This is a moot problem on International Law for a law school in India. Please provide memorandums from both sides asap.

 

INTERNATIONAL COURT OF JUSTICE

COMPROMIS

BETWEEN THE STATE OF ADAMANTA (APPLICANT)

AND THE STATE OF KOJIMA (RESPONDENT)

TO SUBMIT TO THE INTERNATIONAL COURT OF JUSTICE

THE DIFFERENCES BETWEEN THE STATES

CONCERNING THE LEGALITY OF USE OF FORCE AND

DECLARATION OF INDEPENDENCE OF THE JAMAVI STATE

jointly notified to the Court on 16 August 2011

JOINT NOTIFICATION

ADDRESSED TO THE REGISTRAR OF THE COURT:

The Hague, 16 August 2011

On behalf of the State of Adamanta (“the Applicant”) and the State of Kojima (“the

Respondent”), in accordance with Article 40(1) of the Statute of the International Court of

Justice, we have the honor to transmit to you an original of the Compromis for submission to the

International Court of Justice of the Differences between the Applicant and the Respondent

concerning the legality of use of force and declaration of independence of the Jamavi State,

signed in The Hague, The Netherlands, on the sixteenth day of August in the year two thousand

and eleven.

Ambassador of the State of Adamanta Ambassador of the State of Kojima to the

Kingdom of The Netherlands to the Kingdom of The Netherlands

COMPROMIS

SUBMITTED TO THE INTERNATIONAL COURT OF JUSTICE BY

THE STATE OF ADAMANTA AND THE STATE OF KOJIMA

ON THE DIFFERENCES BETWEEN THEM CONCERNING THE LEGALITY OF USE

OF FORCE AND DECLARATION OF INDEPENDENCE OF THE JAMAVI STATE

The State of Adamanta and the State of Kojima,

Considering that differences have arisen between them concerning the legality of use of force

and declaration of independence of the Jamavi State and other matters;

Recognizing that the Parties concerned have been unable to settle these differences by

negotiation;

Desiring further to define the issues to be submitted to the International Court of Justice

(hereinafter referred to as “the Court”) for settling this dispute;

In furtherance thereof the Parties have concluded the following Compromis:

Article 1

The Parties submit the questions contained in the Compromis (together with Clarifications to

follow) to the Court pursuant to Article 40(1) of the Statute of the Court.

Article 2

It is agreed by the Parties that the State of Adamanta shall act as Applicant and the State of

Kojima as Respondent, but such agreement is without prejudice to any question of the burden of

proof.

Article 3

(a) The Court is requested to decide the Case on the basis of the rules and principles of

general international law, as well as any applicable treaties.

(b) The Court is also requested to determine the legal consequences, including the rights and

obligations of the Parties, arising from its Judgment on the questions presented in the

Case.

Article 4

(a) All questions of procedure and rules shall be regulated in accordance with the provisions

of the Official Rules of the Amity International Moot Court Competition 2011

(b) The Parties request the Court to order that the written proceedings should consist of

Memorials presented by each of the Parties not later than the date set forth in the Official

Schedule of the Amity International Moot Court Competition 2011.

Article 5

(a) The Parties shall accept any Judgment of the Court as final and binding upon them and

shall execute it in its entirety and in good faith.

(b) Immediately after the transmission of any Judgment, the Parties shall enter into

negotiations on the modalities for its execution.

In witness whereof, the undersigned, being duly authorized, have signed the present Compromis

and have affixed thereto their respective seals of office.

Done in The Hague, The Netherlands, this seventeenth day of September in the year two

thousand and ten, in triplicate in the English language.

