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Index of Authorities

INDEX OF AUTHORITIES

Treaties and Conventions

Charter of United Nations, 1 U.N.T.S. .................................................................................... 10

Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, Art. 13(b). ............ 4

Vienna Convention on Consular Relations (1961), 56 1; 65 1 .................................................. 5

Vienna Convention on Succession of States in Respect of Treaties (1978), Pre 6 n. 21; 73 6.. 4

Vienna Convention on the Law of Treaties (1969) Accession to, 83 passim ............................ 4

Articles

Dörr O., Schmalenbach K. (2012) Article 18. ........................................................................ 3

Books, Treaties and Commentaries

Aust, Modern Treaty Law, pp. 86 ff. 41 Article 9(1). ............................................................... 5

B. Broomhall, “The International Criminal Court: A Checklist for National Implementation”

in ICC Ratification and National Implementing Legislation, Nouvelles Etudes Penales,

(Eres 1999) at 113. ................................................................................................................. 9

C.K. Hall, “Challenges to the Jurisdiction of the Court or the Admissibility of a Case”, in

Triffter (ed.) Commentary on the Rome Statute of the International Criminal Court:

Observer’s Notes, Article by Article, (Baden-Baden 1999). ............................................... 10

David Scheffer, The United States and the International Criminal Court, 93 AM. J. INT'L L.

12 (1999). ............................................................................................................................... 8

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Index of Authorities
Hans-Peter Kaul, Preconditions to the Exercise of Jurisdiction, in 1 THE STATUTE OF

ROME AND THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 607

(Antonio Cassese et al. eds., 2002). ....................................................................................... 8

J. T. Holmes, “The Principle of Complementarity”, in Lee (ed.), The International Criminal

Court: The Making Of The Rome Statute Issues, Negotiations, Results (Transnational

Publishers 1999), at 41-78.................................................................................................... 10

Jason Ralph, International Society: The International Criminal Court and American Foreign

Policy, 31 REV. FOR INT'L STUD. 27 (2005). .................................................................... 7

Jean Galbraith, The Bush Administration's Response to the International Criminal Court, 21

BERKELEY J. INT'L L. 683, 685 (2003). ............................................................................ 7

JS Charme The Interim Obligation of Article 18 of the Vienna Convention on the Law of

Treaties: Making Sense of an Enigma (1992) 25 George Washington JIL & Economy 71–

114. ......................................................................................................................................... 4

M. Bergsmo and J. Pejic, “The Prosecutor”, in Triffter (ed.) Commentary on the Rome

Statute of the International Criminal Court: Observer’s Notes, Article by Article, (Baden-

Baden 1999). .......................................................................................................................... 8

Nidal Nabil Jurdi, the International Criminal Court and National Courts: A Contentious

Relationship, Ashgate Publishing, England, 2011, p. 255. .................................................... 6

Satow’s Guide to Diplomatic Practice, 5th edn, London, 1979, p. 62. 37 Article 8. ................ 5

Schabas, supra note 13, at 702; Gerhard Haffner, An Attempt to Explain the Position of the

USA Towards the International Criminal Court, 3 J. INT'L CRIM. JUST. 323 (2005). ....... 7

William A. Schabas, An Introduction to the International Criminal Court , Cambridge

University Press, 3 edition 2007), p. 157. .............................................................................. 6

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Index of Authorities
United Nations and Other Documents

CA Bradley Unratified Treaties, Domestic Politics, and the U.S. Constitution (2007) 48

Harvard ILJ 307–336. ............................................................................................................ 3

L. Arbour and M. Bergsmo, “Conspicuous Absence of Jurisdictional Overreach”, in Hebel et

al. (eds.), Reflections on the International Criminal Court: Essays in Honour of Adriaan

Bos, TMC Asser Press 1999), at 129-140.. ............................................................................ 8

Miscellaneous

http://library.fes.de/pdf-files/iez/08948.pdf ............................................................................... 7

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Pleadings

PLEADINGS

I. THE UNSC RESOLUTION 5221 PASSED AT THE BEHEST OF GREEN

DESERT THAT FORCEFULLY REFERRED BLUE WATER TO THE ICC

DESPITE RESEVATIONS AND OBJECTIONS DUE TO ABSENCE OF

MEMBERSHIP IN ICC AND ROME STATUTE AND VIOLATION OF

INTERNATIONAL LAW.

There has been a display of gross abuse of international law from the UNSC despite Blue

Water not being a member of the ICC, and hence there was no prerequisite need for the

forceful referral to the ICC, despite it being the norm that it is nor fair or proper to refer a

non-party such as Blue Water to the jurisdiction of the ICC.

