Between the republic of aprophe (applicant)


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НазваниеBetween the republic of aprophe (applicant)
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INTERNATIONAL COURT OF JUSTICE
COMPROMIS
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
COMPROMIS
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 2011

The 2012 Philip C. Jessup International Law Moot Court Competition

**Compromis**

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.

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.

4.    The sovereignty over Mai-Tocao and the surrounding territory was a significant point of contention between Aprophe and Rantania for over 300 years. Disputes ranged from small-scale fighting among ethnic and tribal groups to full-scale wars between the two states.

5.    The most recent hostilities (“the Mai-Tocao War”) began in August 1962, at which time the location of the border near the Mai-Tocao site was still disputed. After local villagers of unknown nationality attacked several Aprophian soldiers in Aprophian territory, an elite unit of the Aprophian army pursued the villagers into Rantanian territory near the Mai-Tocao site. The incident escalated, and skirmishes occurred throughout the region sporadically for two years, resulting in hundreds of civilian casualties and the destruction of several towns and villages. The United Nations Security Council declared itself seized of the matter, but took no steps to enforce a ceasefire because of the opposition of a permanent member.

6.    From 1962 to 1964, the Aprophian army secured and pacified the Mai-Tocao site and occupied undisputed Rantanian territory, disarming and rounding up Rantanian villagers who lived nearby. More than 500 Rantanian peasants were forced to labor to provide goods and services to the army in shifts of 12 hours a day. The so-called “military internees” were not paid, although the Aprophian army provided them with three meals a day and lodged them in barracks near the labor sites.

7.    By July 1965, the conflict reached a stalemate. In an effort to quell further violence, the two states resorted to the good offices of the UN Secretary-General and engaged in peace negotiations. By the end of the year, they concluded a Peace Agreement (“the 1965 Treaty,” attached at Annex I) intended to “create the basis for a stable and lasting peace.”

8.    The 1965 Treaty committed the boundary delimitation question to an arbitral tribunal. The parties agreed that once the boundary arbitration was concluded, any affected villagers could elect to resettle in the state of their choice.

9.    The arbitral tribunal reached a decision in 1968, awarding the entirety of the disputed territory and a small portion of previously undisputed Rantanian territory to Aprophe, and establishing a border placing the Mai-Tocao site 10 kilometers within Aprophe. Over the next six months, hundreds of villagers – including the “military internees” – relocated to the Rantanian side of the border set by the tribunal. The border has remained peaceful and undisputed to the present day.

10.    In 1980, Rantania together with three neighboring States, Lamarthia, Verland and Pellegrinia, negotiated and ratified the Eastern Nations Charter of Human Rights (“the Eastern Nations Charter”, attached at Annex II). The Eastern Nations Charter established a human rights court (“the Eastern Nations Court”). In its early years, the Eastern Nations Court received only two or three petitions per year, although since 2000 it has heard more than 40 cases annually. States Parties have in all cases complied with the final judgments of the Eastern Nations Court.



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.



16.     In August 2001, “Our Forgotten Workers”, an award-winning documentary by the filmmaker Fro Ginyo, brought to public attention the story of the Rantanian military internees. The documentary presented interviews with some of the surviving internees who recounted their labor during the war. It was extensively discussed in the media, attracting the attention of the International League for Solidarity and Access (ILSA), a Rantanian advocacy group whose mission includes initiating litigation on behalf of victims of alleged human rights abuses.

17.     In November 2001, ILSA instituted proceedings against Aprophe in a local Aprophian court on behalf of 60 former Rantanian military internees, including one Mr. Richard Turbando. The complaint alleged that the plaintiffs had been forced to engage in uncompensated labor for the Aprophian military, and sought damages reflecting the monetary value of their labor with interest to the present day as well as moral damages commensurate with the magnitude of their alleged suffering. The trial court granted a motion to dismiss in light of the six-year Aprophian statute of limitations, and the plaintiffs appealed. On June 13, 2002, the Aprophian Supreme Court, Aprophe’s highest court, affirmed the decision of the local court.

18.     After the dismissal of the Aprophian case, ILSA instituted similar proceedings in Rantania against Aprophe on behalf of the internees. Rantania has no statute of limitations for civil and criminal proceedings alleging certain enumerated violations of human rights, including forced labor. Aprophe moved to dismiss the case, Turbando, et al., v. The Republic of Aprophe, on two grounds: Article XV of the 1965 Treaty, and the doctrine of foreign sovereign immunity. The trial court granted the motion, concluding that:

The application of foreign sovereign immunity to these facts presents a very difficult question, placing our own tradition of broad immunity in direct conflict with the growing international trend to hold all states responsible for gross violations of human rights. However, in this case, we need not resolve this question. Article XV of the 1965 Treaty constitutes a complete waiver of claims like the ones currently before the court, regardless of whether the defendant is entitled to assert the defense of sovereign immunity.

