background guidein darfur (unamid). however, i have many years of mun experience outside of nhsmun...

B A C K G R O U N D G U I D E

NATIONAL HIGH SCHOOL MODEL UNITED NATIONS • MARCH 17-20, 2010

NHSMUN 2010

© 2009-2010 International Model United Nations Association, Inc. Used and distributed under license.

international court of justice

Lisa Cuesta

Secretary-General University of Pennsylvania

Jerry Guo Director-General

Dartmouth College

Ryan Burke Conference Director

University of South Carolina

Emily Robertson Chief of Staff

Duke University

Othman Ouenes Chief of External Relations

Stanford University

Andrew Porter-Price Director of Security

University of Connecticut

Ileana Adamez Under-Secretary-General

University of Massachusetts, Boston

Max Ross Under-Secretary-General

Dartmouth College

Erin Williamson Under-Secretary-General Florida State University

Luke Russell Under-Secretary-General University of Connecticut

Jenny Gai Under-Secretary-General University of Pennsylvania

Chris Talamo Under-Secretary-General

Dartmouth College

NHSMUN is a project of the International Model United Nations Association, Incorporated (IMUNA). IMUNA, a not-for-profit, all volunteer organization, is dedicated to furthering global issues education at the secondary school level.

NATIONAL HIGH SCHOOL MODEL UNITED NATIONS T h e 3 6 t h A n n u a l C o n f e r e n c e • M a r c h 1 7 - 2 0 , 2 0 1 0

October 2009 Delegates, Hello and welcome to NHSMUN 2010! My name is Chris Talamo, and I am the Undersecretary General (USG) of the Specialized Agencies. This is my second year on staff at NHSMUN and last year I was the director for the United Nations/African Union Mission in Darfur (UNAMID). However, I have many years of MUN experience outside of NHSMUN in both high school and at Dartmouth College, my alma mater, and throughout these years I have always loved the Specialized Agencies for their intensity and uniqueness. The small sizes and advanced topics of Specials’ committees create an unparalleled debating experience that will surely be memorable for everyone involved. As for me, I’m a junior at Dartmouth College studying a double major in astronomy and physics. I am also involved in a research project studying various models of the cosmological inflationary era, so I can usually be found in the physics building. When I’m not studying for class or working for NSHMUN, I usually like to listen to Romantic music (from the 1870s in particular) and enjoy a nice cup of earl grey tea. Needless to say, the delegate social is always an interesting experience for me. Your director has put in countless hours helping tailor and refine your committees, and for that I can’t thank them enough. There will be many resources available to you during the months leading up to the conference, such as a blog for the director to post updates on the topics, but the effectiveness of individual contact can never be overstated. I encourage each of you contact your directors before the conference to ask questions and direct you in your research. This aspect of delegate interaction is definitely what I miss most from my director year, so if you see me wistfully walking the halls of the Hilton, feel free to come chat about anything! I am looking forward to seeing you all in New York City in March! Best of luck with your research. Sincerely, Chris Talamo [email protected] (949)2915825

Lisa Cuesta

Secretary-General University of Pennsylvania

Jerry Guo Director-General

Dartmouth College

Ryan Burke Conference Director

University of South Carolina

Emily Robertson Chief of Staff

Duke University

Othman Ouenes Chief of External Relations

Stanford University

Andrew Porter-Price Director of Security

University of Connecticut

Ileana Adamez Under-Secretary-General

University of Massachusetts, Boston

Max Ross Under-Secretary-General

Dartmouth College

Erin Williamson Under-Secretary-General Florida State University

Luke Russell Under-Secretary-General University of Connecticut

Jenny Gai Under-Secretary-General University of Pennsylvania

Chris Talamo Under-Secretary-General

Dartmouth College

NHSMUN is a project of the International Model United Nations Association, Incorporated (IMUNA). IMUNA, a not-for-profit, all volunteer organization, is dedicated to furthering global issues education at the secondary school level.

NATIONAL HIGH SCHOOL MODEL UNITED NATIONS T h e 3 6 t h A n n u a l C o n f e r e n c e • M a r c h 1 7 - 2 0 , 2 0 1 0

October 2009

Dear Justices, Greetings, and welcome to the 36th annual National High School Model United Nations Conference. My name is Chris Chasin, and I will be serving as President of the Court for the coming year. This will be my second year serving as the President of the Court and my fourth year of involvement with NHSMUN’s ICJ. The International Court of Justice offers a unique environment for discourse, and I look forward to working with all of you in the coming months during your preparation for the conference and during the conference itself. I have no doubt that your knowledge and skills will leave me impressed throughout this period, and I look forward to developing a professional relationship with all of you. I'm currently a junior at Haverford College studying Political Science. My academic interests include constitutional law, international law, urban politics, political management, and transportation planning and urban development. As such, I spent this summer as a government affairs representative for a large public/private firm in Washington, DC. This will be my seventh year of involvement with the NHSMUN conference (I first came as a delegate in 2004). From personal experience, I can promise that representing a justice of the Court is far different from representing a delegate in a traditional committee. While the task and unusual procedures may seem daunting at first, you will quickly find the Court's operations highly intuitive and extremely rewarding. This year, several exciting changes have occurred which I am looking forward to testing with you. The one I am most excited about is the creation of a blog through which we may communicate before the conference. This will allow us to build a dialogue before the opening of the conference, enhancing our debate in committee. The blog is not meant to allow the exchange of positions or other processes traditionally reserved for the conference, but instead will allow the unbiased and academic sharing of information before the conference. Important information will be posted on the blog, so I encourage all members of the committee to remain actively engaged with it. I also strongly encourage you to contact me with any questions regarding international law you may have. Let me be clear about this, if you don’t have questions you are doing something wrong. International law is amazingly complex, and it will undoubtedly be beneficial to your preparation to utilize my knowledge as a resource when questions arise. It goes without saying that you will need to extensively research the topics at hand. It is my hope that the addition of these new communication systems can aid in your research, and I would encourage you to utilize the blog to distribute information you think should be shared with the entire Court (remember, in the Court it is always in your interest to help your fellows understand the issues, as it will lead to a smoother simulation). I look forward to working with you all, and do not hesitate to contact me at [email protected] if you have any questions or concerns. Yours, Chris Chasin President of the International Court of Justice

