Beruflich Dokumente
Kultur Dokumente
BHAGWATI
INTERNATIONAL MOOT COURT COMPETITION ON HUMAN RGIHTS
STATE OF MURKEY
(RESPONDENT)
TABLE OF CONTENTS.................................................................II
ARMED
C. MURKEY CANNOT INTERVENE IN FENIA BECAUSE IT DOES NOT HAVE THE CONSENT OF THE
VALID STATE AUTHORITIES OF FENIA....................................................................16
D. MURKEY CANNOT INTERVENE IN FENIA BECAUSE IT DOES NOT HAVE THE CONSENT OF THE
VALID STATE AUTHORITIES OF FENIA....................................................................16
E. THE
MCCW
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TREATISES
Akehursts Modern Introduction to International Law (1997)..................................................1
B. Roth, Governmental Illegitimacy in International Law (Oxford U. Press, 2000).................3
Brownlie, International Law And The Use Of Force By States (Oxford Clarendon Press 1963)12
D. W. Bowett, Self-Defence in International Law (Oxford Clarendon Press, 1958)...............20
Hans Kelsen, General Theory of Law and State (Anders Wedburg trans. 1961).................2, 18
Hersch Lauterpacht, Recognition in International Law(Cambridge U. Press 1949).................2
Lassa Oppenheim, International Law 8th ed, (Clarendon Press, 1955)....................................2
M. S. McDougal and F. P. Feliciano, Law and Minimum World Public Order (Cambridge U. Press
1961)....................................................................................................................................20
Micheal Byers & Simon Chesterman, You, the People :- Pro Democratic Intervention in
International law, in G. Fox & Brad Roth, Democratic Governance and International Law ( Oxford
U. Press, 2000).....................................................................................................................17
Shaw, International Law 5th ed. (Cambridge U. Press,2003)...............................................13
T. Gill & D. Fleck, The Handbook of The International Law of Military Operations (Oxford University
Press 2010).....................................................................................................................16, 17
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of
77,
Declaration
of
the
South
Summit
[2000].<http://www.g77.org/doc/Declaration_G77Summit.htm>.......................................15
How is the Term "Armed Conflict" Defined in International Humanitarian Law? International
Committee of the Red Cross (ICRC) Opinion Paper, March 2008 page-3............................9
J. Stone, Aggression and World Order: A Critique of United Nations Theories of Aggression (1958).
..............................................................................................................................................20
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THE PRESENT DISPUTE HAS BEEN BROUGHT BEFORE THIS COURT PURSUANT TO
ARTICLE 36(2) AND 40(1) OF THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE.
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I.
II.
Whether the Kassad Government has the right to represent Fenia before this Court.
Whether Murkey is responsible for the human rights violations carried out by the forces
deployed by it.
III.
IV.
Whether Fenia has violated its general obligation not to use chemical weapons.
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Fenia is a country in Western Asia which gained independence in 1946. In 1970, Al-Kassad,
who belonged to Khurab Socialist Jamaath Party (KSJP), took over as the President of Fenia in a
bloodless military overthrow. The Provisional Orders of his Jamaath party nominated a 173-member
legislature known as the People's Council, in which the Jamaath Party took majority of seats while the
remaining seats were divided among minor parties. In March 1971, a national referendum confirmed
Kassad as President of Fenia. The Fenian constitution went into effect in March 1973 and was followed
by parliamentary elections for the People's Council. The 1973 Constitution officially defines Fenia as a
secular socialist state with Islam recognized as the majority religion. In 1990s, Fenia's participation in
the Developed Countries-led multinational coalition and the multilateral Southwest Asia Peace
Conference in Madrid marked a dramatic watershed in Fenias relations with other Khurab states and
the Western world.
