2024 International Court of Justice Memorandum (PDF)

INTERNATIONAL COURT OF JUSTICE THE CASE CONCERNING THE HOLY CITY OF EBRASTON (THE STATE OF ABATHIS v. THE RIDEN FEDERATION) 2024 COUR INTERNATIONALE DE JUSTICE LE CAS CONCERNANT LA VILLE SAINTE D'EBRASTON (L'ÉTAT D'ABATHIS c. LA FÉDÉRATION RIDEN) MÉMORANDUM DE BANC INTERNATIONAL COURT OF JUSTICE YEAR 2024 1 TABLE OF CONTENT PRELIMINARY NOTES........................................................................................................ 5 CLAIMS.............................................................................................................................. 5 TABLE OF ABBREVIATION............................................................................................ 5 CLAIM 1: WHETHER ABATHIS, AS A STATE, IS ABLE TO INSTITUTE PROCEEDINGS BEFORE THE COURT. CONSEQUENTLY, RIDEN VIOLATED INTERNATIONAL LAW BY HALTING FUNDING TO THE UNRAA......................... 7 1. ABATHIS, AS A STATE, IS ABLE TO INSTITUTE PROCEEDINGS BEFORE THE COURT...................................................................................................................... 9 1.1. Criteria of Statehood and its Fulfilment.................................................................. 9 1.1.1. Applicant...................................................................................................... 10 1.1.1.1. Defined Territory................................................................................ 10 1.1.1.2. Government......................................................................................... 11 1.1.1.3. Permanent Population......................................................................... 12 1.1.1.4. Capacity to enter relations with other States....................................... 12 1.1.2. Respondent................................................................................................... 13 1.1.2.1. Defined Territory................................................................................ 13 1.1.2.2. Government......................................................................................... 14 1.1.2.3. Permanent Population......................................................................... 14 1.1.2.4. Capacity to enter relations with other States....................................... 14 1.2. Theories of Statehood Recognition....................................................................... 15 1.2.1. Applicant...................................................................................................... 15 1.2.2. Respondent................................................................................................... 16 1.3. State for the Purpose of Jurisdiction before the ICJ............................................. 17 1.3.1. Applicant...................................................................................................... 17 1.3.2. Respondent................................................................................................... 18 2. WHETHER HALTING FUNDING TO THE UNRAA IS A VIOLATION OF INTERNATIONAL LAW............................................................................................... 19 2.1. Obligation to Prevent Genocide............................................................................ 20 2 2.1.1. Applicant...................................................................................................... 20 2.1.2. Respondent................................................................................................... 21 2.2. Capacity to Influence............................................................................................ 22 2.2.1. Applicant...................................................................................................... 22 2.2.2. Respondent................................................................................................... 23 2.3. Complicity in Genocide........................................................................................ 23 2.4. Additional Arguments........................................................................................... 25 2.4.1. Applicant...................................................................................................... 25 2.4.1.1. Adverse violations of Human Rights.................................................. 25 2.4.1.2. Voluntarily assumed the responsibility for the care of the Abathis People............................................................................................................... 26 2.4.2. Respondent................................................................................................... 26 2.4.2.1. The voluntary nature of the funds....................................................... 26 2.4.2.2. The halting of funds were due to the Misappropriations of UNRAA funds................................................................................................................. 26 2.4.2.3. The temporary nature of the halting of funds..................................... 27 CLAIM 2: WHETHER THE RELOCATION OF RIDEN’S LOHIAKIAN EMBASSY TO EBRASTON AND THE GRANTING OF DIPLOMATIC ASYLUM TO MR. MIRROR CONSTITUTE VIOLATIONS OF INTERNATIONAL LAW...................... 28 1. THE RELOCATION OF RIDEN’S LOHIAKIAN EMBASSY TO EBRASTON 29 1.1. Alleged Violation under VCDR............................................................................ 30 1.1.1. Applicant...................................................................................................... 30 1.1.1.1. Jurisdiction.......................................................................................... 30 1.1.1.2. Violation of the VCDR....................................................................... 31 1.1.2. Respondent................................................................................................... 32 1.1.2.1. Jurisdiction.......................................................................................... 32 1.1.2.2. Violation of the VCDR....................................................................... 33 1.2. Alleged Violation under the UNSC Resolution 10K............................................ 33 1.2.1. The Binding Nature of the UNSC Resolution 10K..................................... 34 1.2.1.1. The Formation of the Resolution........................................................ 34 3 1.2.1.1.1. Applicant.................................................................................... 34 1.2.1.1.2. Respondent................................................................................. 35 1.2.1.2. The Language of the Resolution......................................................... 36 1.2.1.2.1. Applicant.................................................................................... 37 1.2.1.2.2. Respondent................................................................................. 38 1.2.2. Violation of UNSC Resolution.................................................................... 38 1.2.2.1. Applicant............................................................................................. 39 1.2.2.2. Respondent.......................................................................................... 40 1.3. An Obligation of Non-Recognition under General International Law................. 41 1.3.1. Applicant...................................................................................................... 43 1.3.2. Respondent................................................................................................... 43 1.4. Monetary gold principle........................................................................................ 44 1.4.1. Applicant...................................................................................................... 44 1.4.2. Respondent................................................................................................... 44 2. THE GRANTING OF DIPLOMATIC ASYLUM TO GENERAL MIRROR CONSTITUTE VIOLATIONS OF INTERNATIONAL LAW.................................. 45 2.1. Jurisdiction............................................................................................................ 46 2.2. Granting of diplomatic asylum............................................................................. 46 2.2.1. Caracas Convention..................................................................................... 46 2.2.1.1. Applicant............................................................................................. 48 2.2.1.1.1. Interpreting the Caracas Convention......................................... 48 2.2.1.1.2. The Violation............................................................................. 49 2.2.1.2. Respondent.......................................................................................... 51 2.2.1.2.1. Interpreting the Caracas Convention......................................... 51 2.2.1.2.2. The Violation............................................................................. 51 2.2.2. Customary International Law...................................................................... 53 2.3. Threat to Storm..................................................................................................... 54 4 PRELIMINARY NOTES CLAIMS Abathis, as Applicant, respectfully requests the Court to adjudge and declare that: 1. Abathis, as a State, is able to institute proceedings before the Court. Consequently, Riden violated international law by halting funding to the UNRAA; and 2. Riden violated international law by relocating its Lothiakian Embassy to Ebraston and by subsequently granting diplomatic asylum to General Mirror. Riden, as Respondent, respectfully requests the Court to adjudge and declare that: 1. Abathis is unable to institute proceedings before the Court as it does not constitute a State, and in any case, Riden did not violate international law by halting funding to the UNRAA; and 2. Riden did not violate international law by relocating its Lothiakian Embassy to Ebraston and by subsequently granting diplomatic asylum to General Mirror. TABLE OF ABBREVIATION Abathis State of Abathis (Applicant) ALO Abathis Liberation Organization CIL Customary International Law ICESCR International Covenant on Economic, Social, and Cultural Rights ICJ International Court of Justice Lothiak The State of Lothiak - Third party State which borders Abathis and is an ally of Riden MP Moot Problem Riden The Riden Federation (Respondent) UNGA United Nations General Assembly UNRAA United Nations Relief Agency for Abathis 5 UNRWA United Nations Relief and Works Agency for Palestine Refugees in the Near East UNSC United Nations Security Council VCDR Vienna Convention on Diplomatic Relations 6 CLAIM 1: WHETHER ABATHIS, AS A STATE, IS ABLE TO INSTITUTE PROCEEDINGS BEFORE THE COURT. CONSEQUENTLY, RIDEN VIOLATED INTERNATIONAL LAW BY HALTING FUNDING TO THE UNRAA. Background: The first claim consists of two parts: 1. The first part of this claim mirrors the circumstances of the Occupied Palestinian Territory, Unilateral Declaration of Independence of Kosovo, and the sovereignty of Holy See with the territory of Vatican City, particularly in relation to the elements of statehood and theories of recognition. 