Ambassador of the State of Adamanta Ambassador of the State of Kojima

to the Kingdom of the Netherlands to the Kingdom of the Netherlands

THE AMITY INTERNATIONAL MOOT COURT COMPETITION 2011

COMPROMIS

THE STATE OF ADAMANTA V. THE STATE OF KOJIMA

THE CASE CONCERNING THE LEGALITY OF USE OF FORCE AND

DECLARATION OF INDEPENDENCE OF THE JAMAVI STATE

1. The continent of Vikita is rich in cultural heritage and natural resources; it was under

colonial subjugation from 18th century onwards. Most of the continent got its

independence from colonial rule by late 1940?s. The colonial rulers, without considering

the aspirations of the people, carved the continent into eight countries, leaving behind a

legacy of several unresolved territorial disputes. The largest country of the continent was

Kojima and the second largest country was Adamanta. The other countries included

Jaydanistan, Khanate of Farazistan and Avisha which were benevolent monarchies,

Quishkinda which was a theocratic Republic, Ralakshya a dictatorship and Bidjyot which

was ruled by a military Junta. The newly independent countries in Vikita formed the

Ashtnag Regional Council in 1947 to ensure economic, social, cultural and military

cooperation amongst the member countries. Several other countries signed treaties of

amity amongst themselves within the region.

2. Adamanta got its independence in 1949. It has a population comprising of two different

ethnicities within its borders. It inherited a feudal setup from its colonial masters who

reinstated the former monarchy headed by King Lokarno IV, the last descendent of the

Vikarta Kingdom. His emphasis was solely on law and order. He was an ardent supporter

of Lassiez Faire encouraging individual initiative and international trade. 63% of

Adamanta?s population constituted of the Gawas residing in the central and south eastern

region and the Jamavas constituted 29% of its population, who resided in the western

regions of the country. Other smaller ethnicities such as the bondis, etc. existed across the

country.

3. A feeling of suppression has always existed among the Jamavas and other ethnic

minorities. They believed that they deserved a special provision of reservation; however,

King Lucarno never considered the proposal. They have alleged that all government and

government related sectors have Gawas in much larger number as compared to the other

communities. It has also been contended by these groups that they have not been given

proper representation in the bureaucracy and the executive. Even the army has very few

officers apart from the Gawaits. Also, the Jamavas had initially been a nation by

themselves but were split into two different countries by the colonial rulers because of

which widespread dissatisfaction prevailed amongst them. There had been several calls

for the formation of the Jamavi state that had existed before the division of borders by

the colonial rulers. However, the Jamavis had not succeeded in their calls for formation

of the old Jamavi state in spite of many mutinies in the past.

4. Kojima, a neighbor of Adamanta along the western border is a country with 75% of its

population constituting Jamavis. It holds a very strong position in the Ashtnag Regional

Council as it was instrumental in the Council?s formation. Kojima is also a nonpermanent

member of the UN Security Council. Sadako, a 500 square km region on the

western border of Adamanta is an area with 60% of its population constituting Gawas

and is very rich in natural resources such as oil, gas and minerals. The territory was

traditionally considered a part of Adamanta. Adamanta could not afford a war with a

much more powerful Kojima owing to its duel with natural adversities like famine and

epidemic that impacted its economics as a new born nation as well as a sovereign who

preferred stability with neighbors as a way of escaping from the internal dissensions and

threats from nationalist forces from amongst the bureaucracy, military and the people.

Due to this and the influence of Kojima in the Ashtnag Regional Council , an agreement

was reached between the two countries in the presence of 3rd party mediators, wherein a

treaty was signed seceding Sadako to Kojima on 1st October 1955. In addition to the

aforesaid treaty of secession, a Treaty of Amity was also signed to continue peaceful

relations between these two nations in 1955. The population and army of Adamanta was

very upset with the arrangement but had to accept King Lucarno?s decision unwillingly.

The relations between the two nations remained peaceful and cordial till 1987.

5. In the year 1987, General Nastha, a Gawaite military general, through bloodless military

coup overthrew King Lukarno due to his inefficiency in tackling unemployment and

inflation and towing a strict capitalist agenda. At the very outset of his regime, General

Nastha declared his intention to regain Sadako from Kojima. Gen Nastha incited his

people by asking them to “be prepared for a 1000 year war with Kojima if it does not

return Sadako”. In pursuant to this agenda he mobilized mass public support for the

return of Sadako and often mentioned the bruised pride of the Gawa people who had won

the entire territory of Adamanta from the Jamavas in the medieval ages. General Nastha

initiated socialist policies and nationalised all sectors of development which he thought

would solve problems of unemployment and recession. He was against allowing any

foreign investment and wanted the economy to be totally self-reliant. In particular, he

viewed proposals for foreign investment in the oil sector with suspicion. In pursuance of

his ideals, he increased the tariff rates for imports and exports, thereby adversely

affecting oil exports in the region.

