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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

Even if the Court attributes the use of force to Rantania, it cannot proceed to adjudicate upon the legality of OUD since doing so in the absence of the ENI from the present proceedings would violate the Monetary Goldprinciple. Under this principle the Court should decline to exercise jurisdiction where the assessment of the rights and obligations of third parties would be a “prerequisite for the determination of the responsibility”80of the Respondent. Rantania based its military action against Aprophe,inter alia, on the authorization by the ENI,81and thus, in order to pronounce upon the legality of the air strikes the Court would first have to determine whether the ENI could validly authorize the use of force. Therefore, the rights and obligations of the ENI would “form the very subject-matter of the decision”.82So long as the ENI is not, and cannot be,83a party to the present case, the Court is precluded from exercising jurisdiction with regard to the legality of OUD.

C. In any event, the use of force against Aprophe in the context of Operation Uniting for Democracy did not violate international law

The air strikes in the territory of Aprophe did not violate the fundamental prohibition of the use of force84since Rantania based its action on two legitimate exceptions to this prohibition, namely, invitation of a legitimate government(1)and authorization of a regional organization(2).

1) The use of force was requested by the legitimate government of Aprophe

It is well established in customary international law that a government may request foreign military assistance in the name of the State, thus precluding wrongfulness of otherwise unlawful use of force.85President Green was the Head of Aprophian government at the time of the invitation,86either due to his democratic mandate87or due to the presumed continuity of his government in the immediate aftermath of thecoup.88Therefore, he could validly consent to the use of force on behalf of Aprophe.

The Applicant is likely to interpret the principle of non-intervention in a way that States are prohibited from deploying military forces at the request of a government which is not in firm control of the country’s territory. However, the rationale of this principle is to prevent military assistance when its aim is “to support an established government against its own population”.89In line with this approach, invited interventions to suppress army mutinies or militarycoupshave never been condemned by States.90Since force in Aprophe was used against a small group of military officers who usurped power, and not against the population,91the principle of non-intervention was not violated.

2) Alternatively, the use of force was authorized by the ENI in accordance with Chapter VIII of the UN Charter

a) The ENI was empowered to undertake OUD with the subsequent authorization by the UN Security Council

The decision of the ENI Council to commence OUD92was adopted within the scope of its powers under the UN Charter. Under Art.53(1) of the Charter regional organizations are allowed to undertake enforcement action with the authorization of the UN Security Council (“UNSC”). However, it cannot be deduced from the wording of Art.53 or from thetravaux préparatoiresthereof93that prior and express UNSC authorization is required at all times. Quite the contrary, practice of operations under Art.53,94pronouncements by regional organizations95and scholarly writings96confirm that a regional action is consistent with Art.53 if (i) exceptional circumstances in the region require an emergency response, (ii) UNSC fails to act promptly, and (iii) the use of force is explicitly or impliedly authorized by UNSC ex post facto. OUD conformed to all the above preconditions.

Firstly, the military rule in Aprophe constituted a threat to the peace in the region,97and UNGA recognized the exceptional nature of the Aprophian crisis by appealing to UNSC to take “immediate action”.98

Secondly, UNSC remained silent for more than a month99despite the fact that the situation in Aprophe deteriorated rapidly, and a humanitarian crisis became “imminent”.100

Thirdly, UNSC Resolution on March 1, 2011,101being interpreted in the light of all circumstances of its adoption,102shall be considered as an implicit authorization of OUD. It is a settled practice of UNSC to expressly proclaim a breach of the non-use of force principle where UNSC considers that such a breach has indeed occurred.103However, the text of the March 1 Resolution contains no statement to that effect. Moreover, by removing a reference to Chapter VII and rejecting “stronger Council action” during the drafting process,104UNSC members demonstrated that they did not regard OUD as a threat to international peace and security.105By condemning the ENI on procedural grounds only,106UNSC thereby further acknowledged the legality of OUD under Art.2(4) and Art.53(1) of the UN Charter.

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