptions are predicated on coercion or abuse of rights by member States,77Rantania did not, and was legally unable to,78influence any ENI decisions concerning OUD which, notably, were adopted unanimously.79In these circumstances “piercing the veil” of the ENI is not justified.