Telders Int. Moot Court Case 2005: Loe v. Wester Kingdom.

Suuz

Als opdracht voor het vak international law simuleren we The Telders International Law Moot Court Case 2005: The 'Failed State' of Loe Dispute (Loe v. Western Kingdom). Ik representeer Western Kingdom. Wie kan mij helpen met de argumentatie voor WK?

THE TELDERS INTERNATIONAL LAW MOOT COURT CASE 2005: THE ‘FAILED STATE’ OF LOE DISPUTE (LOE V. WESTERN KINGDOM)

The case put before the teams this year, entitled The ‘Failed State’ of Loe Dispute, combines legal issues in various fields of international law including statehood, the law of treaties, nationality, and jurisdiction.

1) Loe is an isolated island of the Central Pacific. It lies some 150 miles (240 km) north of the Equator and dominates the surrounding maritime area, thus deserving its name, which means ‘king’ in the local language. The circumference of the island is approximately 250 miles (400 km). Loe is of unparallelled natural beauty, especially on account of its famous blue lagoons and unspoiled coral reefs. Physically the island consists of a mountain range that dominates the central part of the island, surrounded by dense tropical forest and a fertile coastal fringe. The mountain area is remarkably rich in gold and silver. The island has a population of nearly 100,000 whose main occupations have traditionally been mining, fishing, and, to a lesser extent, agriculture. Loe is home to three indigenous tribes living in different parts of the island. The largest tribe, Onyx, accounts for roughly 45 per cent of the population. The other two tribes, Amber and Coral, share the rest of the population more or less equally. Each tribe speaks its own language and has relatively different political, social, and religious customs. The three tribes have always competed for natural resources and land occupation. In that sense, the island was never politically unified.

2) Western Kingdom is a European state and a great naval power with a long history of maritime exploration. The island of Loe, for example, was ‘discovered’ in the late 1700s by the great explorer Ferdinand Crook, who raised the flag of Western Kingdom on the island. Crook, whose habits followed his name, was quick to identify the riches of the mountain area. By 1805, Western Kingdom had established on Loe a trading post of its overseas state-owned Central Pacific Trading Company (CPTC). The company dealt primarily with the mining and exporting of precious metals, as well as trade in other island products such as coconut and spices. With the help of a sizeable contingent of Western Kingdom troops, and in order to ensure stability in the mining business, the CPTC exercised de facto governmental authority until 1899, when the island was officially proclaimed a colony of Western Kingdom.

3) Between 1805 and 1899 the CPTC ruled ‘by the whip and not by the word’, as a resistance hero put it once, and was responsible for some of the worst atrocities ever committed against indigenous peoples. The CPTC did construct an infrastructure for the facilitation of the mining industry, including dirt roads, a railway connecting the mines with the port, and a dam on Long River, the major river of the island, flowing past the mines. The Long River Dam was intended for multiple uses, including ore processing, irrigation, and, in later years, hydroelectric power. The inhabitants of the island, however, profited very little from the presence of the CPTC and its infrastructure. The workers were driven like slaves and many died from disease and from lack of proper shelter, food, or healthcare. The ‘palefaces’, as the native people called the Westerners, were regarded as tyrannical rulers by the entire island population. After 1899 the colonial administration improved the infrastructure – at least in terms of the road system – healthcare, and education. The tribal nature of the population, however, did not allow the colonial administration to consolidate its control over Loe's entire territory. Infrastructure remained sparse and was supported by thin supply lines. The presence of central governmental authority in some parts of the island was non-existent.

4) Loe remained a colony of Western Kingdom until 1980. During this period a large number of foreigners and Western Kingdom nationals arrived on the island to profit from the bustling trade in precious metals. Corruption, the lack of rigorous import and export control by the colonial administration, as well as the struggle of the tribes to improve their relative positions, rendered the island a smuggler's paradise, especially during the years of the Second World War. In spite of its wealth in natural resources, little if any of the proceeds found their way to the people. In Crystal, the capital city, even sanitation and fresh water supplies remained problematic.

5) On 1 April 1980, against the wishes of Western Kingdom, and by a very narrow majority, the UN General Assembly recognized the right to self-determination of the people of Loe. The Security Council was unable to pass a resolution to this effect due to the opposition of one permanent member. Western Kingdom was not a member of the Security Council but it is reported to have lobbied heavily against the resolution. In a referendum held later that year, the people of Loe decided in favour of independence and conducted free elections. On 26 July 1981 Loe became an independent state as the Republic of Loe. Pearl Dorada, a member of the Amber tribe, was elected president by a landslide. In the same year, Loe was admitted to the United Nations. Western Kingdom never officially recognized the Republic of Loe as an independent state.

