International practice of recognition of a coup government

The example of recognition of a coup government is the recognition of National Transitional Council of Libya - de facto government of Libya established by Libyan rebels[14]. In this situation it was recognized as legitimate representative of Libya on condition that the Council was not controlled all over the territory and the population of the state[15]. So the Court may exercise jurisdiction over all claims in this case, since the Andler government is the rightful government 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

Under Draft Articles on Responsibility of the States for Internationally Wrongful Acts[16] the state is responsible for internationally wrongful act since this act is attributable to the state and it breaches state’s international obligations under international law. 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 on Operation Uniting for Democracy.

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

Aprophe takes a position of the school of classicists[17] considering that unauthorized intervention to the internal policy of a state is violation of international law. According to the article 51of the Charter of UN[18] states can use force in two exclusive cases: individual or collective self-defense or use of force in accordance with Security Council Resolution (Article 51).

ENI launched “Operation Uniting for Democracy”: around-the-clock air strikes against verified military installations in around Marcelux[19]. There is a certain fact of use the areal bombardment of military installations near Marcelux which continued next 2 days[20] and the result was the destruction of 12 of 15 military installations near Marcelux and killed 50 Aprophian soldiers[21].

According to the article 39 of Charter of the United Nations[22] for legally use of force by state Security Council should give permission. But the United Nations Security Council adopted resolution condemning Operation Uniting for Democracy[23].

2. RANTANIA VIOLATED BASIC PRINCIPLES OF INTERNATIONAL LAW BY USE OF FORCE AGAINST APROPHE.

According to the point “a” of Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations[24] one of the basic principles of international relations is that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations

Point “c” of this Declaration established the duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter[25].

Therefore in accordance with Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations Every State has the duty to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States.

Every State likewise has the duty to refrain from the threat or use of force to violate international lines of demarcation, such as armistice lines, established by or pursuant to an international agreement to which it is a party or which it is otherwise bound to respect. Nothing in the foregoing shall be construed as prejudicing the positions of the parties concerned with regard to the status and effects of such lines under their special regimes or as affecting their temporary character. States have a duty to refrain from acts of reprisal involving the use of force.

Rantania violated all these norms and rules of international law by use of military force against Aprophe.

 

2. RANTANIAN ACTIONS ARE AGRESSION UNDER INTERNATIONAL LAW

The party of Applicant considers that Rantania committed the act of aggression. Any action of aggression is illegal. The definition of Aggression contains in the article 1 of General Assembly resolution 3314 (XXIX): “aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition”[26].

There is no opinio juris in the practice of states which used the conditions of the doctrine of humanitarian intervention[27].

Rantania wants to establish the government under its control in Aphrope. President Green acted in the interests of ENI, providing “open borders policy”, which was the reason of strikes and demonstrations to protest these measures[28]. These actions are a treat to the political independence of the Aphrope. But the territorial integrity and political independence is the peremptory norm of internationallaw. This norm is enshrined in Article 53 of the: “For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”[29].

 

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

The decisions made by the Eastern Nations Court and subsequently by the Supreme court of Rantania on Turbando, et. al., v. The Republic of Aprophe case present an alarming example of ignoring the very principals of international law and thus the seizure of Aprophian property by Rantanian officials can not be justified by such decisions.

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

Rantanian courts have already dismissed the Turbando, et. al., v. The Republic of Aprophe on the grounds of the doctrine of sovereign immunity[30] and Article XV of the 1965 Treaty which demonstrates that these grounds are respected and taken in consideration however the Rantanian Supreme Court was forced to follow the line of the Eastern Nation Human Rights Court.

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

Sovereign immunity[31] is one of the fundamental principles of international legal order[32]. Despite that in its opinion[33] the Supreme Court of Rantania clearly disregards this principal and acts in a accordance with dim indications of state immunity not extending to violations of peremptory norms of international law[34] successfully coming to a decision on a case thus failing to follow the “duty not to intervene with matters within the domestic jurisdiction of any State”[35].

