The 2012 philip C. Jessup international law

TEAM 413 A

THE 2012 PHILIP C. JESSUP INTERNATIONAL LAW

MOOT COURT COMPETITION

IN THE INTERNATIONAL COURT OF JUSTICE AT THE PEACE PALACE

THE HAGUE, THE NETHERLANDS

 

 

 

CASE CONCERNING THE MAI-TOCAO TEMPLE

THE STATE OF APROPHE,

Applicant

 

v.

 

THE STATE OF RANTANIA,

Respondent

 

 

 

MEMORIAL FOR APPLICANT

TABLE OF CONTENTS

INDEX OF AUTHORITIES

STATEMENT OF JURISDICTION

QUESTIONS PRESENTED

STATEMENT OF FACTS

SUMMARY OF PLEADINGS

PLEADINGS …………………………………………………………………………………...

 

A. THE COURT MAY EXERCISE JURISDICTION OVER ALL CLAIMS IN THIS CASE, SINCE THE ANDLER GOVERNMENT IS THE RIGHTFUL GOVERNMENT OF THE REPUBLIC OF APROPHE ………………………………………………………..

1. THE COURT MAY EXERCISE JURISDICTION OVER CLAIMS OF APROPHE AND RANTANIA………………………………………………………………………………………………………...

2. ANDLER GOVERNMENT IS A RIGHTFUL GOVERNMENT OF THE REPUBLIC OF APROPHE………………………………………………………………………………………………………….

B. RANTANIA IS RESPONSIBLE IS RESPONSIBLE FOR THE ILLEGAL USE OF FORCE AGAINST APROPHE IN THE CONTEXT OF OPERATION UNITING FOR DEMOCRACY ………………………………………………………………………………...

1. RANTANIAN MILITARY ACTIONS AGAINST APROPHE IS VIOLATION OF INTERNATIONAL LAW………………………………………………………………………………………………………………..

2. RANTANIAN ACTIONS ARE AGRESSION UNDER INTERNATIONAL LAW……………….............

C. SINCE THE EXERCISE OF JURISDICTION BY RANTANIAN COURTS IN THE CASE OF TURBANDO, ET. AL., V. THE REPUBLIC OF APROPHE VIOLATED INTERNATIONAL LAW, RANTANIA MAY NOT PERMIT TO EXECUTE THE JUDGMENT IN THAT CASE ……………………………………………………………….

1. RANTANIAN COURTS LACK JURISDICTION IN THE CASE OF TURBANDO, ET. AL., V. THE REPUBLIC OF APROPHE …………………………………………………………………………………………

a. THE DECISION OF THE RANTANIAN SUPREME COURT OF DECEMBER 12, 2009 VIOLATES THE PRINCIPLE OF SOVEREIGN IMMUNITY OF STATES…………………………………………………..

b. THE RANTANIAN SUPREME COURT CAN NOT DENY APROPHE THE RIGHT OF SOVEREIGN IMMUNITY BASED ON APROPHE’S SUPPOSED VIOLATION OF PEREMPTORY NORMS OF INTERNATIONAL LAW………………………………………………………………………………………….

2. RANTANIAN COURTS HAVE NO LEGAL BASIS TO PROCEDE THE CASE TURBANDO, ET. AL., V. THE REPUBLIC OF APROPHE …………………………………………………………………………………...

a) QUESTIONABLE STATUS OF FORCED LABOR AS A PEREMPTORY NORMS………………………

b) APPLICANT DID NOT VIOLATE INTERNATIONAL LABOR STANDARDS…………………………..

c) RANTANIAN COURTS CAN NOT ORGANIZE PROCEEDINGS AGAINST THE STATE OF APROPHE…………………………………………………………………………………………………………..

D. APROPHE’S DESTRUCTION OF A BUILDING OF THE MAI-TOCAO TEMPLE DID NOT VIOLATE INTERNATIONAL LAW ……………………………………………

 

INDEX OF AUTHORITIES

1. Treaties and Conventions

Charter of the United Nations (1945) 993 UNTS 110……………………………………...

 

Convention Concerning the Protection of the World Cultural and Natural Heritage (1972) (<http://whc.unesco.org/en/conventiontext>)………………………………………………

 

ILO Convention No. 30 on the Hours of Work (<http://www.ilo.org/ilolex/cgi-lex/convde.pl?C030>)………………………………………………………………………

 

ILO Convention No. 1, on the Hours of Work (Industry) (1919)………………………......