The 2010 National High School Model United Nations International Court of Justice

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A N O T E O N R E S E A R C H A N D P R E P A R A T I O N Delegate preparation is paramount to a successful and exciting National High School Model United Nations 2010 Conference. We have provided this Background Guide to introduce the topics that will be discussed in your committee; these papers are designed to give you a description of the topics and the committee. They will not give you a complete description of the topic areas and they will not contain the most up-to-date information, particularly in regards to rapidly evolving issues. We encourage and expect each delegate to fully explore the topics and be able to identify and analyze the intricacies of the issues. Delegates must be prepared to intelligently utilize their newly acquired knowledge and apply it to their own countries’ policy. You will find that your state has a unique position on the topics that cannot be substituted for or with the opinions of another state. The task of preparing and researching for the conference is challenging, but it can be interesting and rewarding. We have provided each school with a copy of the Delegation Preparation Guide. The Guide contains detailed instructions on how to write a position paper and how to effectively participate in committee sessions. The ICJ has a special format for position papers that will be explained later in this background guide. The Guide also gives a synopsis of the types of research materials and resources available to you and where they can be found. A brief history of the United Nations and the NHSMUN conference are also included. The annotated rules of procedure complete the Delegate Preparation Guide. An essential part of representing a nation in an international body is the ability to articulate that state’s views in writing. Accordingly, it is the policy of NHSMUN to require each delegate (or double-delegation team) to write position papers. The position papers should clearly outline the country’s policies on the topic areas to be discussed and what factors contribute to these policies. In addition, each paper must address the Research and Preparation questions at the end of the committee Background Guide. Most importantly, the paper must be written from the point of view of the country you are representing at NHSMUN 2010 and should articulate the policies you will espouse at the conference. All papers should be typed and double-spaced. The papers will be read by the Director of each committee and returned at the start of the conference with brief comments and constructive advice. You are responsible for sending a copy of your paper to the Director of your committee. Additionally, your delegation is responsible for bringing a bound copy of all of the position papers—one for each committee to which your school has been assigned—to the conference (to be submitted during registration). Specific requirements of the bound copy have been sent to the faculty advisor/club president. In addition to position papers, each delegation must prepare one brief summary statement on the basic economic, political, and social structures of its country, as well as on its foreign policy. Please mail country summary statements to the Director-General of NHSMUN 2009 at the address below. All copies should be postmarked no later than February 15th and mailed to:

Delegations are required to mail hard copies of papers to the Director-General and Directors. NHSMUN Staff will not consider e-mail submissions as an adequate substitution.

Delega t ions that do no t submit pos i t ion papers to Dire c tor s or Summary Sta tements to the

Dire c tor -Genera l w i l l b e ine l i g ib l e fo r awards .

Jerry Guo, Director-General Hinman Box 658 Dartmouth College Hanover, NH 03755 (Country Summaries)

Chris Chasin, Director Haverford College 370 Lancaster Avenue Haverford, PA 19041 (Individual papers)


