CLEA Moot, 2016 - Best Memo - Applicant

Memorial for Republic of Andorra

Team code: CLEA003

IN

THE

INTERNATIONAL COURT

OF

JUSTICE

AT THE PEACE PALACE, THE HAGUE THE NETHERLANDS United Republic of ASIAN/ Re public of Andorra (Applicant)

(Respondent)

Memorial for the Respondent -Republic of Andorra-

CLEA (Asia-India) Mooting Competition 2016


Team code: CLEA003

TABLE OF CONTENTS I NDEX OF ABBREVIATIONS .......................................... ................................................................. ............................................. ......................................... ................... 2 I NDEX OF AUTHORITIES ........................................... ................................................................. ............................................ ............................................. .......................3 STATEMENT OF JURISDICTION ......................................... ............................................................... ............................................ ...................................... ................ 8 STATEMENT OF FACTS ............................................. ................................................................... ............................................ ............................................. .......................9 QUESTIONS PRESENTED ........................................... ................................................................. ............................................ ........................................... .....................12 12 SUMMARY OF PLEADINGS ........................................... .................................................................. ............................................. ....................................... .................13 ARGUMENTS ADVANCED ............................................ ................................................................... ............................................. ....................................... ................. 16 I.

The Prosecution of Mr. TTK Ganzard in URA is in violation of United Nations

Convention against Transnational Organized Crime .......................................... ........................................................... ................. 16 II.

Mr. TTK Ganzard enjoys immunity from jurisdiction of United Republic of ASIAN. 25

III.

Search and seizure s eizure of diplomatic premises premis es of Andorra Ando rra was illegal ille gal .......................... .......................... 31

IV.

URA is liable to compensate Andorra for damages arising out of violation of

diplomatic immunity. ............................................................ .................................................................................. ............................................. ......................... .. 35 CONCLUSION ............................................. ................................................................... ............................................ ............................................ .................................... .............. 39

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INDEX OF ABBREVIATIONS ¶

Paragrph

Art.

Article

H.R.

Human Rights

URA

United Republic of ASIAN

RoA

Republic of Andorra

ICJ

International Court of Justice

U.N.I.C.E.F.

United Nations Children’s Fund

U.N.E.S.C.O.

United Nations Educational, Scientific and Cultural Organiszation

U.N.C.T.O.C.

United

Nations

Convention

on

Transnational Organised Crime I.C.T.R.

International Crimina Tribunal for Rawanda

I.L.C.

International Law Commission

P.C.I.J.

Permanent Court of International Justice

U.N.C.A.C.

United

Nations

Convention

Against

Corruption U.N.S.C.

United Nations Security Council

U.N.G.A.

United Nations General Assembly

V.C.D.R.

Vienna Convention on Diplomatic Relations

V.C.C.R.

Vienna Convention on Consular Relations

V.C.L.T.

Vienna Convention on law of Treaties

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INDEX OF AUTHORITIES Treaties and Conventions

United Nations Convention Against Transnational Organized Crime (Adopted on November 15, 2000). ............................................. ................................................................... ............................................ ............................................ .................................... .............. 17 Tretises and Commentaries TH C.R Jennings, OPPENHEIM’S I NTERNATIONAL edn., (2003). .................................... .................................... 15 NTERNATIONAL LAW, 9

H. Fox and P. Webb, THE LAW OF STATE IMMUNITY , (2013). ............................................ ................................................. .....26 26 th Malcolm N. Shaw, I NTERNATIONAL ................................................... 20 NTERNATIONAL LAW, 6 edn., ( 2008). ...................................................

S. D. Murphy et al, LITIGATING WAR : MASS CIVIL I NJURY

AND THE

ERITREA-ETHIOPIA

CLAIMS COMMISSION , (2013). ............................................ .................................................................. ............................................ ............................ ...... 35 Decisions of ICJ Armed Activities on the Territory of the Congo ( Democratic Democratic Republic of the Congo v

4 7 ILR 6, (2005) (20 05) (International (Internati onal Court of Justice). ............................. ............................. 32 Uganda), Judgment, 47 Beckman v. Chinese People’s Republic , Judgment, 24 ILR 221, (1957) (International Court of

Justice). ............................................ ................................................................... ............................................. ............................................ ....................................... ................. 32 ASE C ONCERNING ONCERNING C ICARAGUA (N

V .

THE M ILITARY AND NITED S TATES TATES U

P ARAMILITARY ACTIVITIES

OF

IN AND AGAINST N ICARAGUA

A MERICA), JUDGMENT, 1986, ICJ R EPORTS EPORTS, 14

(I NTERNATIONAL .................................................................. ....................................... ................ 16 NTERNATIONAL COURT OF JUSTICE)............................................ Democratic Democratic Republic of the Congo v. Belgium , ICJ Rep. 3, 2002 (International Court of

Justice). ............................................ ................................................................... ............................................. ............................................ ....................................... ................. 33 New England Merchants Merchants National Bank v. Iran Power and Generating Generating Co ., Judgment, ICJ

Reports, 20 2 0 (1980), (1980 ), (International (Inte rnational Court of Justice) ........................ .............................................. .................................... .............. 16

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Weimann v. Republic of Latvia , Judgment, (1979),28 ILR 3, (International Court of Justice)

........................................... .................................................................. ............................................. ............................................ ............................................. ................................ ......... 32 Other Decisions

......................................16 Alfred Dunhill Dunhill of London London Inc. v. v. Republic of of Cuba , ILR, 66 (1976). ...................................... Argentine Republic v. Amerada Hess Shipping Corporation, 488 US 428, 442 – 443 443 (1989) (US Supreme Court). .......................................... ................................................................ ............................................ ........................................... .....................36 Bayerisches Oberlandesgericht [Bavarian Supreme Court], Public Prosecutorvs Djajic, 25 May 1997; ............................................ .................................................................. ............................................ ............................................ .................................... .............. 20 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Joint separate opinion of Higgins, J., Kooijmans, J. & Buergenthal, 2002, 72

(International Court of Justice). ....................................................... ............................................................................. .................................... .............. 22 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Separate opinion Rezek, 2002, 72 (International Court of Justice). ................... 22

Court of Appeal, Javor, 379-382 , BULLETIN DE DROIT CRIMINEL , 49(4) , (1996). ................ ................ 20 Court of Appeal, Munyeshyaka Munyeshyaka,, 55, BULLETIN DEDROITCRIMINEL , 53(3), (1988). ................ 20 Democratic Republic of o f Congo v Rwanda), Judgment, ICJ Reports 2006, p. 6. .............. 26, 27 Djibouti v France, pp. 241 – 42, 42, para 186. ............................................ ................................................................... .................................... ............. 26 Egypt v. Gamal-Eldin Gamal-Eldi n [1996] 2 All ER237 (England: Employment Appeals Tribunal). ........ 37 Enrica Lexie Case, 2012. .............................................................. .................................................................................... ........................................... .....................25 ................................................................. ............................ ..... 38 Eritrea’s Diplomatic Claim, Final Award, 2009 .......................................... .................................................................. ......................... .. 38 Eritrea’s Diplomatic Claim, Partial Award, 2007 ........................................... Eritrea-Ethiopia Eritrea-Ethiopia Claims Commission, Partial Award, Diplomatic Claim, 24 ILR 3, 19

December 2005 ........................................... .................................................................. ............................................. ............................................. ............................ ..... 33 Eritrea-Ethiopia Eritrea-Ethiopia Claims Commission, Partial Award, Diplomatic Claim, 24 ILR 3, 19