2. The second part of this claim disputes a similar claim to that of Nicaragua against Germany on 1 March 2024. Nicaragua requested a provisional measure towards Germany to resume its support and financing of UNRWA (Relief agency for Palestinian refugees) in respect of its operations in Gaza. In the present moot problem, the UNRAA (relief agency for Abathis) had a more significant role in terms of halting genocide, a concept seen in the obligation to prevent genocide. Part Applicant Respondent 1 Applicant will argue that Abathis is able Respondent will argue that Abathis is to institute proceedings before the Court unable to institute proceedings before the because it constitutes a State for the Court because it does not constitute a purposes of the ICJ Statute. State for the purposes of the ICJ Statute 2 Applicant will argue that the halting of Respondent will argue that the halting of funds to the UNRAA is a violation of funds to the UNRAA is not a violation of international law, given the importance international law as the UNRAA is of UNRAA within Abathis, hence voluntary in nature, and did not violate violating the obligation to prevent the obligation to prevent genocide and genocide and the capacity to influence the capacity to influence. genocide. 7 Summary of Facts: The Lothiak ethnic group claims that the Abathis region, including its capital city of Ebraston, is sanctified as a special homeland for their people. The Abathis ethnic group, indigenous to the region, asserts that they have resided there under the divine authority of their God. Later, the Abathis region was colonised by Riden, with Lothiakians forming the majority of the government.Tension heightens leading to the establishment of Abathis Liberation Organization (ALO, after the independence it became “Abathis”), an armed group representing the voice of the Abathis people from continuous attacks and aggression of the Lothiak. The Abathis region was initially declared part of the State of Lothiak, but this was later overturned by the ALO’s declaration of independence. Despite recognition of the new state by other countries, Lothiak refused to accept the declaration. The continuous aggression had led to a genocide leading to the UNGA establishing a UN Relief Agency for Abathis (hereinafter, “UNRAA”). The UNRAA had a significant role in Abathis territory and the largest humanitarian relief, providing basic necessities including food, water, stocks of medicines and other vital needs. Important paragraphs in the moot problem: - Occupation and control: ¶¶5, 6 MP - Declaration of Independence: ¶7 MP - Establishment of UNRAA: ¶11 MP, ¶5 Clarifications - Genocide: ¶10 - Recognition of Statehood, ¶¶8, 15 MP - Embezzlement and halting of UNRAA: ¶17 MP - Effects of UNRAA: ¶18 MP - Non-UN State's Membership in the ICJ Statute: ¶ 28 MP, ¶1 Corrections The basic material given, and would be the main legal basis used for this claim are: - UN Membership and The State Requirement: Does 'State’ always Imply 'Statehood'? - Statehood In International Law - Law, Politics, And the Conception Of The State In State Recognition Theory - Jurisdiction And Compliance in Recent Decisions Of The International Court Of Justice - Beyond Traditional Statehood Criteria: The Law and Contemporary Politics Of State Creation - Case Concerning Application of The Convention on The Prevention and Punishment of The Crime of Genocide between Bosnia and Herzegovina V. Serbia and Montenegro 8 1. ABATHIS, AS A STATE, IS ABLE TO INSTITUTE PROCEEDINGS BEFORE THE COURT Applicants will argue that Abathis has fulfilled sufficient elements of statehood to qualify as a state for the purpose of instituting proceedings before the Court. They will employ the constitutive theory of state recognition to further strengthen Abathis's status as a state. Consequently, Applicants will contend that Abathis can institute proceedings before the Court because it constitutes a state for the purposes of the ICJ Statute. Additionally, the applicant can argue that the substantive determination of statehood must be separated from the jurisdictional requirement before the Court. Respondents will contest Abathis’s declaration as an independent state, arguing that it does not fulfil the traditional and customary elements of statehood. They will rely on the declarative theory of state recognition, which mandates strict compliance with all elements of statehood. Therefore, Respondents will argue that Abathis cannot institute proceedings before the Court because it does not meet the criteria to be considered a state under the ICJ Statute. Additionally, the respondent can argue that the substantive determination of statehood is implicit to the jurisdictional requirement. 1.1. Criteria of Statehood and its Fulfilment Article 1 of the Montevideo Convention on Rights and Duties of States (1933) provides the traditionally widely accepted formulation requiring a state to possess: (a) a permanent population, (b) a defined territory, (c) government, and (d) the capacity to engage in relations with other states. However, Montevideo Convention has been criticised by many for not reflecting the current state of international law, by not recognizing the statehood of accepted States, and encompassing entities that are not States as States. In Opinion No. 1, the Arbitration Commission of the European Conference on Yugoslavia defined a state as a community of territory and people governed by organised political power and endowed with sovereignty. The Commission stressed that internal political organisation and constitutional provisions are factual components that must be examined when determining the government's power over the population and territory. These provisions are not unchanging as variables, such as self- determination and recognition, may also be relevant, and the value of these criteria varies according to the circumstances. However, it is clear that the core framework is centred primarily on territorial effectiveness. Reference can be made to the Prosecutor of the International Criminal Court adopting a notably flexible approach regarding the criteria for 9 statehood in the Prosecution Request Pursuant to Article 19(3) for a Ruling on the Court’s Jurisdiction in Palestine issued on 22 January 2020. 1.1.1. Applicant The applicant is expected to contend that either (a) it satisfies all of the Montevideo Convention criteria or (b) the criteria are not determinative of statehood. The applicant may emphasise the language of Article 1, particularly the phrase "should" that specifies the presence of these components. Professor James Crawford has proposed that the definition in Article 1 is "no more than a basis for further investigation" and that additional criteria are required to establish a functional definition. Furthermore, Matthew Craven has noted that "Article 1 is still treated with a certain degree of circumspection, despite its significance." 1.1.1.1. Defined Territory First, the applicant will argue that no state has ever ceased to exist purely for a lack of territory, nor has any group seeking statehood been denied recognition for a "defined territory." The conditions for territory are broad; there is no minimum size requirement, and the presence of weakly defined borders or limited authority over them does not exclude statehood. Rwanda, like Israel, was admitted to the United Nations despite its ill-defined borders. Furthermore, the Applicant will argue that there is a difference between the prerequisites for establishing statehood and those for sustaining it. The loss of some territory has no effect on a state's legal standing, as precise boundaries are not required for statehood, as demonstrated in cases such as the North Sea Continental Shelf (1969) and Deutsche Continental Gas-Gesellschaft v. Polish State (1929). The Montevideo Convention does not address the loss of statehood and does not imply that the absence of any single feature leads to the dissolution of a state. For example, Article 3 of the Montevideo Convention discusses the political existence and rights of states regardless of recognition but does not specify territorial requirements. The Applicant will argue that sovereignty over 'territory'—assuming such a requirement exists—is not always dependent on strict territorial delineation, instead asking for a broad definition of 'territory'. They will refer to the Northern Sea Continental Shelf case that "the appurtenance of a given area, considered as an entity, in no way governs the precise delimitation of its boundaries, any more than uncertainty as to boundaries can affect territorial rights." The Court has recognized that there is no universal norm requiring a state to have fully delimited and defined land 10 borders, and such uncertainty can exist in a variety of locations and for extended periods of time. Furthermore, the Applicant will argue that, while a state must have recognizable territory and cannot exist purely as an abstract idea, this condition is met when the state is located in a specific location over which it has political control. What matters is the presence of a stable community within a defined area, even if its borders are uncertain. States can exist with territories that are geographically divided, as seen historically with Pakistan before the secession of Bangladesh in 1971, or in contemporary examples like Azerbaijan. The State of Abathis asserted control over the southern parts of the region, encompassing the Holy City of Ebraston at its core (¶12 MP). 1.1.1.2. Government Second, the applicant may claim that the respondent's rigid interpretation of the concept of government is unjustified. They could argue that, under international law, a state does not lose its status just because its government is ineffective or has periods of control exclusive of other bodies. International law presumes that states exist even when there is no effective governance. This tradition is obvious in countries such as Burundi and Rwanda, which were admitted to the United Nations in 1962 despite governance issues. Somalia is also recognized as a state, despite the absence of an effective government since 1991. Moreover, an exception to the element of effective government is the exercise of the right to self-determination as illustrated in the Aaland Islands case (1920). The International Committee of Jurists, which was tasked with investigating the status of the islands, stated that identifying the precise date when Finland became a sovereign state was extremely difficult. This uncertainty stemmed from the turbulent conditions following the Russian Revolution, which marked Finland's founding as a republic. Additionally, the applicant may refer to Bosnia-Herzegovina, who failed to meet such criteria have nevertheless been deemed to be States, where the criterion of government was deficient on independence. Bosnia-Herzegovina was established as a State even though "the central government was unable to assert its authority over vast parts of the country". The ALO only garnered support from the local population, who yearned for self-governance and the ability to preserve their cultural identity without interference (¶12 MP). 