6. In pursuance of his endeavors and priorities of governance, General Nastha declared that

his government would not follow any reservation policy. In an interview, General Nastha

said that „he respected all individuals as equals and would not bring in any special

reservation which would lead to a division in society?. The Jamavis were highly unhappy

with this decision of the government and their feeling of dissatisfaction with the

government increased. Following this, there was widespread agitation against the

government by the minorities, who resorted to widespread attacks on government

property and gawaits giving rise to high internal tensions in the country. On 24

th July

1991, Jamavis attacked an area of Gawas wherein several civilians were injured. In

response to this, several searches were conducted by security forces who found large

number of weapons. Newspapers across the country reported that the weapons were from

Kojima. The Sazmi Times, a newspaper controlled by close aides of General Nastha

alleged that senior Jamavi leaders of Kojima had their hands in planning the widespread

attacks in Adamanta.

7. The relations between the two countries had reached its lowest ebb by the end of 1995

when Kojima recalled its ambassador from Adamanta, and also expelled the Adamanta

ambassador from its territory. The Foreign Minister of Kojima accused General Nastha

for inciting ethnic hatred among the people of Adamanta, which has placed the entire

region under a security threat thereby affecting their diplomatic relations. In response,

General Nastha alleged that Kojima had supported the rebels in the unrest and sporadic

incidents of violence by providing them with arms and ammunitions. Adamanta further,

contended that Kojima, by its actions has breached the Treaty of Amity. General Nastha

also affirmed that Adamanta will continue its endeavors to secure the territory of Sadako

from Kojima.

8. General Nastha decided to acquire large scale military hardware to the tune of 2.7 billion

dollars from various global powers which also included a purchase of 250 new fighter

aircrafts and also raised 5 new army units. On the night of 16th Dec. 1997 under the

orders of General Nastha, the Adamantan army launched operation „golden goal? to wrest

back Sadako. It was meant to be an operation with the limited purpose of securing

Sadako and destroying the Kojiman air force base located therein. However when

Kojima learnt of the attack, they responded by opening newer fronts across the

international border between the two nations. The Adamantans had not anticipated such a

massive response to their adventure by Kojima and were now embroiled in a full scale

war. In spite of the unanticipated Kojiman military response, Adamanta not only secured

Sadako but also went on to secure some very important border posts and strategic towns

across the border. This situation lasted for nearly one year when the tide began to turn in

favor of the Kojimans who not only regained Sadako but also completely flushed out the

Adamantans from their country and were now on the offensive. All efforts of the

Ashtnag Regional Council and the United Nations to have a peaceful settlement between

the states had been unsuccessful. It was suspected by the Government of Adamanta that

Kojima got its upper hand as well as information about their plans to launch attacks

against Kojima because of the confidential information and support provided by the

Jamavi people residing in Adamanta.

9. The war lasted for two and a half years with neither side gaining a comprehensive victory

and eventually ended in a stalemate in 2000. It resulted in a loss of face for General

Nastha and severely damaged the image of the army, which failed to wrest Sadako. It

was alleged by the Jamavi leaders in Adamanta that as a result of this, General Nastha

launched various attacks against the Jamavis in the south western cities and towns killing

scores of people and buried them in large graves during the time of war and after. This

had been vehemently denied by the General Nastha, during a press meet on 13

th August,

2000 wherein he claimed that the mass graves which were made during the war were

only to bury the Adamantan and Kojiman soldiers who died in the war.

10.Following the aforementioned events, on 30th Nov. 2000, General Nastha amended the

National Security Act, 1963, in accordance with which, all public meetings or gathering

were prohibited with effect from 1st Dec. 2000. Further, it gave security forces the

unrestricted power to take any person in their custody without any warrant. Moreover, no

trials were allowed to be conducted for prisoners found guilty of breach of the provisions

of the National Security Act, 1963. Following a certain chain of events during which

many arrests were made, it was reported in The Filloworth Times, that 90% of the people

arrested by the security forces under the aforesaid amendment, were Jamavis. This

revelation incited more agitation among the Jamavis, due to which they carried out a

massive protest.

