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Section I. Objectives and Principles
Section IV. Human Rights and Democratic Governance
|INTERNATIONAL COURT OF JUSTICE|
BETWEEN THE REPUBLIC OF APROPHE (APPLICANT)
AND THE FEDERAL REPUBLIC OF RANTANIA (RESPONDENT)
TO SUBMIT TO THE INTERNATIONAL COURT OF JUSTICE
THE DIFFERENCES BETWEEN THE STATES
CONCERNING THE MAI-TOCAO TEMPLE
jointly notified to the Court on 12 September 2011
COUR INTERNATIONALE DE JUSTICE
ENTRE LA REPUBLIQUE D’APROPHE (DEMANDEUR)
ET LA REPUBLIQUE FÉDÉRALE DE RANTANIA (DÉFENDEUR)
VISANT À SOUMETTRE À
LA COUR INTERNATIONALE DE JUSTICE
LES DIFFÉRENDS QUI OPPOSENT LES DEUX ÉTATS
EN CE QUI CONCERNE LE TEMPLE DE MAI-TOCAO
notifié conjointement à la Cour le 12 septembre
The 2012 Philip C. Jessup International Law Moot Court Competition
The Republic of Aprophe v. the Federal Republic of Rantania
The Case Concerning the Temple of Mai-Tocao
1. Aprophe, a developing state with a population of about 50 million people, was founded in 1698 at the Council of Marcelux (its present-day capital).
2. Rantania, a federal state with a developing industrial economy and a population of almost 90 million people, is located to the immediate east of Aprophe. Rantania’s economy has blossomed in recent years, in large part due to its close diplomatic and trade relations with three neighboring countries: Lamarthia, Verland, and Pellegrinia.
3. The Mai-Tocao temple complex, one of the most famous religious and archaeological sites in the world, is located near the modern Rantanian-Aprophian border.
9. In 1968 a border was established placing the Mai-Tocao site 10 kilometers within Aprophe.
13. In 1990, Rantania, Lamarthia, Verland, and Pellegrinia created the Eastern Nations International Organization (“the ENI”), a regional organization devoted to strengthening economic cooperation and political ties among its members. The Treaty Establishing the ENI (attached at Annex III) guarantees free movement across borders for citizens of ENI Member States, and also contains a mutual defense pact among them. The Treaty incorporates the Eastern Nations Charter by reference.
14. In November 2000, Aprophian Senator Mig Green was elected President by the largest margin of the popular vote in Aprophe’s history. His campaign platform proposed applying for membership in the ENI. In January 2001, representatives of Green’s government met with the ENI Council which, after several months of study, prepared a list of preconditions for Aprophe’s application for membership.
23. Throughout 2010 nationalist and anti-Rantanian sentiments strengthened within Aprophe together with opposition to President Green’s pro-ENI program. Dissident factions in Aprophe staged several nationwide strikes throughout 2010, calling for Green’s resignation. Despite the social unrest, a poll conducted by the Aprophian Office for National Statistics in November 2010 indicated that 55% of Aprophians considered the policies of Mig Green’s government to be “very good” or “good” and that 60% approved of the government’s efforts to join the ENI.
24. President Green declared his candidacy to stand for a third term in the elections to be held in March 2011. In the wake of the strikes, however, on January 10, 2011, Green invoked the emergency powers granted to the President under the Aprophian Constitution, announcing that he was postponing the election for one year “in the expectation that order can be restored during that time.” Relying on the same constitutional provision, on January 13, President Green ordered the Aprophian military to begin armed patrols in major urban areas “to prevent and quell civil unrest.”
25. On January 15, 2011, all of the major newspapers in Aprophe published an “Open Letter” to President Green, from General Paige Andler, chief of staff of the Aprophian armed forces. Gen. Andler described the suspension of the March elections as “a clear attempt to subvert the will of the people,” and called upon President Green to restore the elections. Her letter concluded:
Mr. President, when you took your oath of office, you swore to uphold the democratic principles of this great nation. I took that same oath over 40 years ago, when I enlisted to serve my country in ending the Mai-Tocao War. All Aprophian soldiers are trained to understand that, in a democracy, we who proudly wear our uniforms are required to implement the decisions of elected political officials without question. But, President Green, although we respect you as our Commander-in-Chief, we will not carry out your order of January 13. We will not take up arms against our fellow Aprophians.
26. President Green immediately fired Gen. Andler, withdrew her military commission, and ordered her arrest on charges of insubordination and sedition. On the morning of January 16, 2011, senior officers of the national police arrived at Andler’s apartment in Marcelux, and were turned away by armed soldiers loyal to her.
27. That evening, army units loyal to Andler forcibly entered the Presidential Palace and other government installations. President Green and his ministers fled during the night to Rantania. The following morning, Andler proclaimed herself “interim president” of Aprophe, and declared that she would stay in power
for as long as necessary to reestablish democratic institutions and the rule of law in the country. Restoring order to our streets and cities requires that we stop the headlong rush toward irreversible change until we are sure that this reflects the will of the people. It is not clear that the Aprophian people are committed to ENI membership, at least until some basic questions are answered. So long as I am interim president, Aprophian concerns come first.