A. CLEAR VIOLATION OF SOVREIGNITY OF THE STATE OF BLUE WATER AND

FORCEFUL REFERRAL TO ICC IN VIOLATION OF INTERNATIONAL LAW

AND LAW OF TREATIES

As per the Rome Statute, a state that has signed but not ratified a treaty is obliged to refrain

from “acts which would defeat the object and purpose” of the treaty1. Israel, Sudan, US have

unsigned the Rome Statute indicating that they have no legal obligations arising from their

signature of the statute. 2 Hence the state of Blue Water has no real obligation or legal

compulsion towards this referral.

a. Non-Party States are not obligated to cooperate without their consent

Article 87 of the Rome Statute states that court “may invite any state not party to this statue

to provide assistance under this part on the basis of an ad hoc arrangement, an agreement

1
Dörr O., Schmalenbach K. (2012) Article 18.
2
CA Bradley Unratified Treaties, Domestic Politics, and the U.S. Constitution (2007) 48 Harvard ILJ 307–
336.

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Pleadings
with such state or any other appropriate basis.” 3Non-Party states are not obligated to

cooperate without their consent. Article 13(b)4 as used by Sudan where the country remained

uncooperative despite its obligations to take any steps it deems appropriate to cooperate with

the investigation. Hence as Blue water has not been part of an ad hoc

Neither arrangement nor are they signatories in the treaty or statute, the referral is in violation

of international rules and norms.

b. Treaties are only binding on principle, that too to only State Parties

Treaties are merely binding on principle, that too to only state parties, as they follow the

concept of “Pacta tettris nec nocent nec proscunt”, where for non- state parties there is a

choice to either benefit or harm from a treaty. Therefore, the obligation of non-party states to

cooperate differs from that of state parties.5

Since Blue Water is not a state party to either the treaty or statute, there is an objection as

they cannot be referred to the ICC as per article 356 of the Vienna Convention of on the law

of the third state, that the means of establishing obligation from the third state is only when

the state expressly accepts that obligation in writing.

c. Treaty does not create obligations or rights of the third party without its consent

Article 347 of the said convention also clearly expresses that a treaty does not create either

obligations or rights of the third-party state without its consent. This is why the applicants

feel that the State of Blue water having voluntarily denied, not expressly communicated8

acceptance of being a third party there is neither any obligation nor any statute that can

legally bind them to the treaty.

3
JS Charme The Interim Obligation of Article 18 of the Vienna Convention on the Law of Treaties: Making
Sense of an Enigma (1992) 25 George Washington JIL & Economy 71–114.
4
Rome Statute of the International Criminal Court, (2002) 2187 UNTS 90, Art. 13(b).
5
Vienna Convention on Succession of States in Respect of Treaties (1978), Pre 6 n. 21; 73 6
6
Vienna Convention on the Law of Treaties (1969) Accession to, 83 passim
7
Vienna Convention on Consular Relations (1961), 56 1; 65 1
8
Aust, Modern Treaty Law, pp. 86 ff. 41 Article 9(1).
This reflects the classic rule, Sinclair, Vienna Convention, p. 33.

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Therefore, the applicants since Blue Water is nor a signatory state of the treaty, nor is the

state obliged or willing to cooperate and hence cannot be obliged. Since the state has not even

expressly shown consent, the step taken by the UNSC9 to refer Blue water is violative of the

Vienna Convention of Treaties, 1969, violative of the norms of International law as well.

This is a clear violation of the sovereignty and is a gross abuse of international power as the

ICC or UNSC have neither the right nor authority to issue this referral.

In fact, the referral impinges on their sovereignty as they have the authority to make their

own sovereign decisions as per international law, and the UNSC referral violates that

sovereign right as well as the treaty rules of the Vienna Convention, the rules and also norms

of international law.

The Statute of ICJ provides that a State may recognize as compulsory, in

relation to any other State accepting the same obligation10, the jurisdiction of the

Court in legal disputes. The conditions on which such compulsory jurisdiction

may be recognized are stated in paragraphs (2) of Article 36 of the Statute,

which read as follows:

(a) the interpretation of a treaty

(b) any question of international law;

(c) the existence of any fact which, if established, would constitute a breach of an

international obligation;

(d) the nature or extent of the reparation to be made for the breach of an

international obligation.