6) Dorada proved to be a popular and competent president. She was re-elected several times to serve for nearly 23 years. Her era is referred to by the local people as the ‘Golden Years’. It was clear, however, that the new republic was suffering from very serious ‘birth-defects’, the worst of which being corruption, tribalism, and the catastrophic lack of infrastructure. Dorada and her governments tried to build the basic institutions of a state. She encouraged the functioning of parliament, conducted free elections, created a police force, set up basic health, education, and communication services, and so on. Between 1981 and 2001, despite limited finances and lack of staff, she personally attended the sessions of the UN General Assembly and infrequently visited the World Bank, with the hope of securing development loans. Some money did trickle into the country, but the political situation was too volatile for international institutions to exhibit full confidence. The parliament functioned very little during that period, if at all. Its 100 MPs were elected and divided along tribal lines. As a consequence, very few draft laws ever gathered the necessary absolute majority. Signature of and accession to international treaties, however, remained a constitutionally stipulated prerogative of the president.

7) Dorada had the language of Western Kingdom adopted as the official language of the state. She also granted exclusive mining concessions to the CPTC on condition that 40 per cent of net profits would be returned to Loe. The CPCT was a co-operation in which Western Kingdom owned the majority of shares. It maintained a small private armed guard, consisting of Western Kingdom nationals, to protect its facilities. The presence of the CPTC on the island had predictably destabilizing effects. Despite the fact that Loe was now an independent state, Westerners maintained considerable financial and political influence and contributed heavily to the corruption of island officials. Western Kingdom frequently released small amounts of ‘development funds’ that reached Loe through informal channels with the purpose of easing the conscience of local officials with regard to the practices of the CPTC.

8) Because of depleted financial resources Dorada was eventually forced to minimize her presence in international fora and never visited the UN (or any other foreign destination) after 2001. The lack of resources and expertise to establish a government Internet server on the island contributed to further isolation. The world had almost forgotten Loe and the predicament of its people at the turn of the millennium. In spite of the efforts made, the security situation remained fragile throughout Dorada's term of office. The cartels of smugglers, often harboured by the tribes themselves, the presence of foreign agents and entrepreneurs on the island, as well as continuous ‘rob-and-run’ attacks on mining facilities, earned the island its reputation of instability in the international press. Despite its commitment to preserving law and order, the local police force was too ill-equipped, ill-trained, and under-resourced to keep the situation under control.

9) The deteriorating conditions led to an unprecedented escalation of violence all over the island in 2004. It is not exactly clear how it all started, but within hours the entire island was engulfed in violence. There was havoc in Crystal, the capital, which was looted and pillaged by armed bands of tribal warlords. Amber militia managed to control the mines, overpowering the CPTC armed guard. Several CPTC guards were captured and nothing has been heard of them since. The presidential palace was taken by Onyx militia. The wavering government of Dorada collapsed. Achates, the leader of the Onyx tribe, proclaimed himself ‘Transitional President’ of the island on 26 July 2004 – the anniversary of Loe's independence day. He sent faxes to major international newspapers asking the international community to ‘lend a hand’ to help ameliorate the plight of Loe, and identifying President Dorada as the person responsible for the downfall of the state. Achates also announced the formation of a temporary cabinet, consisting of prominent Onyx personalities, but no names were given to the press. In the evening of 25 July, President Dorada managed to summon her most trusted cabinet members and the chief of police. Fearing for their lives, she decided to stow them away temporarily in the safety of a friendly home at the port of Crystal. She remained in possession of the most important documents of the state, including passwords, government stamps, and many useful documents and information, such as lists and telephone numbers of civil servants on Loe and ambassadors abroad.

10) Meanwhile in Western Kingdom the situation on Loe was a cause of serious concern, partly due to guilt feelings resulting from long years of colonial administration and partly to the potential dangers of the situation for the mining interests of the CPTC, which continued to be important to the Western Kingdom economy. The economy was trying to recover from a financial crisis in early 2004, a situation that may have affected the judgement of the Western Kingdom government, when on 26 July it ordered a substantial naval force to sail to the territorial waters of Loe. The Western fleet arrived on 2 August.

11) On the night of 1 August Dorada and her cabinet fled Loe by chartering one of the yachts moored in the port of Crystal. After a 200-mile (320-km) voyage, they reached the island state of Bongo, historically an ally of Loe. Timbales, the King of Bongo, welcomed them and offered unconditional hospitality and the necessary communications facilities for them to do ‘what needs to be done’. In the capital of Bongo, Conga, Dorada established what she called a government-in-exile. On 2 August 2004 she made the relevant announcements via the local (Bongo) media.

