A dispute arising under the statute of the International Court of Justice February, 2012: the Government of the United States (Applicant) v. the Government of Canada (Respondent): memorial of the applicant.

• Author: van Wyck, James
• Position: 2012 Niagara Moot Court Competition: United States v. Canada

TABLE OF CONTENTS INDEX OF AUTHORITIES STATEMENT OF FACTS STATEMENT OF JURISDICTION QUESTIONS PRESENTED SUMMARY OF ARGUMENT ARGUMENT I. CANADA'S INTERVENTION INTO TANGOON WAS NOT LAWFUL UNDER INTERNATIONAL LAW A. Canada's actions violate fundamental principles of the United Nations, including the prohibition on the use of force and the preeminence of sovereignty 1. The prohibition on the use of force 2. The importance of state sovereignty B. The principle of collective self-defense does not justify Canada's unlawful entry into Tangoon 1. Collective self-defense in the Charter 2. Other Charter exceptions to the prohibition of force C. Responsibility to Protect doctrine cannot be used to justify Canada's unlawful actions 1. Canada's actions in Tangoon were not carried out in accordance with the Responsibility to Protect doctrine that has been endorsed by governments 2. Responsibility to Protect doctrine is not customary international law D. The General Assembly may only authorize the use of force under its Uniting for Peace Powers where there has been a breach of the peace or act of aggression II. THE APPREHENSION, DETENTION, AND SURRENDER TO THE ICC OF ISHMAEL BALTHASAR AND CLYDE BARRETT WAS AN UNJUSTIFIED EXTENSION OF ICCJURISDICITON THAT CONTRAVENED INTERNATIONAL LAW A. The ICC lacks jurisdiction over the nationals of non-party states for actions taken inside the territory of a non-party State 1. The Rome Statute does not provide justification for the surrender to the ICC of either Ishmael Balthasar or Clyde Barrett 2. The Rome Statute excludes the principle of universal jurisdiction, precluding Canada from claiming justification for its actions on these grounds B. Canada's detention and proposed surrender of Ishmael Balthasar is unlawful in its disregard for the customary norm of Head of State immunity and its contravention of the Geneva Conventions 1. As de facto political and military leader of Tangoon entrusted to represent the country at the international level, personal immunity is validly extended to Ishmael Balthasar 2. Head of State Immunity is a recognized norm of customary international law which, when ignored, contravenes Article 98 of the Rome Statute 3. Canada's treatment of Ishmael Balthasar violated Article 18 of the Third Geneva Convention, rendering his personal diary inadmissible at the ICC C. Clyde Barrett was arbitrarily apprehended and detained in Tangoon 1. The apprehension of Clyde Barrett was not prescribed by law and is therefore an arbitrary arrest and detention 2. Geomin Corporation's use of Tangoon's National Service Program is not a form of slavery for which Clyde Barrett can be held criminally responsible CONCLUSION INDEX OF AUTHORITIES TREATIES AND OTHER INTERNATIONAL AGREEMENTS 2005 World Summit Outcome, GA Res 60/1, UNGAOR, 60th Sess. UN Doc A/60/1 (2005) Concept Note on Responsibility to Protect Populations from Genocide, War Crimes, Ethnic Cleansing and Crimes Against Humanity, UNGAOR, 63d Sess. UN Doc A/63/958, (2009) Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, GA Res 2625 (XXV), UNGAOR, 25th Sess. UN Doc A/8082, (1970) 121 Definition of Aggression, GA Res 3314 (XXIX), UNGAOR, 29th Sess. UN Doc A/9890, (1974) 143 Follow-up to the Outcome of the Millennium Summit, UNGAOR, 63rd Sess. 98th Plenary Mtg, UN Doc A/63/PV.98 (2009) International Commission on Intervention and State Sovereignty, The Responsibility to Protect (Ottawa: International Development Research Centre, 2001) International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171 Official Records of the Assembly of State Parties to the Rome Statute of the International Criminal Court, First Session, New York, 3-10 September 2002 (United Nations publication, Sales No E.03.V2 and corrigendum) Peace and Security in Africa, SC Res 1970 UNSCOR UN Doc S/RES/1970 (2011) Protection of Civilians in Armed Conflict, SC Res 1674, UNSCOR, 61st Sess., UN Doc S/RES/1674 (2006) Report of the Secretary-General, An Agenda for Peace Preventative Diplomacy, Peacemaking and Peace-keeping, UNSCOR, 1992, UN Doc A/47/277-S/24111 Reports of the Secretary-General on the Sudan, SC Res 1593 UNSCOR UN Doc S/RES/1593 (2005) Rome Statute of the International Criminal Court, 2187 UNTS 90, (1998) Socialist Federal Rep of Yugoslavia, SC Res 713, UNSCOR, 1990, UN Doc SC/RES/713 The Geneva Convention Relative to the Treatment of Prisoners of War and their commentaries, 12 August 1949, 75 UNTS 135 The Situation in Libya, SC Res 1973, UNSCOR, 2011 UN Doc S/RES/1973 U.N. Charter Uniting for Peace, GA Res 377 (V), UNGAOR, 5th Sess., UN Doc A/377, (1950) Universal Declaration on Human Rights, GA Res 217A (III), UNGAOR, 3d Sess. UN Doc A/810, (1948) Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, Can TS 1980 No 37, 8 ILM 679 (entered into force 27 January 1980) INTERNATIONAL CASES AND ARBITRAL DECISIONS Arrest Warrant of 11 April 2000 (Dem. Rep. Cong. v. Belg.), Judgment, 2002 I.C.J. 3 (Feb. 14) Corfu Channel (U.K.v. Alb.), 1949 I.C.J. 4 (Apr. 9) Decision on the Prosecution's Application for a Warrant of Arrest Against Omar Hassan Ahmad Al Bashir ICJ 4 March 2009 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), 1996 I.C.J. 226 (July 8) Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, Judgment, 1986 I.C.J. 14 (June 14) North Sea Continental Shelf (Ger./Den., Ger./Neth.), Judgment, 1969 I.C.J. 74 (Feb. 20) BOOKS AND TREATISES BENEDETTO CONFORTI & CARLO FOCARELLI, THE LAW AND PRACTICE OF THE UNITED NATIONS (4th ed. 2010) CHITTHARANJAN F AMERASINGHE, EVIDENCE IN INTERNATIONAL LITIGATION (2005) JOHN H CURRIE, CRAIG FORCESE & VALERIE OOSTERVELD, INTERNATIONAL LAW: DOCTRINE, PRACTICE, AND THEORY (2007) OLIVER CORTEN, THE LAW AGAINST WAR: THE PROHIBITION ON THE USE OF FORCE IN CONTEMPORARY INTERNATIONAL LAW (2010) WILLIAM A SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT (2007) YORAM DINSTEEN, WAR, AGGRESSION AND SELF-DEFENCE (4th ed. 2005) JOURNAL ARTICLES Alex Bellamy, "The Responsibility to Protect and the Problem of Military Intervention" (2008) 84 International Affairs 615 Dapo Akande, "The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits" (2003) 1 Journal of International Criminal Justice 618 Paolo Gaeta, "Does President Al Bashir Enjoy Immunity from Arrest?" (2009) 7 Journal of International Criminal Justice 315 DOMESTIC CASES In re Grand Jury Proceedings, Doe No. 700, 817 F.2d 1108 (4th Cir. 1987) United States v. Noriega, 746 F. Supp. 1506 (S.D. Fla. 1990) aff'd, 117 F.3d 1206 (11th Cir. 1997) A DISPUTE ARISING UNDER THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE FEBRUARY, 2012