 

International Covenant on Civil and Political Rights (1966) 999 UNTS 171………………

 

International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976………………………………………………………………………

 

Vienna Convention on the Law of Treaties (1969) 1155 UNTS 331………………………

 

Vienna Convention on Consular Relations (1963), Treaty Series, vo1. 596, p. 261……….

 

UN Convention on Jurisdiction Immunities of States and Their Property (2004) UN Doc A/Res/59/38…………………………………………………………………………………

 

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the

Protection of Victims of Non-International Armed Conflicts (1977), 1125 UNTS 609…………………………………………………………………………………………..

 

Statute of the International Court of Justice [1945] I UNTS 993 ………………………….

 

1. United Nations Resolutions and Other Documents

Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, 1970. UN Doc. A/8082……………………………………………………………………………

 

ILO Recommendation 116, on the Reduction of Hours of Work (1962), (<http://www.ilo.org/ilolex/cgi-lex/convde.pl?R116>)…………………………………….

 

Resolution 2022 (2011) Adopted by the Security Council at its 6673rd meeting, on 2 December 2011. S/RES/2022 (2011)………………………………………………………

 

UN Security Council Resolution 1970 (2011),adopted by the Security Council at its 6491st meeting, on 26 February 2011, S/RES/1970 (2011)………………………………..

 

1. International Cases and Arbitral Decisions

Tinoco Claims Arbitration (Great Britain v. Costa Rica), William H. Taft, Sole Arbitrator, 1 U.N. Rep. Int’l Arb. Awards 369 (1923)…………………………………………………

 

1. Treatises and Other Books

Cherif Bassiouni, International Crimes Jus Cogens and Obligatio Erga Omnes. P. 269. (<http://www.sos-attentats.org/publications/bassiouni.jus.cogens.pdf>)…………………..

 

Malcolm N. Shaw, International Law. Cambridge: Cambridge University Press. Sixth edition. 2008………………………………………………………………………………...

 

Mark W. Janis, An Introduction to international law 62–63 (2003)………………………..

 

Peter Malanczuk, Michael Barton Akehurst, Akehurst's modern introduction to international law 57-58 (1997)……………………………………………………………...

 

J.L. Holzgrefe, Robert O. Keohane, Humanitarian Intervention Ethical, Legal and Political Dilemmas. Cambridge University Press, 2003, P. 17……………………………..

 

1. Miscellaneous

Draft Articles on Responsibility of the States for Internationally Wrongful Acts, art. 2……………………………………………………………………………………………..

 

The ILC Articles on Responsibility of States for internationally wrongful acts, art.41 (1)……………………………………………………………………………………….......

 

 

STATEMENT OF JURISDICTION

The State of Aprophe (Applicant) and the State of Rantania (Respondent) submit the present dispute to this Court by Special Agreement, dated 12 September 2011, pursuant to Art.40(1) of the Court’s Statute. The parties have agreed to the contents of the Compromis submitted as part of the Special Agreement. In accordance with Art.36(1) of the Court’s Statute, each party shall accept the judgment of this Court as final and binding and shall execute it in good faith in its entirety.

 

Questions presented

The questions presented before this Honourable Court are as follows:

1. Whether the Court may exercise jurisdiction over all claims in this case;
2. Whether the Andler government is the rightful government of the Republic of Aprophe and can present the applicant’s claims behind the Honourable Court;
3. Whether Rantania is responsible for the illegal use of force against Aprophe in the context of Operation Uniting for Democracy;
4. Whether the exercise of jurisdiction by Rantanian courts in the case of Turbando, et al., v. The Republic of Aprophe violated international law;
5. Whether Rantanian may not permit its officials to execute the judgment in the case of Turbando, et al., v. The Republic of Aprophe;
6. Whether Aprophe’s destruction of a building of the Mai-Tocao Temple did not violate international law.

STATEMENT OF FACTS

The Republic of Aprophe is a prosperous state founded in 1698 at the Council of Marcelux (Marcelux being its present-day capital). Aprophe shares a border with the Federal Republic of Rantania. Aprophe and Rantania are members of the United Nations Organization.

