Academic journal article Canada-United States Law Journal

A Dispute Arising under the Statute of the International Court of Justice February, 2012: The Government of the United States (Applicant) V. the Government of Canada (Respondent): Memorial of the Applicant

Academic journal article Canada-United States Law Journal

A Dispute Arising under the Statute of the International Court of Justice February, 2012: The Government of the United States (Applicant) V. the Government of Canada (Respondent): Memorial of the Applicant

Article excerpt

TABLE OF CONTENTS  INDEX OF AUTHORITIES STATEMENT OF FACTS STATEMENT OF JURISDICTION QUESTIONS PRESENTED SUMMARY OF ARGUMENT ARGUMENT  I. CANADA'S INTERVENTION INTO TANGOON WAS NOT LAWFUL UNDER INTERNATIONAL LAW  A. Canada's actions violate fundamental principles of the United Nations, including the prohibition on the use of force and the preeminence of sovereignty     1. The prohibition on the use of force     2. The importance of state sovereignty B. The principle of collective self-defense does not justify Canada's unlawful entry into Tangoon     1. Collective self-defense in the Charter     2. Other Charter exceptions to the prohibition of force C. Responsibility to Protect doctrine cannot be used to justify Canada's unlawful actions     1. Canada's actions in Tangoon were not carried out in accordance with the Responsibility to Protect doctrine that has been endorsed by governments     2. Responsibility to Protect doctrine is not customary international law D. The General Assembly may only authorize the use of force under its Uniting for Peace Powers where there has been a breach of the peace or act of aggression  II. THE APPREHENSION, DETENTION, AND SURRENDER TO THE ICC OF ISHMAEL BALTHASAR AND CLYDE BARRETT WAS AN UNJUSTIFIED EXTENSION OF ICCJURISDICITON THAT CONTRAVENED INTERNATIONAL LAW  A. The ICC lacks jurisdiction over the nationals of non-party states for actions taken inside the territory of a non-party State     1. The Rome Statute does not provide justification for the surrender to the ICC of either Ishmael Balthasar or Clyde Barrett     2. The Rome Statute excludes the principle of universal jurisdiction, precluding Canada from claiming justification for its actions on these grounds B. Canada's detention and proposed surrender of Ishmael Balthasar is unlawful in its disregard for the customary norm of Head of State immunity and its contravention of the Geneva Conventions    1. As de facto political and military leader of Tangoon entrusted to represent the country at the international level, personal immunity is validly extended to Ishmael Balthasar    2. Head of State Immunity is a recognized norm of customary international law which, when ignored, contravenes Article 98 of the Rome Statute    3. Canada's treatment of Ishmael Balthasar violated Article 18 of the Third Geneva Convention, rendering his personal diary inadmissible at the ICC C. Clyde Barrett was arbitrarily apprehended and detained in Tangoon    1. The apprehension of Clyde Barrett was not prescribed by law and is therefore an arbitrary arrest and detention    2. Geomin Corporation's use of Tangoon's National Service Program is not a form of slavery for which Clyde Barrett can be held criminally responsible  CONCLUSION  INDEX OF AUTHORITIES  TREATIES AND OTHER INTERNATIONAL AGREEMENTS  2005 World Summit Outcome, GA Res 60/1, UNGAOR, 60th Sess.    UN Doc A/60/1 (2005) Concept Note on Responsibility to Protect Populations from Genocide,    War Crimes, Ethnic Cleansing and Crimes Against Humanity,    UNGAOR, 63d Sess. UN Doc A/63/958, (2009) Declaration on Principles of International Law concerning Friendly    Relations and Co-operation among States in Accordance with the    Charter of the United Nations, GA Res 2625 (XXV), UNGAOR,    25th Sess. UN Doc A/8082, (1970) 121 Definition of Aggression, GA Res 3314 (XXIX), UNGAOR, 29th    Sess. UN Doc A/9890, (1974) 143 Follow-up to the Outcome of the Millennium Summit, UNGAOR, 63rd    Sess. 98th Plenary Mtg, UN Doc A/63/PV.98 (2009) International Commission on Intervention and State Sovereignty, The    Responsibility to Protect (Ottawa: International Development Research Centre, 2001) International Covenant on Civil and Political Rights, 19 December    1966, 999 UNTS 171 Official Records of the Assembly of State Parties to the Rome Statute    of the International Criminal Court, First Session, New York, 3-10    September 2002 (United Nations publication, Sales No E.03.V2    and corrigendum) Peace and Security in Africa, SC Res 1970 UNSCOR UN Doc    S/RES/1970 (2011) Protection of Civilians in Armed Conflict, SC Res 1674, UNSCOR,    61st Sess. … 
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