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COMMITTEE HISTORY The International Court of Justice (ICJ) is the principal organ of the United Nations for dealing with issues of international law and justice. Based out of the Peace Palace in The Hague, Netherlands, the Court has the authority to settle disputes of international law between states and to offer advisory opinions on legal issues at the request of the General Assembly and other authorized agencies (Rosenne 31). All cases reviewed by the ICJ must be referred to it by other states or organs of the UN, but states have the option of providing for ICJ self-determined jurisdiction in treaties. The concept of contemporary international arbitration stems from the Jay Treaty of 1794, which created a means for the arbitration of disputes between the United States and Great Britain. The 1871 Treaty of Washington, created to settle the Alabama Claims dispute, furthered these values of arbitration using commissions and third-party arbitrators to settle territorial disputes and the contentious issue of the British breach of neutrality during the United States Civil War (“History”). As a result of the treaty, the Alabama dispute was settled by Geneva, and the Emperor of Germany was asked to arbitrate territorial disputes along the border of the Northwest Territory. In 1899, Czar Nicholas II of Russia convened the first Hague Peace Conference to discuss peace and disarmament. Following this event and the latter 1907 Hague Peace Conference was the creation of the Convention on the Pacific Settlement of International Disputes, an agreement that provided for the creation of an institution of voluntary global pacific resolution of disputes: the Permanent Court of Arbitration (PCA). The PCA began operating out of the Peace Palace in 1913, and it left a legacy of successful arbitration while at the same time demonstrating the flaws inherent in a voluntary arbitration system. Following World War I, the establishment of the League of Nations brought about the next major development for international judicial causes: the Permanent Court of International Justice (PICJ). Unlike the PCA, the PICJ had the right to offer advisory opinions upon any dispute or question referred to it by the League of Nations, in addition to its right to resolve disputes between nations in the form of contentious cases. It featured a bench composed of permanent justices, a permanent Registry, and was governed by its own statute. The Court opened its first session in January 1922 in the Peace Palace. Unlike arbitral tribunals, the Court was a permanent body governed by its own rules and statutes and binding on all parties to the court. However, the PICJ was weakened by restrictions placed on its jurisdiction, which limited its authority to cases in which both parties accepted its jurisdiction, an occurrence unlikely to occur in international disputes. The outbreak of World War II stressed the abilities of the PCIJ to the breaking point. The Court had its last sitting on 4 December 1939, after which no new cases were heard. During the war, both the United States and the United Kingdom expressed interest in the reestablishment of an international court after the war, with the stipulations that the Court Statute be based on that of the PCIJ, the Court still have the power to render advisory opinions, the Court’s jurisdiction not be compulsory, and the Court not deal with fundamentally political matters. In April 1945, a committee of jurists representing 44 states convened in Washington to begin drafting a Statute for the future International Court of Justice, to be presented at the San Francisco Conference. The draft’s text mirrored the Statute of the PCIJ, but left major questions regarding the court’s creation, mission, jurisdiction, and body open to be decided at the San Francisco Conference itself. The Conference decided to establish a completely new court: a principle body of the UN on equal footing with the General Assembly, Security Council, and Secretariat, without compulsory jurisdiction, and with all states as ispo facto parties to the statute. With the dissolution of the League of Nations, the PCIJ dissolved and transferred its archives to the ICJ. The last president of the PCIJ, Justice Jose Gustavo Guerrero, transferred over to become the first president of the ICJ. Since its first sitting in April 1946, the Court has ruled on several hundred cases including both contentious cases and advisory opinions referred by other UN organs. Although cases before the Court can take years to adjudicate, the Court’s decisions, once made, are broadly respected as the highest law of nations.


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As per the Statute of the Court and the UN Charter and in accordance with the tradition of the PCIJ, the Court is composed of 15 justices, one of whom is elected as the President of the Court to govern the proceedings. Justices to the Court are elected to nine year terms by the General Assembly and the Security Council, guided by the declaration of the Statute of the Court that the elected officials are “persons of high moral character who possess the qualifications required in their respective countries for appointment to the highest judicial offices” (Rosenne 209). Though the Court has traditionally consisted of representatives from the five veto powers, it also is structured to allow justices from other nations such as Somalia, Sierra Leon, Uruguay, and Yugoslavia, nations that would not have participated in the arbitration tribunals that preceded the PCIJ and the ICJ. Between 1946 and 1996, the Court delivered 57 judgments in contentious cases, 62 substantive orders, and 24 advisory opinions (“List”). The Court has dealt with a broad range of cases addressing important legal issues throughout the international community, including the legality of the use of nuclear weapons, the legality of the use of force in multiple conflicts, and numerous territorial disputes. Today, the ICJ has become a respected place for settling disputes; as of June 2009 the Court had 146 cases on its docket dealing with such issues as territorial boundaries, extradition, and racism.


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SIMULATION INTRODUCTION The International Court of Justice is recognized internationally as the most prestigious venue for legal debate in the world. The Court is composed of justices widely respected for their legal knowledge and arbitration skills; these justices are some of the world’s foremost jurists and scholars. As Justices of the Court, delegates will be expected to uphold decorum and to conduct themselves in a manner becoming their position. In short, delegates are expected to give their position the respect that it deserves. FACTS AND THE COURT The factual information used by delegates of the International Court of Justice should come from a variety of sources. Though NHSMUN cases are unique and fictional, they are firmly grounded in real events. In some cases, NHSMUN will use non-existent characters and events to create plausible yet fictitious cases. One of this year’s topics, the advisory opinion on Taiwan, represents such a case; the events triggering the request for an advisory opinion are fictional but could very well have actually occurred. Justices will not be able to directly research the event in question but would be well advised to consider the current events and history of the nations and regions within which the incident occurred. Precedent setting historical situations and the broader international backdrop will be crucial to understanding these cases and reacting to them in an educated and informed manner. Justices should also bear in mind that submissions to the Court in contentious cases will reflect the bias of their authors as they are parties with specific interests. Delegates should take the submissions to be true in the mind of the country of submission, but must bear in mind the biases when analyzing the facts of the case. Facts and bias routinely exist side-by-side; it will be the delegates’ duty to separate the two. For instance; a delegate would expect that on a case regarding the Israeli Security Barrier, Israel would feel the barrier is essential to its security. Thus, when reading Israel’s statements supporting the existence of the security barrier, note that they only provide one side of the story and favor Israel’s argument that the barrier is necessary. Bias is not a bad thing, in fact when it is recognized it can be advantageous. It allows delegates to appreciate not just the facts of the cases but also the varying views of the parties and the flow of their logic. Therefore, delegates must find a careful balance between fact and biases when critically analyzing cases. Advisory opinions, on the other hand, are submitted by the United Nations itself, and thus the Court can take such submissions to be unbiased, except where quotations or reference to primary source materials might establish distinct national biases. As the Justices of the Court are no doubt already aware, precedent of action (as customary law) and codified laws are an integral part of the Court’s decision. Justices should not only acquaint themselves with the governing documents of the Court, but should also research the pertinent bodies of codified international law. In addition, Justices should research the actions, statements, and treatments that compose the customary law of the case, and have a general knowledge of the issues surrounding the two cases. THEORY OF SIMULATION The International Court of Justice at NHSMUN will primarily follow the rules of procedure used by the actual Court. That being said, the ICJ will differ from all other NHSMUN committees in that there will be little (if any) structured debate. The oral arguments and deliberations of the Court occur in a manner similar to caucusing, without a speakers’ list or a set speaking time. Without parliamentary procedure, working papers or resolutions, and other conventional formalities, the Court is able to evolve and ultimately operate with some autonomy from the Dais. Ideas will be conveyed through open discussion rather than structured debate, creating a forum for stimulating and productive reasoning. In such a setting, the responsibility of the Dais is to structure and move debate, ensuring that the Court does not remain too long seized on one matter. One tool the Dais will use is a straw-poll vote — a nonbinding poll of the justices used to gauge the feelings of the Court and to clarify existing divisions within


