- •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
IV. Aprophe violated international law by destroying a building of the Temple of Mai-Tocao
It is respectfully submitted that Aprophe is internationally responsible for intentional destruction of a building of the Mai-Tocao Temple. First and foremost, Rantania has standing to raise this issue before the Court notwithstanding the fact that the temple is located in Aprophian territory (A). The obligation to protect the world heritage is of absolute character and may not be derogated from in the event of armed conflict(B). Alternatively, even if such derogation is permitted when required by military necessity, Aprophe could not invoke this exception in the case at hand(C). Aprophe also may not justify the destruction by the concept of countermeasures(D).
A. Rantania has standing to bring the claim against Aprophe in protection of the Mai-Tocao Temple
Rantania bases its standing in relation to the Mai-Tocao Temple on three alternative grounds. Firstly, Rantanian individual right of action is vested in the 1965 Treaty (1).Secondly, the partial destruction of the Temple “specially affects” Rantania(2). Finally, Rantania enjoys standing since it is enforcing obligationserga omnes(3).
1) The destruction was in breach of obligations owed by Aprophe to Rantania under the 1965 Treaty
As an injured State,165Rantania is entitled to invoke responsibility of Aprophe since the latter violated its obligations owed to Rantania individually under the 1965 Treaty.166By virtue of the 1965 Treaty the parties agreed upon “cessation of any and all hostilities”.167The object and purpose of the 1965 Treaty168and the circumstances of its adoption169support the conclusion that this treaty provision shall be interpreted so as to exclude any acts of hostilities that might damage the Mai-Tocao Temple. Accordingly, Rantania has standing as a State to whom the obligation is owed individually.
2) Rantania has the right of action since the wrongful act committed by Aprophe specially affects Rantania
Besides the obligations under the 1965 Treaty, Aprophe owes an obligation to protect the world heritage site located in its territory, as will be demonstrated below. The breach of this latter obligation affects Rantania “in a way which distinguishe[s] it from the generality of other States to which obligation is owed”,170and therefore Rantania must be considered as a “specially affect[ed]” State under Art.42(b)(i) DARS.
Rantania is indeed in a unique position in relation to the Mai-Tocao Temple. Aprophians and Rantanians were once a single community of indigenous nomadic people settling in the Mai-Tocao surroundings.171Up until 1968 Rantania had been claiming sovereignty over the Temple.172While the Temple is undoubtedly of tremendous cultural significance for all peoples, for Rantanians it is also “a cause for national pride”.173The special importance of the site for Rantanians was expressly declared by Rantania on several occasions.174Therefore, the destruction even of a smaller building of the Mai-Tocao site has particularly adverse effects on Rantania, and the latter has standing to bring the claim in relation to that injury.
3) Rantania is entitled to invoke responsibility of Aprophe by virtue of obligationserga omnes
Should the Court decline to consider Rantania an injured State, it would be argued that States other than an injured State are equally entitled to invoke responsibility of Aprophe in relation to the destruction of the Mai-Tocao site since the obligation breached is an obligation erga omnes.
The concept of obligations erga omnesas a basis for invocation of responsibility was codified by the ILC as part of customary international law,175has several times been referenced to in the decisions on this Court,176and is supported in scholarly writings.177
It is well ascertained in international law that obligations to protect cultural property inscribed on the World Heritage List are of erga omnesnature since they protect a collective interest. This is emphasized by Preamble of the World Heritage Convention (“WHC”),178by various UNESCO instruments179and is firmly upheld in scholarly writings.180Thus, Rantania is well positioned to base its standing on the concept of obligationserga omnes.