December 2005. .......................................... ................................................................. ............................................. ............................................. ............................ ..... 33 4


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.................................................................. ............................................ ......................... ... 38 Ethiopia’s Damages Claims, 2009 ............................................ ................................................................... .................................... ............. 38 Ethiopia’s Port Claim, Final Claim, 2005 ............................................ Ferrini v. Repubblica Federale di Germania, 87 RDI (2004) 539 (Italy: Cassazione), at paras 7 and 8.2 ........................................... .................................................................. ............................................. ............................................ ....................................... ................. 36 Hof van Assisen [Court of Assizes], Belgische J une 2001 .... 21 Belgische Staatvs 'de Vier van van Butare', 8 June ........................................21 Hojesteret [Supre Court], PublicProsecutor vs T., 15 August 1995 ........................................ Holland v. Lampen Wolfe, [2000] [20 00] 3 All ER 833 (HL). .......................................... ..................................................... ........... 36, 37 Hullett v The King Kin g o off Spain (1828). ...................................... ............................................................ ............................................. ............................ ..... 25 In Application Application for Arrest Warrant Against General Shaul Mofaz (Decision of District Judge ............................................................... .....................28 28 Pratt, Bow Street Magistrates’ Court, Feb. 2004). .......................................... Landesgericht Salsburg [County Court of Salzburg], Osterreichische Republik vs Cvjetkovic, ................................................................... ............................................ ............................................ ................................ .......... 20 4 June 2000. ............................................. Litterell v. USA (No. 2), 100 ILR (1995) (1 995) 438 43 8 (England: CA) ....................................... ................................................ ......... 37 Oberlandesgericht Dfisseldorf [Dosseldorf Supreme Court], PublicProsecutorvsjorgic, 26 September 1997. ............................................. ................................................................... ............................................ ............................................. ......................... .. 20 Ostre Landsrets [Ostre County Court], Third Division, T. vs Public Prosecutor, 25 November ................................................................. ............................................ ............................................ ............................................. ......................... .. 21 1994........................................... ............................................................................ .................................... .............. 16 Persinger v. Iran , ILM, 22 (1983). ...................................................... The Ghaddafi Case before the French Cour de Cassation’, 12 EJIL (2001) 595. ...................27

.......................................................... ......................... ... 21 Ugesknft for Retsvesen, Vol. 30, No. 1, 1995, p. 838. .................................... 1987..................................................................... ................. 16 Underhill v. Hernandez , 168 US 250, 252, 1987.................................................... United States v. Public Service Alliance of Canada, 32 ILM (1993) 1 (Canada: Supreme Court); ........................................... ................................................................. ............................................ ............................................ ........................................... .....................37 Voiotia v. Germany, German y, Case no. 11/2000 1 1/2000 (Greece: Supreme Court, 2000). 2 000). ............................... ............................... 36 Wilberforce in I Congresso del Partido [1981] 2 All ER 1064, at 1074 (HL). ........................ ........................ 36 5


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UN Resolution and Documents

General Assembly Resolution 2131 (xx) of 21 December, 1965: ‘Declaration on the

inadmissibility of intervention in the domestic affairs of states and the protection of their ........................................16 independence and sovereignty’, UN Lega l Publications, (2013) ........................................ General convention conventi on on privileges pr ivileges and immunity of United Nations, 1946. ............................ ............................ 29 United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004. ........................................... .................................................................. ............................................. ............................................ ............................................. ................................ ......... 27 Journal Articles

Akande, Dapo, and Sangeeta Shah. Immunities of state officials, international crimes, and foreign domestic courts. European Journal of International Law Volume 21, No. 4, 2010, pp. 815-852. ......................... ................................................ .............................................. ............................................. ............................................ ............................ ...... 29 Available

at

http://www.ejiltalk.org/equatorial-guinea-v-france-what-are-the-limits-on-

prosecution-of-corruption-related prosecution-of-cor ruption-related-money-laundering-b -money-laundering-by-foreign-officials y-foreign-officials/........................ /........................27 27 D. Akande and S. Shah, Immunity of State Officials. International International Crimes, and Foreign NTERNATIONAL LAW 21(4), 815, 821 Domestic Courts, THE EUROPEAN JOURNAL OF I NTERNATIONAL

(2010). ........................................... ................................................................. ............................................ ............................................ ........................................... .....................28 E. D. Dickson, Waiver of Diplomatic Immunity , T HE AMERICAN JOURNAL OF I NTERNATIONAL NTERNATIONAL LAW 19(3), 555, 555 (1925). .......................................... ................................................................ ............................................ ................................ ..........35 Foakes, ‘Immunity for International Crimes? Developments in the Law on Prosecuting heads of State in Foreign Courts’, Chatham House Briefing Paper, November 2011 (IL BP

2011/2). ............................................ ................................................................... ............................................. ............................................ ....................................... ................. 27 French prosecutors throw out Rumsfeld torture case, Reuters, November 23, 2007 .............. 29 Pedretti, Ramona. Immunity of Heads of State and State Officials for International Crimes. Leiden; Boston: Brill Nijhoff, 2015; ............................................. .................................................................... ....................................... ................ 29

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Other International Regulations and Documents

Code of Criminal Procedure .......................................... ................................................................ ............................................ .................................... .............. 21 Crimes Against Humanity and War Crimes Act, R.S.C., (2000) ............................................ ............................................ 21 Vienna Convention on Diplomatic D iplomatic Rights (1961). ......................................... ............................................................... ......................... ... 33

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STATEMENT OF JURISDICTION The Republic of Andorra (Applicant) and the United Republic of ASIAN (Respondent), submit their dispute to the International Court of Justice under a Special Agreement pursuant to Article 36, Paragraph 1 of the ICJ.

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STATEMENT OF FACTS The United Republic of ASIAN (hereinafter URA) is a highly industrialised country. It is a permanent member of United Nations Security Securit y Council (UNSC). ( UNSC). On the other hand Republic of Andorra is a developing country. It is a small costal economy governed by Mr. TTK Ganzard, the president. He seized power over three decades ago from the democratically elected government in 1986, in a military coup. Since 1996, the country has been a constitutional democracy with Mr. Kian Ganzard as its president. However, elections in the past have been reported to be flawed and full of fraud. Further, the president of Andorra exercises almost total control over the political system of Andorra. Both these countries are founding members of United Nations, are parties to the Statute of the International Court of Justice and are parties to the Vienna Convention on Law of Treaties. International Civil Society and number of other NGOs working in the field of Human Rights have made various allegations against the regime of Mr. Kian Ganzard. It has been alleged that regime in Andorra is involved in Human Rights violations, suppressing dissent and maintain tight control over the country’s wealth. Further, due to such policies people of

Andorra have endured poverty, illiteracy and lead an abysmal life standards despite the remarkable economic growth of the Republic of Andorra. In 2007, son of Mr. Kian, Mr. TTK Ganzard was appointed as the second vice-president of the republic of Andorra. However, this post was not mentioned under the constitution of Republic of Andorra. Along with being the second vice-president, Mr. TTK Ganzard also held the portfolio of Defence and Strategic Administration. In 2007, a human rights group on behalf of Accountability International, URA brought about complaint against Mr. TTK Ganzard for money laundering and corruption. Based on this 9


