notes on the asil international law moot court competition

8/3/2019 Notes on the ASIL International Law Moot Court Competition

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Public International Law

Atty. S.M. Candelaria

N.C., Block A 2014

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NOTES ON THE ASIL INTERNATIONAL LAW MOOT COURT COMPETITION F IRST AGENT FOR APPLICANT:

1. Attacks attr ibuted to the k ingdom of Rances.2. Such attacks are in v io lat ion of internat ional law.

Attr ibut ion- State respons ibi l i ty even i f the government is toppled, the succeeding governmentis s t i l l- What is the value of the instrument ILC? This is to codi fy customary internat ional law,tak ing into cons iderat ion of opinio jur is , etc .

o I t is a ref lect ion of internat ional law, and of a pol i t ica l nature.- Art 10 of ILC, State Respons ibi l i t ies there is a real and substant ia l cont inui tybetween the insurrect ional movement and the new government i t created.- How do you character ize an insurrect ional movement? Third Geneva Convent ion: an

organized armed force under the direct ion of author i ty w i th the purpose of toppl ing agovernment.o Is i t not a pol i t ica l party? No. I t has expressed in i ts goals that they want totopple the government, and that they have a substant ia l armed force.o The purpose of the operat ion is to garner the support of the ethnic group inAdarna.o After the current monarchy was toppled down, a few weeks later, they wereagain taken down, but such attr ibut ion cannot be erased because not ing thejur isprudence of Tonoco case ( in Bernas), even af ter the former governmentwas gone, i t was st i l l cons idered as a de facto government, and thus i tsact ions were held val id in internat ional law.o But did they not lose ef fect ive control? Af ter toppl ing down, they were st i l l aformidable force.

The attack is a v io lat ion of internat ional law1) Violat ion of terr i tor ia l sovereignty2) Violat ion of IHL.We must assert that the is land and temple is w i th in A lquisadas terr i tor ia l sovereignty . Thereis terr i tor ia l sovereignty by v i r tue of ef fect ive occupat ion. The treaty did not subscr ibe theis land to e i t h e r p a r t y thus terra nul l ius (?? a terr i tory that does not purport to belong toanyone). Af ter i t became such, A lquisada bui l t sett lements in the is land, and such const i tutesas ef fect ive occupat ion. In Brazi l v . ?? (an arbi trat ion case. W h a t i s t h e v a l u e o f t h i sd e c i s i o n ? Such can be used as adv isory , and i t is seen in subsequent appl icat ion in ICJ thatthe case was used). The fo l lowing are the elements :1. animus intendi intent to stay2. corpus occupendi - actual occupat ion


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N.C., Block A 2014

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There is intent when Alquisada dec lared i t part of i ts terr i tory and subsequent ly establ ishedmi l i tary bases. In the Is land of Palmas Case, intent is shown when the state would regulate orgovern entry of non-c i t izens.Art I I of the UN Charter on terr i tor ia l sovereignty wi l l be appl icable because of th is . By v i r tueof the entry of the forces of Rances (attr ibut ion argument) , there is breach of sovereignty .The sk irmishes of the ethnic groups were indeed acts of pr ivate part ies , but s ince ASILbecame a successful insurgent, and establ ished a government, the acts of pr ivate part iesunder ASIL is cons idered attr ibutable.The temple of Agua Viva is cul tural property protected by the Hague Convent ion. (Quest ions:Is i t dec lared as such? And i f i t is under the Hague Convent ion, what are the requis i tes underthe HG that would have to be fu l f i l led for Agua Viva to be cons idered cul tural property?)In the case at hand, the ASIL forces used the temple i tsel f , not the other parts of the is land.(How sure are you that the temple of Agua Viva was not cons idered as a val id mi l i taryobject ive? That there is mi l i tary necess i ty in attack ing i t? To be answered by the secondagent. Quest ions: What are mi l i tary object ives? What is mi l i tary necess i ty? Was thereproport ional i ty?)