11.These events further led to the launching of another armed insurgency against the

Adamantan government in 2001 and were encouraged by some regional and global

powers to seek complete independence and to form the old Jamavi State. The Jamavi

leader Mr. Tony Kimjihoon gave many statements asking the Jamavi populace to unify

and intensify its fight for independence. He asked the people to get an independence

from Adamanta to form the Jamavi state, declaring 20th December 2001 as their

Independence Day.

12.The Adamanta government responded by warning the Jamavi people not to resort to any

sort of violence and protests against the government. They were given assurance that

they would prosper under the governance of General Nastha. The government relied on

the findings of the 1998 census which was conducted by a commission setup by it, which

showed that the Jamavis have seen a considerable spurt of 11 percent in the overall

growth and human development index during the last decade and also mentioned that the

death rate had seen a decrease of 6 percent while the birth rate has had a marginal

increase of 3 percent. Also the per capita income had risen by 17.65 percent suggesting

significant rise in purchasing power and a higher standard of living despite all the wars

and other troubles faced by the government. He sought the support and cooperation of

the Jamavi people to help him „serve them better?.

13.The Jamavi leaders mocked the government calling the census a “pack of lies”.

Following this, various protests and sporadic attacks were directed against the

government by the Jamavis. The government took steps to have peaceful negotiations

with the Jamavi leaders. An uneasy peace was restored after signing an accord between

the Jamavi leaders and General Nastha to allow Jamavis autonomy provided they would

not seek independence and would not resort to armed rebellion against the state on 27th

April 2002.

14. Following the restoration of peace, General Nastha set out to develop infrastructure in

Adamanta, wherein he decided to set up nuclear power plants to solve the problem of

energy crisis in his country. For this Dr. Himans Dotvosky, a nuclear scientist, who had a

reputation of being a rouge scientist, was called to provide technical support for setting

up of nuclear reactors. Three power plants were set up in the next three years and were

functional by July 2005. There were wide spread allegations that the power plants were

being used for developing nuclear weapons, which General Nastha proposed to use

against Kojima, in his fight for Sadako. General Nastha also refused inspection by the

IAEA which further added to the suspicions.

15.However this condition of peace came to an end when a wide spread pro-democracy

revolution swept the entire region in 2006 with the people of many neighboring countries

peacefully protested against despotic and undemocratic rule in their countries. The rulers

had to eventually bow to the will of the people after holding out for several months.

These revolutions saw an unprecedented number of protestors take to the streets and

were led by the youth from the front. Another aspect of the entire region was the very

large and enthusiastic participation of women, children and the elderly as well. The

despots would often clamp down upon independent and international media channels, yet

it would go entirely to the credit of the social networking sites such as buddies network

etc that led to the revolutions becoming such a huge success.

16. The year 2007 saw similar protests in Adamanta. The protests were completely peaceful

and like many other countries of the region the protestors comprising of people from all

walks of life decided to gather in the state capital to register their protest and ask General

Nastha to step down. The protests were allowed to continue peacefully for the next two

months however the government eventually launched a crackdown upon the protestors

killing many of them.

17.The government on its part tried to give the entire issue an ethnic color by accusing the

minority communities of fomenting all the trouble. It went even further by suggesting

that Kojima was tacitly supporting the rebel groups by providing them aid as well as

arms to counter the government forces. Eventually the government intensified its

operations against the protestors and imposed martial law. It was also alleged that

General Nastha turned down the calls for peaceful resolution of the issues. With the

development of these issues, the Jamavis increased their pressure by resorting to violence

in response to the government?s activities. In response, the government resorted to more

violence by directing thousands of troops to the Jamavi region in order to regain control

over the area. Many international media personnel present in the country conceded that

several civilians were killed by the government security forces. By July 2009, the

situation had deteriorated further.