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complaint investigating agency of URA undertook investigation and indicted Mr. TTK Ganzard of Money-laundering. Thereafter many assets privately owned by Mr. TTK Ganzard in URA were discovered. Subsequently, prosecuting agency of URA prepared a case against Mr. TTK Ganzard on charges including corruption, money-laundering and embezzlement of public funds. However, Mr. TTK Ganzard denied the charges and questioned the jurisdiction of Domestic courts of URA in the case. Meanwhile, he was appointed as Andorra’s Deputy Permanent Delegate to UNESCO, which in turn happened to have its headquarters in URA. It is further given that both URA and Andorra are parties and signatory to the United Nations Convention against Transnational and Organised Crime (UNCTOC) and are parties to the Vienna Convention on Diplomatic Relations (VCDR). Further, while Andorra is neither a party nor a signatory to the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition, supplementing UNCTOC, URA has ratified all three protocols supplementing UNCTOC. In March, 2011 URA started the trial of case relating to Mr. TTK Ganzard before the competent court of URA. Meanwhile, Mr. TTK Ganzard sold his $50 million palatial House at 18, Rose Avenue to the Government of Andorra for an allegedly whooping sum of $310 million. Thereafter, Republic of Andorra through its communique dated 18/03/2011, conveyed URA that the said house will be used as diplomatic mission of Republic of Andorra. However, without considering the same, in the process of investigation, the police of URA has stormed into palatial House at 18, Rose Avenue and seized the same with other known properties of Mr. TTK Ganzard. The Republic of Andorra through its diplomatic note has registered strongest possible protest against the seizure. Andorra has further said that such

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seizure is unauthorized and illegal. Thereafter URA responded to Andorra through its communique dated 21/06/2011. In the year 2014, Mr. TTK Ganzard was appointed the vice-president of republic of Andorra. In December of the same year further allegations of dealing in illegal arms and ammunition manufacture and human trafficking for the same were levied against Mr. TTK Ganzard by another international NGO called Association for Trade against Arms. Thereafter there were a series of diplomatic exchanges and negotiations between the governments of two states. However the same failed. Presently both parties have agreed to submit these matters to the International Court of Justice.

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QUESTIONS PRESENTED I.

Does prosecution of Mr. TTK Ganzard in URA result in violation of provisions of United Nations Convention on Transnational Organized Crime?

II.

Is Mr. TTK Ganzard immune from jurisdiction of United Republic of ASIAN?

III.

Was it illegal on part of United Republic of ASIAN to search and seize diplomatic premises of Republic of Andorra? Ando rra?

IV.

Is United Republic of ASIAN liable to compensate Republic of Andorra for damages arising out of violation of diplomatic immunity?

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SUMMARY OF PLEADINGS I.

Prosecution of Mr. TTK Ganzard results in violation of United Nations Convention on Transnational Organized Crime.

It is submitted that the prosecution of Mr. TTK Ganzard violates Article 4 of the UNCTOC, which talks about sovereign equality and non-intervention in the domestic affairs. URA cannot establish its jurisdiction over the offence of money laundering, as its predicate offence is not criminalized, whose jurisdiction lied solely with Andorra. With regards to offence of corruption it is an internal matter of Andorra. Furthermore, it is submitted URA has no jurisdiction over the crimes committed by Mr. TTK Ganzard under UNCTOC. URA cannot establish its jurisdiction over the offence of money laundering, as its predicate offence is not criminalised, whose jurisdiction lied solely with Andorra. With regards to offences of corruption, illegal manufacturing of arms and ammunitions and that of human trafficking, URA does not have universal jurisdiction. Universal jurisdiction can be used for crimes against humanity because these offences do not affect a particular nation but the entire international community as a whole. The offences above-stated are are not crimes against humanity, hence jurisdiction on basis of universality cannot be established and exercised for all of them. Even if these offences are crimes against humanity, universal jurisdiction cannot be established in the facts of our case since the offender is not present on the territory of URA.

II.

Mr. TTK Ganzard is immune from jurisdiction of United Republic of ASIAN.

Immunity to diplomats, heads of states, and heads of government etc. is a prescribed under Vienna Convention on Diplomatic Relations, 1961 and Vienna Convention on Consular relations, 1963. It is provided to ensure that the diplomats and heads of states could carry 13


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out their sovereign functions without any obstruction. In this case it is submitted that Mr. TTK Ganzard enjoys diplomatic immunity. He enjoys diplomatic immunity by virtue of being the vice-president of Republic of Andorra, minister of defense and security for the republic of Andorra and by being deputy permanent representative of Andorra to UNESCO. Further, he never submitted to the jurisdiction of United Republic of ASIAN.

III.

It was illegal on part of United Republic of ASIAN to search and seize diplomatic premises of Republic of Andorra.

The law governing this conflict is the Vienna Convention of Diplomatic Rights. There is no real procedure mentioned in the convention in relation to the establishment of a diplomatic mission. It is submitted that the act of converting the private property of Mr. Gandzard into a diplomatic mission is valid in law and the fact that the seizure of the said property was a violation of the convention. This is so because firstly the property propert y is a diplomatic mission because of the implied consent that URA gave by remaining silent for a moth and because of the premises test. Secondly, the seizure was a violation of Section 22 of the Vienna Convention on Diplomatic Relations and other provisions which protect the violability of the diplomatic mission and is considered extremely grave in nature. There is landmark case law on the inviolability and the absolute nature of the protection which a diplomatic mission has and that holds ground with respect to the violation done by URA.

IV.

United Republic of ASIAN is liable to compensate Republic of Andorra for damages arising out of violation of diplomatic immunity

Under the Vienna Convention on Diplomatic Relations and as per the principle of customary law, violation of diplomatic immunity is an offence. In fact it is an offence by

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one sovereign against another. Consequently it constitutes a wrong. Further, even though there are no provisions under international treaties in order to grant compensation, courts have carried out such an action in the past. Further United Republic of ASIAN has expressly waived off its state immunity by being a party to VCDR and as per customary law. Consequently, it is liable for its acts of violation of diplomatic immunity.

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ARGUMENTS ADVANCED I.

The Prosecution of Mr. TTK Ganzard in URA is in violation of United Nations Convention against Transnational Organized Crime

It is submitted that the prosecution of Mr. TTK Ganzard is in violation of UNCTOC because firstly, it is in contravention of Article 4 of this Convention [A]. Secondly, URA has no

jurisdiction over the th e crimes committed by Mr. TTK Ganzard under UNCTOC [B].

[A]. Prosecution of TTK Ganzard is in violation of Article 4 of UNCTOC

Article 4(1) of UNCTOC states that “ States Parties shall carry out their obligations under this Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States .” The principle mandates that the affairs of one country, which are private, be not to be

intervened in by another country, no matter how powerful the country may be.1 It is submitted that the principle is violated because [i] the act of state doctrine applies in case of corruption [ii] the primary jurisdiction of the matter lies with Andorra in case of money laundering. [i]. THE ACT OF STATE DOCTRINE APPLIES It is submitted that the United Nations general assembly in 1965 adopted a declaration on the inviolability of intervention2 which declared that no state had the right to intervene in a direct

1

C.R Jennings, O PPENHEIM’S I NTERNATIONAL LAW, 345, 9TH edn., (2003). 2 Therefore, it is applicable to all the members of the United Nations.