She immediately suspended the open borders policy, the tax and other incentives extended by President Green to nationals of ENI Member States, and other pro-ENI measures instituted by Green.
28. In the face of widespread and growing opposition to the interim government, Andler declared a state of emergency and, pursuant to emergency powers granted by law, dissolved parliament. In a press conference held on January 18, 2011, Andler stated that the dissolution had been necessary to “ensure stability and maintain public order.” She also assured the citizens of Aprophe that “new elections [would] be called soon” and that, in any event, “all civil rights and liberties [would] be respected.”
29. Several parliamentarians belonging to Green’s party also fled to Rantania. Forty Aprophian Ambassadors, including the Permanent Representatives to the United Nations and to the Kingdom of the Netherlands, renounced Andler and declared their allegiance to Green. Andler’s government successfully established order in over 90% of Aprophian territory (comprising approximately 80% of the population), and the armed forces in and around Marcelux were loyal to Andler. However, approximately 800 members of the army’s National Homeland Brigade, based in outlying regions, remained loyal to Green and established bases in two villages in the north of Aprophe. The Brigade is a lightly-armed force ordinarily tasked with patrolling Aprophe’s borders. Several hundred civilian supporters of Green migrated to those villages, under the protection of the pro-Green forces.
31. Andler’s assault upon the pro-Green units were condemned by several nations. On January 20, 2011, Green announced that he and his ministers had formed what he called a “government in exile” in Rantania. Over the next two days, Green held talks with the Rantanian government, in which he urged Rantania to intervene to end the fighting and to restore his government in Aprophe. On January 22, Rantania introduced a resolution before the ENI Council – then chaired by a representative of Lamarthia – which began, “Given that the tragedy in Aprophe derives in some measure from that nation’s desire to join the ENI, it is appropriate that any response be undertaken by the ENI rather than by any individual Member State.” The Council unanimously passed the resolution, which recognized Green as the “lawful President of Aprophe,” condemned “the military coup d’état,” and urged “a prompt cessation of military activities and restoration of democracy.” In the following days, each ENI Member State and 27 other nations formally announced that they would conduct diplomatic relations only with the Green regime. As of the date of submission of this Compromis, 14 nations recognize Andler’s government.
32. On January 23, 2011, Andler delivered a public statement denouncing the ENI Council resolution. She declared, “This resolution is an unjustified interference in the internal affairs of Aprophe. Despite former President Green’s continuing efforts to subordinate our nation and its future to the ENI, in my government, Aprophian concerns come first.”
33. Upon the request of Rantania and with the support of the other ENI Members, on January 29, 2011, the United Nations General Assembly adopted Resolution A/RES/65/598, by a vote of 109 votes in favor and 16 against, with the remaining Member States abstaining. The resolution condemned “the coup d’état against the democratically elected government of Aprophe” and called upon “the Security Council to consider immediate action under Chapter VII of the Charter of the United Nations to preserve peace and restore the constitutional order of Aprophe.”
34. Neither the pro-Green nor pro-Andler forces had made any progress in the conflict in the north. On February 10, 2011, the QRF launched artillery strikes against the two villages still loyal to Green. Sixty soldiers and 80 civilians were killed and hundreds more were wounded during shelling in the region over the next three days, and QRF ground-force commanders indicated their immediate intention to enter the villages. Green and his representatives urged the ENI Council to take immediate steps to “prevent an imminent humanitarian crisis.”
35. On February 15, 2011, Rantania proposed and the ENI Council unanimously approved “Activation Orders” for air strikes against “military and strategic assets in Aprophe that at once threaten civilian lives and perpetuate the illegal exercise of power by the current regime.” At Rantania’s suggestion, the Council appointed Major-General Otaz Brewscha, a Rantanian national, to head the campaign as Force Commander.
37. According to the terms of the Activation Orders, the Eastern Nations Organization launched “Operation Uniting for Democracy” before dawn on February 18, 2011. The operation consisted of around-the-clock air strikes against verified military installations in and around Marcelux. Operation Uniting for Democracy was conducted almost entirely by the Rantanian Air Force, as Rantania is the only ENI Member State with airborne military capability of any significant size. Pursuant to the Activation Orders, all operational decisions were to be taken by Major-General Brewscha, under the direction of the ENI Defense Committee.
38. Within days, Operation Uniting for Democracy resulted in the destruction of 12 of the 15 military installations near Marcelux and the deaths of 50 Aprophian soldiers. There were no civilian casualties and only incidental damage to non-military buildings. The Sterfel Institute, an independent military think-tank with long experience in the region and experts on the ground in Marcelux, reported on February 25, 2011, “The Aprophian military has effectively been destroyed. It cannot fight back and it cannot defend itself.” On the same day, the United Nations Security Council met in emergency session to discuss what it called “the escalating cycle of violence in Aprophe.”
39. On February 27, 2011, Andler and her staff fled from the capital to the grounds of the Mai-Tocao National Park. During one of his daily media briefings on February 28, 2011, Major-General Brewscha announced that, rather than risk damage to the Mai-Tocao site by striking Andler’s headquarters there, ENI ground forces would be mobilized “within days, if not hours” to enter Aprophe and capture Andler.