THE GOVERNMENT OF THE UNITED STATES (APPLICANT) v. THE GOVERNMENT OF CANADA (RESPONDENT)

MEMORIAL OF THE APPLICANT

STATEMENT OF FACTS

International law is founded on the idea of the sovereign equality of nations. While countries strive to work together in an increasingly globalized world, respect for national sovereignty stands as the foundational concept of international relations. While international law does contain mechanisms

through which national sovereignty may, on occasion, be lawfully infringed, rules and procedures ensure that such infringements are only warranted in limited circumstances. Balancing the concept of sovereignty with the protection of individual rights in particular countries can be a complex task. The dispute in Tangoon and Samutra is illustrative in this regard.

1. THE ISLAND OF TANMUTRA

   Tanmutra is a small island located just south of the equator in the Pacific Ocean. (1) The inhabitants of Tanmutra, who are an ancient seafaring people that adhere to the Tanmutran religion, have been settled on the island for over a thousand years. In the past century, the Tanmutran religion has split into two distinct sects. (2) Approximately five percent of the island's population adheres to an ultra-orthodox form of the religion. Adherents to this sect are required to pray in mountain-top temples three times a day, believe in faith healing, shunning the use of medicine, insist that the dead must be buried under a pile of stones and under no circumstances can be incinerated, and reject the use of most modern technology. (3) Conversely, those that adhere to the non-orthodox religion pray while they are outdoors; allow the use of medicines, alcohol, and technology; and permit either burial or incineration of the dead. (4)

   For over one hundred years Tanmutra was a French colony known as French Samutra, but it achieved independence in 1990 as the Republic of Samutra. Shortly thereafter, the country divided into two separate, independent, states: Tangoon and Samutra. (5) Both nations were admitted to the United Nations in 1991, and affirmed that treaties ratified by French Samutra in 1990 would continue in force. However, in 2010, when Samutra elected to ratify the Rome Statute of the International Criminal Court (ICC), Tangoon declined to do so. (6) Followers of the ultra-orthodox form of the Tanmutran religion settled in the mountainous regions of Tangoon where they could more easily adhere to the stringent requirements of their faith. Upon gaining independence, Raffiiki Balthasar ("Raffiiki"), the first Head of State of Tangoon, elected to govern his country in accordance with the principles of the ultra-orthodox Tanmutran faith.

   Since the separation of the two countries, Samutra has become a world-class tourist destination. As a result, Canadian hotel giant Fairmont Hotels and Resorts has been able to profit a great deal from the island's natural beauty. (7) This influx of foreign investment has allowed the citizens of Samutra to enjoy one of the highest standards of living in the world. (8) Unfortunately, Tangoon has not received the same type of financial support from...