11 1.1.1.3. Permanent Population Third, the applicant may address the permanent population, or may concede that it is satisfied in this case. This element is intended to be used in association with territory to establish a stable community without which it is difficult to establish a State. There is, arguably, a permanent population in the Abathis region considering the presence of schools, hospitals, and markets (¶10 MP). 1.1.1.4. Capacity to enter relations with other States The applicant may argue that Abathis has the capacity to enter into legal relations due to its participation in multiple bilateral and multilateral treaties, recognition as a state by 137 countries, and acceptance as a UN observer state in 2009 (¶13 MP). This demonstrates Abathis' ability to engage in diplomatic contacts and international treaties with other sovereign governments. This criterion requires a state to have the ability to engage in diplomatic relations and international agreements. The applicant will argue that Abathis has demonstrated this capacity through its participation in various international forums, treaties, and bilateral agreements. Furthermore, it will assert that recognition by a significant number of states as a legal entity substantiates its claim to statehood, affirming its ability to engage in lawful international relations. The applicant will argue that UN membership is merely an implicit confirmation of the existence of a state. Membership in the UN is not synonymous with statehood, as some entities were already acknowledged as states before attaining membership, such as Switzerland, while others were accepted as full UN members before independence, as seen with Belarus and Ukraine. Despite being a UN observer state, Abathis is capable of joining bilateral and multilateral treaties (¶13 MP). The applicant will further suggest that the better view is that statehood and UN membership should not be conflated, and the determination of statehood should not be bureaucratized under the auspices of an international organisation. UN membership likely only affirms statehood implicitly. 12 1.1.2. Respondent The respondent may argue that Article 1 of the Montevideo Convention formalised customary international law. While the Montevideo Convention has been criticised for its perceived vagueness, this criticism is directed more at the lack of clarity rather than the criteria themselves. Similarly, James Crawford's critics suggest that while the four standards are insufficient on their own, he does not deny their validity. Alternatively, the respondent may argue that the threshold for being considered a state is high. Even if the applicant has demonstrated compliance with these criteria, it does not necessarily mean they have acquired statehood, as evidenced by cases such as Somaliland and Taiwan. 1.1.2.1. Defined Territory First, the respondent will argue that states are territorial entities and therefore must have a defined territory. Moreover, the concepts of statehood and international legal personality are distinct, and recognition of international legal personality does not automatically confer statehood, which is the basis on which an entity has standing before the Court. For example, the United Nations has international legal personality but is not a state and thus does not fall within Article 34(1) of the ICJ Statute. Though the Montevideo Convention does not explicitly address the demise of statehood, the requirements for becoming a state logically should apply in connection with its legal demise. Oralists may cite various examples to support their arguments. The Sovereign Order of Malta possesses some elements of sovereignty, such as diplomatic relations with 104 states, though it does not have a defined territory. The Holy See is regarded as a sovereign juridical entity with relations with essentially every state and the territory of Vatican City, though it has no permanent population. Additionally, Lothiak reasserted its claim to the northern parts of the Abathis region, including the Holy City of Ebraston. The State of Abathis acknowledged Lothiak's claim to the northern region as valid but deemed their occupation of the Holy City of Ebraston illegal (¶12 MP). Respondents will argue that this unresolved territorial dispute further undermines Abathis's claim to statehood. 1.1.2.2. Government Second, Respondents may contend that Abathis does not meet the criterion since the Abathis governance has yet to officially establish its offices in the southern areas of the Abathis 13 territory, including the Holy City of Ebraston. Respondents may further argue that ALO only has access to the southern half of the region, leaving out the Holy City of Ebraston, which was included in the northern section of the province. The crucial point is that, at the time of independence, ALO only received support from the local community, who desired self- government and the right to maintain their cultural identity without intrusion. They do not have a fully functional government capable of carrying out all governmental tasks in the Abathis region, including the Holy City. The ALO does not have general control over its territory, to the exclusion of other entities not claiming through or under it (¶12 MP). 1.1.2.3. Permanent Population Third, the respondent may address the issue of a permanent population, or may concede that it is satisfied in this case. This element is intended to be used in association with territory to establish a stable community, without which it is difficult to establish a state. The existence of a permanent population is naturally required. A nomadic population might not thus count for the purposes of territorial sovereignty, although the Court in Western Sahara (1975) held that nomadic peoples did have certain rights with regard to the land they traversed. There is no specification of a minimum number of inhabitants, as examples such as Nauru with populations of around 12,000 demonstrate. There is, arguably, a permanent population in the Abathis region considering the presence of schools, hospitals, and markets. However, the respondent may contest the clarity regarding whether these people are truly permanent residents or nomadic (¶10 MP). This ambiguity further complicates the claim of Abathis to satisfy the criterion of a permanent community necessary for statehood. 1.1.2.4. Capacity to enter relations with other States Respondents may question the applicant's assertion that it possesses the necessary capacity to enter into legal relations as a condition for statehood. They would contend that merely participating in treaties and conventions, or even receiving recognition from some governments, does not automatically confer this authority. Instead, Respondents will argue that effective governance and control over a specific territory are essential for engaging in meaningful international interactions. Without demonstrating stable administration and territorial control, the applicant's ability to fulfill international obligations and engage in diplomatic relations is called into question. Additionally, Respondents will highlight that 14 Abathis is not a full-fledged UN member but merely an observer state. The UN Security Council has only passed a resolution recognizing the Abathis people’s right to self- determination without explicitly acknowledging their statehood. The respondent may further support this contention by referring to Abathis's status as a UN observer state (¶13 MP). Respondents can argue that the UN wields significant influence as a collective arbiter of statehood, and the close relationship between statehood and UN membership cannot be disregarded. 1.2. Theories of Statehood Recognition There is no commonly accepted definition of statehood, but two major ideas are widely acknowledged: the constitutive theory and the declarative theory. According to James Crawford, the constitutive theory asserts that a state's existence is dependent on recognition by other states; yet, recognition alone may not be adequate in the absence of other aspects. One major objection levelled at this notion is the confusion created when some governments recognize a new entity while others do not. Furthermore, the constitutive theory is widely opposed in the modern era because recognition is fundamentally political, and several states, notably the United States and the United Kingdom, have explicitly rejected it. Despite this, an applicant may argue in favour of the constitutive view, as recognition is significant proof of status. The declarative view, on the other hand, restricts the legal effects of recognition to a proclamation or acknowledgment of an existing state of law and fact, with legal personality bestowed before by the operation of law. This approach was most prominently described in the 1933 Montevideo Convention on State Rights and Duties (Montevideo Convention). It is unclear if the Montevideo Convention codified custom in 1933 or represents it today. State practice in terms of state recognition often lies between the declarative and constitutive approaches, although participants are expected to address the Montevideo criteria, even if they contend for the constitutive theory of statehood. 1.2.1. Applicant The applicant should argue that declaratory theory is the appropriate framework for determining the statehood of Abathis. According to declaratory theory, the status of a state should be determined based on factual criteria, independent of recognition by other states. Under this theory, a state can exist by virtue of its factual situation without requiring formal 15 recognition by other states. The legal effect of recognition, in this context, is merely an acknowledgment of pre-existing legal capacity to function as a state. The applicant can bolster this argument by highlighting the broad academic support that declaratory theory has garnered. Alternatively, the applicant can argue that even under the constitutive theory, the international community's recognition of Abathis' statehood collectively can have constitutive effects. Despite being a UN observer state, Abathis has entered into numerous treaties and conventions, and has been recognized by 137 states, including by the International Criminal Court (¶13 MP). 