Com Promis
-
Upload
dave-lumasag-canumhay -
Category
Documents
-
view
36 -
download
0
Transcript of Com Promis
INTERNATIONAL COURT OF JUSTICE
THE PEACE PALACETHE HAGUE, THE NETHERLANDS
THE CASE CONCERNING THE TEMPLE OF MAI TOCAO
THE REPUBLIC OF APROPHE(APPLICANT)
VS.
THE FEDERAL REPUBLIC OF RANTANIA(RESPONDENT)
MEMORIAL FOR THE APPLICANT
2012
STATEMENT OF JURISDICTION
The Republic of Aprophe (Applicant) and the Federal Republic of Rantania
(Respondent) submit the following dispute to the International Court of Justice, pursuant
to the article 40 of the Statute of the International Court of Justice, “States may bring
cases before the Court by special agreement. On September 12, 2011, the parties signed
jointly a Compromis and submitted the same to the International Court of Justice. The
Compromis submitted to the ICJ is about the differences between the Applicant and the
Respondent concerning the Mai Tocao Temple, signed in The Hague, The Netherlands.
QUESTIONS PRESENTED
I. WHETHER THE INTERNATIONAL COURT OF JUSTICE MAY
EXERCISE JURISDICTION OVER ALL CLAIMS IN THE CASE, SINCE
THE ANDLER GOVERNMENT IS THE RIGHTFUL GOVERNMENT OF
REPUBLIC OF APROPHE.
II. WHETHER RANTANIA IS RESPONSIBLE FOR THE ILLEGAL USE OF
FORCE AGAINST APROPHE IN THE CONTEXT OF OPERATION
UNITING FOR DEMOCRACY.
III. WHETHER THE EXERCISE OF JURISDICTION BY RANTANIAN
COURTS IN THE CASE OF TUBANDO, ET., AL v. THE REPUBLIC OF
APROPHE VIOLATED INTERNATIONAL LAW, RANTANIA MAY NOT
PERMIT ITS OFFICIALS TO EXECUTE THE JUDGMENT IN THAT
CASE.
IV. WHETHER APROPHE’S DESTRUCTION OF A BUILDING OF THE MAI
TOCAO TEMPLE DID NOT VIOLATE INTERNATIONAL LAW.
STATEMENT OF FACTS
The Republic of Aprophe and the Federal Republic of Rantania are two adjacent
states.
Aprophe, has approximately 50 million inhabitants. It was founded in 1698 at the
council of Marcelux which is the present day capital of the State.
Rantania, on the other hand, has a population of almost 90 million people and is
located to the immediate east of Aprophe. Its economy has blossomed in recent years, in
large part, due to its diplomatic and trade relations with the three neighboring countries:
Lamarthia, Verland and Pellgrinia.
The Mai Tocao Complex, was the center of all of Aprophe and Rantania’s
arguments since they first became state. The issue is predicated on the fact that when
Aprophe was founded, there was no settled boundary between Approphe and Rantania.
As a result, sovereignty over Mai Tocao a point of contention between the two for 300
years since Mai Tocao is situated near the border. Many disputes engaged from small
scale as between tribal and ethnic groups to full scale wars as between the two states.
In 1962, the Mai Tocao War happened when Aprophian soldiers were attacked by
villagers of unknown nationality who hid unto Rantanian territory near Mai Tocao site.
The skirmishes lasted for two years until it reached a stage of stale mate which made the
two states to resort in good office and engage in peace negotiations. The agreement
concluded The Treaty of 1965, which awarded the entirety of Mai Tocao Temples to
Aprophe placing the same 10km within the latter’s boundary.
During the war, more than 500 Rantanians were forced to labor to provide goods
and services to the army of Aprophe. They were called “military internees”, though not
paid, they were provided with food three times a day and were given shelters.
In August 2001, an award winning documentary brought to public attention the
experiences of the surviving internees, it caught the attraction of International League for
Solidarity and Access (ILSA) who instituted a proceeding against Aprophe in local court
on behalf of the internees and one Mr. Richard Turbando. The trial court dismissed the
case which was then affirmed by the Aprophian Supreme Court.
After dismissal, ILSA instituted similar proceeding in a Rantanian court but it was
dismissed and later affirmed by the Rantanian Supreme Court.