18.On 14th September 2009 the United Nations Security Council taking cognizance of the

situation passed Resolution No. 335 to allow humanitarian aid to the people of Adamanta

and to take all necessary measures to protect civilians under threat of attack in the

country. However, it disallowed any foreign occupation force of any form on any part of

Adamanta — requesting them to immediately inform the Secretary-General of such

measure. It further restrained Adamanta from pursuing its nuclear program and sought

cooperation from Adamanta to allow inspection of its nuclear facilities by IAEA. The

resolution was passed with 9 countries including Kojima voting in favor of the

resolution. Four other countries having direct ties of trade with Kojima also voted in

favor of the resolutions. Other countries like Avisha, Shabland which had failed in their

negotiations with Adamanta to establish trade relations voted in favor of the resolution.

Out of the 5 permanent members of the UN, Avisha, Akrisha and Shabland voted in

favor while Adinen and Tarina abstained.

19.On Dec 1st, 2009 operation „Big Bang? was launched at the command of the Security

Council to restore order. The presidential residence was targeted and one of the sons of

General Nastha was reported killed. General Nastha protested that the bombing violated

the mandate of the Security Council. The Ashtnag Regional Council imposed sanctions

against the Adamanta Government through asset freezes and travel bans. The

spokesperson of the Council Mr. Argetlam Garrison gave a statement that “there are

more sanctions and military actions yet to be taken unless Adamanta ceases its military

operations against the civilians.”

20.Air support was provided in western regions of Adamanta to the Jamavian rebels. With

the aid of the foreign powers, the capital city Illyrea and headquarters of the government

was also bombed. These attacks resulted in the death of 232 people and many casualties

in Illyrea alone. The air attack also pounded the nearby cities of Zenga, Linor, Sphiga

and Imzak. General Nastha stated that there has neither been any suppression nor any

military operations against the civilians. He also said that “The reasons given by the

Council for imposing sanctions and military actions are highly questionable and the

internal affairs of the country should not to be subjected to interference”. He also pointed

out that a grave human rights violation was being perpetrated by the external powers as

Adamanta , a power starved country, was being denied access to meet its power needs

thereby crippling its developmental program.

21.After 11 months, there was a stalemate in which neither rebels nor General Nastha?s

army was able to force any gains in their favor. The rebels, with the air support of the

Ashtnag Council, were spread throughout the northern and the eastern regions of the

country. There was mass destruction of civil property and loss of human life. The

country was in a very chaotic state but none of this was sufficient to dislodge General

Nastha from his seat of power. By then, the rebels were in control of the western parts of

the country and also all the major natural resource rich areas.

22.Rebels had declared their independence on 31st March 2011. They had also attempted to

establish diplomatic ties with the other states in their region and also, convincingly, had

been granted de facto recognition by many states. The spokesperson of the rebels, in an

interview to an international news agency had talked about their de jure recognition

within next 6 months for the newly formed Jamavi State.

23.Following this, General Nastha has alleged that the Security Council resolution is ultra

vires the principles of the UN. He pointed out that the body has not followed the mandate

of dialogue and negotiation that ought to precede the use of force. He has also alleged

that the actions of Kojima and the Ashtnag Council were in breach of the territorial

integrity of Adamanta. He also alleged that the Kojiman actions to be in breach of the

treaty of Amity. Referring to the interview of the spokesperson of the rebels, he said that

the rebels never had the right to self-determination. He reiterated his objections to the

interference and obstruction to his nuclear power program. General Nastha stated that the

matter would be taken up to the ICJ for resolution.

24.In response to the allegations of General Nastha, the foreign affairs minister of Kojima

said that the ICJ did not have the jurisdiction to adjudge the validity a Security Council

resolution. He justified international intervention on the grounds of human rights

violation and a suspicious nuclear program. He also said that the Jamavis in Adamanta

had acquired the right of self-determination in accordance with the customary

international law and the UN Charter.

25.Adamanta and Kojima are both members of the United Nations, and are parties to the

United Nations Charter, the Statute of the International Court of Justice, the Vienna

Convention on the Law of Treaties, the International Covenant on Civil and Political

Rights, the four Geneva Conventions of 1949 and additional Protocols I and II thereto,

and the International Covenant on Economic, Social and Cultural Rights. Neither State

has made any reservations, declarations or understandings with regard to any of these

treaties.

