Você está na página 1de 40

Memorial for Republic of Andorra

Team code: CLEA003

IN

THE

I NTERNATIONAL C OURT

OF

J USTICE

AT
THE PEACE PA LACE, THE HAGUE
THE NETHERLANDS
United Repub lic o f ASIAN /Rep ub lic o f Andorra
(Applicant)

(Respondent)

M e mo r i a l f o r t h e R e s p o n d e n t
- Re p u b l i c o f An d o r r a C LE A ( A s i a - I n d i a ) M o o t i n g C om p e t i t i o n 2 0 1 6

Memorial for Republic of Andorra

Team code: CLEA003

TABLE OF CONTENTS
INDEX OF ABBREVIATIONS .......................................................................................................... 2
INDEX OF AUTHORITIES .............................................................................................................. 3
STATEMENT OF JURISDICTION ..................................................................................................... 8
STATEMENT OF FACTS ................................................................................................................ 9
QUESTIONS PRESENTED ............................................................................................................ 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 of diplomatic premises of Andorra was illegal .......................... 31

IV.

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

diplomatic immunity. ........................................................................................................... 35


CONCLUSION............................................................................................................................. 39

Memorial for Republic of Andorra

Team code: CLEA003

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 Childrens 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

Memorial for Republic of Andorra

Team code: CLEA003

INDEX OF AUTHORITIES
Treaties and Conventions
United Nations Convention Against Transnational Organized Crime (Adopted on November
15, 2000). ............................................................................................................................. 17
Tretises and Commentaries
C.R Jennings, OPPENHEIMS INTERNATIONAL LAW, 9TH edn., (2003). .................................... 15
H. Fox and P. Webb, THE LAW OF STATE IMMUNITY, (2013). ................................................. 26
Malcolm N. Shaw, INTERNATIONAL LAW, 6th edn., ( 2008). ................................................... 20
S. D. Murphy et al, LITIGATING WAR: MASS CIVIL INJURY

AND THE

ERITREA-ETHIOPIA

CLAIMS COMMISSION, (2013). .............................................................................................. 35


Decisions of ICJ
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v
Uganda), Judgment, 47 ILR 6, (2005) (International Court of Justice). ............................. 32
Beckman v. Chinese Peoples Republic, Judgment, 24 ILR 221, (1957) (International Court of
Justice). ................................................................................................................................ 32
CASE CONCERNING
(NICARAGUA

V.

THE

MILITARY

AND

UNITED STATES

PARAMILITARY ACTIVITIES

OF

IN AND

AGAINST NICARAGUA

AMERICA), JUDGMENT, 1986, ICJ REPORTS, 14

(INTERNATIONAL COURT OF JUSTICE)................................................................................... 16


Democratic Republic of the Congo v. Belgium, ICJ Rep. 3, 2002 (International Court of
Justice). ................................................................................................................................ 33
New England Merchants National Bank v. Iran Power and Generating Co., Judgment, ICJ
Reports, 20 (1980), (International Court of Justice) ............................................................ 16

Memorial for Republic of Andorra

Team code: CLEA003

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


.............................................................................................................................................. 32
Other Decisions
Alfred Dunhill of London Inc. v. Republic of Cuba, ILR, 66 (1976). ...................................... 16
Argentine Republic v. Amerada Hess Shipping Corporation, 488 US 428, 442443 (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, 55, BULLETIN DEDROITCRIMINEL, 53(3), (1988). ................ 20
Democratic Republic of Congo v Rwanda), Judgment, ICJ Reports 2006, p. 6. .............. 26, 27
Djibouti v France, pp. 24142, para 186. ................................................................................ 26
Egypt v. Gamal-Eldin [1996] 2 All ER237 (England: Employment Appeals Tribunal). ........ 37
Enrica Lexie Case, 2012. ......................................................................................................... 25
Eritreas Diplomatic Claim, Final Award, 2009 ...................................................................... 38
Eritreas Diplomatic Claim, Partial Award, 2007 .................................................................... 38
Eritrea-Ethiopia Claims Commission, Partial Award, Diplomatic Claim, 24 ILR 3, 19
December 2005 .................................................................................................................... 33
Eritrea-Ethiopia Claims Commission, Partial Award, Diplomatic Claim, 24 ILR 3, 19
December 2005. ................................................................................................................... 33
4

Memorial for Republic of Andorra

Team code: CLEA003

Ethiopias Damages Claims, 2009 ........................................................................................... 38


