The treaty referred to is not real, although the Statute of the International Court of Justice, the United Nations Charter, and the Vienna Convention on the Law of Treaties are real and relevant.
FACTUAL SCENARIO – Please note that the ‘facts’ below are entirely fictional. The treaty referred to is not real, although the Statute of the International Court of Justice, the United Nations Charter, and the Vienna Convention on the Law of Treaties are real and relevant.
Derrida and Cousteau are neighbouring states that have a long history of political tension. The tension often results in the persecution of Derridans in Cousteau and vice versa, and over the decades the tension has intermittently spilled over into border skirmishes and war. In 2017, after many months of political spats and subterfuge, Derrida invaded Cousteau and the next few years were defined by armed attacks and retaliation. Globally it was largely considered that Derrida was the primary aggressor, and the acts of Cousteau against the Derridan armed forces were in self-defence.
Due to the instability caused by the war, regional neighbours instigated peace talks between the two states. These talks were mediated by the largest regional neighbour, Aquinea, who was known to be a supporter of Cousteau. In December 2019, President Guthrie of Aquinea had her international law office draft a Peace Treaty, and told the President of Derrida, President Gosdif, that if Derrida did not sign the peace treaty and comply with it, Derrida would feel the full force of the collective armies of Aquinea, Cousteau and their other regional supporters, as well as sanctions that would cripple the Derridan economy.
Representatives from both countries signed the treaty on 17 January 2020 and documents were exchanged.
Relevant Articles of the Derrida-Cousteau Peace Treaty were as follows:
Article 1
The parties reaffirm their commitment to comply with the United Nations Charter, and in particular, the prohibition on the use of force contained in Art 2(4).
Article 2
The parties undertake to resolve their disputes through peaceful means and through friendly negotiations.
Article 3
The parties may explore further negotiations over territorial boundaries and the terms of ongoing peace.
Article 4
In the event of a dispute between the parties concerning the interpretation or application of this Treaty, the parties shall seek a settlement for the dispute through negotiation or any other peaceful means of their own choice.
The treaty contained no provisions on entry into force or means of consent.
Derrida and Cousteau then enjoyed a relatively stable period of peace.
In March 2022, the army of Cousteau was conducting military training exercises near the border of the two countries, including firing medium-range missiles into the seas around the area of Derrida’s exclusive economic zone (but not within it). President Gosdif of Derrida saw this as a threat, and on 11 March 2022 retaliated by bombing the military training encampment using unmanned military drones. Over 200 Cousteau military personnel were killed or injured, and many hundreds of millions of dollars of military equipment were lost.
On 12 March 2022, Prime Minister Benvue of Cousteau sent a letter to President Gosdif, which included the lines:
‘You have illegally used force against our nation in breach of the Peace Treaty. We demand you withdraw your army from our border and cease any further military actions against our territorial sovereignty.’
A copy of the letter was also sent to the United Nations Security Council.
On 13 March 2022, President Gosdif gave a national press conference in which he said:
‘We never had a Peace Treaty with Cousteau. Our Minister for Diplomatic Affairs was forced to sign an agreement by way of coercion, an agreement which, for that very reason, we never intended to be bound by or comply with, particularly when Cousteau remains a threat to our sovereignty, and our way of life. In any event, the so-called Peace Treaty didn’t contain any new obligations so can’t be called a Treaty anyway!’.
Prime Minister Benvue wrote a further letter to President Gosdif on 16 March 2022, a portion of which stated the following:
‘The Peace Treaty remains valid. At no stage did we illegally use force, or illegally threaten the use of force to compel your Minister to sign the treaty. If you do not pay reparations for your illegal use of force against Cousteau, we will proceed to seek the assistance of the International Court of Justice’.
On 22 March 2022, President Gosdif responded:
‘We do not recognise the jurisdiction of the International Court of Justice for treaty disputes and will not be coerced again into engaging with you on terms that are not favourable to Derrida’.
Indeed, Derrida had deposited a Declaration to the International Court of Justice in 1956, stating that:
‘The Government of Derrida declares that it recognises as compulsory ipso facto and without special agreement, the jurisdiction of the International Court of Justice in conformity with Article 36(2) of the Statute of the Court, except with respect to any dispute concerning the interpretation or application of a Treaty outside of the United Nations Charter’.
Both Derrida and Cousteau are members of the United Nations.
What you will do
You are a Graduate Lawyer working in the Foreign Affairs Office of the Government of Cousteau. The Prime Minister has asked your office for draft submissions to the International Court of Justice, to accompany the initiating proceedings.
Your supervisor, the Chief Legal Advisor, has asked you to provide a first draft of the submissions. She has asked you to make submissions specifically on the following issues:
The jurisdiction of the Court to hear this dispute.
That the Peace Treaty is, in fact, a Treaty with formal obligations.
That the Peace Treaty is not invalid.
That Derrida has breached international law by illegally using force against the territorial sovereignty of Cousteau.
That reparations should be paid.
Your supervisor has asked you to be explicit with any alternative arguments. For example, if you are of the opinion that there is no valid treaty, what are the alternative submissions regarding the illegal use of force?
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