The Rantanian Supreme Court, Rantania’s highest court, affirmed the decision of the trial court in all of its particulars.

19.    ILSA then filed a petition against Rantania on behalf of the Rantanian plaintiffs before the Eastern Nations Court. The petition contended that the judgment of the Rantanian courts deprived the plaintiffs of rights protected by the Eastern Nations Charter. The Eastern Nations Court delivered a judgment in January 2009, which in relevant part read:

To the extent that the 1965 Treaty purports to deny the petitioners’ right to reparations, this Court cannot permit Respondent to rely on it. To accept Aprophe’s argument would allow Rantania to use a treaty relationship with a third party to deprive its own citizens of inalienable rights protected by the Eastern Nations Charter and customary international law. Accordingly, the invocation by the Rantanian courts of Article XV of the 1965 Treaty to bar plaintiffs’ suit amounted to a denial of justice and was inconsistent with fundamental human rights law as incorporated in the Charter. The Supreme Court of Rantania is directed to proceed in a manner consistent with this opinion.

20.    Following the Eastern Nations Court’s decision, the Supreme Court of Rantania remanded the cases for trial, consistent with Rantanian appellate procedure. Aprophe declined to participate, but submitted a letter to the Rantanian Ministry of Foreign Affairs, asserting that the Rantanian court was obliged to dismiss the claim on sovereign immunity grounds. On December 12, 2009, the trial court considered the foreign sovereign immunity question and issued an opinion that read, in relevant part:

In its earlier decision this court was not required to resolve the close question of whether Aprophe is entitled to sovereign immunity in this case; today we must. Modern developments in this area have indicated that immunity does not extend to violations of peremptory norms of international law, particularly where a state stands accused of having breached a fundamental duty to respect human rights. The forced labor alleged in the complaint before this Court would, if proved, constitute an egregious violation of the law of nations. This Court therefore must, consistent with its obligations under the Eastern Nations Charter, proceed to exercise its jurisdiction in this matter.

The court found that forced labor had occurred, took evidence on the measure of damages, and awarded the individual plaintiffs damages ranging from the equivalent of US$75,000 to US$225,000 apiece, depending upon the facts established in each plaintiff’s case. Aprophe did not participate in these proceedings and did not appeal the decision or the awards.

21.    The Minister of Foreign Affairs of Aprophe, Ken A. Barrow, denounced the decision of the Rantanian court as “an unacceptable violation of Aprophe’s immunity from the jurisdiction of foreign courts,” and also as “a flagrant violation of the 1965 Treaty, whereby all claims in this regard had been waived.” He also stressed that Aprophe was “not subject to any judgment the Eastern Nations Court might deliver.” Rantania’s Attorney General, Odelle Gateau, responded, “Once the Eastern Nations Court clarified our obligations under the Eastern Nations Charter, to which both Rantania and Aprophe are parties, the courts of Rantania were bound to give expression to them.”

22.    After the successful plaintiffs applied for leave to enforce their judgments against Aprophian property located in Rantania, the Rantanian Foreign Ministry sought a stay of enforcement “in light of the potentially serious implications of the matter upon Rantanian foreign policy.” The trial court granted an indefinite stay, to be reviewed upon the petition of either party in the future.



36.    On the same day, Rantanian President Sue Perego informed ILSA that the Rantanian government had no objection to ending the stay of enforcement proceedings in Turbando, et al., v. The Republic of Aprophe. ILSA moved to lift the stay, and the court granted its motion. Bailiffs promptly identified and seized the equivalent of US$10,000,000 in non-diplomatic property of the government of Aprophe located in Rantania. The court’s order and the bailiffs’ seizure were fully consistent with Rantanian law on the subject.


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. 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:



(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 its officials to execute the judgment in that case; and

49.    Rantania requests the Court to adjudge and declare that:



(c)    since the exercise of jurisdiction by Rantanian courts in the case of Turbando, et al., v. The Republic of Aprophe was consistent with international law, Rantanian officials may execute the judgment in that case; and

^ ANNEX I

The Peace Agreement of 1965
Aprophe and Rantania, in the interest of ending decades of conflict between them and between their respective citizens, and in order to create the basis for a stable and lasting peace between them and their populations, hereby agree as follows:
Article I
The cessation of any and all hostilities between the parties starts on the day of signature of this Treaty.

Article X
(1)    The question of territorial boundaries shall be determined by an arbitral tribunal established by the parties, and presided over by an individual to be designated by the Secretary-General of the Permanent Court of Arbitration. The parties agree to abide to the decision of the tribunal, which shall be final.

(2)    For a period of six (6) months after the decision of the tribunal, both parties shall permit any individual who may find himself or herself in the territory of a state other than the one to which he or she professes loyalty or affiliation to relocate and, for this purpose, to cross the territorial boundary.