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the Court. Straw-polls, like any other motion, may be proposed by any justice and will be voted upon at the discretion of the Dais. The International Court of Justice is unique within the United Nations in that its decisions are reached not through argument and contested voting, but through agreement and consensus. Although a simple majority is needed to pass a decision, the Court generally strives to bring the feelings of as many justices as possible into the decision, with those justices disagreeing represented through concurring and dissenting opinions. Justices will have to work to build strong consensus, using a combination of compromise and respectful deliberation. The Court encourages justices to change views, hold conflicting views, and question every aspect of the case. Humility is important, though Justices should not sacrifice their own beliefs in the name of Court unity. It is only through this process of give and take that the Court can formulate a strong, comprehensive decision. COURT PROCEDURE The International Court of Justice at The Hague uses the Statute of the Court, the Rules of the Court, and a Resolution Concerning International Judicial Practice of the Court to govern the Court’s procedure; the Court at NHSMUN will draw largely from the same documents. Our Court has two very different topics brought before it; a contentious case and an advisory opinion. Although the documentation and submissions of the two cases are different, the procedure adhered to by the Court will be similar for both cases. The process of bringing a case before the ICJ begins with written arguments. The contentious case’s Arguments are the Memorial and Counter-Memorial provided in the upcoming pages. The advisory opinion’s Arguments include the request for an advisory opinion from the General Assembly and the associated documents. The written documents form the basis for the case, and therefore justices must be very familiar with these documents before the Court convenes. It goes without saying, since these documents form the basis of the cases before the Court, that justices should bring these documents with them to all committee sessions. Once the Court begins, its agenda will be set by the convening justices. There will be a brief discussion followed by a vote to determine the order of the agenda. Unlike the Security Council and other substantive UN bodies, the Court does not operate under a deadline. Justices are therefore encouraged to select the case they feel is the most interesting and thought provoking, not the one that will be most pressing or will set the best precedent. After setting the agenda, the justices will each present their initial views on the legal and factual aspects of the case in oral arguments. These initial views will provide a framework for the Court to work with during oral proceedings and formal deliberations, when the legal aspects of the case will be fully argued. Initial views are strictly opinions — they do not by any means condemn a justice to one particular view for the duration of the Conference. Following the initial opinions, oral proceedings will occur during contentious cases. Representatives from the states party to the case will appear before the Court and briefly answer questions from the justices pertaining to the legal arguments of either side. Although factual questions can be raised at this time, the Memorials should provide sufficient information to allow the Court to rule on the case. When more information or clarifications becomes available, the Dais will provide the requested information. The Court will then proceed into Formal Deliberations, in which Justices will debate the merits of the case in an informal setting. Debate will be held through a semi-permanent moderated caucus with the President and Vice President of the Court limiting the focus of discussion to particular aspects of the case as necessary. Justices will collaborate to determine the questions of law and will eventually formulate formal opinions on the aspect under consideration. Once the Court’s opinion has developed towards consensus, the Dais will allow a brief unmoderated caucus to allow that aspect of the decision to be composed. The opinions will fall into three distinct categories. Those justices composing a majority of the Court who feel the same way about the case will write a majority opinion. Those who agree with the majority opinion but


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have different reasoning or whose views exceed those of the majority opinion will write a separate opinion to be attached to the decision. Dissenting justices will compose a dissenting opinion, explaining why they disagree with the majority opinion. Although the final vote will be taken by simple majority, all justices are urged to come as close to consensus as possible. In the end, the decision will be stronger with the support of more justices. Decisions will be explained in more detail during the Rules Briefing, but will primarily follow the format used by the actual ICJ. Summary of ICJ Procedure

Written Proceedings Setting of Agenda Preliminary Discussion Oral Proceedings (for contentious cases), or Initial Arguments (for advisory opinions) Presentation of Preliminary Opinions Formal Deliberations Caucus and Decision Writing Delivery of Opinions.

Something that will aid in delegate preparation is a new program NHSMUN is starting this year: blogs. Each Director and Assistant Director will maintain a committee blog covering new developments and critical analysis of issues related to the topic. Delegates are encouraged to comment on the staff’s posts and ask questions; starting a dialogue before the conference will lead to more comprehensive and effective solutions. View the committee blog at:

http://nhsmun2010icj.wordpress.com The staff will update the blog at least three times a month. Delegates are highly encouraged to stay updated on new posts and whatever information the dais provides.


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THE LEGALITY OF THE UNITED STATES LEASE ON GUANTANAMO BAY

(REPUBLIC OF CUBA V. UNITED STATES OF AMERICA) TOPIC A

MEMORIAL OF THE REPUBLIC OF CUBA Chapter One: Introduction 1.1 The Republic of Cuba (hereafter referred to as Cuba) instituted proceedings against the United States

of America (hereafter referred to as the United States) in an application presented to the International Court of Justice at The Hague on 10 April 2009.