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or indirect manner in the internal affairs of a state.3 It also means that a state must not lose the ability to have control over a matter that was within its jurisdiction.4 It is submitted that URA violates the principle on several levels. It is submitted that the Act of state doctrine is a consequence of the principle of sovereign equality or independence of states. This is to the effect that the courts of one state do not, as a rule question the validity or legality of the official acts of another sovereign state5 or the officially or officially avowed acts of its agents, at any rate insofar as those acts involve the exercise of the state’s public authority,6 purport to take effect within the sphere of the latter’s own jurisdiction. The leading case on this clearly highlights the principle, “ Every sovereign State is bound to respect the independence of every other sovereign State and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory.”7 The principle of intervention also applies it has been held that to constitute

intervention, the interference must be in effect depriving the state intervened of the control over the matter in the question.8 It is humbly submitted that with respect to the corruption charges levied against a high ranking member of the Government of Andorra, it does form a violation of the principle. It does so because it constitutes an act of intervention into the matter which is solely an internal matter of the Republic of Andorra and affects only them. The State’s actions or inactions on

that matter are not to be questioned or sat over in judgment by parties who are not involved in this personal matter. The acceptance of this move would set a very harsh precedent which

3

General Assembly Resolution 2131 (xx) of 21 December, 1965: ‘Declaration on the inadmissibility of intervention in the domestic affairs of states and the protection of their independence and sovereignty’, UN Legal Publications, (2013) available at http://legal.un.org/avl/pdf/ha/ga_2131-xx/ga_2131-xx_e.pdf. http://legal.un.org/avl/pdf/ha/ga_2131-xx/ga_2131-xx_e.pdf. 4 Jennings, supra note 1, at 432. 5 New England Merchants National Bank v. Iran Power and Generating Co ., Judgment, ICJ Reports, 20 (1980), (International Court of Justice); Persinger v. Iran , ILM, 22 (1983). 6 Alfred Dunhill of London Inc. v. Republic Republic of Cuba, ILR, 66 (1976). 7 , 168 US 250, 252, 1987. Underhill v. Hernandez 8 ASE C ONCERNING ONCERNING THE M ILITARY AND P ARAMILITARY ARAMILITARY ACTIVITIES IN AND AGAINST N ICARAGUA ICARAGUA (N ICARAGUA V . C EPORTS, 14 (I NTERNATIONAL COURT OF JUSTICE). TATES OF A MERICA), JUDGMENT, 1986, ICJ R EPORTS U NITED S TATES

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could lead to the bullying by more powerful states in the global world, which is exactly what the principle of sovereign equality and act of state seeks to stand against. [ii]. THE PRIMARY JURISDICTION OF THE MATTER LIES WITH A NDORRA IN THE CASE OF MONEY LAUNDERING

It is submitted that the offence of money laundering, even though it is a transnational offence still is an internal matter of the Republic of Andorra according to the law that is applicable, the UNCTOC. Since it is an internal matter of the state, another country intervention in this matter would be against the principle of sovereign equality and the act of state. Article 6 of UNCTOC criminalizes money laundering.9It includes all predicate offences both within and outside the jurisdiction of the state party in question.10 Article 2(h) defines a “ predicate offence” means any offence as a result of which proceeds have been generated that

may become the subject of an offence as defined in article 6 of this Convention. “ Proceeds of crime “mean any property derived, directly or indirectly throu gh the commission of an

offence.11

Hence, corruption and embezzlement of public funds are the predicate

offences through which the proceeds of crime have been generated.

It is submitted that the alleged predicate offences were committed in Republic of Andorra. Hence, under UNCTOC they have the right to decide if the acts committed by Mr. Ganzard in Republic of Andorra are criminal offences within the domestic law of that country.12 Unless

9

Art. 6(2)(c), United Nations Convention Against Transnational Organized Crime (Adopted on November 15, 2000). 10 Art 2(e), United Nations Convention Against Transnational Organized Crime (Adopted on November 15, 2000). 11 Art 6(2)(c), United Nations Convention Against Transnational Organized Crime (Adopted on November 15, 2000). 12 Art 6(2)(c), United Nations Convention Against Transnational Organized Crime (Adopted on November 15, 2000).

.

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Republic of Andorra does not decide upon this aspect, URA cannot prosecute Mr. Ganzard for money laundering committed in their territory. Furthermore, even if Republic of Andorra criminalizes the acts committed by Mr. Ganzard on its territory, it might still not criminalize both the predicate offences and money laundering under its domestic law as it may consider it double jeopardy. If this be the case, then URA cannot prosecute Mr. Ganzard for the offence of money laundering.

[B]. URA does not have jurisdiction over the offences committed by Mr. TTK Ganzard

Article 15 of UNCTOC deals with the aspect of jurisdiction of the parties to the convention. It is submitted, firstly, that the URA does not have territorial jurisdiction over the offence of money laundering [i]. Secondly , URA has no jurisdiction over the crime of corruption under the principle of universal jurisdiction [ii]. [i]. URA HAS TERRITORIAL JURISDICTION OVER THE OFFENCE OF MONEY -LAUNDERING Article 6 of UNCTOC criminalizes money laundering.13It includes all predicate offences both within and outside the jurisdiction of the state party in question.14 Article 2(h) defines a “ predicate offence” means any offence as a result of which proceeds have bee n generated that may become the subject of an offence as defined in article 6 of this Convention. “ Proceeds of crime “mean any property derived, directly or indirectly through the commission of an

13

Art. 6,United Nations Convention Against Transnational Organized Crime (Adopted on November 15, 2000). Art. 6(2)(c), United Nations Convention Against Transnational Organized Crime (Adopted on November 15, 2000). 14

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offence.15 Hence, corruption and embezzlement of public funds are the predicate offences through which the proceeds of crime have been generated. It is submitted that the alleged predicate offences were committed in Republic of Andorra. Hence, under UNCTOC they have the right to decide if the acts committed by Mr. TTK Ganzard in Republic of Andorra are criminal offences within the domestic law of that country.16 Unless Republic of Andorra does not decide upon this aspect, URA cannot prosecute Mr. Ganzard for money mone y laundering committed in i n their territory. Furthermore, even if Republic of Andorra criminalizes the acts committed by Mr. Ganzard on its territory, it might still not criminalize both the predicate offences and money laundering under its domestic law as it may consider it double jeopardy. If this be the case, then URA cannot prosecute Mr. Ganzard for the offence of money laundering.

[ii]. URA HAS NO JURISDICTION OVER THE OFFENCE OF CORRUPTION UNDER THE PRINCIPLE OF UNIVERSAL JURISDICTION

The alleged crime of corruption has been committed in the territory of Andorra by a citizen of Andorra. Therefore, it is submitted that Andorra had jurisdiction over the offence of corruption both under the principle of territorial and nationality jurisdiction. The only way that URA could have established jurisdiction over this offence was by virtue of universal jurisdiction. It is submitted that according to the facts of our case, URA cannot establish jurisdiction over the offences of corruption under the principle of universal jurisdiction [1]. Assuming but not conceding the fact that URA can establish universal jurisdiction over the

15

Art 2(e), United Nations Convention Against Transnational Organized Crime (Adopted on November 15, 2000). 16 Art 6(2)(c), United Nations Convention Against Transnational Organized Crime (Adopted on November 15, 2000).