The background of the Mai-Tocao problem

The Mai-Tocao temple is a complex of ancient structures of religious nature dating to at least 2000 BCE located within the national border of Aprophe. Mai-Tоcao is a major archaeological site as well as it is considered by Aprophian and Rantanian people to be the centre of their cultural heritage. The territory of the Mai-Tocao temple has been contested by Rantania for several centuries since Aprophe’s foundation. The most recent conflict commonly referred to as “the Mai-Tocao War” was set off by an armed assault on the Aprophian army personnel on the Aprophian territory. As a response to these actions the attackers were pursued to the Rantanian territory near the Mai-Tocao site. The Aprophian army managed to secure and pacify the area disarming a number of local villagers. However the attacks in the area did not stop and Aprophian army was forced to respond adequately. Through the period 1962-1964 the villagers living on the secured territory were involved to lending support of the Aprophian army by providing goods and services. The villagers worked in shifts, were provided with three meals a day and special places for living during all period of their work.

Consequences of the Mai-Tocao War

In 1965, Aprophe joined by Rantania turned to good offices of UN Secretary General pursuing the goal of termination of the violence. As a result the peace agreement was signed the same year (“The 1965 Treaty”). The treaty committed the boundary delimitation question that has been presented since the foundation of Aprophe to an arbitral tribunal. By the decision of the arbitral tribunal in 1968 the Mai-Tocao temple was placed in 10 kilometres within Aprophe. The Rantanian villagers were settled on the now-Aprophian territory and given freedom of choice to resettle in the state of their preference.

Military internees’ cases

After 45 years, in November 2011, the Turbando, et al., v. The Republic of Aprophe case was brought in front of Aprophian local court on behalf of Rantanian “military internees” who worked for Aprophian army during the Mai-Tocao War. The case was dismissed by the local Aprophian court, and the Aprophian Supreme Court on the grounds of the six-year Aprophian statute of limitations.

The cases were brought before Rantanian court afterwards and were dismissed in the grounds if Article XV of the 1965 Treaty and the doctrine of foreign sovereign immunity. The decision was affirmed by The Rantanian Supreme court.

The Eastern Nations Court delivered a judgement in January 2009 after receiving a petition against Rantania in order to protect Rantanian plaintiffs’ rights under the Eastern Nations Charter. The Court decided that Rantania can not rely on the 1965 Treaty and directed the Supreme Court if Rantania to proceed in a manner consistent with ENC decision.

The Supreme Court of Rantania found the force labour during the Mai-Tocao War occurred and awarded individual plaintiffs damages ranging from equivalent of US$75,000 to US$225,000 for every person. The Aprophian side did not take part in the procedure and denounced the decision of ENC as a violation of sovereign immunity. The judgement enforcement against the Aprophian property in Rantania was suspended for an undefined period.

The Republic of Aprophe never expressed consent for Rantanian courts to exercise jurisdiction in cases mentioned above.

Seizure of Aprophian assets

On February 15, 2011 Rantanian officials without prior notification using the difficult situation in Aprophe seized the equivalent of US $ 10,000,000 in Aprophian non-diplomatic property located in Rantania.

ENI bombings of Aprophe

Early in the morning on February 18, 2011 military installations of Aprophe were attacked by joint ENI air-force as a part of an operation initiated by the runaway Aprophian president Green against the interim president Andler regime. The attacks carried on for several days leading to destruction of the majority of Aprophian installations and multiple deaths of Aprophian soldiers. The Republic of Aprophe was rendered virtually defenceless against any threat. United Nations Security Council did not give consent to the bombing of Aprophe and adopted resolution condemning military Operation.

SUMMARY OF PLEADINGS

A. The court may exercise jurisdiction over all claims in this case, since the Andler government is the rightful government of the republic of Aprophe

According to the effective control doctrine and Estrada Doctrine Andler government should be recognized as rightful representative of Aprophe because Andler government exercises effective control over the state: 80% of population of the state and 90% of territory. Examples of international practice (recognition of Libyan Transitional Government and example about Costa Rica) confirm position of the Applicant.

Therefore, according to the point 1 article 34 of Statute of International Court of Justice the claims of Aprophe and Rantania are under jurisdiction of ICJ.