However, ISLA filed a petition against Rantania on the grounds that it deprived
its nationals to their inalienable rights to the Eastern Nations Court. The ENC directed
Ratania to proceed with the trial. The Aprophe decline to participate, but instead
submitted a letter asserting that Rantanian court was obliges to dimiss the claim on the
basis of sovereign immunity grounds. Nonetheless, Rantania ordered its officials the
execution of non-diplomatic properties of the government of Aprophe located in
Rantania.
On January 15, 2011, the government of Aprophe under President Green, was
overthrown by a coup d etat headed by General Paige Andler who subsequently assumed
office under an “interim government”
Under the interim government, Andler faced some opposition from those who
were still loyal to Green. By the used of Aprophe,s elite army, Andler confronted them by
taking arms which resulted to several casualties.
On the other hand, Rantania, as urged by Green, intervened with the internal
conflict of Aprophe and conducted an airstrike destroying several significant military
installations on Aprophe.
As Andler’s forces were shattered into pieces, the Rantanian force started to
mobilized to the border to capture Andler who took refuge in the great antechamber of
Mai Tocao Temple. However, Andler installed explosives on the temples in the complex
and argued that if the Rantanian forces continue to advance, he will detonate the temples
one by one. As her warnings were left unheeded, one temple was blown down as
response to the non-stop bombing campaign of Rantania.
On May 12, 2011, Aprophe filed an application before the Registry of the
International Court of Justice to institute a proceeding against Rantania.
On July 1, 2011, Rantania reversed its former decision not to accede to the ICJ
and thereafter announced that Rantania would engage Aprophe before the ICJ, on the
condition that Aprophe withdraw its application and instead agree jointly to submit to the
Court all claims that the parties might have against one another.
ARGUMENT
I. THE INTERNATIONAL COURT OF JUSTICE MAY EXERCISE
JURISDICTION OVER ALL CLAIMS IN THIS CASE, SINCE THE ANDLER
GOVERNMENT IS THE RIGHTFUL GOVERNMENT OF REPUBLIC OF
APROPHE.
The ICJ can absolutely exercise jurisdiction over the claims in this case. Even
though the interim government of Aprophe under Andler is a de facto government – a
government of fact, one actually exercising power and control in the state as opposed to
the true and lawful government, it has already gain international acceptance (Cruz,
Isagani). As the matter of fact, 14 Nations recognize Andler’s government at the time of
the filing of the Compromis. Furthermore, even Rantania itself has impliedly asserted to
the reality that the Government of Aprophe under Andler is the rightful government when
the latter bargained to jointly submit to the in order to stop the application of Aprophe in
instituting a proceeding against Rantania. When the internal conflict of Aprophe became
full-scale, a State of belligerent was recognized. Under the traditional rule, third states
could either remain neutral or otherwise support the governing authorities. In the case at
bar, the intervention done by Rantania with regards to the internal affairs of Aprophe,
made the former responsible for its action and must justify the same under International
Law.
II. RANTANIA IS RESPONSIBLE FOR THE ILLEGAL USE OF FORCE
AGAINST APROPHE IN THE CONTEXT OF OPERATION UNITING FOR
DEMOCRACY.
The illegal use of force against Aprophe during the outbreak of internal hostilities
by Rantania through air strikes and continuous bombing was a blatant violation of the
United Nation Charter. Under the commonly known international law principle
“domestic jurisdiction clause” – as long as the matter remains internal, the same cannot
be the subject of intervention.
Furthermore, Article 2 (4) of the UN Charter provides that, all members 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 Purpose of the United Nations” (U.N. Charter, Article 2 (4)). The air strike and
bombing by Ratanian force cannot find justification in international law. Without the
authority of the Security Council, it constitutes a violation of the prohibition against the
use of force against the territorial integrity and political independence of Aprophe.
Moreover, it cannot be justified as an act of self-defense under Article 51 of the
U.N. Charter for want of an arm attack against Rantania. Even assuming anticipatory and
preemptive self-defense is allowed under Customary International Law, the same may
only be justified in case an armed attack is clearly imminent. Here, there was no threat of
imminent armed attack that would justify anticipatory or preemptive self-defense (U.N.
Charter, Article 50).