Ethiopias Port Claim, Final Claim, 2005................................................................................ 38
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 Staatvs 'de Vier van Butare', 8 June 2001 .... 21
Hojesteret [Supre Court], PublicProsecutorvs T., 15 August 1995 ........................................ 21
Holland v. Lampen Wolfe, [2000] 3 All ER 833 (HL). ..................................................... 36, 37
Hullett v The King of Spain (1828). ........................................................................................ 25
In Application for Arrest Warrant Against General Shaul Mofaz (Decision of District Judge
Pratt, Bow Street Magistrates Court, Feb. 2004). ............................................................... 28
Landesgericht Salsburg [County Court of Salzburg], Osterreichische Republik vs Cvjetkovic,
4 June 2000. ......................................................................................................................... 20
Litterell v. USA (No. 2), 100 ILR (1995) 438 (England: CA) ................................................ 37
Oberlandesgericht Dfisseldorf [Dosseldorf Supreme Court], PublicProsecutorvsjorgic, 26
September 1997. .................................................................................................................. 20
Ostre Landsrets [Ostre County Court], Third Division, T. vs PublicProsecutor,25 November
1994...................................................................................................................................... 21
Persinger v. Iran, ILM, 22 (1983). .......................................................................................... 16
The Ghaddafi Case before the French Cour de Cassation, 12 EJIL (2001) 595. ................... 27
Ugesknft for Retsvesen, Vol. 30, No. 1, 1995, p. 838. ............................................................. 21
Underhill v. Hernandez, 168 US 250, 252, 1987..................................................................... 16
United States v. Public Service Alliance of Canada, 32 ILM (1993) 1 (Canada: Supreme
Court); .................................................................................................................................. 37
Voiotia v. Germany, Case no. 11/2000 (Greece: Supreme Court, 2000). ............................... 36
Wilberforce in I Congresso del Partido [1981] 2 All ER 1064, at 1074 (HL). ........................ 36
5

Memorial for Republic of Andorra

Team code: CLEA003

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
independence and sovereignty, UN Legal Publications, (2013) ........................................ 16
General convention on privileges 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-money-laundering-by-foreign-officials/........................ 27
D. Akande and S. Shah, Immunity of State Officials. International Crimes, and Foreign
Domestic Courts, THE EUROPEAN JOURNAL

OF

INTERNATIONAL LAW 21(4), 815, 821

(2010). .................................................................................................................................. 28
E. D. Dickson, Waiver of Diplomatic Immunity, THE AMERICAN JOURNAL OF INTERNATIONAL
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

Memorial for Republic of Andorra

Team code: CLEA003

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 Rights (1961). .................................................................. 33

Memorial for Republic of Andorra

Team code: CLEA003

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.

Memorial for Republic of Andorra

Team code: CLEA003

STATEMENT OF FACTS
The United Republic of ASIAN (hereinafter URA) is a highly industrialised country. It is a
permanent member of United Nations Security Council (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 countrys 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

Memorial for Republic of Andorra

Team code: CLEA003

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 Andorras 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

10

Memorial for Republic of Andorra

Team code: CLEA003

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.

11

Memorial for Republic of Andorra

Team code: CLEA003

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?

IV.

Is United Republic of ASIAN liable to compensate Republic of Andorra for


damages arising out of violation of diplomatic immunity?

12

Memorial for Republic of Andorra

Team code: CLEA003

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

Memorial for Republic of Andorra

Team code: CLEA003

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 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

14

Memorial for Republic of Andorra

Team code: CLEA003

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.

15

Memorial for Republic of Andorra

Team code: CLEA003

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 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
2

C.R Jennings, OPPENHEIMS INTERNATIONAL LAW, 345, 9TH edn., (2003).


Therefore, it is applicable to all the members of the United Nations.

16

Memorial for Republic of Andorra

Team code: CLEA003

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 state 5 or the
officially or officially avowed acts of its agents, at any rate insofar as those acts involve the
exercise of the states public authority,6 purport to take effect within the sphere of the latters
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 States 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
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.
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 of Cuba, ILR, 66 (1976).
7
Underhill v. Hernandez, 168 US 250, 252, 1987.
8
CASE CONCERNING THE MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA (NICARAGUA V.
UNITED STATES OF AMERICA), JUDGMENT, 1986, ICJ REPORTS, 14 (INTERNATIONAL COURT OF JUSTICE).
3

17

Memorial for Republic of Andorra

Team code: CLEA003

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 ANDORRA 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 through 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

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

18

15,
15,
15,
15,

Memorial for Republic of Andorra

Team code: CLEA003

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 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 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

19

Memorial for Republic of Andorra

Team code: CLEA003

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 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.

[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).

20

Memorial for Republic of Andorra

Team code: CLEA003

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 customary law does not recognize universal jurisdiction in 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, INTERNATIONAL LAW, 82, 6th edn., ( 2008).