1.2.2. Respondent The respondent should rely on the constitutive theory of state recognition to argue that recognition is a necessary precondition for the existence of statehood capacities. According to this theory, fulfilling the Montevideo criterion of having the capacity to enter into international relations implies that mere fulfilment of stated criteria is not sufficient by itself to establish a state. External legitimacy, gained through recognition by other states, is crucial for distinguishing states from non-states. New states can only emerge with the consent and acknowledgment of existing states, requiring a critical mass of the international community to confer legitimacy. The respondent can illustrate this argument by drawing parallels to Kosovo's statehood status, which remains disputed despite recognition by 107 UN member states following its unilateral declaration of independence (UDI) in February 2008. Alternatively, while recognition by other states alone may not be constitutive of statehood as a matter of theory, the respondent can argue that the viability of a prospective state in the international community hinges significantly upon such recognition. The respondent can refer to precedents such as the Quebec Case, where the Supreme Court of Canada emphasised that "ultimate success" in achieving statehood depends on recognition by the international community, considering the actions of both the aspiring state and the parent state. A strong respondent will link the theory of recognition back to the traditional elements of statehood under the Montevideo Convention. They will argue that even if Abathis is recognized as a state by some other states, this recognition alone does not automatically confer statehood. 16 It is a prerequisite that all elements of statehood, as outlined in the Montevideo Convention, must be satisfied. 1.3. State for the Purpose of Jurisdiction before the ICJ The general rule of the court stipulates that only states can be parties in cases before the International Court of Justice (ICJ), as outlined in Article 34(1) of the ICJ Statute. The central issue in this case revolves around whether Abathis qualifies as a 'State' under the ICJ Statute, enabling it to commence proceedings against Riden. Both parties are required to explore whether the ICJ's procedural rules can implicitly determine the legal status of an entity as a state. 1.3.1. Applicant The applicant should argue that Abathis is jurisdictionally competent for the purpose of ICJ Statute to institute proceedings against Riden. The applicant can argue that the ICJ proceedings are exclusively open to States, but this procedural rule does not determine the legal status of an entity as a State. The logic that the ICJ’s exercise of jurisdiction implicitly confirms statehood is flawed. The applicant can further contend that the use of the term 'State' in international treaties and procedural rules is not intended to regulate or determine an entity’s legal status. Instead, it merely serves the practical purpose of defining who can participate in the proceedings. The applicant should maintain that the ICJ’s procedural rules should not be used to implicitly determine an entity’s statehood. The intention behind the use of 'State' in international treaties is to define participation, not to regulate legal status, and thus the ICJ should not use its jurisdiction to settle the question of Abathis’ statehood indirectly. Further, the applicant can emphasise that implicit readings of statehood requirements in international treaties are not uncommon but should not be used to definitively determine legal status. This argument draws on the example of UN membership, which is only open to states and serves as confirmation of statehood, but is not intended to regulate legal status. A good applicant will draw analogy of this fact to Palestine's institution of proceedings against the United States before the ICJ in 2018 by arguing that becoming a party to 17 procedural mechanisms in international law does not affect the substantive legal status of an entity. For example, the UN has had non-state members like Belarus and Ukraine while they were still Soviet republics. Thus, the ICJ does not need to consider Palestine’s status under the law of statehood when deciding on its jurisdiction as ICJ exercise of its jurisdiction does not alter Palestine’s status as a state. The applicant can further strengthen its argument by relying on the recent 2023 Committee on the Rights of Persons with Disabilities’ finding of Mangisto and al-Sayed v the State of Palestine where Palestine was found responsible for multiple violations of the Convention on the Rights of Persons with Disabilities (CRPD), despite lacking effective control over the territory where the violations occurred. This is despite the highly contentious issue of Palestine’s status as a State with its status as a non-UN member observer State. 1.3.2. Respondent The respondent should argue that Abathis is jurisdictionally incompetent for the purpose of ICJ Statute to institute proceedings against Riden. The logic for the respondent is that the ICJ can only hear cases between States, so if the ICJ exercises its jurisdiction, the parties in the proceedings must be States. The respondent can challenge the applicant’s assertion by arguing that if the ICJ exercises jurisdiction over a case, it implies that the entities involved must be states, as the ICJ can only hear cases between states. This implicit reading aligns with international legal scholarship, which often confirms statehood through procedural mechanisms, such as UN membership criteria. A good respondent will argue that if the logic of implicit reading were correct, the ICJ would clarify Palestine’s legal status by declaring the case inadmissible under the Monetary Gold principle. To apply this principle, the Court would need jurisdiction, which implicitly confirms statehood. The respondent will assert that while the primary intention of using 'state' in treaties is not to determine legal status, the procedural application still serves as an indirect confirmation. 2. WHETHER HALTING FUNDING TO THE UNRAA IS A VIOLATION OF INTERNATIONAL LAW 18 The UNRAA: The United Nations Relief Agency for Abathis (‘UNRAA’) is a relief agency established from UNGA’s Resolution 11K (¶11 MP), to provide aid for the Abathis people from the genocide conducted by the Lothiak. The reliefs are made through voluntary contributions by Members of the UN and non-members in funds or in kind to ensure that the amount of supplies and funds required is obtained for each period of the working programme and relief efforts for the Abathis region (¶5 Clarification). Given to predominantly Abathis population facing genocide in the Abathis region. The UNRAA grew to become a significant role in Abathis territory and the largest humanitarian relief, providing basic necessities including food, water, stocks of medicines and other vital needs. As the genocide conducted by the Lothiak has been established in the present moot problem, the arguments for this issue raises the question on the obligation of third States in the crimes of genocide. With how the facts are written for this issue of the claim, the arguments would mostly be surrounding the facts, as: - UNRAA is voluntary in nature. (¶5 Clarification) - UNRAA was originally designed as humanitarian assistance for the Abathis region. (¶11 MP) - UNRAA provided basic living necessities. (¶11 MP) - UNRAA funds were embezzled by its workers. (¶17 MP) - UNRAA workers involved in the embezzlement were immediately removed from their positions. (¶17 MP) - UNRAA funds were temporarily halted. (¶17 MP) - After the halting of UNRAA funds, Abathis were left with no basic living necessities, such as food, medicines, and health centres had stopped operating. Leading to hundreds of thousands dead and displaced on the brink of starvation. (¶18 MP) Legal arguments within this issue of the claim, should surround (1) the obligation to prevent genocide, (2) the capacity to influence genocide, (3) the complicity in genocide, and (4) other additional arguments 19 2.1. Obligation to Prevent Genocide The obligation to prevent genocide is recognized under international law as enshrined within the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter, “Genocide Convention”). It encompasses any actions of averting or lessening current or future genocide from occuring. The obligation to prevent genocide is established as follows: Genocide Convention Article I - The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish. The ICJ has further discussed such obligation in the Case Concerning Application of The Convention on The Prevention and Punishment of The Crime of Genocide between Bosnia and Herzegovina V. Serbia and Montenegro (hereinafter, “Bosnian Genocide Case”), the ICJ has stated as follows: Bosnian Genocide Case ¶430: Secondly, it is clear that the obligation in question is one of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide: the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible. Bosnian Genocide Case ¶431: In fact, a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit. In light of that, the parties should argue the following: 2.1.1. Applicant This argument should be the applicant’s main argument. A great way for the applicant to write this argument would be by stating the importance of the UNRAA within Abathis. Putting emphasis on its role and effects it had within the region. The UNRAA had provided basic living necessities, such as food and medicine. (¶11 MP) The effects were further seen upon the halting of funds which left Abathians with no basic living 20 necessities. Food supplies had stopped due to lack of finance and health centres were unable to receive any medical supplies, leaving the people in Abathis vulnerable. Casualties of women and children had reached 300,000, with hundreds and thousands of others displaced and on the brink of starvation. (¶18 MP) A strong applicant argument would use these facts on its effects and connect it with the Bosnian Genocide Case ¶430 where states must “employ all means reasonably available to them, so as to prevent genocide so far as possible”. Arguing that the UNRAA is a means to prevent the genocide. Therefore, Riden violated its obligation to prevent genocide. 