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Public International Law Atty. S.M. Candelaria N.C., Block A 2014

NOTES ON THE ASIL INTERNATIONAL LAW MOOT COURT COMPETITION

FIRST AGENT FOR APPLICANT:

1. Attacks attributed to the kingdom of Rances.

2. Such attacks are in violation of international law.

Attribution—

- State responsibility – even if the government is toppled, the succeeding government is still

- What is the value of the instrument ILC? This is to codify customary international law, taking into consideration of opinio juris, etc.

o It is a reflection of international law, and of a political nature.

- Art 10 of ILC, State Responsibilities – there is a real and substantial continuity

between the insurrectional movement and the new government it created.

- How do you characterize an insurrectional movement? Third Geneva Convention: an

organized armed force under the direction of authority with the purpose of toppling a government.

o

Is it not a political party? No. It has expressed in its goals that they want to topple the government, and that they have a substantial armed force.

o

The purpose of the operation is to garner the support of the ethnic group in Adarna.

o

After the current monarchy was toppled down, a few weeks later, they were again taken down, but such attribution cannot be erased because noting the jurisprudence of Tonoco case (in Bernas), even after the former government was gone, it was still considered as a de facto government, and thus its actions were held valid in international law.

o

But did they not lose effective control? After toppling down, they were still a formidable force.

The attack is a violation of international law—

1)

Violation of territorial sovereignty

2)

Violation of IHL.

We must assert that the island and temple is within Alquisada’s territorial sovereignty. There is territorial sovereignty by virtue of effective occupation. The treaty did not subscribe the island to either party thus terra nullius (?? – a territory that does not purport to belong to anyone). After it became such, Alquisada built settlements in the island, and such constitutes as effective occupation. In Brazil v. ?? (an arbitration case. What is the value of this decision? Such can be used as advisory, and it is seen in subsequent application in ICJ that the case was used). The following are the elements:

1. animus intendi – intent to stay

2. corpus occupendi

- actual occupation

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Public International Law Atty. S.M. Candelaria N.C., Block A 2014

There is intent when Alquisada declared it part of its territory and subsequently established military bases. In the Island of Palmas Case, intent is shown when the state would regulate or govern entry of non-citizens.

Art II of the UN Charter on territorial sovereignty will be applicable because of this. By virtue of the entry of the forces of Rances (attribution argument), there is breach of sovereignty. The skirmishes of the ethnic groups were indeed acts of private parties, but since ASIL became a successful insurgent, and established a government, the acts of private parties under ASIL is considered attributable.

The temple of Agua Viva is cultural property protected by the Hague Convention. (Questions:

Is it declared as such? And if it is under the Hague Convention, what are the requisites under the HG that would have to be fulfilled for Agua Viva to be considered cultural property?)

In the case at hand, the ASIL forces used the temple itself, not the other parts of the island. (How sure are you that the temple of Agua Viva was not considered as a valid military objective? That there is military necessity in attacking it? To be answered by the second agent. Questions: What are military objectives? What is military necessity? Was there proportionality?)

SECOND AGENT

Temple of Agua Viva is a legitimate military objective—

Agua Viva was used to launch attack from the Alquisadan troops. The ASIL troops used it for military troops.

Military necessity is present if there are no feasible means to approach a military problem, according to the Geneva Conventions. (Please verify, ngayon ko lang narinig ang definition na ito )

What if there is no armed conflict? Will there still be a violation? Answer: YES there will be. What will be used is common article III of the Geneva Conventions that look into non- international conflicts. (Verify)

Rances does not have standing to claim reparations—

The temple is within Alquisada’s territorial sovereignty and thus Rances has no claim over it. Q: But if it is exclusive territory, why do you allow citizens of Rances to worship in the temple? A: Alquisada must give the right for people to exercise their religion.

What is the value of the statement of Rosalyn Higgins? (see McRae 1-66)

Public International Law Atty. S.M. Candelaria N.C., Block A 2014

FIRST AGENT FOR RESPONDENT:

1. The attack on the island is not attributable.

2. The conduct of the kingdom of Rances is consistent with IL.

3. Alqiusada violated international law when they destroyed the temple.

4. The Republic of Alquisada the obligation to pay for the reparations.

The attack is not attributable to Rances—

1. The Adarna group is not an organ of the state.

The Adarna group is a political party, and not an organ of the state. Despite the fact that they have support from the people, they are not part of the state, and do not exercise effective control over the territory. Majority of the Rancesian people have no knowledge of the attack. Q: Are you saying that population must have knowledge before aggravation can be had? A: No. It is merely to prove that it is not an organ, and thus cannot be an act of the State. Q: But what if it is an insurrection? A: Even if they are an insurrectional group, this government is not permanent, lasting only 11 days. Under Art 10 for the Articles of State Responsibilities in International Wrongful Act…such may only be applicable if there is a characteristic of permanency.

An act

official representatives. What is the basis? In ICL, there must be permanency for them to be

attributable.

its members. The ASIL special forces are not

of

State

is

an

act of

its organ or

any of

Q: What is the value of ICL analysis? Is it a source of international law? Which part? A: It is customary international law. Q: What about the analysis of ICL, is it customary law? A: Yes.

2. ASIL acted as private persons when they attacked the island of Segovia, and such attack failed to comply with the requisites of Art. 9 of the Articles on the Res Internationally Wrongful Acts.