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

Different hierarchical levels of the rules making up the international legal order received official consecration not earlier than in 1969 when the Vienna Convention on the Law of Treaties was adopted. It was recognized that a treaty can be void if at a time of its conclusion it conflicts with a “peremptory norm of general international law”[36].

Such norms also referred to as jus cogens are norms thought to be so fundamental that it even invalidates rules drawn from treaty or custom. Usually, jus cogens norm presupposes an international public order sufficiently potent to control states that might otherwise establish contrary rules on a consensual basis”[37].

Force labor is a serious violation of international law and its prohibition may be considered jus cogens norm.

But the goal of jus cogens is to prevent any states to come up with any treaties embracing and implementing force labor or trying to escape responsibility for it. Such treaty in accordance to the Vienna Convention on the Law of Treaties[38] would be considered void. However, if such treaty was concluded and a violation took place there were several ways to resolve the situation and protect the rights of victims but there no one is granted a right to freely dismiss the treaty and overcome procedural obstacles of overcoming a state immunity in civil procedure. Especially, if a treaty was concluded before the concept of jus cogens was formed.

Jus cogens norms exist to prevent the violations but not to deal with the consequences of the unlawful acts of the past. Nullity of treaties that infringe jus cogens rule constitutes the ILC Articles on Responsibility of States for internationally wrongful acts provide for a duty of States to “cooperate” (Article 41 (1)) if a serious breach of obligations under peremptory norms of general international law has occurred. Such cooperation may have been in a way in a form of Aprophe and Rantania turning to the ICJ with request to deliver justice.

 

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

The very status of prohibition of forced labor as a peremptory norm is quite questionable as for the present day no concrete evidence of that is present as there is no official list of jus cogens norms. The Commentary to the draft articles on state responsibility contains examples of such norms[39]. As does Ian Brownlie, Rosalyne Higgins, examples given by the ICJ in Barselona Traction case[40]. However, among those examples prohibitions of forced labor is not specifically named. Nevertheless, prohibition of some close crimes as slavery is evidently a norm of jus cogens [41].

b) APPLICANT DID NOT VIOLATE INTERNATIONAL LABOR STANDARDS

The Republic of Aprophe had undoubtful right for the internment to the camp of the disarming and rounding up Rantanian’s “military internees” (villagers)[42]. The item 5 of the Clarifications established that these people did not engage in hostilities against the Aprophian army during the Mai-Tocao War[43], but in comparison with the fist sentence we can make the output that they were not civilians, but combatants with arms[44]. The main reason why these villagers couldn’t attack the Aprophian army was the qualitatively performed operation of our military divisions[45]. International law didn’t provide unified standards on the period of working hours[46]. There is only ILO’ recommendations and standards[47]. Both parties of the conflict are not state-members of these normative acts. Domestic state practice sets its own legal regime of working hours. Some states’ have 40 hours per week (as ILO standards), some over 48 hours per week. “Military internees” worked for 12 hours per day to provide goods and services to the Aprophian army[48]. It is not prohibited by the item “a” Article 50 of Geneva Convention III[49]. Article 51 of Geneva Convention prescribes to use the working standards on the nationals of the Detaining Power. There is no any information about labor standards in Aprophian state. ILO Recommendation 116, on the Reduction of Hours of Work (1962) provides guidance on overtime exceptions. These exceptions can be permanent, temporary or periodic. Permanent exceptions include, but are not limited to: where the work is intermittent (such as agriculture), this is connect with our case[50]. As it is clear from the ILO Conventions and other related ILO guidance, there is no standardized limit on working hours over 48 hours per week[51]. The outcomes:

● “Military internees” were involved in the actions for supplying Aprophian army by food and services, according to the Article 50 (a), (b) of Geneva Convention (III);

● Working ours for the internees had been in accordance with the Article 53 of Geneva Convention (III).

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

Cases to which states are parties fall under the jurisdiction of the International Court of Justice[52]. The situation when the supreme court of one sovereign state obliges the other sovereign state to pay out compensations for the deeds of not even some individuals but of a state itself is inconsistent with another principle of international law – the principle of sovereign equality[53].

 

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

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).