2.1.2. Respondent To counter the applicant’s argument, the respondent should argue how halting the funding is not a violation on the obligation to prevent genocide. A simple argument would be by pointing out that the funds to the UNRAA were halted as several workers from the UNRAA were discovered to be involved in the embezzlement of funds. Further adding, the funds were halted temporarily. (¶17 MP) However, extra points should be given if the respondent is able to argue that the obligation on the prevention of genocide only rises if it is directly related to the State conducting the genocide. Looking further into the Bosnian Genocide Case ¶431, it states that “State has available to it means likely to have a deterrent effect on those suspected of preparing genocide”. The point made in the Bosnian Genocide Case is for states to use all available means to stop “suspects of preparing genocide,” in other words referring to the perpetrator of the genocidal acts. Contrary here, the respondent should argue that the UNRAA is not the perpetrator, but its is rather an agency for voluntary funding (¶5 Clarification) towards the victim of genocide (Abathi). Where any conduct towards the UNRAA would not affect the genocidal acts conducted by the perpetrator. Therefore, halting the funding has no correlation to the prevention of genocide. 2.2. Capacity to Influence The capacity to influence falls under the obligation to prevent genocide. It is a means to determine the extent a state may act to prevent genocide. As understood, the obligation on the prevention of genocide is an obligation of conduct, which means there is no specific action 21 required to fulfill this obligation. However, the obligation would rise depending on a State’s capacity to act at the time of the genocidal act, which may differ depending on the situation. Such actions are determined through a variety of ways, as seen in the Bosnian Genocide Case. Bosnian Genocide Case ¶430: Various parameters operate when assessing whether a State has duly discharged the obligation concerned. The first, which varies greatly from one State to another, is clearly the capacity to influence effectively the action of persons likely to commit, or already committing, genocide. This capacity itself depends, among other things, on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events. Bosnian Genocide Case ¶461: The obligation to prevent the commission of the crime of genocide is imposed by the Genocide Convention on any State party which, in a given situation, has it in its power to contribute to restraining in any degree the commission of genocide. Hence, as stated above, the parties should argue as follow: 2.2.1. Applicant In order for the applicant to have a strong argument, the applicant must be able to point out that Riden had the capacity to influence the situation in Abathis through the UNRAA. As understood within the Bosnian Genocide Case ¶430 which states that “This capacity itself depends, among other things, on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events.” Here, numerous paragraphs within the moot problem, had stated that (1) genocide had occurred within the Abathis region, (¶¶10, 11 MP) which Riden should have known of as it is the sole reason the UNRAA was established (¶11 MP), (2) UNRAA played a major role, specifically in providing basic human necessities towards the Abathi people, (¶¶11, 18 MP) and (3) the effects upon the halting of funding towards the Abathis region and people were severe. (¶18 MP) If the applicant is able to emphasise the role and effects of the UNRAA upon Riden’s halting of funds, this would show that Riden did in fact have the capacity to influence the genocide occuring within Abathis. Therefore, Riden had the capacity to influence the situation in Abathis. 22 2.2.2. Respondent As a counter-argument, the respondent should then argue that the UNRAA had nothing to do with the acts of genocide. The UNRAA was created specifically as a humanitarian aid towards the Abathis region. Referring to the Bosnian Genocide Case ¶430 which states that all influence in relation to “the authorities of that State and the main actors in the events”. Here, the UNRAA is not the main actors of the events or the genocide being conducted. As the UNRAA is a neutral Agency established by the UN to provide humanitarian aid. (¶11 MP, ¶5 Clarification) However, additional points may be given if the respondent is able to further point out that Riden is one State amongst many who temporarily suspended its funds. (¶17 MP) This is able to further strengthen its argument, as the capacity to influence the entirety of the genocidal acts and its effects cannot fully be burdened towards Riden. Therefore, Ride had no capacity to influence the situation in Abathis. 2.3. Complicity in Genocide The prohibition of complicity in genocide is stated within the Convention on Genocide under Article III(e). The provision does not define complicity, however, the parties should rely on judicial decisions and the teachings of the most highly qualified publicists’ (reliance on Article 38(1)(d) of the ICJ Statute. The ICJ has elaborated on the complicity on the crimes of genocide within the Bosnian Genocide case, which stated as follows: Bosnian Genocide Case ¶167: The Court recognizes and emphasizes the criminal legal significance of “complicity” and the separate responsibility for states that fail to prevent these acts. Bosnian Genocide Case ¶182: The Court establishes that State responsibility can arise under the Genocide Convention and complicity even “without an individual being convicted of the crime or an associated one”. Bosnian Genocide Case ¶420: “complicity in genocide” within the meaning of Article III, paragraph (e), which is what the Court now has to do, it must examine whether organs of the respondent State, or persons acting on its instructions or under its direction or effective control, furnished “aid or assistance” in the commission of the genocide, in a sense not significantly different from that of those concepts in the general law of international responsibility. 23 Bosnian Genocide Case ¶421: (In terms of complicity) it concerns the link between the specific intent (dolus specialis) which characterizes the crime of genocide and the motives which inspire the actions of an accomplice (meaning a person providing aid or assistance to the direct perpetrators of the crime): the question arises whether complicity presupposes that the accomplice shares the specific intent (dolus specialis) of the principal perpetrator. The parties may rely on subsequent paragraphs of the case and other judicial decisions referred thereto to substantiate their standings on the above. 2.3.1. Applicant The complicity on the crime of genocide should not be used as a main argument, but rather as an alternative argument. Though not a strong argument, the applicant could argue that upon the halting of funds towards the UNRAA, the effects of the genocidal acts were amplified within the Abathis region. Hence, directly contributing to the genocidal effects, implying its “complicity” towards the genocide. 2.3.2. Respondent The respondent could then argue that Riden did not conduct any “complicity” towards the crime of genocide. As emphasized within the Bosnian Genocide Case ¶420, such complicity must be directed through specific instructions towards the perpetrator to aid or assist its genocidal acts. Contrary here, the halting of funds were conducted towards a neutral agency, UNRAA, whom had nothing to do with the crimes of genocide. 2.4. Additional Arguments With the nature of the facts, the parties may argue additional arguments. However, the additional arguments should not be used as a main argument, but rather as an argument that strengthens and adds emphasis to the claim. It should not be used as a sole argument, as it lacks legal basis, and mainly argues and establishes the existing facts: 2.4.1. Applicant 2.4.1.1. Adverse violations of Human Rights 24 As a result of the halting of UNRAA funds, it had affected the Abathis people’s ability to attain food, housing, and health within the Abathis region. (¶18 MP) The applicant may argue on the effects towards the right to an adequate standard of living and the rights to health. First, the applicant may argue on the Right to an Adequate Standard of Living, which encompasses the rights to adequate food and housing. Established under Article 11 (1) International Covenant on Economic, Social, and Cultural Rights (hereinafter, “ICESCR”). Article 11 (1) ICESCR - The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realisation of this right, recognizing to this effect the essential importance of international cooperation based on free consent. Here, the applicant would argue how the halting of funds led to the inability of the people of Abathis to attain basic living necessities, such as food and housing. (¶18 MP) Therefore, violating the Right to an Adequate Standard of Living. Second, the applicant may argue on the Right to Health, which encompasses the rights to enjoyment of the highest attainable standard of physical and mental health. Established under Article 12 (1) ICESCR. Article 12 (1) International Covenant on Economic, Social, and Cultural Rights - The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Here, the applicant would argue how the halting of funds led to the inability of the people of Abathis to attain medicine and health centres were unable to operate. (¶18 MP) Therefore, violating the Right to health. 2.4.1.2. Voluntarily assumed the responsibility for the care of the Abathis People Clarifications, ¶2 May raise arguments on the responsibility of care States funding the UNRAA has towards the Abathis people. Stating that States have a level of due care to continuously fund the UNRAA as it has accepted such responsibility. However, it is not an argument with a strong legal basis as it is simply a statement from the secretary of the UNRAA. 25 2.4.2. Respondent Nicaragua had requested a provisional measure against Germany in regards to the UNRWA funds for Palestinian refugees which were temporarily suspended by Germany, However, the request was rejected by ICJ, due to the following reasons: Nicaragua vs Germany Order of 30 April 2024 ¶19: “First, that contributions to UNRWA are voluntary in nature. Secondly, it notes that, according to the information provided to it by Germany, no new payment was due from the latter in the weeks following the announcement of its decision. Finally, the Court notes that Germany stated that it has supported initiatives aimed at funding the agency’s work” The respondent may refer to ICJ’s statement and reasoning for its rejection towards the provisional measure requested by Nicaragua. 2.4.2.1. The voluntary nature of the funds Mainly a factual argument. The respondent would further add that the funds were voluntary in nature, similar to the nature of the UNRWA. Clarifications, ¶5 2.4.2.2. The halting of funds were due to the Misappropriations of UNRAA funds Mainly a factual argument. The respondent may establish and argue that the funds were halted as there were misappropriations of UNRAA funds. 2.4.2.3. The temporary nature of the halting of funds Mainly a factual argument. The respondent may further add that the halting of funds was temporary, (¶17 MP) similar to Germany, and other States suspending its funds towards the UNRWA. 