Al-Kassad died on 10th June 2000 and was immediately succeeded by his son Faizal kassad who
was elected President by referendum garnering 97.29% of the vote. In early 2011 Fenia was hit hard by
drought which deteriorated the countrys standard of living and increased poverty. Around the same
time, the phenomenon of Khurab spring spread across the Khurab world, including Fenia, which began
to experience civil war. The severe escalation of protests, unrest and confrontations warranted actions
by the police and security forces in the form of blockades, prevention of tent encampments and brutal
security crackdown. Many senior and lower level military officers who defected from the Fenian Army
grouped together to form fighting units. As they received funds and supplies from foreign nations they
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By the end of October, Syed Anwar and Hussein Shahgar pleaded for international aid from the
other and neighboring countries. The Republic of Murkey is a country located to the north of Fenia. It
successfully became a country with Nuclear Weapons and other modern weapons of mass destruction.
Murkey decided to directly address its self-claimed injustice in Fenia. It did so by giving military
support to FFA and by allowing the rebel army to operate its command and headquarters from the
country's southern Hayati province close to the Fenian border, and its field command from inside Fenia.
The FFA started often launching attacks into Fenias northern towns and cities, while using the Murkish
side of the border as a safe zone and supply route.
In response to these developments made against Fenian Government, foreign ministry spokesman
Jabbar Bagwan in July 2012 explicitly stated the use of chemical weapons as an option against
"external aggression" but assured that the regime would not use these same weapons against domestic
Fenian opposition forces in the dispute. The External Minister of Murkey, Mr. S. Jahangir, issued an
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On 22nd June, a Murkish F-4 fighter jet was shot down in international airspace by the Habbas
forces after entering Fenian airspace. Faizzal Kassad expressed regret over the incident. However,
Murkish Prime Minister Rebecca Tod vowed retaliation. She stated that the rules of engagement of the
Murkish Armed Forces had changed and that Murkey would support Fenian people in every way until
they got rid of the bloody dictator and his gang.
Overwhelmed by the support the opposition and FFA received from Murkey, Fenian opposition rejected
the UN-brokered peace plan as they were unwilling to negotiate with President Faizal Kassad or
members of his regime. A U.N. resolution that would have added sanctions against the Fenian
government was vetoed by Koviet Union and Rhina which showed the divide in international opinion
towards the conflict. This international inaction by the international community members enraged
Murkey to deploy its armed forces in the villages surrounding border between Fenia and Murkey. The
UN observers reported that the Murkish armed forces have gained control of all four border
checkpoints between Fenia and Jiraq.
Upon the diplomatic intervention by the State of Zabrael, a Treaty of Mutual Co-operation and Control
of Weapons (MCCW) was entered into by Fenia and Murkey wherein they decided to refrain from the
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I. Faizal Kassads government is the legitimate government of Fenia and thus has the right to
represent Fenia before the Court because it fulfils the international requirement of effective control,
continues to be supported by the presumption of legitimacy and has implied recognition at the
international level. The government fulfils the criterion of effective control as it passes the effective
control test and exercises effective control over Fenia. The Kassad government has expressed its
willingness to fulfil its international obligations and has not violated the Fenian peoples right to self
determination, and is therefore supported by the presumption of legitimacy. As Fenia is party to several
bilateral and multilateral treaties, and in addition, in the absence of express de-recognition at the
international level, it enjoys implied recognition.
II. It is further submitted that Murkey is responsible for the human rights violations carried out
by the forces deployed by it as the wrongful conduct of the Free Fenian Army is directly attributable to
Murkey and has also violated International Humanitarian Law. Murkey is liable for the wrongful
conduct of the FFA as this conduct is directly attributable to it under the effective control test and this
conduct constitutes a breach of existing international obligations. Furthermore, the situation in Fenia is
that of an armed conflict and as such Murkey is duty bound to follow the rules of war and it is
submitted that it is in grave violations of the same and International Humanitarian Law.
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PLEADINGS
Tinoco Concessions (Gr. Brit. v. Costa Rico), 1 U.N. R.I.A.A 369 (1923); Genocide Case,
Preliminary Objections, 1996 ICJ General List No. 91, Memorial, Bosnia and Herzegovina,
41; Ratliff, UN Representation Disputes, 87 Cal. L. Rev. 1207, 1226 (1999); Akehursts
Modern Introduction to International Law 82 (1997).