41. On March 1, 2011, the United Nations Security Council unanimously adopted a resolution condemning Operation Uniting for Democracy. Although an early draft of the resolution would have supported stronger Council action and invoked Chapter VII of the UN Charter, the resolution simply noted that neither ENI nor any of its Member States had provided advance notice to the Council as required by the United Nations Charter, called upon the ENI Member States to end the Operation, and indicated that the Security Council would remain seized of the matter.
42. The aerial bombardment of the military installations near Marcelux continued unabated for the next two days. Shortly before midnight on March 3, 2011, Andler ordered the controlled detonation of explosives in one of the smaller buildings in the Mai-Tocao complex, usually described as the residence of Isah Lereh’s mortal lover, Lair-Ner. Almost half of the structure was destroyed, although no one was injured.
43. On the morning of March 5, 2011, Rantanian President Perego issued a declaration condemning the detonation at the Mai-Tocao Temple as a violation of international law, in particular the 1965 Treaty and the World Heritage Convention. She nonetheless ordered an immediate grounding of the Rantanian air force. That evening, the ENI Council formally suspended Operation Uniting for Democracy.
47. Aprophe and Rantania have been parties to the Vienna Conventions on Diplomatic and Consular Relations since 1966; to the Vienna Convention on the Law of Treaties since 1970; and to the World Heritage Convention since 1983. In addition, Aprophe and Rantania have been parties to the Geneva Conventions of 1949 since 1968 and 1976, respectively, to both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights since 1971 and 1976, respectively. Both states were admitted to the United Nations in 1966. Aprophe has signed but not ratified the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property, not yet in force; Rantania has neither signed nor ratified that Convention. Aprophe and Rantania are not parties to any other relevant bilateral or multilateral treaty.
48. Aprophe requests the Court to adjudge and declare that:
(b) Rantania is responsible for the illegal use of force against Aprophe in the context of Operation Uniting for Democracy;
49. Rantania requests the Court to adjudge and declare that:
(b) 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;
The Treaty Establishing the Eastern Nations International Organization (1990)
Lamarthia, Pellegrinia, Rantania and Verland,
United by their close historical and cultural ties,
Inspired by the pursuit of the democratic rule of law and respect for human rights,
Devoted to the principles and objectives of the United Nations, in particular regional peace and mutual security,
Have agreed to the following:
Article 1: Establishment of the ENI
The Eastern Nations International Organization (ENI) is hereby established. It shall work for the accomplishment of the objectives outlined below.
Article 2: Objectives
The Member States commit themselves to take all practical measures:
Article 3: Principles
The ENI shall function based on the following principles:
Section II. Organizational Structure
Article 4: Principal Organs
1. There are established, as the principal organs of the Eastern Nations International Organization: a Council, a Secretariat, and a Committee on Economic Policy.
2. Such subsidiary organs as may be found necessary shall be established in accordance with procedures set out in the present Treaty.
Article 5: The ENI Council
1. The ENI Council is the principal decision-making body for the pursuance of the objectives outlined in this Treaty. The ENI Council is composed of the Ministers of Foreign Relations of the Member States, or their accredited representatives. The Council shall make decisions in all matters by simple majority vote of the Member States, each Member State having one vote.
2. The Chair of the Council shall be held by Member States on the basis of rotation for terms of two (2) years each.
Article 10: Eastern Nations Charter of Human Rights
1. The Eastern Nations Charter of Human Rights is hereby incorporated into this Treaty and the Member States reaffirm their commitments to that Charter. Any State seeking membership in the ENI must ratify the Eastern Nations Charter of Human Rights prior to applying for membership.
2. The Eastern Nations Court of Human Rights, established under the Eastern Nations Charter, shall be considered for all purposes a principal organ of the Eastern Nations International Organization.
Section VI. Mutual Defense and Security
Article 50: Peaceful Settlement of Disputes
The Member States undertake to attempt to settle all international disputes by peaceful means, as listed in Article 33 of the United Nations Charter.
Article 61. Mutual Defense
1. An armed attack against one Member State shall be considered an attack against all of them. Consequently, the Member States agree that, if such an armed attack occurs, each will, in exercise of the right of collective self-defense recognized by Article 51 of the Charter of the United Nations, assist the Member State so attacked by forthwith taking, individually and collectively, such action as is necessary, including the use of armed force, to restore and maintain the security of the region.
2. Any Member State facing a situation of internal disruption may request the ENI Council to take collective action, including the use of armed force, to restore and maintain public order, democracy, and the rule of law on its territory.
Article 62. Defense Committee
A Defense Committee, composed of the Ministers of Defense of each of the Member States, is hereby established. The Committee shall implement any action involving armed force that the ENI Council may authorize.
Section X. Miscellaneous Provisions
Article 83. Relationship to the United Nations Charter
In the event of a conflict between the obligations of ENI Member States and those contained in the United Nations Charter, the latter shall prevail.
Article 84. Privileges and Immunities
The Organization, as well as its representatives, shall enjoy the following privileges and immunities in the territories of the Member States:
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