- •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
C) In the further alternative, the waiver does not cover claims arising out of violations of international humanitarian law
In the light of the relevant rules of international law129the waiver clause cannot be interpreted so as to cover claims regarding violations of international humanitarian law (“IHL”).
Under the well-established rule of customary character,130first codified as far back as 1907131and later confirmed in the Geneva Conventions,132parties to an armed conflict cannot dispose of the right to compensation to which victims of IHL violations are entitled, without ensuring effective reparations to such victims.133
Compelling internees to perform uncompensated labor in disregard of normal working conditions is clearly a violation of IHL,134and the waiver of claims arising out of such a violation is to the detriment of the affected civilians. On the balance of probabilities, it is unlikely that the parties, acting with recourse to the good offices of the UN Secretary-General,135agreed on a provision obviously contradicting the generally recognized customary rule. It is more likely that the term “all claims” in the text of the 1965 Treaty refers exclusively to damage inherent to hostilities, as opposed to damage resulting from violations of the laws of war. International practice supports the view that waivers shall be interpreted restrictively.136
It follows that the waiver does not preclude assessment of internees’ claims since it is void, or, alternatively, since it does not cover claims arising out of violation of IHL.
2) Aprophe was not entitled to sovereign immunity in theTurbandocase
Aprophe’s claim of immunity is untenable for three main reasons. Firstly, international law does not impose a duty to provide immunity in cases concerning breaches of peremptory norms (a).Secondly and alternatively, even considering that immunity must be granted as of duty, exception to this duty applies(b). And finally no immunity is due since rules on immunity, where they conflict with human rights obligations, should be interpreted restrictively(c).
A) Rantania is under no legal obligation to provide immunity to Aprophe
Every State enjoys full and absolute sovereignty over its territory.137As long as restrictions on state sovereignty cannot be presumed,138limitation on the absolute jurisdiction of the forum State may be placed only buy a rule of international law which positively requires to grant immunity.139However there is no firmly established rule demanding to grant immunity in the proceedings regarding violations ofjus cogensnorms committed in the territory of the forum State.140Quite the contrary, recent developments demonstrate that the law is shaping towards non-recognition of immunity in the cases involving serious human rights violations in the forum state.141In any event, the formation of a rule requiring a State to grant immunity in cases of allegedjus cogensbreaches is effectively precluded sincejus cogensnorms, by virtue of their superior nature, would always prevail over ordinary norms on immunity.142
Since the Turbando case concerns violations of ajus cogensrule prohibiting forced labor,143Rantania is under no obligation to grant immunity to Aprophe in relation to that case.
B) Alternatively, Rantania legitimately relied on an exception to the general rule of immunity
Should the Court determine that Rantania is under a legal obligation to provide sovereign immunity, it is submitted that the Turbandocase is exempt from the general rule since the so-called “territorial exception” applies.
The rule of customary international law144recently codified in Art.12 of the UN Convention on Jurisdictional Immunities of States and Their Property (“UN Convention”),145signed by Aprophe,146provides that a State cannot invoke immunity for personal injury which occurred in the territory of the forum State.
Former internees undoubtedly suffered psychological injuries when forced to work for the army of an enemy state in violation of IHL.147The territorial link is also present, because internees were captured in the territory of Rantania148and this is sufficient to link the injury to the territory of the forum State for the purposes of the discussed exception.149
The Applicant is likely to argue that injuries inflicted in the course of an armed conflict are not subject to the territorial exception. However, certain provisions excluding applicability of territorial exception to military activities150refer exclusively to armed forces present on State territory pursuant to special agreement. These authorities by no means prove that armed conflicts as such are excluded from the sphere of application of immunity doctrine.151Moreover, it is well established that armed conflict should have no effect on the rules of diplomatic immunity.152Same logic should apply to the rules of State immunity. Accordingly, territorial exception applies to the Turbandocase without any reservations.