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offence of corruption, it can still not exercise it because international customary law does not recognize universal jurisdiction in absentia [2]. [1]. URA cannot establish jurisdiction over the offences of corruption under the principle of universal jurisdiction

It is conceded at the very outset that countries can exercise universal jurisdiction in certain restricted categories of offences, which are considered as offences as not only against a particular nation but also against the entire international community as a whole. These offences include genocide, crimes against humanity and breaches of the laws of war. However, it is submitted that corruption is not covered under any of these categories of offences. Hence, Mr. TTK Ganzard cannot be prosecuted for corruption under the principle of universal jurisdiction. [2]. International International customary customary law does does not recognize recognize universal universal jurisdictio jurisdiction n in absentia absentia It is submitted that universal jurisdiction in absentia is not recognized customary law firstly, there is no state practice in this regard and secondly, there is no opinio juris for universal jurisdiction in absentia. State practice would mean how a state behaves with regard to international law that can be ascertained from things like administrative acts, legislations, decision of court and activites on the international stage, for example, treaty making.17 It is submitted that there is no state practice in favour of universal jurisdiction in absentia that can be determined through legislations enacted in various states. Most European States require the presence on their territory of the alleged perpetrator of international crimes before any prosecution can be initiated. This prerequisite was recently

17

Malcolm N. Shaw, I NTERNATIONAL LAW, 82, 6th edn., ( 2008).

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reiterated in the Cvjetkovic Case 18 in Austria, in the Munyeshyaka Munyeshyaka Case19 and the Javor Case20 in France, in the Djajicandjorgic Djajicandjorgic Cases21 in Germany wherein the German courts

required proof of a connection between the prosecuted individuals and the German State (usually, residence or even former residence in Germany suffices), the case of the 'Four of Butare' 22 in Belgium, and the Saric Case23 in Denmark. In all these cases, criminal

proceedings were started against alleged perpetrators of the crimes of genocide or crimes against humanity committed either in the former Yugoslavia or in Rwanda, the national courts which dealt with them stated formally that the prosecution of these individuals was inadmissible under domestic law without their physical presence in the prosecuting State. Article 689-1 of the French Penal Code provides, "pursuant to the international conventions referred to below, any person who renders himself guilty outside the territory of the Republic of any of the offences enumerated in those article may, if in France, be prosecuted and tried by French courts . . ."24 Similarly, Section Eight of the Canadian Crimes Against Humanity and War Crimes Act states that "a person who is alleged to have committed an offence under Section Six or Seven may be prosecuted for that offense if ... after the time the offense is alleged to have been committed, the person is present in Canada.''25 The Australian War Crimes Act of 1945, as amended in 1988, is even more restrictive, and requires that the accused be an Australian resident or citizen at the time of committing the offense.

18

Landesgericht Salsburg [County Court of Salzburg], Osterreichische Republik vs Cvjetkovic, 4 June 2000. Court of Appeal, Munyeshyaka Appeal, Munyeshyaka 55, BULLETIN DEDROITCRIMINEL , 53(3) (1988).

19

,

20

,

Court of Appeal, Javor, Appeal, Javor, 379-382 BULLETIN DE DROIT CRIMINEL , 49(4) , (1996). ,

21

Bayerisches Oberlandesgericht [Bavarian Supreme Court], Public Prosecutorvs Djajic, 25 May 1997; Oberlandesgericht Dfisseldorf [Dosseldorf Supreme Court], PublicProsecutorvsjorgic, 26 September 1997.

22

of Assizes], Belgische Assizes], Belgische Staatvs Staatvs 'de Vier van Butare', 8 June 2001, available at www.cass.be www.cass.be and www.asf.be (both sites last visited on 11 December 2003). Hof van Assisen [Court

23

Ostre Landsrets [Ostre County Court], Third Division, T. vs Public vs Public Prosecutor,25 Prosecutor,25 November 1994; Hojesteret [Supre Court], PublicProsecutor Court], PublicProsecutor vs vs T., 15 August 1995, Ugesknft for Retsvesen, Vol. 30, No. 1, 1995, p. 838. 24 Code of Criminal Procedure, Art. 689-1, 1992 25

Art. 48. Crimes Against Humanity and War Crimes Act, R.S.C., (2000)

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It is further submitted that there is no opinio juris in favour of universal jurisdiction in absentia . Presently, there is no treaty that recognizes the right of States to exercise universal

jurisdiction in absentia. Most of the treaties that currently provide for universal jurisdiction expressly state that the accused should be found on the territory of the prosecuting State. For example, Article 36(2) of the Single Convention on Narcotics and Drugs, of 1961 provides that: “serious offences heretofore referred to committed either by nationals or by foreigners shall be prosecuted by the Party in whose territory the offence was committed, or by the Party in whose territory the offender is found if extradition is not acceptable in conformity with the law of the Party to which application is made ”26

Even in the Geneva Conventions of 1949, each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. The use of the words search for however, implies that parties to the Convention have an obligation to prosecute the perpetrators found as a result of investigations in their territory. The point made by one of the most distinguished specialists in international criminal law (and in the criminal aspects of international law), Professor C'laude Lombois: "Wherever that condition is not put into words, it must be taken to be implied: how could a State search for a criminal in a territory other than its own? How could it hand him over if he were not present in its territory?’ Both searching and handing over presuppose coercive acts, linked to the prerogatives of sovereign authority, the spatial limits of which are defined by the territory."27

26

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Joint

separate opinion of Higgins, J., Kooijmans, J. & Buergenthal, 2002, 72 (International Court of Justice). 27

Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),

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Neither does the case of SS Lotus provide provi de for universal jurisdiction juris diction in absentia. The case held that "Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, [international law] leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules . . .” However, in that

case the ICJ did not decide upon the question whether the exclusive territorial principle was, ipso facto a prohibitive rule against universal jurisdiction in absentia, since the effect of the collision between the ships were felt on the Turkish territory. It is submitted that in today’s context the territorial jurisdiction should be considered a

prohibitive rule against universal jurisdiction jur isdiction in absentia. The adoption of the United Nations Charter proclaiming the sovereign equality of States, and the appearance on the international scene of new States, born of decolonization, have strengthened the territorial principle. International criminal law has itself undergone considerable development and constitutes today an impressive legal corpus. It recognizes in many situations the possibility, for indeed the obligation, for it State other than that on whose territory these offence was committed to confer jurisdiction on its courts to prosecute the authors of certain crimes where they are present on its territory. International criminal courts have been created. But at no time has h as it it been envisaged that jurisdiction should be conferred upon the courts of every State in the world to prosecute such crimes, whoever their authors and victims and irrespective of the place where the offender is to be Sound. To do this would, moreover, risk creating total judicial chaos. It would also be to encourage the arbitrary, for the benefit of the powerful, purportedly acting actin g as agent for an ill-defined ill-defin ed "international community commun ity”.28

Separate opinion Rezek, 2002, 72 (International Court of Justice). Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Separate opinion President Guillaume, 2002, 72 (International Court of Justice).

28

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II.

Team code: CLEA003

Mr. TTK Ganzard enjoys immunity from jurisdiction of United Republic of ASIAN.

Immunity to diplomats, heads of states, and heads of government etc. is a prescribed under Vienna Convention on Diplomatic Relations, 1961 and Vienna Convention on Consular relations, 1963. It is provided to ensure that the diplomats and heads of states could carry out their sovereign functions without any obstruction. In this case it is submitted that Mr. TTK Ganzard enjoys diplomatic immunity. Consequently, United Republic of ASIAN cannot proceed against him. Mr. TTK Ganzard never submitted to the jurisdiction of URA [A]. Further, even if he did submit to the jurisdiction of URA, Mr. TTK Ganzard enjoys immunity because firstly, Mr. TTK Ganzard is a head of the state and hence is immune from jurisdiction of any an y other othe r state [B]; secondly, Mr. TTK Ganzard also enjoyed immunity from prosecution as the minister of Defence Defen ce and an d Security Securi ty for Republic of Andorra [C]; and lastly, Mr. TTK Ganzard likewise enjoys immunity as deputy-permanent delegate of Republic of Andorra to UNESCO [D]. Further, even if he enjoys limited diplomatic immunity, his acts in this case fall within the course of his official actions [E].