III. THE EXERCISE OF JURISDICTION BY RANTANIAN COURTS IN THE
CASE OF TUBANDO, ET., AL v. THE REPUBLIC OF APROPHE VIOLATED
INTERNATIONAL LAW; RANTANIA MAY NOT PERMIT ITS OFFICIALS
TO EXECUTE THE JUDGMENT IN THAT CASE.
Rantania’s exercise of jurisdiction over the case was in clear violation of an
elementary rule in International Law. Accordingly, a foreign state cannot be sued before
local courts of another state without its consent. Article 7 (2) of the United Nation
Convention on Jurisdictional Immunities of States and their Property provides that “an
agreement by a State for the application of law of another State cannot be interpreted as a
consent to the exercise of jurisdiction by the courts of the other State (Sarmiento, R.).
Furthermore, every sovereign state is bound to respect the independence of every
other sovereign state, and the courts of one country will not sit in judgment on the acts of
the government of another within its territory (Underhill v. Hernandez 168 US 250
(1897)).
In regards to the claim of the internees, Article 2 (2) of the 1930 Forced Labor
Convention, “forced or compulsory labor shall not include (d) any work or service
exacted in cases of emergency like War or Calamity.
Therefore, the judgment and even the case have no international legal basis at all.
IV. APROPHE’S DESTRUCTION OF A BUILDING OF THE MAI TOCAO
TEMPLE DID NOT VIOLATE INTERNATIONAL LAW.
The destruction of one of the temples in Mai Tocao was made as the sacrifice
taken to draw the attention internationally about the unlawful military operations
spearheaded by Rantania. Such recourse was a better way to justify the ending of war by
having detonated the half of the temple structure than that ordering a last ditch of military
defense that would inevitably cost more lives of more soldiers. During World War II, the
allies dropped atomic bomb over Nagasaki and Hiroshima in Japan which lead to the
unconditional surrender of the latter. National Geographic, “ the world was at war, and
the A-bomb was said to be a way to hasten an end to the conflict, thereby saving the lives
of American servicemen who might otherwise have been doomed in a protracted invasion
of the Japanese homeland”(Microsoft Encarta® (2009)). If it would have not made, more
lives could have been wasted in both sides.
Under the World Heritage Convention, if the cultural heritage site is endangered
of destruction or is threatened by serious and specific danger it must be keep up to date
and publish whenever circumstances may require. Aprophe, prior to the detonation of one
of the Temple of Mai Tocao, never failed to inform the public and specially Rantania
through media by satellite uplink of the measures it is going to take. Such announcement
definitely complied with the requirements for the identification, protection, conservation
and presentation of the cultural and heritage (World Heritage Convention, 1983).
As a matter of fact, the destruction was attributable to the violent act of Rantania.
The latter’s failure to heed on the announcement made by Aprophe and cease the
bombing immediately thereafter, the detonation could have been prevented. If only
Rantania has answered the call without delay in a humanly manner, the temple could
have been saved.
CONCLUSION AND PRAYER FOR RELIEF
Applicant, Republic of Aprophe, respectfully requests that the Court adjuge and
declare that:
I. The Andler Government is the rightful government of Republic of
Aprophe and the court may exercise jurisdiction over all claims in the
case;
II. Rantania be held responsible for the use of illegal force against Aprophe;
III. The exercise of jurisdiction by Rantanian courts in the case of Turbando,
et,. al v. The Republic of Aprophe violated international law, Rantania
cannot permit its officials to execute the judgment in that case; and,
IV. The destruction of a building of the Mai tocao Temple did not violate any
international law.
Respectfully submitted,
DAVE L. CANUMHAY(Agent of the applicant)
INDEX OF AUTHORITIES
BOOKS
Isagani A. Cruz, International Law, (2003).
Ralph A. Samiento, Public International Law (2009).
TREATIES and COVENTIONS
U.N. CHARTER.
World Heritage Convention, 1983.
Vienna Convention on the Law of Treaties, (May 23, 1969).
International Convention on the Law of Treaties, 1970.
Geneva Conventions, 1949, 1968, and 1976.
United Nations Convention on Jurisdictional Immunities of State and their Property.
The 1930 Forced Labor Convention.
JUDICIAL DECISION
Underhill v. Hernandez 168 US 250 (1897)
OTHERS
Microsoft Encarta® (2009)