III.

RANTANIAN OFFICIALS MAY EXECUTE THE JUDGMENT IN THE CASE OF TURBANDO ET. AL., V. THE REPUBLIC OF APROPHE SINCE THE EXERCISE OF JURISDICTION BY RANTANIAN COURTS IN THAT WAS CONSISTENT WITH INTERNATIONAL LAW. A. Force Labour is equivalent to jus cogens thus entitled Rantania to exercise the jurisdiction over Aprophe for any violation of it Aprophe had used the ground of Article XV of the Peace Agreement 1965 to waive each parties right on its own behalf and on behalf of its citizens all to claims against the other or the others citizens arising out of the conflict which began in August 19621. Rantanian Government right to bring the claim however, does not been diminished by the Treaty, as the nature of claim that will be brought here is the crime of forced labour, which held the stature of jus cogen that prevail over any treaty.

1. Force labour or slavery in general amounted to the peremptory norm (jus cogen) of International Law

In International Law, the term jus cogens (literally, compelling law) refers to norms that command peremptory authority, superseding conflicting treaties and custom. The influential Restatement on Foreign Relations of the United States (Restatement) defines jus cogens to include,

Compromis. 18

at a minimum, the prohibitions against slavery or slave trade2. Thus, slavery as peremptory norms is strictly uncontroversial and had already been established as one of peremptory norms. The status of slavery as peremptory norms was further alleviated by ICCPR and ECHR as the slavery was listed as non-derogable3.

Meanwhile, the nature of force labour could be defined, for the purposes of International Law, as all work or service, which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily4.

As dictated by Reinhardt, Circuit Judge in the case of Doe v. Unocal, forced labor is a modern variant of slavery, which is a jus cogen or peremptory norm of International Law5.

The inclusion of Forced labour to the terms slavery could also be found in the Commision of Inquiry on Forced Labour in Burma, as stated in Section D, which concluded that forced labour is a form of slavery, which

The Yale Journal Of International Law [Vol. 34], Article: A Fiduciary Theory of Jus cogens by Evan J. Criddle & Evan Fox-Decent, pg 331 3 Article 4(2) of International Covenant on Civil and Political Rights; Article 15 (2) of European Convention on Human Rights
4

Art. 2 (1) Convention [No 29] concerning Forced or Compulsory Labour; Forced Labour Convention No 29 Doe v. Unocal, 248 F.3d 915 (9th Cir. 2001)

is a jus cogens or peremptory norm of International Law and thus, should be treated as such6. For the current case, 500 Rantanian peasants were forced to labour to provide goods and services to the Aprophian army without paid 7. Thus the Aprophian Army had committed a crime of force labour, which contradicts with the peremptory norms of International Law.

2. Jus Cogen Prevails over treaty and Customary International Law.

A peremptory norm (also called jus cogens or ius cogens, Latin for "compelling law") is a fundamental principle of International Law, which is accepted by the international community of states as a norm from which no derogation is ever permitted.

Unlike ordinary customary law, which has traditionally required consent and allows the alteration of its obligations between states through treaties, peremptory norms cannot be violated by any state "through international treaties or local or special customs or even general customary rules not endowed with the same normative force8"

The role of International Law in the elimination of child labor By Holly Cullen pg. 35 Compromis. 6 Prosecutor v. Furundzija, International Criminal Tribunal for the Former

In addition, under Article 53 of the Vienna Convention on the Law of Treaties, it was provided that any treaty, which conflict with a peremptory norm, is void.

Thus, Rantanian Government has the right to bring the claim as the claim was about forced labour committed by Aprophian Army which violated the peremptory norms of International Law, which in turns prevail over Article XV of the 1965 Treaty.

B. Rantanian Courts have proved that they have the state jurisdiction over the case. The Harvard Research Draft Convention on Jurisdiction with Respect to Crime 1935 has identified five general principles of state jurisdiction: universal principle, territorial principle, protective principle, universality principle and passive personality principle9. This case falls under territorial, universality and nationality principles. 1. The Rantanian courts have state jurisdiction by virtue of territorial principle

Yugoslavia, 2002, 121 International Law Reports 213 (2002)

9

Tim Hillier, Sourcebook on Public International Law, (Great British: Cavendish Publishing Limited, 1998), at. 67

A state has absolute and exclusive sovereign authority against people, things and events that happen within its own territory and it may exercise jurisdiction over them in all cases, unless there is immunity from jurisdiction10. The Rantanian courts have the jurisdiction to hear and to execute the judgment in the case of Turbando since the event is likely to be within Rantanias territory.11

2. The Rantanian Courts have state jurisdiction by virtue of universality principle The universality principle depends on the concept of international crimes. International crimes are violations of customary international law. It does affect international community as a whole and that makes all States may punish the offender of international crimes. It is protected by the international community as a whole and binds all States and individuals.12

Every independent state has jurisdiction to punish war criminals in its custody, regardless of the nationality of the victim or of the place where the offence was committed13.

10

Tim Hillier, Sourcebook on Public International Law, (Great British: Cavendish Publishing Limited, 1998) at. 69; Lotus Case pg 18
11 12 13

Compromis.6. F.A Mann, The Doctrine of Jurisdiction in International Law, (1964) at 111 - Article Pros. v. Adolf Eichmann (1961) 36 ILR 5- Para 4, 5 and 6

Forced labour is prohibited under the international law14and it falls under certain types of slavery15. As slavery is categorized under crimes against humanity16, the same thing goes to forced labour. Since the matter of forced labour is a kind of international crimes, thus the universality principle is applicable on it.

In the present case, 500 Rantanian peasants were forced by Aprophe to labour in order to provide goods and services to the Aprophian army and they were not paid. Hence, Aprophe has committed the crimes against humanity and is therefore is subjected to the jurisdiction of the Rantanian courts.17

3. The Rantanian Courts have state jurisdiction by virtue of passive personality principle The principle of passive personality is a theory of jurisdiction based on the nationality of the victim.18A State may assert jurisdiction over activities which, although committed abroad by foreign nationals, have affected or will affect nationals of its own.19.

14 15 16 17 18 19

Article 4 of The European Convention on Human Rights. Siliadin v France Paragraph 129.132135,141 and 142 Article 5 and 7 of The Rome Statute Compromis 6 Lotus case, 1927, PCIHJ Series A, No 10. Page 22 and 32 Cutting case (1886) Tak jumpe full case, Sarah

The international community recognizes the legitimacy of the passive personality principle and it was pointed out that the US and the international community in recent years had accepted this principle in the sphere of terrorist and other internationally condemned crimes.20

As the victims in the case of Turbando are Rantanian peasants, they have the right to bring the case to the Rantanian courts. Moreover, they were forced to be the internees and that makes the Rantanian Courts have the jurisdiction to try the case.

20

U.S v Yunis 681F. Supp. 896 (1988) Part IV Para 5