[A]. Mr. TTK Ganzard did not submit to the jurisdiction of URA

Immunity can be waved off if an individual voluntarily submits to the jurisdiction of a court.29 An individual submits to the jurisdiction of a court either by being plaintiff in a case or by defending his actions without challenging jurisdiction in the case.30 It is submitted that along with denial of wrong doing, Mr. TTK Ganzard also questioned jurisdiction of domestic 29

Hullett v The King of Spain (1828). Enrica Lexie Case, 2012.

30

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courts of URA.31 Thus, along with questioning the merits of the case, Mr. TTK Ganzard also questioned the jurisdiction. Consequently, he did not submit to the jurisdiction of domestic courts of URA. Hence, jurisdiction of domestic courts of URA is not applicable by submission before the courts. However, presuming but not conceding, even if jurisdiction of domestic courts of URA is applicable, Mr. TTK Ganzard enjoys diplomatic immunity due to following reasons.

[B]. Mr. TTK Ganzard enjoys immunity as a head of the state.

Principle of Immunity Ratione Ratione Personae Personae states that an individual is to be granted immunity by virtue of holding certain office. Such immunity extends to both official and private sphere. It is granted to all the heads of the state, foreign ministers and other officials or ministers representing interests of their country abroad.32 Rationale behind granting such immunity is to assist the individual official in carrying out his function of representing state without any fear of sanctions. In fact, such immunity extends to all actions of these individuals, including the ones committed before taking the office.33 Further, with the development of international trade, commerce, tourism etc. such individuals include any individual who holds a public office and represents his country in the international domain.34 Additionally, such individuals also include holders of office of a similar rank and political significance to those of the three

31

Moot Proposition. Page 16, Para 18. H. Fox and P. Webb, T HE LAW OF STATE IMMUNITY, 564 (2013). 33 Djibouti v France, pp. 241 – 42, 42, para 186. 34 Democratic Republic of Congo v Rwanda), Judgment, ICJ Reports 2006, p. 6. 32

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higher officials35 mentioned in the judgement. Hence, it will include vice-presidents, deputy prime ministers and defence ministers. min isters. It is submitted that Republic of Andorra is a Presidential Democracy.36 Mr. Kian Ganzard, by virtue of being its president is also the head of the state. Consequently, he also enjoys immunity from jurisdiction of the foreign state.37 Hence, he cannot be prosecuted by a foreign state for the criminal and civil wrongs done by him.38 While this immunity largely flows out of customary international law,39 it is explicitly provided under the United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004.40 Further, such immunity a subordinate acting on his behalf and foreign ministers.41 It is submitted that Mr. TTK Ganzard is entitled to Immunity Ratione Personae. This is primarily because by virtue of being vice-president of Republic of Andorra he represents interests of Andorra on international forum. For freely representing interests of republic of Republic of Andorra, Mr. TTK Ganzard requires Immunity Ratione Personae . Additionally, Mr. TTK Ganzard is subordinate to the president and by the established customs enjoys immunity of the same nature as the president. It is further submitted that absence of position of second vice-president in the constitution of Republic of Andorra is immaterial. This is because the basis for determining immunity is function of the individual at a particular position. It has no relation to the presence of that position in the constitution. Hence, the fact that Mr. TTK Ganzard’s position posi tion as second vice -

35

President, Foreign Minister and Diplomats have been expressly mentioned in the (Democratic Republic of Congo v Rwanda), Judgment, ICJ Reports 2006, p. 6. 36 Moot Proposition, Page 13, Para 3. 37 The Ghaddafi Case before the French Cour de Cassation’, 12 EJIL (2001) 595 . 38 Foakes, ‘Immunity for International Crimes? Developments in the Law on Prosecuting heads of State in Foreign Courts’, Chatham House Briefing Paper, November 2011 (IL BP 2011/2). 39 Available at http://www.ejiltalk.org/equatorial-guinea-v-france-what-are-the-limits-on-prosecution-ofcorruption-related-money-laundering-by-foreign-officials/ 40 Article 2(1)(b)(i) and 2(1)(b)(iv), United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004. 41 Democratic Republic of Congo v Rwanda), Judgment, ICJ Reports 2006, p. 6.

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president requires him to represent Andorra’s interests on international forums should hold priority over mention of position of second vice-president vice-presiden t in the constitution of Andorra. Subsequently, Mr. TTK Ganzard also enjoys immunity flowing out of the same. . [C]. Mr. TTK Ganzard also enjoys immunity by virtue of being the minister of Defence and Security for Republic of Andorra.

It was held in the arrest warrant case that the immunity rationale personae also applies to the serving Foreign Ministers.42 Akande and Shah argue that:43 “In that case, Foreign Ministers were held to be immune because they are responsible for the international relations of the state and ‘in the performance of these functions, he or she is frequently required to travel internationally, and thus must be in a position to do so freely whenever the need should arise.’ However, justifying this type of immunity by reference to the international functions of the official concerned would make it difficult to confine the immunity to a limited group of state officials. A very wide range of officials (senior and junior) are charged with the conduct of international relations and need to travel in the exercise of their functions.”44

Perhaps ministers other than those specifically designated as being responsible for foreign affairs often represent their state internationally.45 They may have to conduct bilateral negotiations with other governments or may represent their governments at international organizations or at international summits. Indeed it is difficult to think of any ministerial position that will not require at least some level of international involvement. In fact the same is true for defence minister. Considering the same, in November 2007, French prosecutor

42

Arts 29 and 31 VCDR, 1961. D. Akande and S. Shah, Immunity of State Officials. International Crimes, Crimes, and Foreign Domestic Courts, THE EUROPEAN JOURNAL OF I NTERNATIONAL LAW 21(4), 815, 821 (2010). 44 Arrest Warrant of 11 April April 2000 ( Democratic Democratic Republic of Congo v. Belgium) [2002] ICJ Rep 3, Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal, ibid., at para. 75 45 In Application for Arrest Warrant Against General Shaul Mofaz (Decision of District Judge Pratt, Bow Street Magistrates’ Court, Feb. 2004). 43

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refused to press charges against former US Secretary of Defense Donald Rumsfeld. Mr. Rumsfeld was not prosecuted for allegations of torture and other alleged crimes committed during the course of the US invasion of Iraq. This was done on the grounds that heads of state enjoyed official immunity under customary international law.46 Considering the same, it is submitted that Mr. TTK Ganzard enjoys diplomatic immunity by virtue of holding portfolio of defence and strategic administration of the Republic of Andorra.47 It is submitted that his he qualifies for immunity rationale personae by virtue of this position. Further, he also has to represent interests of republic of Andorra on international forums, hence fulfilling essential requirement for immunity rationale personae . Hence, considering the above Mr. TTK Ganzard cannot be prosecuted for allegations against him.

[D]. Mr. TTK Ganzard likewise enjoys immunity as deputy permanent delegate of Republic of Andorra to UNESCO.