SECOND AGENTTemple of Agua Viva is a legi t imate mi l i tary object iveAgua Viva was used to launch attack f rom the Alquisadan troops. The ASIL troops used i t formi l i tary troops.Mi l i tary necess i ty is present i f there are no feas ib le means to approach a mi l i tary problem,according to the Geneva Convent ions. (P lease ver i fy , ngayon ko lang nar in ig ang def in i t ion nai to )What i f there is no armed conf l ic t? Wi l l there st i l l be a v io lat ion? Answer: YES there wi l l be.What wi l l be used is common art ic le I I I of the Geneva Convent ions that look into non-internat ional conf l ic ts . (Ver i fy)

Rances does not have standing to c la im reparat ionsThe temple is w i th in A lquisadas terr i tor ia l sovereignty and thus Rances has n o c l a i m o v e r i t .Q: But i f i t is exc lus ive terr i tory , why do you al low c i t izens of Rances to worship in thetemple? A: A lquisada must give the r ight for people to exerc ise their re l ig ion.What is the value of the statement of Rosalyn Higgins? (see McRae 1-66)


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N.C., Block A 2014

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F IRST AGENT FOR RESPONDENT :

1. The attack on the is land is not attr ibutable.2. The conduct of the k ingdom of Rances is cons is tent w i th IL.3. Alqiusada v io lated internat ional law when they destroyed the temple.4. The Republ ic of A lquisada the obl igat ion to pay for the reparat ions.The attack is n o t attr ibutable to Rances1. The Adarna group is n o t an organ of the state.The Adarna group is a pol i t ica l party , and not an organ of the state. Despi te the fact thatthey have support f rom the people, they are not part of the state, and do not exerc iseef fect ive control over the terr i tory . Major i ty of the Rances ian people have no knowledge ofthe attack.Q: Are you say ing that populat ion must have knowledge before aggravat ion can behad?A: No. I t is merely to prove that i t is not an organ, and thus cannot be an act of theState.Q: But what i f i t is an insurrect ion?A: Even i f they are an insurrect ional group, th is government is n o t permanent, last ingonly 11 days. Under Art 10 for the Art ic les of State Respons ibi l i t ies in Internat ionalWrongful Actsuch may only be appl icable i f there is a character is t ic of permanency.An act of State is an act of i ts organ or any of i ts members. The ASIL spec ia l forces are notof f ic ia l representat ives. What is the bas is? In ICL, there must be permanency for them to beattr ibutable.Q: What is the value of ICL analys is? Is i t a source of internat ional law? Which part?A: I t is customary internat ional law.Q: What about the analys is of ICL, is i t customary law?A: Yes.

2. ASIL acted as pr ivate persons when they attacked the is land of Segov ia, and suchattack fa i led to comply wi th the requis i tes of Art . 9 of the Art ic les on the ResInternat ional ly Wrongful Acts .To be l iablea. Element of gov t author i tyb. Defaul t or absence of gov tc . Circumstances require the act ions of gov t author i tyThese elements are absent.

Government funct ion that ASIL exerc ised is not needed at that point because the Rances ianpeople can go there!


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N.C., Block A 2014

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Rances resorted f i rs t to peaceful means. They f i led for a lot of protests but these remainunheeded by the Alquisadan state.SECOND AGENT FOR RESPONDENTThe Republ ic of A lquisada v io lated internat ional laws, and must necessar i ly pay reparat ions.

3. Cons istency wi th int l lawThe Republ ic of A lquisada v io lated Geneva Convent ions and the pr inc ip le of mi l i taryproport ional i ty .Do the Geneva Convent ions apply in th is case? So there is an armed conf l ic t? Yes. Yes.Art . 53 of AP I prohibi ts the direct ion of a host i le act towards cul tural property . This wasv io lated when A attacked. CP is a moveable or immoveable object of great cul turalimportance. How is the tower a cul tural property? Is th is not a fortress? Isn t i t a lso of ami l i tary advantage? Prosecutor v . Br idgel in (?) the waiv ing of a protect ion of cul tural is n o tt h e p o s i t i o n a s a m i l it a r y a d v a n t a g e , b u t i t s a c t u a l u s e a s a m i l i ta r y a d v a n t a g e .

Q: Was i t not sel f -defense?A. No. There was no imminent danger to the property .Q: L ives of A lquisadans?A: They were not f i red upon.Q: Were they not f i red upon by snipers??A: This was not the goal of the snipers . Intent ion is important, but not in the face ofmi l i tary necess i ty? (Weh. M e n s r e a component in war cr imes??)The temple was never converted into a mi l i tary object ive, and such an attack against i t is ac lear v io lat ion of Art . 53 of Geneva Convent ion.