3
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U.N.Doc.A/RES/2758.
U.N.Doc.A/62/PV.9, 19.
U.N.Doc.A/56/PV.45.
Hans Kelsen, General Theory of Law and State 220-21 (Anders Wedburg trans. 1961)
[Hans Kelsen].
7
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10 Compromis,
11 B.
para 20.
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12
Stefan Talmon, The Difference between Rhetoric and Reality: <<Why an Illegitimate
13 Mageira,
14 Wolfrum v. Phillip,
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15 Max
16 Universal
Declaration of Human Rights art. 14 (Dec. 12, 1948), G.A. Res. 217A, at 71,
U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810; International Covenant on Civil and
Political Rights (Dec. 16, 1996), 999 UNTS 171 [hereinafter ICCPR]
17 Id
art.1.
18 Compromis,
para 13.
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para 13.
20 Compromis,
para 13.
21 Stephen
74, 78 (1999).
22 Compromis,
para 28.
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In the Genocide case, this Court deferred to the General Assembly and the
international community in determining that Bosnian president Alija Izetbegovc was the
legitimate representative of the Bosnian Government, noting that the Izetbegovic government
had been seated by the General Assembly and had been signatories to international treaties. 23
Likewise, in the Anastasiou case, the European Court of Justice deferred to the European
Union and its members position that the Clerides government was the sole legitimate
government of the Republic of Cyprus in finding that only the Clerides government was
empowered to issue agricultural certificates.24 Fenia is a party to the U.N. Charter, The
Statute of the I.C.J. and various other international instruments. 25 Fenias 1990 participation
in the Developed Countries-led multinational coalition and in the multilateral Southwest Asia
Peace Conference in Madrid in October 1991 shows Fenias accredition to international
organizations and conference.26 This shows implied recognition of the Kassad government in
23 Application
(Bosn. & Herz. v. Yugo.), Preliminary Objections, 1996 I.C.J. 1[Genocide Case].
24 Stefan Talmon,
25 Compromis,
para 36.
26 Compromis,
para 18.
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The activities of the FFA are directly attributable to the State of Murkey.
Attribution is the first essential condition in order to prove that the wrongful conduct
of a state entails international responsibility; and the general rule is that the only conduct
attributed to the State at the international level is that of its organs of government, or of others
including private persons and non-state entities who have acted under the direction,
instigation or control of those organs, i.e., as agents of the State.28
27 Articles
28 Id,
art. 4.,11.
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29 Id.
30
art. 8.
Military and Paramilitary Activities in and against Nicaragua (Nicar. v.U.S.), Merits,
1986 ICJ Rep. 4 (June 27), paras 109, 115, pp 62, 64-65 [Nicaragua].
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6) The armed activities of the FFA have consistently violated various human rights
norms.
The laws of war seek to minimize unnecessary pain and suffering during wartime,
particularly by protecting civilians and other noncombatants from the hazards of armed
conflict. They address the conduct of hostilitiesthe means and methods of warfareby all
sides to a conflict. A fundamental principle is that parties must distinguish at all times
between combatants and civilians. Civilians and civilian objects may never be the object of
attacks. Warring parties are required to take all feasible precautions to minimize harm to
398.
32 Compromis para 28
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CURRENT SITUATION IN
CONFLICT.
FENIA
Common article 3 of the Geneva Convention 1949 applies to "armed conflicts not of
an international character occurring in the territory of one of the High Contracting Parties".
Within the meaning of the Common article 3, non-international armed conflicts are those in
which one or more governmental armed groups are involved. The hostilities may occur
between governmental armed forces and non-governmental armed groups or between such
groups only. 33 The International Court of Justice has opined that Common Article 3 represent
customary international law in both international and non-international armed conflict. 34
Thus, hostilities between the Fenian armed forces and pro-government Habbas
militias on one side, and the Free Fenian Army and other opposition armed groups on the
other amounts to a non-international (internal) armed conflict under international law. It is
regulated by Common Article 3 to the Geneva Conventions of 1949, which sets forth
minimum standards for the proper treatment of people within a warring partys control
namely civilians and wounded and captured combatants, and customary laws of war,
concerning the methods and means of warfare.