1.2 This Memorial constitutes a request for the International Court of Justice to review the legal status of the lease agreement between Cuba and the United States for the Guantanamo Bay Naval Base and the ongoing military occupation of said base by the United States.

1.3 These proceedings have been requested as a result of the United States’ continued refusal to accept

that the lease agreement is no longer legal and its continued presence within Cuban borders is illegal.

1.4 In this Memorial, Cuba will detail both its and the United States’ actions with regards to the creation of the United States lease on Guantanamo Bay and will chronicle its attempts to terminate the lease as well as the legal justifications for such termination, all of which have been brazenly ignored by the United States. Cuba will argue that the lease agreement was never legal and that, regardless, it would certainly be void currently due to violations of the lease by the United States.

1.5 Cuba accepts the exclusive grounds of the International Court of Justice to rule in this case, as

evidenced in a letter sent to the President of the Court by Minister of Justice Maria Esther Reus on 10 April 2009. Cuba will establish the grounds of jurisdiction in this matter in Chapter Three of this Memorial.

1.6 Pursuant to Article 49 of the Rules of the Court, this Memorial is divided into the following chapters: Chapter Two contains a statement of the facts. Chapter Three will establish the Court’s competency to consider this matter. Chapter Four contains a statement of the applicable law, and an analysis of the relevant

principles and rules of law as applied to the facts of the matter. The memorial concludes by setting forth the submissions of Cuba to the Court.

Chapter Two: The Facts 2.1 During the 1800’s, the Cuban population made multiple attempts to free itself from Spanish Colonial

rule. The first two conflicts, the Ten Year War (1868-1878) and the Little War (1879-1880), ended without achieving independence. Both wars were fought without foreign intervention and resulted in extensive civilian casualties, yet in each case another effort at liberation soon followed. These wars illustrate the tenacious Cuban desire for independence and the will of the Cuban people to fight for their freedom without external support.

2.2 The Cuban War of Independence began with a general insurrection across the island on 24 February 1895. Spanish General Valeriano Weyler Nicolau responded to the insurrection through the use of terror tactics, such as the burning of homes and crops and the use of concentration camps, which


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not only strengthened the resolve of the revolutionaries but also led sympathetic governments to tentatively intervene on behalf of the fundamental human rights of Cubans.

2.3 In January 1898, rioting by pro-Spanish elements within Havana prompted the United States to send

a small marine contingent to ensure the protection of the American population within Havana. This contingent included the U.S.S. Maine, a vessel of the United States Navy.

2.4 On 15 February, an explosion occurred on board the U.S.S. Maine, causing the ship to rapidly sink

and resulting in the deaths of 274 sailors. The loss of the Maine served as a catalyst for the growing tensions already present between the United States and Spain, and led to the opening of hostilities on 25 April 1898, when Spain declared war upon the United States.

2.5 Almost immediately following the declaration of war, the United States enacted a blockade of major

Cuban ports. The Port of Santiago de Cuba became a primary target during this effort. However, in order to continue launching attacks upon Santiago de Cuba, the United States fleet needed sheltered waters in which to base its operations.

2.6 To secure such a base, the U.S.S. Marblehead and U.S.S. St. Louis entered Guantanamo Bay on 6 June

1898, where they severed Spanish undersea cables and shelled Spanish entrenchments. On 10 June, six companies of United States marines landed at Guantanamo Bay where they joined forces with and valiantly fought alongside Cuban insurgents in the area. Guantanamo Bay was secured and was subsequently used as a safe harbor and base of operations during the Spanish-American War.

2.7 On 12 August 1898, a cease-fire was declared, and the official cessation of hostilities occurred on 10

December 1898 with the signing of the Treaty of Paris. In the treaty, Spain ceded Guam, Puerto Rico, and the Philippines to the United States, and relinquished all titles and rights to Cuba, which was recognized in the treaty as a potentially sovereign entity under United States occupation.

2.8 Cuba remained under occupation until 1902, at which time control of Cuba was granted to a Cuban

government only after it accepted the terms of the Platt Amendment. 2.9 The United States Platt Amendment stipulated that the Government of Cuba may never enter any

treaty with a foreign power which would impair Cuba’s independence or grant a foreign nation other than the United States control over Cuban territory. The Amendment also required that Cuba not enter into public debts with other nations.

2.10 It further stipulated that the government of Cuba consent to United States military intervention at the sole discretion of the United States, ratify all actions of the United States occupation forces during the war including seizure of goods and damage to land, surrendered the Isle of Pines (Isla de la Juventud), and required the lease of unspecified Cuban lands as naval and coaling stations. The Amendment, as agreed upon by the United States Congress, also refused the withdrawal of occupying forces until its terms were codified by the Cuban Constitution.

2.11 This ultimatum was protested by the bulk of the Cuban Constitutional delegation tasked with

drafting a constitution for the fledgling Republic of Cuba. The delegation only agreed to amend the constitution to reflect the terms of the Platt Amendment upon realizing the United States would not grant the new republic freedom until its terms were met.

2.12 The lease of the naval stations specified in the Platt Amendment was first codified in the 23 February

1903 Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval Stations (Appendix A). This agreement set the territorial bounds for the leased naval stations, specified that Cuban trade vessels must be allowed free passage into and out of Guantanamo Bay and Bahia Honda, and declared that Cuba would continue to have ultimate sovereignty over the bases while the United States would exercise “complete jurisdiction and control” over the designated areas.