Q: So you are rely ing on intent? That you disregard complete mi l i tary advantage?A: Intent is not paramount. (SERIOUSLY?? Wouldn t i t be better to argue that therewas no mi l i tary advantage because there was no one important there? Or that therewere no troops? Or that those who occupied the temple was not ut i l iz ing i t as ami l i tary base?)I t is prohibi ted under the Hague Convent ion that weapons that are not proport ional are notal lowed. (Note: appl icable not only on the weapons, but a lso on the nature of the attack.Right? As in one f ive soldiers , then you MACHINE-GUNNED them.)In the case of Shimoda v . the State(?) the use of weapons wi th excess ive damage isprohibi ted because in i tsel f i t may damage property . I t may be done by a less destruct iveweapon. (Thus there is the quest ion of avai labi l i ty . Can there be o t h e r weapons that can beused other than that un-proport ional one?)Q: What tr ibunal is th is?


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N.C., Block A 2014

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A: ICTY. Internat ional Cr iminal Tr ibunal for former Yugos lav ia.Q: But th is is ICTY, which is more mirrored by ICC? Not ICJ , which is th is court? So you haveINDVIDUAL RESPONSIBILITY n o t STATE RESPONSIBILITY. So does the threshold forproport ional i ty apply to th is court?A: yes, i t would apply s ince we are merely us ing a standard.Q: What k ind of weapons did they use? Snipers are PEOPLE, not weapons.A: I bel ieve there was a gun used. However, t h is proport ional i ty of weapon used in relat ion tothe concrete mi l i tary advantage is not acceptable.(Argue on the bas is of the damage. On the nature of the attack in relat ion toproport ional i ty .)The mortar f i re used is excess ive to the mi l i tary advantage.

4. Reparat ionsAP I of the Geneva Convent ions was v io lated, a lso Art 31 of art ic les of s tate respons ibi l i ty .Are you say ing that the appl icant must pay for damage to temple? Yes.Who owns the temple? No one.So why pay you? Why ask you? Why not UNESCO? ( at th is point naubusan s iya ng t ime)

REBUTTAL BY AGENTS OF APPLICANT1. how they character ized permanency as a str ic t requirement for attr ibut ionILC did not s tate permanency as a requirement.

2. how mere protest is suf f ic ient to negate ef fect ive occupat ionThe protest furthered by the respondent state is only tw ice over a hundred andseventy years . This is not suf f ic ient to negate the ef fect ive occupat ion of A lquisada.Respondent state did not take al l the poss ible act ions to stake a c la im or to protestthe occupat ion of A lquisada. The protest does not have any substance in comparisonto the substant ia l gap of t ime of the protest, as wel l as the cont inuous and almostuninterrupted occupat ion.

REBUTTAL BY AGENTS OF RESPONDENT1. On the character is t ic of permanencyArt. 10 the acts of groups may be attr ibutable is they become the new government.ILC stated that there must be permanency. There must be a color of legal i ty . Thec la im of pres idency does not have this . (WHERE IS IT STATED? Who is te l l ing thetruth?? Wahahaha.)2. Not enough to protest rebuttal


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N.C., Block A 2014

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Did not respondent s leep on i ts r ights? We say that i t s suf f ic ient. WHY IS ITSUFFICIENT despi te the how-long- is- i t gap between the protests?

Relevant points in the compromis1. What is the personal i ty of the ASIL group? Are they insurgents , bel l igerents?2. Was there a succeeding state l ike in the case of Toccoro (basta, the case about anoverthrown government which executed contracts , then subsequent ly d isappeared aswel l)?3. What are the internat ional obl igat ions of the government set up by ASIL, even i f i tex is ted only for around eleven days?4. What are the sources of internat ional law?5. What is the value of the analyses of the Internat ional Law Commiss ion to the ICJ? Inother words, where does i t fa l l under the sources of internat ional 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? Terr i tor ia l sovereignty?9. What does i t mean to have ef fect ive control over a terr i tory?10.What is the jur isdic t ion of the ICJ over states?11.Can the act ions of ASIL indeed be attr ibutable to the State?

notes on the asil international law moot court competition

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