26.Applicant, Adamanta, asks the Court to adjudge and declare that:

(1) The Security Council Resolution 335 violates international law and the court

should order immediate cessation of operation Big Bang ;

(2) The amendments to the National Security Act, 1963, are consistent with

international law; and

(3) The actions of Kojima were in breach of the territorial integrity of

Adamanta and also breach the treaty of Amity moreover, the attacks were a

disproportionate and unlawful act of aggression against the people of

Adamanta;

(4) The unilateral declaration of independence by the Jamavi people is

inconsistent with International Law.

27.Respondent, Kojima, asks the Court to adjudge and declare that:

(1) The Court has no authority to adjudge the validity of a Security Council

resolution or order cessation of operation Big Bang.

(2) The amendments to the National Security Act, 1963, violates the rights of

Adamantans under international law; and

(3) The actions of Kojima were consistent with Kojima?s rights under international

law and neither constituted a breach of the territorial integrity of Adamanta nor

breached the treaty of Amity moreover, the act was not an act of aggression but

part of a legitimate and proportionate intervention in Adamanta

(4) The Jamavi people had a right to self-determination under international law and

Kojima has not breached the treaty of Amity by supporting the Jamavi State.

ANNEXURE-I

THE ADAMANTA- KOJIMA TREATY OF 1955

ARTICLE I.

There shall be perpetual peace and friendship between the President of Adamanta and of Kojima

and the citizens and subjects of their respective Governments.

If other powers deal unjustly or oppressively with either Government, the other will exert their

good offices on being informed of the case, to bring about an amicable arrangement, thus

showing their friendly feelings.

ARTICLE II.

After the conclusion of this Treaty of amity and commerce, the High Contracting Powers may

each appoint Diplomatic Representatives at the ports of the other, which are open to foreign

commerce, at their own convenience.

These officials shall have relations with the corresponding local authorities of equal rank upon a

basis of mutual equality.

The Diplomatic and Consular Representatives of the two Governments shall receive mutually all

the privileges, rights and immunities, without discrimination, which are accorded to the same

class of Representatives from the most favored nation.

Consuls shall exercise their functions only on receipt of an exequatur from the Government, to

which they are accredited. Consular authorities shall be bona fide officials. No merchants shall

be permitted to exercise the duties of the office, nor shall Consular officers be allowed to engage

in trade. At ports to which no Consular Representatives have been appointed, the Consuls of

other Powers may be invited to act, provided that no merchant shall be allowed to assume

Consular functions, or the provisions of the Treaty may, in such case, be enforced by the local

authorities.

If Consular Representatives of the Adamanta in Kojima conduct their business in an improper

manner, their exequaturs may be revoked, subject to the approval, previously obtained, of the

Diplomatic Representative of the Adamanta.

ARTICLE III.

All citizens of the Adamanta in Kojima, peaceably attending to their own affairs, shall receive

and enjoy for themselves and everything appertaining to them, the protection of the local

authorities of the Government of Kojima, who shall defend them from all insult and injury of any

sort. If their dwellings or property be threatened or attacked by mobs, incendiaries, or other

violent or lawless persons, the local officers, on requisition of the consul, shall immediately

dispatch a military force to disperse the rioters, apprehend the individuals, and punish them with

the utmost rigor of the law.

Subjects of Kojima, guilty of any criminal act towards citizens of Adamanta, shall be punished

by the authorities of Kojima, according to the laws of Kojima; and citizens of the Adamanta,

either on shore or in any merchant-vessel, who may insult, trouble or wound the persons, or

injure the property of the people of Kojima, shall be arrested and punished only by the consul or

other public functionary of the Adamanta, thereto authorized, according to the laws of the

Adamanta.

When controversies arise in the Kojima between the citizens of the Adamanta and citizens of

Kojima, which need to be examined and decided by the public officers of the two nations, it is

agreed between the two Governments of the Adamanta and Kojima, that such cases shall be tried

by the proper official of