- •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
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.