Article XV
Each party hereby waives on its own behalf and on behalf of its citizens all claims against the other or the other’s citizens arising out of the conflict which began in August 1962. This waiver shall be deemed to include all debts and claims, financial or otherwise, for loss or damage occurring during the conflict. In order to ensure that this commitment will be enforceable, each State represents to the other that it has the authority under its own constitution and laws to waive such claims on behalf of its citizens.


Article XXV
The Parties shall submit to the judgment of the International Court of Justice any dispute which may arise between them concerning the interpretation or application of this Treaty.


Done in Geneva, Switzerland, on July 25th, 1965.

 


ANNEX II

^ EASTERN NATIONS CHARTER OF HUMAN RIGHTS (1980)
Preamble

Lamarthia, Pellegrinia, Rantania and Verland,
Reaffirming their intention to consolidate in the region, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of all people;
Have agreed upon the following:
^ PART I - RIGHTS PROTECTED
Article 1. Obligation to Respect Rights
The States Parties to this Charter undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.
Article 2. Domestic Legal Effects
Where the exercise of any of the rights and freedoms referred to in Article 1 is not already assured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights and freedoms.


Article 10. Freedom from Slavery
1.    No one shall be subject to slavery or involuntary servitude, which are prohibited in all their forms.
2.    No one shall be required to perform forced or compulsory labor. This provision shall not be interpreted to mean that, in those countries in which the penalty established for certain crimes is deprivation of liberty at forced labor, the carrying out of such a sentence imposed by a competent court is prohibited. Such exceptionally permissible forced labor shall not adversely affect the dignity or the physical or intellectual capacity of the prisoner.
Article 11. Right to a Fair Trial
Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other kind.


Article 13. Right to Remedy
1.    Everyone whose rights and freedoms as set forth in this Convention are violated shall have a right to an effective remedy before a national authority.
2.    Everyone has the right to simple and prompt recourse to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned, by this Convention or by customary international law, even though such violation may have been committed by persons acting in the course of their official duties.


Article 31. The Eastern Nations Court of Human Rights

1.    To ensure the observance of the engagements undertaken in the Charter, there shall be established an Eastern Nations Court of Human Rights, hereinafter referred to as “the Court.” It shall function on a permanent basis.
2.    The Court shall have jurisdiction to hear all cases brought before it by individuals concerning the application of the provisions of this Charter. The jurisdiction is compulsory as to all States Parties to this Charter, for any violation alleged to have happened after the entry into force of this instrument for the State Party.
3.    The States Parties to the Convention undertake to comply with the judgment of the Court in any case to which they are parties.


Article 44. Ratification and Adherence
Ratification of or adherence to this Convention shall be made by the deposit of an instrument of ratification or adherence with the Secretary-General of the United Nations.
Article 45. Denunciation
1.     Any State Party may denounce this Convention by means of notice given three months in advance. Notice of the denunciation shall be addressed to the Secretary-General of the United Nations, who shall inform the other States Parties.
2.     Such a denunciation shall not have the effect of releasing the State Party concerned from the obligations contained in this Convention with respect to any act that may constitute a violation of those obligations taken by that state prior to the effective date of denunciation.


 

^ ANNEX III

The Treaty Establishing the Eastern Nations International Organization (1990)



Section IV. Human Rights and Democratic Governance

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.



Batch of Basic Materials


  • General

  1. UN Charter

Statute of the International Court of Justice

ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, with commentaries

Vienna Convention on the Law of Treaties



  • Specific


International Covenant on Civil and Political Rights

United Nations Convention on Jurisdictional Immunities of States and Their Property

Geneva Conventions of 1949


  • Books and articles

  1. Shaw M. N. International Law 6th edition. Cambridge: Cambridge University Press. 2008. (available on google books and in Library (открытый доступ) you may also ask Masha maria.kiskachi@gmail.com or Sasha alexandrasuchkova@gmail.com to share electronic version of this book with you)

  2. Finke J. Sovereign Immunity: Rule, Comity or Something Else? // European Journal of International Law. 2010. No. 21 (4).(google it!)

  3. Caplan Lee M. State Immunity, Human Rights, and Jus Cogens: A Critique of the Normative Hierarchy Theory // American Journal of International Law. 2003. vol. 97. (google it!)

  4. Bianchi A. Immunity Versus Human Rights: The Pinochet case // European Journal of International Law. 1999. Vol. 10. № 2. (google it!)




  • Cases

  1. Al-Adsani v. United Kingdom, ECHR, Application № 35763/97, Judgment (GC) 21 November 2001 available at: www.coe.int

  2. Case concerning Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening, ICJ, Judgment, 2012, available at: http://www.icj-cij.org/docket/files/143/16883.pdf


NB: There are a lot of other relevant and important cases, try to find and apply it.
It is also strongly recommended to visit website of the International Law Commission and find there some information on state immunity.

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