B. Rantania is responsible is responsible for the illegal use of force against Aprophe in the context of operation uniting for democracy

Rantania committed act of military intervention to the sovereign territory of Aprophe during the Operation Uniting for Democracy. Rantanian military actions against Aprophe is considered as an act of aggression and violation of international law according to the articles 39, 51 of the Charter of the United Nations and article 1 of General Assembly resolution 3314 (XXIX).

Since Rantania is attributable to the Operation Uniting for Democracy and the operation, which is in consistent under international law, Respondent must be a subject of responsibility for the Operation Uniting for Democracy.

C. Since the exercise of jurisdiction by Rantanian courts in the case of Turbando, et. al., v. The Republic of Aprophe violated international law, Rantania may not permit to execute the judgment in that case

D.

E.

PLEADINGS

EFFECTIVE CONTROL DOCTRINE

The effective control doctrine is accepted as the most reliable guide to recognition of governments[3]. The effective control doctrine[4] says that the coup government which execute effective control jurisdiction all over or near all territory and population of the nation of the state is legal and rightful government. It was declared by the Under-Secretary of State for Foreign Affairs of United Kingdom in 1970 that the test employed was whether or not the new government enjoyed, “with a reasonable prospect of permanence, the obedience of the mass of the population... effective control of much of the greater part of the territory of the state concerned”[5].

The Andler’s Government exercises the effective control over the state: 80% of population of the state and 90% of territory[6], which is confirmed by the ICJ case (as a source of the international law[7]) Great Britain v. Costa Rica: “ Coming now to the general issues applicable to both claims, Great Britain contends, first, that the Tinoco government was the only government of Costa Rica de facto and de jure for two years and nine months; that during that time there is no other government disputing its sovereignty, that it was in peaceful administration of the whole country, with the acquiescence of its people ” [8]. On the contrary Green government escape from the state and his government does not have any control over the nation. Moreover, 14 nations recognized Andler’s government[9].

ESTRADA DOCTRINE

The automatic recognition of governments in all circumstances would have legal effects by opinion of Estrada, the Mexican Secretary of Foreign Relations[10]. Estrada Doctrine says a government established during coup d’etat should be recognized[11].

TOBAR DOCTRINE

Tobar doctrine suggested that governments which came into power by extra-constitutional means should not be recognized, at least until the change had been accepted by the people[12]. Although the Tobar Doctrine, embodied in Central American treaties in 1907 and 1923, nowadays it is not used by states because of its conceptual problem that legal orders themselves have extra-legal origins[13].

Prayer for Relief

For all the foregoing reasons Aprophe respectfully asks this Court to:

DECLARE that the Court may exercise jurisdiction over all claims in this case, since the Andler government is the rightful government the Republic of Aprophe;

DETERMINE that Rantania is responsible for the illegal use of force against Aprophe in the context of Operation Uniting for Democracy;

RULE that the exercise of jurisdiction by Rantanian courts in the case of Turbando, et al., v. The Republic of Aprophe violated international law, Rantania may not permit its officials to execute the judgment in that case;

RULE that Aprophe’s destruction of a building of the Mai-Tocao Temple did not violate international law.

 

[1] Statute of the International Court of Justice. URL: <http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0> (accessed: 01.12.2012)

 

[2] Compromis, para. 47.

 

[3] Malcolm N. Shaw, International Law. Cambridge: Cambridge University Press. 2008. P. 457.

[4]

[5] Malcolm N. Shaw, International Law. Cambridge: Cambridge University Press. 2008. P. 455.

[6] Compromis, para. 29.

 

[7] ICJ Statute, art. 38 (1 “d”).

 

[8] Tinoco Claims Arbitration (Great Britain v. Costa Rica), William H. Taft, Sole Arbitrator, 1 U.N. Rep. Int’l Arb. Awards 369 (1923).

 

[9] Compromis, para. 31.

 

[10] Malcolm N. Shaw, International Law. Cambridge: Cambridge University Press. 2008. P. 457.

[11]

[12] Malcolm N. Shaw, International Law. Cambridge: Cambridge University Press. 2008. P. 457.

 

[13] Brad R. Roth. Secessions, coups and the international rule of law: assessing the decline of the effective control doctrine. P. 32

[14] UN Security Council Resolution 1970 (2011),adopted by the Security Council at its 6491st meeting, on 26 February 2011, S/RES/1970 (2011).