Members representing other states in United Nations are granted total immunity from jurisdiction of foreign state.48 Section 1149 of the convention says that “ Representatives of Members to the principal and subsidiary organs of the United Nations and to conferences convened by the United Nations, shall, while exercising their functions and during the journey to and from the place of meeting, enjoy the following privileges and immunities.” Further, Section 11(a)50 states that “Immunity from personal arrest or detention and from

46

French prosecutors throw out Rumsfeld torture case, Reuters, Reuters, November 23, 2007; Pedretti, Ramona. Immunity of Heads of State and State Officials for International Crimes. Leiden; Boston: Brill Nijhoff, 2015; Akande, Dapo, and Sangeeta Shah. Immunities of state officials, international crimes, and foreign domestic courts. European Journal of International Law Volume 21, No. 4, 2010, pp. 815 -852. 47 Moot Proposition, Page 14, Para 9. 48 Article IV, General convention on privileges and immunity of United Nations, 1946. 49 Section 11, General convention on privileges and immunity of United Nations, 1946. 50 Section 11(a), General convention on privileges and immunity of United Nations, 1946.

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seizure of their personal baggage, and, in respect of words spoken or written and all acts done by them in their capacity as representatives, immunity from legal process of every kind;” and Section 11(g)51 states that “Such other privileges, immunities and facilities not inconsistent with the foregoing as diplomatic envoys enjoy…” While Section 1452 explicitly states that “Privileges and immunities are accorded to the representatives of Members not for the

personal benefit of the individuals themselves, but in order to safeguard the independent exercise of their functions in connection with the United Nations...”, it follows the same by providing a qualification qualificat ion that only sending sendin g member state can wave off such an immunity. immu nity. It is submitted that Mr. TTK Ganzard enjoys diplomatic immunity by virtue of being deputy permanent delegate of Andorra to UNESCO. Under section 11(a) he cannot be personally arrested. Further, as per section 11(g), immunity granted to him cannot be inconsistent with the immunities and privileges enjoyed by foregoing diplomats. Additionally, as per section 14 only Republic of Andorra can wave off the immunity granted to Mr. TTK Ganzard. It is submitted that a combined reading of above mentioned sections, along with the fact that headquarters of UNESCO are in URA, 53 evidently suggests that Mr. TTK Ganzard enjoys diplomatic immunity. Consequently, judicial proceedings against Mr. TTK Ganzard in the domestic courts of URA should be stopped.

51

Section 11(g), General convention on privileges and immunity of United Nations, 1946. Section 14, General convention on privileges and immunity of United Nations, 1946. 53 Moot Proposition, Page 15, Para 17. 52

30


III.

Team code: CLEA003

Search and seizure of diplomatic premises of Andorra was illegal

The law governing this conflict is the Vienna Convention of Diplomatic Rights. There is no real procedure mentioned in the convention in relation to the establishment of a diplomatic mission. It is submitted that the act of converting the private property of Mr. Gandzard into a diplomatic mission is valid in law and the fact that the seizure of the said property was a violation of the convention. This is so because [A] The property is a diplomatic mission [B] The seizure was a violation of Section 22 of the Vienna Convention on Diplomatic Relations and other provisions.

[A] The property is a diplomatic mission

The facts establish that the investigative agency of URA in lieu of conducting the investigation against Mr. Gandzard in lieu of his alleged money laundering seized some assets of Mr. Gandzard as is the norm in any legal investigation.54 One of these assets was a palatial house at Rose Avenue. Before the trial was about to start, Mr. Gandzard sold that property back to t o his own government. govern ment. The Republic Republ ic of Andorra had declared that property a ‘diplomatic mission’ of the state of Andorra. 55 It is submitted that notice was given to URA

about the establishment of the diplomatic mission and URA did not decline or deny the act of the Republic of Andorra. It is submitted that the test which is more widely followed, if one looks at the International Law Committee debates and state practice’s around the world, is of the usage and construction of the building.

54

Moot proposition, Page 17,¶ 26. Moot proposition, proposition, Page 16, ¶ 25.

55

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There was no express denial of the conversion of the private property into the diplomatic mission. It is submitted that till then the mission functioned as a diplomatic mission and thus it gained the inviolability and immunity because of the implied consent that URA’s silence

led to. Various decisions have upheld the usage and construction test over the consent test in the matters of diplomatic missions.56 It also cannot be ignored that Mr. Gandzard is still an innocent man and has not been convicted of any offence under any law and the fact that the property in dispute is of no real harm to the state of URA. Therefore, the presumption that flows is that as usual state practice follows; the building does become a diplomatic mission.57

[B]. The seizure was a violation of Section 22 of the Vienna Convention on Diplomatic Relations and other provisions The protection of diplomatic premises rests firstly on their inviolability that is is the prohibition of any an y agents of the t he receiving r eceiving State entering the premises without the consent of the head of the mission. Secondly, the latter embodies a special duty for the receiving State to provide appropriate protection and take the necessary means to protect the embassy from individuals that are not agents of the States.58 Thirdly, and finally, the protection of diplomatic premises comprises special rules on immunity from execution. It is submitted that this protection is applicable in this case and therefore the entry and seizure of the said building is illegal and bad b ad in law. It is submitted that Article 22 of the 1961 Vienna Convention provides that the premises of the mission shall be inviolable and that the agents of the receiving State may not enter them,

56

Weimann v. Republic of Latvia , Judgment, (1979),28 ILR 3, (International Court of Justice) ; Beckman v. Chinese People’s Republic , Judgment, 24 ILR 221, (1957) (International Court of Justice). 57 C.R Jennings, OPPENHEIM’S INTERNATIONAL LAW, 742, 9 TH edn., (2003) 58 Armed Activities on the Territory of the Congo ( Democratic Democratic Republic of the Congo v Uganda ), Judgment, 47 ILR 6, (2005) (International Court of Justice).

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except with the consent of the head of the mission.59 A violation of Article 22 was expressly recognized by the International Court of Justice in its decision in the Case regarding Armed Activities on the Territory of the Congo60 following Uganda’s counter -claim -claim based on the attacks on the Ugandan Embassy in Kinshasa by Congolese armed forces in August 1998 and the subsequent occupations of the premises of the mission. The Court found that there was sufficient evidence to prove that there were attacks against the Embassy by the Congolese armed forces and accordingly deemed that the DRC had breached its obligations under Article 22 of the 1961 Vienna Convention on Diplomatic Relations. This rule is formulated in absolute terms and holds that once a mission has been established, it is inviolable. It is submitted that the premises of a diplomatic mission cannot be violated without the consent of the head of the mission under no circumstances. The circumstances can be as grave as people being shot at or drugs smuggling but any sort of such abuse or reasonable suspicion of such abuse does not affect the absolute character of the inviolability of the diplomatic premises.61 It is submitted that the use of diplomatic premises in a manner incompatible with the functions of the missions (as prohibited under article 41 of the 1961 Vienna Convention) does not entitle the receiving State to take countermeasures consisting in a violation of the inviolability of the premises therefore any argumentation about the function of the mission to challenge its inviolability fails.62 Therefore, it is submitted that due to the law being settled on this issue, the inviolability of a diplomatic premises is that of unqualified character. Therefore, the seizure and the entry of the diplomatic mission by the authorities of URA is illegal and violates various provisions of the Vienna Convention on Diplomatic rights. It also 59

Article 22, Vienna Convention on Diplomatic Rights (1961). Supra, note 57. 61 Eritrea-Ethiopia Claims Commission, Partial Award, Diplomatic Claim, 24 ILR 3, 19 December 2005; Democratic Republic of the Congo Congo v. Belgium, ICJ Rep. 3, 2002 (International Court of Justice). 62 Article 22, Vienna Convention on Diplomatic Rights (1961); Eritrea-Ethiopia Claims Commission, Partial Award, Diplomatic Claim, 24 ILR 3, 19 December 2005. 60

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goes against established legal cases which have upheld the inviolability of diplomatic premises and shows a complete compl ete intentional disregard disregar d of the law applicable by b y URA.