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2.13 The terms of the established lease were clarified in the 2 July 1903 Lease to the United States by the Government of Cuba of Certain Areas of Land and Water for Naval or Coaling Stations in Guantanamo and Bahia Honda.

2.14 The 2 July 1903 lease established the terms of the agreement as they are known today. It set forth

that the United States must pay $2000 in gold coin annually, establishing procedures for extradition and customs enforcement, and establish a restriction that the reservation be used for “a coaling and naval station” only, with no commercial enterprise occurring within its boundaries.

2.15 In 1912, an abortive attempt was made by the United States to modify the treaty, sacrificing the

Bahia Honda base and offering increased rent payments of $5000 in exchange for an increase in the boundaries of the Guantanamo Naval Base. However, though it was signed, this treaty was never ratified by either party’s legislative body and so never went into effect. Soon after the US returned the Bahia Honda base to Cuba, having found Guantanamo to be a far superior site. The Isle of Pines was also returned to Cuba during this period.

2.16 In 1934, the Platt Amendment was repealed by the United States Congress, allowing Cuba to modify

its constitution and liberating it from the terms of the Amendment. As a result, the original treaty of relations between the United States and Cuba was replaced with the 1934 Treaty of Relations Between the United States and Cuba. The treaty removed most of the restrictions of the Platt Amendment including the United States’ right to military intervention in Cuba, but kept in place all terms of the lease of the Guantanamo Naval Base.

2.17 In 1953, the Cuban Revolution began when Cuban freedom-fighters launched an attack on several

army bases throughout Cuba. The rebels, including Che Guevara and Fidel Castro, fought to liberate Cuba from the authoritarian right-wing Batista regime. Ultimately, the rebel leaders were captured, imprisoned, and exiled from the country. In 1956, the rebels returned to Cuba again aboard the Granma, fleeing from intercepting government forces into the Sierra Maestra Mountains. Though the rebel forces led by Fidel Castro numbered only 200 upon the leaders’ return, they quickly proved very effective against the better numbered Cuban Army. In August 1958, the Cuban rebels, with the aid of other insurgent groups, launched a broad offensive against the government that led to its ultimate collapse.

2.18 Immediately following the Cuban Revolution, the Cuban government voiced its rejection of the lease

of Guantanamo through continuing diplomatic efforts to end the lease and, save for one check accidentally cashed in 1959 during the new regime’s formative years, has ceased to cash the annual rent as a manifestation of the rejection. The checks are still made out to the “Treasurer General of the Republic of Cuba,” a position that ceased to exist over fifty years ago.

2.19 Following Cuba’s transition to socialism, the Guantanamo Bay Naval Base was used with hostile

intentions towards Cuba. Similar to the era of the Platt Amendment, the United States stationed forces within the base to “intervene” in Cuba should the opportunity present itself.

2.20 It is common knowledge that United States forces were, in 1958, supplying Batista’s government

with munitions to be used against Cuban civilians. It has been written by Cuban international attorney Olga Miranda Bravo of the Base that “all sorts of aggressions have emanated from the Naval Base: the violation of Cuban territorial waters and airspace, insults, provocations, shots and assassinations of members of our military, and of Cuban workers employed at the Base.” Between 1962 and 1996, United States personnel at Guantanamo were involved in 610 territorial violations, 6,345 airspace violations, and 1,333 violations of territorial water. These incidents included frequent reconnaissance flights by aircraft such as the U2 spyplane, which have been used to illegally photograph Cuban territory. Worse still is the United States’ backing and support of the Bay of Pigs Invasion, an overt military act against Cuba in which CIA-backed terrorists landed in Cuba with United States aid and support. A further 5,202 minor provocations have been recorded ranging from


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verbal insults to the throwing of objects by United States troops across the border between the Naval Base and Cuba.

2.21 In 1960, the United States imposed an “economic quarantine” upon Cuba, which it has continued to

enforce to this day. The United States also has not reestablished diplomatic relations with Cuba since the Revolution, instead representing itself via an Interest Section in the Swiss embassy. Cuba has made repeated diplomatic overtures to the United States regarding the Lease, but each time the overtures have been ignored or rebuffed. The United States has proved unwilling to even approach the table when the topic of Guantanamo Bay is being discussed; when the Base was brought up during the Cuban Missile Crisis the United States risked heightened tensions by refusing to even consider negotiations regarding the Base.

2.22 The issue of the Base is also addressed in the 1976 Cuban Constitution, which relieves Cuba from

international obligations unfairly entered into by the previous governments of Cuba. Such declarations are common following revolutions, and have been accepted as legal many times in the past. The United States’ refusal to accept this declaration does not alter the fact that it liberates Cuba from the obligations of the lease.

2.23 Cuba, however, has followed a path of patience and nonviolence in the face of the United States’

obstinate refusals to return Guantanamo Bay to its rightful owners. Cuba has repeatedly made clear that it desires the return of the land, both through its attempts to protest the lease — by not cashing payment — and through the words and actions of its leaders. However, Cuba has also refrained from aggressive or militaristic actions, instead preferring to see this dispute pursued in a pacific manner. This course is in stark contrast to that pursued by the United States, which has repeatedly used militaristic actions against Cuba to pursue political goals, including multiple assassination attempts against Cuba’s president and the invasion of Cuban territory at the Bay of Pigs.

2.24 The lease of the Base is set at $2000 U.S. gold dollars annually. Following the United States’

departure from the gold standard, that amount has only marginally increased over the years, now assuming the adjusted value of US$4085.00 per annum. This amount is equivalent to 33.5 cents per hectare, which is a very cheap rate by modern standards. When the Base was originally leased, however, the rent was equivalent to 16.2 cents per hectare, a competitive rent in Cuba at the time.