26 CLAIM 2: WHETHER THE RELOCATION OF RIDEN’S LOHIAKIAN EMBASSY TO EBRASTON AND THE GRANTING OF DIPLOMATIC ASYLUM TO MR. MIRROR CONSTITUTE VIOLATIONS OF INTERNATIONAL LAW. Background: The second claim consists of two parts. 1. The first part of this claim mirrors the application instituting proceedings by Palestine against the United States of America before the International Court of Justice, asserting that the US violated the Vienna Convention on Diplomatic Relations by moving its embassy in Israel from Tel Aviv to Jerusalem. 2. The second part of this claim mirrors the proceedings instituted by Ecuador against Mexico on 29 April 2024. Concerning Ecuador’s storming of the Mexican Embassy in Quito to retrieve former Ecuadorian Vice President Jorge David Glas Espinel, who had sought asylum there to avoid domestic criminal proceedings against him. Part Applicant Respondent 1 Applicants will argue that by relocating Respondents will argue that the its embassy in Lothiak, they have relocation of the embassy does not violated their obligation under the UNSC violate international law. The relevant Resolution 10K and the VCDR as it paragraph of the UNSC Resolution 10K represented a recognition of Lothiak is not binding. In any event, moving the which is a binding prohibition under the embassy does not violate the UNSC Resolution. Resolution paragraph, as the relocation does not equate to recognition of Lothiak. Changing the location was motivated by the intention to secure religious interests for its citizens who wish to visit the area. 2 Applicants will argue that by granting Respondents will argue that the granting diplomatic asylum to General Mirror, of diplomatic asylum to General Mirror Riden has violated the Caracas was lawful, as it has not violated the Convention as well as CIL. Caracas Convention as well as CIL. 27 Summary of Facts: In 2021, the Riden Federation, under President Gary Callahan, relocated its embassy from Zugril to central Ebraston, a contested area in the Abathis region. This move was intended to facilitate pilgrimage for Riden citizens and was not meant to signify recognition of Abathis as an independent state. Abathis objected to the relocation, arguing it violated UN Security Council Resolution 10K, which advises against establishing diplomatic missions in Ebraston. Despite Abathis raising concerns, the UNSC could not convene due to disagreements among its permanent members. Following the relocation, Lothiak sent a military envoy to Ebraston to protect the embassy, claiming this action was in line with the Vienna Convention on Diplomatic Relations. Tensions escalated when Riden granted diplomatic asylum to General Mirror within the relocated embassy, adding complexity to the diplomatic landscape. Riden maintained that these actions were consistent with international law, while Abathis viewed them as violations of its sovereignty and UNSC resolutions. Important paragraphs in the moot problem: - History of the States: ¶¶1-6 MP - UNSC Resolution 10K: ¶¶7-8 MP and Annex A - Embassy Relocation: ¶¶14-16, 19 MP and ¶4 Clarification - General Mirror introduction: ¶17 MP and ¶6 Clarification - General Mirror’s detention: ¶3 Clarification - Asylum claim: ¶¶17, 20, 22-24 MP, and ¶1 Clarification The basic material given, and would be the main legal basis used for this claim are: - VCDR - Namibia Advisory Opinion - Caracas Convention - Asylum (Colombia/Peru) Judgement of 20 November 1950 1. THE RELOCATION OF RIDEN’S LOHIAKIAN EMBASSY TO EBRASTON Applicants will argue that by relocating the Lothiakian embassy to Ebraston, Riden has violated its obligations under (1.1) the VCDR and (1.2) the UNSC Resolution. The UNSC Resolution argument should be brought as a main argument. Respondents will challenge the Applicant’s 28 jurisdiction and claim that the relocation of the embassy does not violate the VCDR or the UNSC Resolution. Additionally, the Applicant will argue that (1.3) Riden has breached its obligation of non-recognition under general international law, which the Respondent should deny. Furthermore, the Respondent could raise an argument under the (1.4) Monetary Gold Principle to deny Applicant’s standing due to the involvement of third parties' legal interests; however, this issue is not to be discussed as a main argument. 1.1. Alleged Violation under VCDR The main premise of the first part of the second claim is based on the VCDR, where the Applicant will argue that the Respondent generally violates Article 3 of the VCDR, and potentially Articles 1(i) and 21(1) as well. This argument can also be connected to the claim under the UNSC Resolution 10K. If time constraints are an issue, teams may prefer to omit this argument entirely and combine it with the analysis under the UNSC Resolution claim, which is also acceptable. 1.1.1. Applicant In discussing the Respondent's alleged violation under the VCDR, the Applicant can briefly address their (1.1.1.1.) jurisdiction before proceeding to discuss the (1.1.1.2.) actual violation itself. Although it is not mandatory to address jurisdiction, doing so demonstrates a comprehensive understanding of the claim. 1.1.1.1. Jurisdiction As a basis for the Court’s jurisdiction, the Applicant invokes Article 1 of the Optional Protocol to the Vienna Convention concerning the Compulsory Settlement of Disputes. 1 Noting that both parties are state parties to the VCDR (¶28 MP), the Applicant asserts that the Court has jurisdiction to hear this dispute, assuming that statehood is not an issue. 2 1 Article I: “Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.” 2 ICJ, Palestine v United States of America (Application Instituting Proceedings) (Relocation of the United States Embassy to Jerusalem) (28 September 2018), https://www.icj-cij.org/files/case-related/176/176-20180928-APP- 01-00-EN.pdf, ¶25. 29 1.1.1.2. Violation of the VCDR Abathi should argue that various articles of the VCDR, especially Article 33 (but also potentially including Articles 1(i)4 and 21(1))5, require that the functions of the diplomatic mission be performed ‘in the receiving state,’ meaning the mission must be established within the receiving state’s territory. The city of Ebraston is not part of Lothiak’s territory as it is a disputed area with a special international status that prevents it from being considered the territory of either state (¶7 MP). However, there is a broader consensus among the international community that the southern region of Ebraston is under Abathi’s control, including their capital city, as agreed upon in 1915 during its occupation (¶5 MP). Meanwhile, the northern region of Ebraston is predominantly occupied by Lothiak ethnicity and is generally regarded as being under Lothiak’s territory (¶5 MP). Therefore, by moving its embassy to Lothiak in the central city of Ebraston, Riden has not established its embassy in the receiving state (¶15 MP), thus violating the VCDR. A strong Applicant may also highlight Riden’s history in the region (¶¶4-7 MP) and the speech by President Gary Callahan (¶14 MP) expressing a desire for a Lothiakian Abathi region, demonstrating that Riden was aware of Ebraston’s disputed status and intentionally violated international laws to assert its recognition of the city’s territory as belonging to Lothiak. This context helps dispel Respondent’s claims that the embassy move to Ebraston is insignificant. If the Respondent cites the practice of other states placing embassies outside the receiving state, the Applicant should rebut this by presenting the abundance of state practice to the contrary, indicating possible customary international law. Additionally, the Applicant should argue that both the plain meaning and the drafting history of the VCDR imply that the embassy must be in the receiving state’s territory, even if not explicitly stated.6 3 Article 3 (1.) VCDR: The functions of a diplomatic mission consist, inter alia, in: (a) Representing the sending State in the receiving State; 4 Article 1 (i) VCDR: The “premises of the mission” are the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission. 5 Article 21 (1) VCDR: The receiving State shall either facilitate the acquisition on its territory, in accordance with its laws, by the sending State of premises necessary for its mission or assist the latter in obtaining accommodation in some other way. 6 https://opil-ouplaw-com.mu.idm.oclc.org/display/10.1093/law/9780198703969.001.0001/law- 9780198703969-chapter-5#law-9780198703969-chapter-5-note-98 30 1.1.2. Respondent In responding to the alleged violation under the VCDR, the Respondent can briefly address their (1.1.2.1.) jurisdiction before proceeding to discuss the (1.1.2.2.) actual violation itself. Although it is not mandatory to address jurisdiction, doing so when the Applicant does not give the Respondent an upper hand and shows a comprehensive understanding of how the second claim connects to the first claim. If the Applicant raises the argument on jurisdiction, the Respondent must be prepared to argue against it. If a Respondent accepts the Applicant’s jurisdiction, it demonstrates a lack of understanding of how the Court functions and the contents of Claim 1. 1.1.2.1. Jurisdiction The Respondent can argue this in two ways: First, the Respondent could dispute the statehood of Abathi, reiterating the argument on jurisdiction in Claim 1. A good Respondent should be able to connect their co-counsel's claims to theirs, demonstrating a comprehensive understanding of how one claim connects to another. Second, the Respondent could challenge Abathi’s legal interest to bring the claim. Jurisdiction in this case stems from the VCDR and encompasses only violations of the VCDR, rather than those of any other rules of international law (such as UNSC resolutions). Even if Abathi’s interpretation of the VCDR’s requirements is correct, it is not obvious that any State other than the receiving State (i.e., in this case, Lothiak) would have standing to bring a claim on this basis. Therefore questioning Abathi’s legal interest in the embassy relocation claim. Moreover, this brings the issue to a question of the Monetary Gold principle, which preferably should not be discussed further. 1.1.2.2. Violation of the VCDR The Respondent may acknowledge that the wording of the VCDR specifies ‘in the receiving State’ but should argue that not all states have their embassies in the territory of the receiving states. Some states have their embassies in other states, for example: 31 - In Saudi Arabia, the Foreign Office of the receiving state was in Jeddah, and foreign missions were required to reside there, not in Riyadh, the seat of the government. - In Israel, most diplomatic missions have remained in Tel Aviv because a shift to Jerusalem would indicate acceptance of Israel’s establishment of its seat of government there, which most governments are reluctant to do. However, some States have also left their embassies in Jerusalem even after the UNSC recommended that states relocate their embassies elsewhere with no repercussions. - In Vatican City, which, due to its small size, cannot accommodate diplomatic missions, embassies are located in Rome based on an agreement with the Government of Italy. 