33 How
34 Nicaragua, at 118-120.
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Article 2(4) of the UN Charter proscribes all use of force, irrespective of the
motivation behind it.36 This is supported by the travaux, as the text of Article 2(4) at the
35Compromis
36 Corfu
para 36.
The view that humanitarian intervention is not inconsistent with the purposes of the
UN is untenable as the maintenance of peace overrides all other obligations in international
law.39 Moreover, the right of unilateral humanitarian intervention is at odds with the SCs
37 Brownlie,
International Law And The Use Of Force By States 266 (Oxford Clarendon
Press 1963).
38 ibid.
39 Antonio
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40 Villani,
41 U.N.Doc.S/1997/958; U.N.Doc.A/RES/44/240;
42 U.N.Doc.A/RES/2625; Nicaragua,
43 Statute
U.N.Doc.A/RES/38/7.
at paras 191-2.
of the I.C.J. [1945] 1 UNTS 993 [ICJ Statute], Article 38(1)(b); Shaw,
International Law [5th edn. Cambridge University Press, Cambridge 2003], p.80.
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Sea Continental Shelf Cases (Federal Republic of Germany v Denmark), 1969 ICJ
Rep3 at para.77.
45 Supra
note,43.
46 UNSC
SCOR [4 December 1971] UN Doc S/10416; UNGA Res 2793 [1971] UN Doc
47 Schachter, In
(1986).
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response to a threat to international peace and security, unless consent of the recognized
government is obtained.49 Indeed, the Council remains extremely reluctant to authorize
intervention against the will of a sitting government or to rely on humanitarian motives as the
basis for installing a particular government or defeating a particular party to an internal
48 Group
49 Charter
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50 David Wippman,
51 J.
52 T. Gill & D. Fleck, The Handbook of The International Law of Military Operations 230
(Oxford University Press 2010) [Gill & Fleck].
53 Nolte, Intervention by Invitation, MPEPIL para 6.; Doswald-Beck, The Legal Validity of
Military Intervention by Invitation of the Government, 56 BYIL189, 214-221(1985). [Beck].
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MURKEYS
163-65.
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IV.
MCCW
Under certain conditions set by international law a State acting unilaterally (or in
association) may respond with lawful force to unlawful force or the imminent threat of
unlawful force.59 Article 51 of the U.N. Charter regards the right to self-defense as an
inherent right droit naturel. The court in the case concerning the Legality of the threat of use
57 Micheal Byers
59 Hans
Kelsen, 339.
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of the Threat or Use of Nuclear Weapons (Advisory Opinion), 1996 I.C.J. 226, at
263.
61 Nicaragua at
para 103.
62 Compromis,
para 31.
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63 Yoram Dinstein,
Press, 2001)
64 U.N. Charter, Article-51 Nothing in the present Charter shall impair the inherent right of
individual or collective self-defense if an armed attack occurs against a Member of the United
Nations, until the Security Council has taken the measures necessary to maintain international
peace and security. ].
65 D. W. Bowett,
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essential interest on one hand and an obligation of the State invoking necessity on the other.69
66 6
UNCIO Documents, where it is noted that the use of arms in legitimate self defence
remains admitted and unimpaired.
67 Nicaragua,
68 Id,
at 347. .
94.
69 Commentary on
70)Russian
Indemnity Claims Case (Russia v. Turkey) UNRIAA, vol. XI (Sales No. 61.V.4),
p. 421, at p. 443 (1912).
For the foregoing reasons the State of Fenia respectfully requests the Court to adjudge
and;
i)
DECLARE that the Kassad government can represent Fenia before this Court
as the legitimate, legal authority.
ii)
DECLARE that the State of Murkey is responsible for the human rights
violations carried out by the forces deployed by it.
iii)
iv)
DECLARE that Fenia has not violated its general obligations related to use of
chemical weapons.
---x---x---x--Signed by
Agents for the Applicant
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