21

Memorial for Republic of Andorra

Team code: CLEA003

reiterated in the Cvjetkovic Case18 in Austria, in the Munyeshyaka Case19 and the Javor
Case20 in France, in the 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
19

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

20

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

Bayerisches Oberlandesgericht [Bavarian Supreme Court], Public Prosecutorvs Djajic, 25 May 1997;
Oberlandesgericht Dfisseldorf [Dosseldorf Supreme Court], PublicProsecutorvsjorgic, 26 September 1997.
21

Hof van Assisen [Court of Assizes], Belgische Staatvs 'de Vier van Butare', 8 June 2001, available at www.cass.be and
www.asf.be (both sites last visited on 11 December 2003).
22

Ostre Landsrets [Ostre County Court], Third Division, T. vs PublicProsecutor,25 November 1994; Hojesteret
[Supre Court], PublicProsecutorvs T., 15 August 1995, Ugesknft for Retsvesen, Vol. 30, No. 1, 1995, p. 838.
24
Code of Criminal Procedure, Art. 689-1, 1992
23

25

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

22

Memorial for Republic of Andorra

Team code: CLEA003

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 made26
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),

23

Memorial for Republic of Andorra

Team code: CLEA003

Neither does the case of SS Lotus provide for universal jurisdiction 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 todays context the territorial jurisdiction should be considered a
prohibitive rule against universal jurisdiction 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 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 as agent for an ill-defined "international community.28

Separate opinion Rezek, 2002, 72 (International Court of Justice).


28
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).

24

Memorial for Republic of Andorra

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 other state [B]; secondly, Mr. TTK Ganzard also enjoyed immunity from
prosecution as the minister of Defence and Security 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
30

Hullett v The King of Spain (1828).


Enrica Lexie Case, 2012.

25

Memorial for Republic of Andorra

Team code: CLEA003

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 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, THE LAW OF STATE IMMUNITY, 564 (2013).
33
Djibouti v France, pp. 24142, para 186.
34
Democratic Republic of Congo v Rwanda), Judgment, ICJ Reports 2006, p. 6.
32

26

Memorial for Republic of Andorra

Team code: CLEA003

higher officials35 mentioned in the judgement. Hence, it will include vice-presidents, deputy
prime ministers and defence ministers.
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 Ganzards position 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.

27

Memorial for Republic of Andorra

Team code: CLEA003

president requires him to represent Andorras interests on international forums should hold
priority over mention of position of second vice-president 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, and Foreign Domestic Courts, THE
EUROPEAN JOURNAL OF INTERNATIONAL LAW 21(4), 815, 821 (2010).
44
Arrest Warrant of 11 April 2000 (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

28

Memorial for Republic of Andorra

Team code: CLEA003

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, 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.

29

Memorial for Republic of Andorra

Team code: CLEA003

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 that only sending member state can wave off such an immunity.
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

Memorial for Republic of Andorra

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 his own government. The Republic 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 practices around the world, is of
the usage and construction of the building.

54
55

Moot proposition, Page 17, 26.


Moot proposition, Page 16, 25.

31

Memorial for Republic of Andorra

Team code: CLEA003

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 URAs 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 agents of the receiving 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 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 Peoples Republic, Judgment, 24 ILR 221, (1957) (International Court of Justice).
57
C.R Jennings, OPPENHEIMS INTERNATIONAL LAW, 742, 9 TH edn., (2003)
58
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, 47
ILR 6, (2005) (International Court of Justice).

32

Memorial for Republic of Andorra

Team code: CLEA003

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 Ugandas counter-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 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

33

Memorial for Republic of Andorra

Team code: CLEA003

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

34

Memorial for Republic of Andorra

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 treaties in order to grant compensation, 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 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 INJURY 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 INTERNATIONAL LAW 19(3), 555,
555 (1925).
67
Id.
68
Id. at 557.

35

Memorial for Republic of Andorra

Team code: CLEA003

by virtue 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 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 its waived off. Further, in Wilberforce in
I Congresso del Partido case, court held that:73
in considering, under the restrictive theory, whether State 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, 442443 (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).

36

Memorial for Republic of Andorra

Team code: CLEA003

considered as having been done outside the area and within the sphere
of governmental or sovereign activity
In Holland v. Lampen Wolfe74 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

37

Memorial for Republic of Andorra

Team code: CLEA003

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.

Eritreas Diplomatic Claim, Partial Award, 2007 (para 36).


Id.
78
Id. at para 41.
79
Eritreas Diplomatic Claim, Final Award, 2009 (para 114).
80
Id. at para 4; Ethiopias Port Claim, Final Claim, 2005 (para 6).
81
Final Award, Ethiopias Damages Claims, 2009 (para 251).
82
Id. at para 255.
76
77

38

Memorial for Republic of Andorra

Team code: CLEA003

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