7 Therefore, by placing its embassy in Lothiak (¶15 MP), Riden is not in violation of the VCDR, as there are precedents showing otherwise. Additionally, the Respondent may point out that there is no article specifically stating that the embassy must be in the receiving state. It is merely inferred from Article 3 (and potentially Articles 1(i) and 21(1)). Thus, the Respondent may argue that the Applicant does not have a clear argument and is alleging that the Respondent is violating a rule of international law without solid legal ground. 1.2. Alleged Violation under the UNSC Resolution 10K This is the main argument under the first part of the second claim that teams must make. If teams choose to combine the VCDR argument with this argument on the UNSC Resolution 10K, that is acceptable in the interest of time. Regarding the UNSC Resolution 10K argument, teams must first establish (1.2.1.) whether the UNSC Resolution is binding. Then after establishing that the UNSC Resolution is binding/not binding on the parties, the team may discuss (1.2.2.) the actual violation itself. To note, jurisdiction and standing may be discussed by parties, but it is not mandatory or encouraged for this claim. For questions of jurisdiction, supra section (1.1.1.1.) and (1.1.2.1.) of the bench memorandum. For the question of standing, the answer to that would be that the Applicant is indeed directly affected by this claim. Any further discussion on standing would lead to an argument of the Monetary Gold principle which is not desirable. The crux is on the 7 https://www.ejiltalk.org/palestine-sues-the-united-states-in-the-icj-re-jerusalem-embassy/ 32 merits of whether there is a violation of the UNSC resolution. 1.2.1. The Binding Nature of the UNSC Resolution 10K It is generally accepted under international law that the binding nature of a UN Resolution 10K depends on two factors: (1.2.1.1.) how it was formed and (1.2.1.2.) the language of the UNSC Resolution. 1.2.1.1. The Formation of the Resolution Regarding how the UN resolution was formed, In 1971, the ICJ asserted in its advisory opinion on the question of Namibia that (1.2.1.1.1.) all UNSC resolutions may be legally binding, what is determinant is instead the language of the resolution which makes it legally binding. Some voices, however, defend that (1.2.1.1.2.) a difference should be made between United Nations Security Council resolutions adopted under "Chapter VII" of the UN Charter, which are legally binding, and those adopted under "Chapter VI" of the UN Charter, which are non binding. To note, it is not mentioned in the moot problem what Chapter the UNSC Resolution 10K came out of, however, through context it could be inferred that it came out of Chapter VII, but it is debatable. 1.2.1.1.1. Applicant The applicant should argue that UNSC Resolution 10K, while not necessarily originating from Chapter VII of the UN Charter, may still be binding on states. They should assert that the binding nature of UNSC resolutions, regardless of their chapter of origin, is supported by the UN Charter and the Namibia Advisory Opinion. Article 25 of the UN Charter mandates that “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” Bruno Simma's commentary reinforces that this binding obligation applies universally to all UNSC resolutions regardless of origin.8 8 https://opil-ouplaw-com.mu.idm.oclc.org/display/10.1093/law/9780199639762.001.0001/law- 9780199639762-chapter-37#law-9780199639762-div1-303, Ch.V The Security Council, Functions and Powers, Article 25, “B. ‘Decisions’ of the Council: Binding Legal Acts” 33 The International Court of Justice, in its Namibia Advisory Opinion, clarified that Article 25 applies broadly and is not limited to Chapter VII resolutions. Instead, the Court emphasised that the language and content of each resolution determine its binding effect. Therefore, these principles indicate that the source of formation is irrelevant as long as it is a UNSC Resolution, potentially making it binding on states.9 Moreover, in practice, UNSC resolutions often do not explicitly state whether they are based on Chapter VI or VII of the UN Charter. Consequently, UNSC Resolution 10K meets the criteria for potential binding status, contingent upon the specific obligations outlined within its text. 1.2.1.1.2. Respondent The Respondent should argue that allowing the Security Council to adopt binding measures under Chapter VI would undermine the structural division of competencies envisioned by Chapters VI and VII, respectively. The purpose of these chapters is to differentiate between voluntary and binding measures. Settlement of disputes under Chapter VI relies on the consent of the parties involved, whereas measures under Chapter VII are characterised by the absence of such consent.10 Another indication of the non-binding nature of Chapter VI measures is the obligation for Security Council members involved in a dispute to abstain from voting on resolutions. This obligation does not apply to binding resolutions under Chapter VII. 11 Applying this reasoning to the Namibia opinion, the critical point is that none of the Articles under Chapter VI facilitate the adoption of binding measures similar to those in Security Council Resolution 276 (1970). Despite efforts by the ICJ to suggest otherwise, Resolution 260 (1970) was adopted under Chapter VII. Therefore, although it is not stated what Chapter the UNSC Resolution 10K came out of, Respondent could use this to undermine the binding 9 ¶113 of Namibia: “It has been contended that Article 25 of the Charter applies only to enforcement measures adopted under Chapter VI1 of the Charter. It is not possible to find in the Charter any support for this view. Article 25 is not confined to decisions in regard to enforcement action but applies to "the decisions of the Security Council" adopted in accordance with the Charter” 10 De Wet, Erika. The Chapter VII Powers of the United Nations Security Council, Hart Publishing, 2004, ISBN 1-84113-422-8, pp. 39-40 11 http://www.ejil.org/pdfs/16/5/329.pdf p. 885 34 nature of the resolution. 1.2.1.2. The Language of the Resolution In Namibia, the ICJ emphasised that the binding nature of a UNSC resolution hinges on its specific language,12 as each provision's wording carries distinct meanings and intended effects.13 It is well-established that the Security Council has the authority to adopt resolutions that are legally binding. Article 25 of the UN Charter stipulates that “Members of the United Nations agree to accept and carry out the decisions of the Security Council.” The crucial term in this provision is “decision”: resolutions using hortatory language, such as recommending measures, do not impose legal obligations.14 According to Namibia, for a resolution to become a “decision” and impose legal duties or affect rights, it must employ mandatory language. This principle is reinforced by Sir Gerald Fitzmaurice in his dissenting opinion in the Namibia advisory opinion, where he states: "If, under the relevant chapter or article of the Charter, the decision is not binding, Article [69/70] 25 cannot make it so. If the effect of that Article were automatically to make all decisions of the Security Council binding, then the words 'in accordance with the present Charter' would be quite superfluous".15 UNSC resolutions that assert binding effects typically employ terms like “decide,” “demand,” 16 or similar language indicating the Council’s intention to create legal obligations. 17 Conversely, 12 ¶114 of Namibia: It has also been contended that the relevant Security Council resolutions are couched in exhortatory rather than mandatory language and that, therefore, they do not purport to impose any legal duty on any State nor to affect legally any right of any State. The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, al1 circumstances that might assist in determining the legal consequences of the resolution of the Security Council. 13 Advisory Opinion Namibia, ¶114; Daniel H. Joyner, Iran’s Nuclear Program and International Law: From Confrontation to Accord (1st edn, New York: Oxford University Press 2016), p. 195. 14 The effects differ according to the type of resolution. The term ‘resolution’ as used in UN practice has a generic sense, including recommendations and decisions, both of which have a vague and variable meaning in the Charter. The Court, on the other hand, reserves the expression ‘decision’ for binding resolutions and ‘recommendation’ for non-binding ones. A resolution is ‘binding’ when it is capable of creating obligations on its addressee(s); read more: https://verfassungsblog.de/why-todays-un-security-council-resolution-demanding-an-immediate- ceasefire-is-legally-binding/ and The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ by Marko Divac Öberg (doi: 10.1093/ejil/chi151) 15 https://www.icj-cij.org/sites/default/files/case-related/53/053-19710621-ADV-01-08-EN.pdf 16 Advisory Opinion Namibia, ¶114; UNSC, ‘Resolution 276’ UN Doc. S/RES/276. 17 Daniel Iran’s Nuclear, p. 195. 35 terms such as “calls upon,” “requests,” “underlines,” and “stresses” are generally non-binding. However, the Namibia Advisory Opinion found certain “calls upon” requests to be legally binding, such as instructing South Africa to withdraw from Namibia immediately (S/Res/269 (1969), para 5)18 and directing all states to refrain from dealings inconsistent with Namibia’s status (S/Res/276 (1970), para 5)19.20 The distinction between “calls upon” and “demands” remains debated, with most interpretations leaning towards “calls upon” being non-binding, according to scholarly consensus. The relevant parts of the UNSC Resolution are: - ¶3 of the UNSC Resolution: Further demands that all States refrain from recognizing Lothiak’s unilateral claim over the Holy City of Ebraston and from taking any actions that seek to alter the character and status of Ebraston; - ¶4 of the UNSC Resolution: Decides that all such measures by States, which have altered the geographic, demographic, political, and historical character and status of the Holy City of Ebraston, are in violation of this resolution; - ¶5 of the UNSC Resolution: Calls upon all Member States that have established diplomatic missions in Ebraston to withdraw such missions from the Holy City and urges all States to refrain from establishing new missions there; 1.2.1.2.1. Applicant The wording of ¶5 of UNSC Resolution 10K, which uses 'calls upon' to stipulate that all Member States should refrain from establishing missions in the Holy City, is deemed non- binding according to the advisory opinion of Namibia. However, ¶3 and ¶4 of UNSC Resolution 10K 'decide' and 'demand' that any action altering the status of the Holy City of Ebraston is in violation of the resolution. According to Namibia, the use of 'decides' indicates the Security Council's intent to issue a legally binding decision that imposes obligations on member states. 