34


IV.

Team code: CLEA003

URA is liable to compensate Andorra for damages arising out of violation of diplomatic immunity.

Under the Vienna Convention on Diplomatic Relations and as per the principle of customary law, violation of diplomatic immunity is an offence.63 In fact it is an offence by one sovereign against another.64 Consequently it constitutes a wrong. Further, even though there are no provisions under international internati onal treaties treati es in order to grant gr ant compensation, compensatio n, courts have carried out such an action in the past.65 Hence, it is primarily URA has waived off its state immunity with respect to violation of diplomatic immunity [A], secondly¸ because one sovereign is liable to compensate another for wrongs done by it [B], and thirdly , it is because liability is not merely satisfied in the form of liability finding if damages are ascertainable for the proven violation of diplomatic d iplomatic law [C].

[A]. URA has waived off its state immunity with respect to violation of diplomatic immunity

The idea of state immunity suggests that one sovereign nation is not liable to another sovereign nation.66 This idea extends to both state and civil wrongs.67 However, state immunity is not absolute and can be waived off by a nation state by consent.68 It can either be waived off by submitting to the jurisdiction of a court, by explicitly consenting to a statute, or

63

S. D. Murphy et al, LITIGATING WAR : MASS CIVIL I NJURY AND THE ERITREA-ETHIOPIA CLAIMS COMMISSION, 381 (2013). 64 Id. at 388. 65 Id. at 387. 66 E. D. Dickson, Waiver of Diplomatic Immunity, THE AMERICAN JOURNAL OF I NTERNATIONAL LAW 19(3), 555, 555 (1925). 67 Id. 68 Id. at 557.

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by virtue v irtue of customary law.69 It is submitted that in the instant case URA had waived off its state immunity with respect to ‘violation of diplomatic immunity’ by guaranteeing the same under its treaty and customary obligation.70 It is perhaps because of URA being a party and signatory to VCDR and customary laws with respect to immunity for head of state, which URA has waived off its immunity in the stated area. Hence, by consenting to the express provisions of VCDR and customary law, URA is liable for volition of diplomatic immunity. Consequently, URA is also liable to pay compensation to Andorra for violation of diplomatic immunity of Mr. TTK Ganzard and seizing the premises of diplomatic mission of Andorra.

[B]. One sovereign state is liable to compensate another sovereign state for wrongs done by it

In the case of Voiotia v. Germany,71 Supreme Court of Greece was of the opinion that one sovereign state is liable for wrongs committed against another sovereign. Further, in the case of Ferrini v. Repubblica Repubblica Federale di Germania,72 Italian Supreme Court denied state immunity. Decision was based on the grounds that the state immunity cannot be claimed in the cases of jus cogens offences and in cases where it’s waived off. Further, in Wilberforce in I Congresso Congresso del Partido Partido case, court held that:73

“in considering, under the restrictive theory, whether St ate immunity should be granted or not, the court must consider the whole context in which the claim against the State is made, with a view to deciding whether the relevant act(s) on which the claim is based should, in that context, be considered as fairly within an area of activity, trading or commercial or otherwise of a private law character, in which the State has chosen to engage or whether the relevant activity should be 69

Argentine Republic v. Amerada Hess Shipping Corporation, 488 US 428, 442 – 443 443 (1989) (US Supreme Court). 70 Holland v. Lampen Wolfe, [2000] 3 All ER 833 (HL). 71 Voiotia v. Germany, Case no. 11/2000 (Greece: Supreme Court, 2000). 72 Ferrini v. Repubblica Federale di Germania, 87 RDI (2004) 539 (Italy: Cassazione), at paras 7 and 8.2 73 Wilberforce in I Congresso del Partido [1981] 2 All ER 1064, at 1074 (HL).

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considered as having been done outside the area and within the sphere of governmental or sovereign activity” In Holland v. v. Lampen Wolfe 74 court held that: “…it is the nature of the act that determines whether it is to be characterised as iure imperii or iure gestionis . The process of characterization requires that the act must be considered in its context. In the present case the context is all-important. The overall context was that of the provision of educational services to military personnel and their families stationed on a US base overseas. The maintenance of the base itself was plainly a sovereign activity…”

Further a similar stand was taken by other apex courts of different jurisdictions.75 Considering the same, it is submitted that customary rule with respect to state immunity is not absolute. This rule is subjected to scrutiny and can be modified as per the circumstances and context. It is the nature of the act that determines whether the rule of state immunity is applicable or not. It is submitted that principle of diplomatic immunity flows out of VCDR and general customary law. Hence, states themselves wave off their right to state immunity for violation of diplomatic immunity. This is so because they expressly consent to such waiver by agreeing to grant diplomatic immunity. Hence, no state immunity exist in such cases. Consequently URA should be liable to compensate Republic of Andorra for violation of Diplomatic immunity.

[C]. Liability is not merely satisfied in the form of liability finding if damages are ascertainable for the proven violation of diplomatic law

74

Holland v. Lampen Wolfe, [2000] 3 All ER 833 (HL). United States v. Public Service Alliance of Canada, 32 ILM (1993) 1 (Canada: Supreme Court); Litterell v. USA (No. 2), 100 ILR (1995) 438 (England: CA); Egypt v. Gamal-Eldin [1996] 2 All ER237 (England: Employment Appeals Tribunal).

75

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In the Eritrea-Ethiopia claims commission decision, Eritrea claimed monetary compensations form Ethiopia for violating provisions of diplomatic immunity.76 Ethiopia arrested diplomat of Eritrea, and subsequently searched and seized their belongings.77 Ethiopia further broke into, and searched and seized the embassy building of Eritrea.78 It further, seized some of the diplomatically important communications.79 On the other hand, Ethiopia made more or less similar contentions. It sought compensation for arrest of its diplomat and violation of his diplomatic immunity. The commission concluded that satisfaction in the form of its liability finding was a sufficient repatriations for violation of diplomatic immunity in the two cases.80 However, this reasoning was backed by the fact that there was not enough evidence to prove claims and quantify losses.81 In instances where losses were personal and quantifiable, commission did in fact award monetary compensations.82 It is submitted that in this case entire incident was well documented. In fact, this case received extraordinary media attraction. Further, damages incurred by Andorra, Mr. TTK Ganzard and other diplomats in the embassy are perfectly ascertainable and quantifiable. Considering the same, it is submitted that URA is liable to pay monetary compensation to Andorra.

76

Eritrea’s Diplomatic Claim, Partial Award, 2007 (para 36). Id. 78 Id. at para 41. 79 Eritrea’s Diplomatic Claim, Final Award, 2009 (para 114). 80 Id. at para 4; Ethiopia’s Port Claim, Final Claim, 2005 (para 6). 81 Final Award, Ethiopia’s Damages Claims, 2009 (para 251). 82 Id. at para 255. 77

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CONCLUSION The Respondent, the Republic of Andorra, respectfully asks this court to adjudge and declare that the United Republic of ASIAAN has breached international law obligations with respect to: I.

United Nations Convention on Transnational Organized Crime by prosecuting Mr. TTK Ganzard in URA,

II.

Diplomatic immunity of Mr. TTK Ganzard by prosecuting him under its jurisdiction,

III.

Diplomatic premises of Republic of Andorra by illegally conducting search and seize of the same, and

IV.

Consequently, United Republic of ASIAN is liable to compensate Republic of Andorra for damages arising out of violation of diplomatic immunity.

39

CLEA Moot, 2016 - Best Memo - Applicant

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