2.25 Though the lease of the Base was limited by the 23 February 1903 treaty to “the time required for the

purposes of coaling and naval stations,” its uses have far exceeded those limitations. The Base, which was actually redefined by the U.S. Navy as a full-fledged naval base in 1952 — as opposed to a naval station — has throughout the years been equipped with oiling facilities, two airfields hosting both combat aircraft and lighter-than-air vessels, target ranges for anti-aircraft gunners and marines, barracks, anti-submarine netting, a coast guard station, marine barracks, army forts, and a desalinization plant.

2.26 The United States also allowed commercial ventures in the base that violate the terms of the lease. In

1908, E. P. Pawley and Co. opened a mercantile store on the Base, one that was closed in 1910 at the behest of the United States Secretary of State after Cuban merchants complained about the violation of the lease agreement and the unfair competition it brought about. In the years before World War II, multiple farmers were allowed to establish private enterprises on the Base’s land, which were once again removed due to their violation of the lease agreement. Currently, the Naval Base plays host to commercial restaurant franchises such as McDonalds, KFC, Taco Bell, and Subway. Also in violation of the lease, the United States routinely brings private-sector contractors into the Base to perform various tasks, both naval and non-naval.

2.27 The Guantanamo Naval Base has also seen military uses well beyond those of a simple naval station.

During World War II it was one of the primary rally points of convoys preparing to cross the


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Atlantic Ocean. Even before then, the Base played host to naval exercises involving the entire United States fleet, far beyond the activities of a standard “naval station.”

2.28 The Base has served as a refugee camp and a detention facility during its occupation. In November

1991, the United States Coast Guard used the Base to detain Haitian refugees while their requests for asylum were processed. In some cases, over 21,000 such refugees were housed in the Base, and the usage of Guantanamo as a refugee camp lasted through 1995. In 1994, the Base was also used to house those seeking to illegally emigrate from Cuba.

2.29 In January 2002, the United States began to use Guantanamo Bay for a new purpose: a prison for

captured terrorists. The legality of the United States’ actions with is highly contentious given that nowhere in the lease agreement is the United States given permission to use Guantanamo as a penal colony. Disconcertingly, many within the United States do not want these terrorists returned to the United States due to the perceived threat they pose to public safety — yet these same terrorists have been held in Cuba for years. These terrorists, so dangerous they cannot be housed in the United States, have been held without Cuban consent in sovereign Cuban territory for years now. Clearly, use as a penal colony was not intended when the original lease was signed, and certainly not for individuals as dangerous as those currently housed in Guantanamo Bay.

Chapter Three: Jurisdiction 3.1. This case meets the requirements set forth in Article 36, Section 2 of the Statute of the International

Court of Justice regarding jurisdiction. As members of the United Nations, both Cuba and the United States are states parties to this Statute.

3.2. Cuba is the correct party to bring suit in this matter. The Guantanamo Bay Naval Base is within

Cuban territory, and Cuba is the party wronged by the Base’s continued existence. 3.3. The United States is the correct party for this suit to be brought against. The United States is the only

lessee of the Guantanamo Naval Base, and as such is solely responsible for its continued illegal occupation of Cuban territory.

3.4. In Article 36, Section 2 of the Statute of the Court, it has been established that the International

Court of Justice can render a decision in cases that concern: a. The interpretation of a treaty. Cuba and the United States clearly disagree over the interpretation

of the multiple lease agreements made between those two nations. b. Any question of international law. The United States is violating Cuba’s rights as a state through

its continued occupation of Cuban territory. Under the Vienna Convention on the Laws of Treaties as well as the International Covenant on Civil and Political Rights, this is unacceptable.

c. The existence of any fact that, if established, would constitute a breach of an international obligation. If the lease agreements for Guantanamo Bay are, in fact, illegal under the Vienna Convention, then the United States is illegally occupying Cuban soil, a clear breach of international obligation. Furthermore, the uses of Guantanamo by the United States beyond the scope of a “coaling and naval station” and the presence of commercial enterprises, if established, will constitute a breach of obligation by the United States.

d. The nature or extent of the reparation to be made for the breach of international obligation. If indeed Guantanamo Bay is legally Cuban and the lease is invalid, then the United States has been in illegal occupation of Cuban territory for at least fifty years. As such, Cuba should be restituted the proper rent for the Base.

3.5. Therefore, the Court has the jurisdiction to render a decision in this matter.


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Chapter Four: The United States Occupation of Guantanamo is in Violation of International Law 4.1 According to Article 52 of the 1969 Vienna Convention on the Laws of Treaties (hereafter referred

to as the Vienna Convention), “A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.” The lease upon Guantanamo Bay was secured through the United States’ refusal to remove its occupation forces unless Cuba agreed to the terms of the Platt Amendment and thus the lease. Though Cuba signed the treaty at that time, it was only due to this threat of force. Even if one does not consider the Vienna Convention as codified law, it represents the codification of a strong customary aspect of law; throughout history treaties secured through force have been held as illegal, and have routinely been nullified as a result of their origins. One example of this concept is the Treaty of Shimonoseki concluded at the end of the Sino-Japanese war, the results of which were considered invalid by the international community once Japan’s military control over the Pacific was broken in World War II. Following the Cuban Revolution and the resultant removal of this threat of force, the treaty was repudiated as commonly happens in such circumstances.

4.2 With regard to the Lease itself, the United States is guilty of multiple treaty violations of almost every clause specified in the Lease.