18 “Calls upon the Government of South Africa to withdraw its administration from the Territory immediately” 19 “Calls upon all States…to refrain from any dealing with the Government of South Africa which are inconsistent with paragraph 2 of the present resolution [declaring the continued presence of South Africa in Namibia illegal]” 20 Namibia Advisory Opinion, ¶115. 36 Moreover, the text of Resolution 10K is explicit and firm: it decisively states and demands that all states refrain from recognizing Lothiak’s unilateral claim over the Holy City of Ebraston and from taking any actions that would alter its character or status. There is no ambiguity in the language used. Therefore, ¶3 and ¶4 of UNSC Resolution 10K are binding. Since ¶3 and ¶4 of UNSC Resolution 10K are binding, Riden remains obligated not to take any actions that would alter the status of the Holy City of Ebraston. By extension, ¶5 of UNSC Resolution 10K should also be binding, as relocating the embassy would change the status of the Holy City of Ebraston and imply recognition of Lothiak's claim over it as their capital city. Furthermore, according to ¶115 of the Namibia Advisory Opinion, paragraphs using “calls upon” can also be binding if they are sufficiently instructive and assertive. 1.2.1.2.2. Respondent The Respondent should argue that ¶5 of UNSC Resolution 10K is the paragraph of relevance to this dispute. However, due to its wording of "calls upon," it is not binding upon the parties. Additionally, the Respondent may argue that by drawing inferences from ¶3 and ¶4 of UNSC Resolution 10K to create a legal obligation not to move their embassy, the Applicant is overextending the meaning of the articles. This type of interpretative stretching should not be done. Therefore, relocating the embassy out of the Holy City of Ebraston is not an obligation. 1.2.2. Violation of UNSC Resolution The Council's decisions bind all UN members, including those who did not participate in their adoption. The binding effect extends, as the ICJ stated, to "those members of the Security Council which voted against it and those Members of the United Nations who are not members of the Council."21 The Applicant is a UN observer State, and the Respondent is a UN member state. Therefore, if the UNSC Resolution were binding, it would apply to both the Applicant and Respondent. 21 Namibia (Advisory Opinion), ¶116; Kosovo Advisory Opinion, ¶94; https://opil-ouplaw- com.mu.idm.oclc.org/display/10.1093/law/9780199639762.001.0001/law-9780199639762-chapter-37#law- 9780199639762-note-4733, Ch.V The Security Council, Functions and Powers, Article 25, “D. The Addressees of Obligations Contained in Security Council Decisions” 37 After establishing that UNSC Resolution 10K is binding, (1.2.2.1.) the Applicant should then argue that there was a violation of the resolution. Conversely, after arguing that UNSC Resolution 10K is not binding, (1.2.2.2.) the Respondent should then assert that, in any case, it did not violate the resolution. Here a good Respondent must make clear that this is an alternative argument, and that their main stance is that the Resolution does not give bonding obligation towards them. 1.2.2.1. Applicant By moving their missions from Zugril to the Holy City, there is a clear alteration of the status of the Holy City of Ebraston. This can be seen in the facts presented in ¶¶14, 15, and 16. Therefore, it can be concluded that although the resolution does not explicitly prohibit the setting up of embassies in the Holy City of Ebraston, the action changes the status of the city, thus violating ¶5, which creates a legal obligation. A strong Applicant would draw a narrative using the provided facts to demonstrate that Riden’s embassy to Lothiak, located in the Holy City of Ebraston, changes the legal status of the city in violation of ¶¶3-5 of UNSC Resolution 10K. As a counter-argument to the Respondent's claim that embassy relocation does not equate to recognition, the Applicant may argue that, in this specific case, the placement of the diplomatic mission does affect the status of the territory. Riden's conduct clearly treats Ebraston as part of Lothiak, evidenced by ¶¶7, 8, Annex 1 preamble, and ¶4 of the clarifications. Of particular significance is ¶4 of the Clarifications, which provides evidence that when Riden moved its embassy back to the Holy City of Ebraston in April 2021, two other States followed suit and relocated their embassies to the Holy City in 2022 and 2023. This cascade effect indicates increasing recognition of Ebraston as Lothiak’s territory. Moreover, a compelling Applicant may draw parallels to real-life cases, such as the US embassy in Jerusalem, which represents clear recognition of Israel’s claim over the land. Therefore, there was a violation of UNSC Resolution 10K. 1.2.2.2. Respondent 38 The Respondent should argue that there was no violation of UNSC Resolution 10K for two reasons: first, the Respondent did not violate international law as ¶5 of the resolution is non- binding; and secondly, even if the Applicant were to argue that there was a violation of international law by virtue of ¶¶3-4 of the UNSC Resolution, the Respondent did not violate UNSC Resolution 10K. The Respondent should clarify that this is an alternative argument, assuming for the sake of argument that the Resolution applies. However, the primary argument is that the UNSC Resolution does not apply. In any case, if the Applicant were to derive the obligation of not moving the embassy through ¶4 of the resolution, the Respondent should argue that having an embassy does not mean recognizing Ebraston as Lothiak’s territory. This can be surmised through state practice: - In Saudi Arabia, the Foreign Office of the receiving state was in Jeddah, and foreign missions were required to reside there, not in Riyadh, the seat of the government. - In Israel, most diplomatic missions have remained in Tel Aviv because a shift to Jerusalem would indicate acceptance of Israel’s establishment of its seat of government there, which most governments are reluctant to do. However, some States have also left their embassies in Jerusalem even after the UNSC recommended that states relocate their embassies elsewhere with no repercussions. - In Vatican City, which, due to its small size, cannot accommodate diplomatic missions, embassies are located in Rome based on an agreement with the Government of Italy. 22 Furthermore, a good Respondent may bring up the facts that the Applicant has cited to demonstrate the alteration of status and refute them with the following points: ¶¶10-13, and 15 of the facts. These facts indicate that the embassy was not intended to recognize the Holy City of Ebraston as belonging to Lothiak but was merely established to facilitate Riden citizens travelling to Ebraston for pilgrimage. Therefore, there was no violation of the UNSC Resolution 10K. 22 https://www.ejiltalk.org/palestine-sues-the-united-states-in-the-icj-re-jerusalem-embassy/ 39 1.3. An Obligation of Non-Recognition under General International Law This is a possible argument to be made, but should not be the main argument in the present case. The obligation of non recognition is not well covered yet in legal jurisprudence so its usage and threshold is unclear. Obligation of Non-Recognition: Non-recognition is the practice and legal obligation not to extend diplomatic recognition to annexations or de facto states created through the violation of international law. It is a counterpart to the rejection of the right of conquest in modern international law and the jus cogens norm prohibiting the acquisition of territory through force. Legal basis: - Namibia Advisory Opinion: In the Namibia advisory opinion, the ICJ, referencing the illegal presence of South Africa in Namibia, held that States must abstain from entering into treaty relations with South Africa in all cases where the Government of South Africa purported to act on behalf of Namibia. States must also refrain from diplomatic relations that may imply recognition of South Africa's authority over Namibia and avoid entering into economic or other relationships with South Africa on behalf of or concerning Namibia, which may consolidate South Africa's control over the territory. The ICJ qualified these ‘negative’ requirements with what later became known as the ‘Namibia exception,’ holding that the policy of non-recognition should not deprive the local population of any advantages derived from international cooperation. - ¶ ¶118- 125 - 123. Member States, in compliance with the duty of non-recognition imposed by paragraphs 2 and 5 of resolution 276 (1970), are under obligation to abstain from sending diplomatic or special missions to South Africa including in their jurisdiction the Territory of Namibia, to abstain from sending consular agents to Namibia, and to withdraw any such agents already there. They should also make it clear to the South African authorities that the maintenance of diplomatic or consular relations with South Africa does not imply any recognition of its authority with regard to Namibia. - 124. The restraints which are implicit in the non-recognition of South Africa’s presence in Namibia and the explicit provisions of paragraph 5 of resolution 276 (1970) impose upon member States the obligation to abstain from entering into 40 economic and other forms of relationship or dealings with South Africa on behalf of or concerning Namibia which may entrench its authority over the Territory. - 2004 Wall Advisory Opinion: in this Advisory Opinion, the Court warns that Israel’s actions (even if equivocal) could still amount to de facto annexation in Palestine, and that all States bore duties not to recognize this unlawful situation even if Israel gave assurances that there was no annexation taking place: - 121. Whilst the Court notes the assurance given by Israel that the construction of the wall does not amount to annexation and that the wall is of a temporary nature (see paragraph 116 above), it nevertheless cannot remain indifferent to certain fears expressed to it that the route of the wall will prejudge the future frontier between Israel and Palestine, and the fear that Israel may integrate the settlements and their means of access. The Court considers that the construction of the wall and its associated régime create a “fait accompli” on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation… - …159. Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction. It is also for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end. In addition, all the States parties to the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 are under an obli

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