To be liable—

a. Element of gov’t authority

b. Default or absence of gov’t

c. Circumstances require the actions of gov’t authority

These elements are absent.

Government function that ASIL exercised is not needed at that point because the Rancesian people can go there!

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Public International Law Atty. S.M. Candelaria N.C., Block A 2014

Rances resorted first to peaceful means. They filed for a lot of protests but these remain unheeded by the Alquisadan state.

SECOND AGENT FOR RESPONDENT

The Republic of Alquisada violated international laws, and must necessarily pay reparations.

3. Consistency with int’l law—

The

proportionality.

Republic

of

Alquisada

violated

Geneva

Conventions

and

the

principle

of

military

Do the Geneva Conventions apply in this case? So there is an armed conflict? Yes. Yes.

Art. 53 of AP I prohibits the direction of a hostile act towards cultural property. This was violated when A attacked. CP is a moveable or immoveable object of great cultural importance. How is the tower a cultural property? Is this not a fortress? Isn’t it also of a military advantage? Prosecutor v. Bridgelin (?) the waiving of a protection of cultural is not

the position as a military advantage, but it’s actual use as a military advantage.

Q: Was it not self-defense? A. No. There was no imminent danger to the property. Q: Lives of Alquisadans? A: They were not fired upon. Q: Were they not fired upon by snipers?? A: This was not the goal of the snipers. Intention is important, but not in the face of military necessity? (Weh. Mens rea component in war crimes??)

The temple was never converted into a military objective, and such an attack against it is a clear violation of Art. 53 of Geneva Convention.

Q: So you are relying on intent? That you disregard complete military advantage? A: Intent is not paramount. (SERIOUSLY?? Wouldn’t it be better to argue that there was no military advantage because there was no one important there? Or that there were no troops? Or that those who occupied the temple was not utilizing it as a military base?)

It is prohibited under the Hague Convention that weapons that are not proportional are not allowed. (Note: applicable not only on the weapons, but also on the nature of the attack. Right? As in one five soldiers, then you MACHINE-GUNNED them.)

In

prohibited because in itself it may damage property. It may be done by a less destructive weapon. (Thus there is the question of availability. Can there be other weapons that can be used other than that un-proportional one?)

is

the

case

of

Shimoda

v.

the

State(?)

the

use

of

weapons

with

excessive

damage

Q: What tribunal is this?

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Public International Law Atty. S.M. Candelaria N.C., Block A 2014

A: ICTY. International Criminal Tribunal for former Yugoslavia. Q: But this is ICTY, which is more mirrored by ICC? Not ICJ, which is this court? So you have INDVIDUAL RESPONSIBILITY not STATE RESPONSIBILITY. So does the threshold for proportionality apply to this court? A: yes, it would apply since we are merely using a standard.

Q: What kind of weapons did they use? Snipers are PEOPLE, not weapons. A: I believe there was a gun used. However, this proportionality of weapon used in relation to the concrete military advantage is not acceptable.

(Argue

proportionality.)

the

on

basis

of

the

damage.

On

the

nature

of

the

attack

in

relation

to

The mortar fire used is excessive to the military advantage.

4. Reparations—

AP I of the Geneva Conventions was violated, also Art 31 of articles of state responsibility. Are you saying that the applicant must pay for damage to temple? Yes. Who owns the temple? No one. So why pay you? Why ask you? Why not UNESCO? ( at this point naubusan siya ng time)

REBUTTAL BY AGENTS OF APPLICANT

1. how they characterized permanency as a strict requirement for attribution

ILC did not state permanency as a requirement.

2. how mere protest is sufficient to negate effective occupation

The

seventy years. This is not sufficient to negate the effective occupation of Alquisada. Respondent state did not take all the possible actions to stake a claim or to protest the occupation of Alquisada. The protest does not have any substance in comparison to the substantial gap of time of the protest, as well as the continuous and almost uninterrupted occupation.

and

protest

furthered

by

the

respondent

state

is

only

twice

over

a

hundred

REBUTTAL BY AGENTS OF RESPONDENT

1. On the characteristic of permanency— Art. 10 the acts of groups may be attributable is they become the new government. ILC stated that there must be permanency. There must be a color of legality. The

the

claim

of

presidency

does

not

have

this.

(WHERE

IS

IT

STATED?

Who

is

telling

truth?? Wahahaha.)

2. Not enough to protest rebuttal—

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Public International Law Atty. S.M. Candelaria N.C., Block A 2014

Did not respondent sleep on its rights? We say that it’s sufficient. WHY IS IT SUFFICIENT despite the how-long-is-it gap between the protests?

Relevant points in the compromis—

1. What is the personality of the ASIL group? Are they insurgents, belligerents?

2. Was there a succeeding state like in the case of Toccoro (basta, the case about an overthrown government which executed contracts, then subsequently disappeared as well)?

3. What are the international obligations of the government set up by ASIL, even if it existed only for around eleven days?

4. What are the sources of international law?

5. What is the value of the analyses of the International Law Commission to the ICJ? In other words, where does it fall under the sources of international law as stated in Art. 38 of the ICJ Statute?

6. How is the UN Charter binding to Alquisada and Rances?

7. How does one become a state? What are the elements? (Permanency??)

8. What is sovereignty? Territorial sovereignty?

9. What does it mean to have effective control over a territory?

10. What is the jurisdiction of the ICJ over states?

11. Can the actions of ASIL indeed be attributable to the State?

!

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