 

[15] Resolution 2022 (2011) Adopted by the Security Council at its 6673rd meeting, on 2 December 2011. S/RES/2022 (2011).

 

[16] Draft Articles on Responsibility of the States for Internationally Wrongful Acts, art. 2

 

[17] J.L. Holzgrefe, Robert O. Keohane, Humanitarian Intervention Ethical, Legal and Political Dilemmas. Cambridge University Press, 2003, P. 35.

 

[18] The Charter of the United Nations (1945) 993 UNTS 110.

 

[19] Compromis, para. 37.

 

[20] Compromis, para. 42.

 

[21] Compromis. para. 38, 42.

 

[22] The Charter of the United Nations, ibid.

 

[23] Compromis, para. 41.

 

[24] Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations.

[25] Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations.

[26] The definition of aggression. General Assembly Resolution 3314 (1974).

 

[27] J.L. Holzgrefe, Robert O. Keohane, Humanitarian Intervention Ethical, Legal and Political Dilemmas. Cambridge University Press, 2003, P. 17.

 

[28] Compromis, para. 15.

 

[29] Vienna Convention on the Law of Treaties, 1969. Done at Vienna on 23 May 1969. Entered into force on 27 January 1980.United Nations, Treaty Series, vol. 1155, P. 331.

 

[30] Compromis, para. 20.

 

[31] Declaration on Principles of International Law Concerning Friendly Relations and Cooperation

Among States in Accordance with the Charter of the United Nations, 1970. UN Doc. A/8082.

 

[32] Peter Malanczuk, Michael Barton Akehurst, Akehurst's modern introduction to international law, 1997, P. 118.

 

[33] Compromis, para. 17.

 

[34] Vienna Convention on the Law of Treaties, Article 53, May 23, 1969, 1155 U.N.T.S 331, 8 International Legal Materials 679 (1969).

 

[35] Declaration on Principles of International Law, ibid.

 

[36] Vienna Convention on the Law of Treaties (1969), art. 53, 64.

 

[37] Mark W. Janis, An Introduction to international law 62–63 (2003), Peter Malanczuk, Michael Barton Akehurst, Akehurst's modern introduction to international law 57-58 (1997).

 

[38] The ILC Articles on Responsibility of States for internationally wrongful acts, art.41 (1).

 

[39] Draft Articles on State Responsibility, Commentary on Article 40, paras. 4-6 in Official Records of the General Assembly, Fifth-sixth Session (A/56/10), Pp.283-284.

 

[40] Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, P. 3.

 

[41] Cherif Bassiouni, International Crimes Jus Cogens and Obligatio Erga Omnes. P. 269. URL: http://www.sos-attentats.org/publications/bassiouni.jus.cogens.pdf> (accessed: 23.11.2011).

 

[42] Convention (III) relative to the Treatment of Prisoners of War, Article 4(6).

 

[43] Clarification, item 5.

 

[44] Convention (III), ibid., Article 4 (6).

 

[45] Nothing in the ‘compromis’ or in the ‘clarifications’ couldn’t make any doubt on this fact; military internees was disarmed, Compromis, para. 6.

 

[46] Working time. URL: <http://www.ilo.org/global/standards/subjects-covered-by-international-labour-standards/working-time/lang--en/index.htm> (accessed: 10.10.2011).

[47] ILO Recommendation 116, on the Reduction of Hours of Work (1962); ILO Convention No. 30 on the Hours of Work; ILO Convention No. 1, on the Hours of Work (Industry) (1919).

 

[48] Compromis, 6.

 

[49] Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949. URL: <http://www.icrc.org/ihl.nsf/FULL/375> (accessed: 27.11.2011).

[50] ILO, supra n3, article 3.

 

[51] The Global Compact web-course, Human Rights and Business Dilemmas Forum. URL: <http://human-rights.unglobalcompact.org/dilemmas/working-hours/> accessed: 27.11.2011).

 

[52] Statute of the International Court of Justice, art. 34.

 

[53] The Charter of the United Nations, ibid., art.2 (1).

TEAM 413 A

THE 2012 PHILIP C. JESSUP INTERNATIONAL LAW

MOOT COURT COMPETITION

IN THE INTERNATIONAL COURT OF JUSTICE AT THE PEACE PALACE

THE HAGUE, THE NETHERLANDS