9
Satow’s Guide to Diplomatic Practice, 5th edn, London, 1979, p. 62. 37 Article 8.
10
Christian J. Tams, James Sloan-The Development of International Law by the International
Court of Justice-Oxford University Press (2013).pdf

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Pleadings

B. CLEAR VIOLATION OF PROCEDURE USED BY THE UNSC IN

PRECEDENT CASES WHICH HAS BEEN NEGELCTED SEVERELY

AGAINST THE STATE OF BLUE WATER

The UNSC in earlier cases which have been set as precedents of the council prosecuting

those for crimes against humanity followed a procedure in Darfur in 200411. Where they

issued a referral to the ICC following resolutions and investigative techniques to pursue and

prosecute those for their crimes. However, there has been an inconsistent and illegible

referral which has been issued to Blue Water. As nor was there any commission issued by the

UNSC, any resolutions preceding the referral or any procedure conducted by a legitimate

body as such.

a. Clear violation of procedure and investigation as followed in precedent cases

The council had followed a credible process while dealing with the crimes committed in

Darfur, and began by condemning the violence and humanitarian crisis by passing a

resolution 154712. However, in the case of Blue Water the council directly referred the

country to the ICC without any preceding resolutions laying the base or foundations.

The Court’s role as a principal organ of the United Nations gave rise to the argument

that, in case of normative conflict with the other principal organs, and in particular the

Council (even when acting under Chapter VII of the Charter), the Court may review

judicially the decisions of those organs. 2 The Court has the competence under the

Charter to review the legality of Security Council resolutions that arise incidentally in

contentious proceedings between states.

11
Nidal Nabil Jurdi, the International Criminal Court and National Courts: A Contentious Relationship, Ashgate
Publishing, England, 2011, p. 255.
12
William A. Schabas, An Introduction to the International Criminal Court , Cambridge University Press, 3
edition 2007), p. 157.

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Pleadings
b. Violation of national jurisdiction and irregularity in procedure

In 2004, the council felt that the Sudan situation was a threat to international peace and

security and therefore, urged the Sudanese government to take matters forward and resolve

the issues to violence and criminal activities, but in the case with Blue Water, there was no

such respect towards national jurisdiction and a direct referral was made to the ICC13 without

informing the state of Blue Water as to what issues the council had with the nation and defied

the norms of international law and the Vienna Convention by not allowing national

jurisdiction14 sort the issues through their legal system and then resorting to the international

court.

As per Article 36(3) of the UN Charter 6 , the Security Council should also take

into consideration that legal disputes should, as a general rule, be referred by the

parties to the International Court of Justice in accordance15 with the provisions of

the Statute of the Court. Instead of passing a resolution (5221), wherein the case

was referred to International Criminal Court, the UNSC should have referred

the dispute to ICJ. Hence ICJ does have the right to adjudicate over this issue.

c. No Governing Body appointed to look investigate the issue and direct resolution

for referral was made.

The council in Darfur, which after failing the Sudanese government in handling their affairs,

led to resolution 156416 under Chapter VII which established a commission of inquiry to look

into the humanitarian law and human rights in Darfur of all parties.17 Following which a

13
Jean Galbraith, The Bush Administration's Response to the International Criminal Court, 21 BERKELEY J.
INT'L L. 683, 685 (2003).
14
Schabas, supra note 13, at 702; Gerhard Haffner, An Attempt to Explain the Position of the USA Towards the
International Criminal Court, 3 J. INT'L CRIM. JUST. 323 (2005).
15
United States Diplomatic and Consular Staff in Tehran (USA v Iran) [1980] ICJ Rep 3, 21.
16
Jason Ralph, International Society: The International Criminal Court and American Foreign Policy, 31 REV.
FOR INT'L STUD. 27 (2005).
17
http://library.fes.de/pdf-files/iez/08948.pdf

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commission of inquiry established by the UN investigated reports which, finally led to a

referral at the ICC18.

However instead of passing any preceding resolutions or taking into consideration of both

parties, which only the views of Purple Valley were considered and not of the state of Blue

Water, there was a referral devoid of an inquiry, investigations, preceding resolutions and no

chapters used under UN laws19.

In the event that the Court finds a lack of jurisdiction under the previous heads,

the applicant contends that war crimes are now accepted by most authorities as

subject to universal jurisdiction 7 . The General Assembly in 1968 adopted the

Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes

Against Humanity, reinforcing the general conviction that war crimes are susceptible to
universal jurisdiction 8 , while the four Geneva “Red Cross” Conventions of 1949 also
contain provisions for universal jurisdiction over grave breaches 9 which include willful
killing, torture or inhuman treatment, unlawful deportation of protected persons and the
taking of hostages. Clearly the Plutonian Massacre has been proven to be a case of Genocide.
Hence the ICJ has right to exercise universal jurisdiction in order to ensure a fair
administration of justice to the people of Purple Valley.

18
Hans-Peter Kaul, Preconditions to the Exercise of Jurisdiction, in 1 THE STATUTE OF ROME AND THE
INTERNATIONAL CRIMINAL COURT: A COMMENTARY 607 (Antonio Cassese et al. eds., 2002).
19
David Scheffer, The United States and the International Criminal Court, 93 AM. J. INT'L L. 12 (1999).+

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