- •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) The un Security Council did not obligate the eni Member States to terminate oud after March 1, 2011
By “call[ing] upon the ENI Member States to end the Operation”107UNSC did not affect the legality of OUD after March 1, 2011. The obligation of the UN Member States to carry out the decisions of UNSC108does not extend to resolutions which, as the March 1 Resolution, are intended by UNSC to be merely a recommendation.109Firstly, the fact that UNSC does not refer to Chapter VII or Art.39 of the UN Charter in the March 1 Resolution isper sestrong evidence as to its non-binding character.110Secondly, the use of the term “call upon” instead of stronger terms such as “demand” or “decide” further suggests, in the light of the practice of UNSC,111that UNSC did not exercise its power to adopt a binding decision with respect to OUD. So long as no obligation to terminate the Operation was imposed, Rantania legitimately continued the air strikes after March 1, 2011.
III. Since the exercise of jurisdiction by Rantanian courts in theTurbandocase was consistent with international law, Rantanian officials may execute the judgment in that case
A. Rantania exercised jurisdiction in theTurbandocase in accordance with international law
The assertions of the Applicant as to the illegality of exercise of jurisdiction by Rantanian courts112are without merit. Firstly, the waiver clause in Art. XV of the 1965 Treaty113did not preclude the exercise of jurisdiction(1). Secondly, Rantania did not encroach on immunity of Aprophe(2).
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
It is a basic principle of the law of treaties that a treaty conflicting with a peremptory norm of international law is void.114The waiver clause effectively contradicts thejus cogensprohibition of forced labor and thus has no legal force.
The prohibition of forced labor is indeed of jus cogens status, because forced labor is a modern form of slavery115while the norm outlawing slavery has been consistently recognized as ajus cogensnorm.116The opinion of the International Labour Organization supports the conclusion that there exists a “peremptory norm prohibiting any recourse to forced labour”.117
Since a right is meaningless without a remedy (ubi jus ibi remedium), denial of any possibility of redress to victims ofjus cogensbreaches effectively deprives peremptory norms of their “intransgressible”118character.119Accordingly, the waiver clause, insofar as it denies an effective remedy to victims of forced labor, is in conflict with thejus cogensrule and is therefore void.
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
The waiver clause is inapplicable under the well-established principle lex posteriori derogat lex priori.120This rule applies even where the subject-matter of the treaties is not identical.121
At the time when the Turbandocase was decided both Aprophe and Rantania were parties to the International Covenant on Civil and Political Rights122(“ICCPR”)123and the Eastern Nations Charter.124The waiver clause is incompatible with a number of provisions of ICCPR125and the Eastern Nations Charter,126and thus does not apply.
Aprophe may claim that it was unlawfully subjected to the jurisdiction of the ENI Court127which determined that the application of the waiver clause amounted to a denial of justice.128However, the Court merely interpreted the Charter and did not decide upon the rights and obligations of Aprophe. In any event, the fact that Rantania followed the ENI Court’s decision did not constitute a wrong against Aprophe because exercise of jurisdiction was conditional upon entitlement or otherwise of Aprophe to sovereign immunity.