12) By a Royal Decree of 5 August 2004, Western Kingdom announced that it considered Loe to be a failed state. For a number of reasons, including offering humanitarian assistance and guaranteeing the safety of the population and of its own nationals, Western Kingdom exercised its ‘sacred trust of civilization’ to administer the territory until such time as the state of Loe reacquired all the elements of statehood, or until the UN dispatched a peacekeeping force. The same decree decided that all Loe nationals receive the nationality of Western Kingdom, in order to entitle them to have their rights protected in conformity with the Western Kingdom legal system. Finally, Western Kingdom established the interim administration of Loe with the commanding officer of its fleet in Loe, Admiral Gruenkopf, in charge.

13) On 13 August 2004 Dorada convened her cabinet in Conga and took a number of decisions, following the usual procedure. Although Loe was a member state of the UN, it had never accepted the compulsory jurisdiction of the ICJ. Accordingly, Dorada sent a fax to the Secretary-General of the United Nations in New York declaring that Loe ‘hereby accepts the compulsory jurisdiction of the Court’. The Secretary-General was unfortunately attending the glamorous opening ceremony of the Athens 2004 Olympic Games on that day, so no official reply could be sent by his office for several days. She also made use of Bongo satellite radio to call upon ‘the people of Loe’ to unite and fight against the ‘unlawful and bloodthirsty occupation by Western Kingdom’. She contacted her ambassadors in the West to rally support from foreign governments, and some ambassadors responded to the call. She assured journalists that the Republic of Loe was not a ‘failed state’, and that the nationality decree of Western Kingdom was contrary to public international law.

14) During the next week, Western Kingdom troops were deployed in every corner of Loe. They met fierce resistance not only from elements of the Loe police, but also from armed bands of Amber militia, as well as from the very well-armed smuggling cartels. The Western Kingdom army finally managed to take control of the mines. On 18 August 2004, Western Kingdom gained control over the island, despite small pockets of resistance in many places.

15) The UN Security Council, alarmed by the situation, convened an emergency meeting on 22 August 2004. As a result, it adopted Security Council Resolution 2345, invoking Chapter VII of the Charter of the United Nations. The Resolution read as follows:

16) ‘The Security Council,

Having considered recent developments on Loe since the beginning of 2004 and, in particular, the events of 25 July 2004 onwards;

Taking note of the intention expressed by Western Kingdom to evacuate its forces from Loe upon the dispatch of a peacekeeping mission of the United Nations;

Deploring the disastrous effects of the destruction of property of natural and legal persons on Loe, as a consequence of the actions of Western Kingdom on the island starting 2 August 2004;

Decides to establish a Compensation Committee, as a subsidiary organ of the United Nations, the mandate of which is the determination of a scheme for the compensation for the destruction of property belonging to natural or legal persons on Loe as a consequence of the actions of Western Kingdom on the island starting 2 August 2004;

Decides that Western Kingdom will bear the expenses of the Committee and will establish within 30 days a Fund of $3 million in a Swiss bank account for the purposes of the Committee;

Decides that the right to submit a claim to the Committee is reserved only to natural and legal persons of Loean domicile. The Committee will consist of one independent Chairman and two individuals of Loean domicile, familiar with the history and geography of the region. The Committee will decide by majority vote;

Decides to remain seized of the matter.

17) On 23 August Western Kingdom (not a member of the Security Council) strongly protested against SC Resolution 2345 and the creation of the Compensation Committee. No other resolution was passed on the matter by the Security Council due to lack of unanimity among the permanent members.

18) On 7 September 2004, President Dorada personally flies to Amsterdam on Bongo Airlines and files an application with the International Court of Justice in The Hague on behalf of Loe. In the application, Loe requests the Court to adjudge and declare that

Western Kingdom has violated international law by the occupation of Loe;

and the nationality decree of 5 August 2004 is null and void.

19) In response, Western Kingdom asks the Court to adjudge and declare that
the application by the Republic of Loe must be dismissed since the declarations and actions of Former President Dorada after August 1, 2004 do not establish the jurisdiction of the Court;

alternatively, Western Kingdom has not violated international law by the temporary administration of Loe;

the Nationality Decree of 5 August 2004 is in accordance with public international law; and

SC Resolution 2345 is not in conformity with international law and is thus null and void.

20) In response to the additional claims of Western Kingdom, Loe requests the Court to adjudge and declare that

the declaration and actions of President Dorada do establish the jurisdiction of the Court to consider the application of Loe;

and the Court has no jurisdiction to review Security Council Resolution 2345 and, alternatively, this Resolution is in conformity with public international law.

21) The Court decided to address questions of jurisdiction and merits in one set of oral and written pleadings. In agreement with the parties, the Court announced 12 January 2005 as the deadline for the submission of written memorials. The Oral Pleadings would take place on 21–3 April 2005, at the Peace Palace, The Hague.

22) Western Kingdom has recognized as compulsory the jurisdiction of the Court under Article 36(2) of its Statute without reservations. Both Loe and Western Kingdom are member states of the UN.