4.3 The United States has allowed commercial enterprises to exist within the confines of the Base. These

enterprises include not just the 1908 presence of the E.P. Pawley Co. and the 1920-1926 leasing of Base lands by Cuban farmer Abelardo Marquez, but also the more modern additions of a bowling alley and franchised restaurants. All of these instances are clear violations of Article 3 of the July 2 1903 Lease of Certain Areas for Naval or Coaling Stations, which states, “The United States of America agrees that no person, partnership, or corporation shall be permitted to establish or maintain a commercial, industrial or other enterprise within said areas.”

4.4 The United States has also exceeded the military uses promised to it in the 23 February 1903 Lease.

Within the Lease, the language specifies the use of the area for the purpose of establishing coaling and naval stations. In Article II, it is stated that “the grant of [Article I] shall include the right to …generally do any and all things necessary to fit the premises for use as coaling or naval stations only, and for no other purpose.” A naval station at that time was considered, as per United States Navy General Order 135 to be “any establishment for building, training, manufacturing, docking, repair, supply, or training under the control of the Navy. It may include several such establishments.” In turn, a naval base was “a point from which naval operations may be conducted and that is selected for that purpose. Its essential feature is an adequate anchorage for a fleet with its auxiliaries, preferably sheltered from the sea and fortified against attack.” Through the installation of airfields, training facilities, torpedo netting, and the construction of permanent naval facilities like dry-docks, even the United States could no longer call Guantanamo a naval station: in 1941 it was declared a naval operating base, and in 1952 Guantanamo was declared a full-fledged base, a status it held until it was misleadingly reclassified as a naval station in 2003. What’s more, the Base has failed to serve its original functions; the need for naval coaling stations had passed by with World War II, and in the modern era Guantanamo hardly sees use in a fueling capacity, despite the fact that was its intended purpose in the lease. Instead, the Base has been used in roles definitely outside the parameters of a naval station including housing thousands of refugees and serving as a prison for foreign nationals. These violations of the lease are grounds for United States reparation if not the termination of the lease.

4.5 Furthermore, the Republic of Cuba has chosen not to cash the rent checks for Guantanamo, as the

lease agreements have been repudiated. As is common custom in domestic and international law, a check does not represent payment until it is cashed, since until that time no transfer of money has actually occurred. Since 1959, the Government of Cuba has not cashed a single rent check. This means that legally, since 1959, the payment of the rent has not been made, since no money has changed hands between the United States and Cuba. This matter is further settled by the United


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States’ failure to attempt other, more easily accepted forms of currency. Had the United States paid in cash or gold, the payment would have been legally made the second it changed hands — by failing to take such measures, the United States effectively accepted failure to pay the rent, as the rent payments were never made under customary legal concepts.

4.6 Perhaps most significant, though, is Article 62 of the Vienna Convention and the customary law it

embodies, which indicate that treaties can become invalidated should the fundamental circumstances surrounding their signature be drastically changed. In this case, the United States went from being a hostile, but ultimately protective ally of Cuba to being its greatest global enemy, launching multiple attempts to overthrow its government including one outright invasion. Given these acts of aggression and the ongoing economic blockade, there is no way the Lease, which was reaffirmed in 1934 with an attitude of relative pacifism, can be allowed to continue now that the United States stands not in defense of the Republic of Cuba but in opposition to it.

Chapter Five: Submissions 5.1 For these reasons, the Submissions of Cuba are as follows, May it please the Court: (a) To adjudicate and declare that it has the jurisdiction to rule in this case; (b) To adjudicate and declare that Cuba is the proper party to bring this suit;

(c) To adjudicate and declare that the United States is the proper party against which to bring suit in this case; And, in light of foregoing, i. To adjudge and declare that the United States lease upon Guantanamo Bay is no longer legal; ii. To adjudge and declare that the United States must vacate the Base with all due haste, in the process leaving the land in no worse condition than it was when received from Cuba; iii. To adjudge and declare that the United States has committed violations of the lease agreements upon the Base from which it derived economic benefit, and that as a result reparations should be paid equal to the benefits of such illegal actions; iv. To adjudge and declare that the United States has been in wrongful occupation of Cuban territory, and that a public apology must be made by the United States to the people of the Republic of Cuba for such.


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COUNTER-MEMORIAL OF THE UNITED STATES OF AMERICA Chapter One: Introduction 1.1 The United States of America (hereafter the United States) submits this Counter-memorial in

response to the statements made in the Memorial of the Republic of Cuba (hereafter Cuba) to the Court on 10 April 2009.

1.2 This Counter-memorial will respond to Cuba’s claims that the United States’ lease upon the

Guantanamo Bay Naval Base is illegal and invalid and will demonstrate to the Court that the lease of the Base is and has always been legal.

1.3 The United States accepts the exclusive jurisdiction of the International Court of Justice to rule in

this matter, as per the 5 May 2009 letter sent to the President of the Court on behalf of Attorney General Eric Holder.

1.4 In Chapter Two, the United States will establish the facts of this case. Chapter Three will address the

jurisdiction of the Court in this matter, and Chapter Four will refute the claims made by the Republic of Cuba. Finally, the United States will request that, in light of the above, the Court declare the United States’ lease of Guantanamo Bay to be legal.

Chapter Two: The Facts 2.1 Cuba, as one of the closest foreign countries to the United States geographically, has long been a

focus of United States attention. 2.2 When the Cuban War of Independence began, many within the United States favored providing

support to the revolutionaries in their quest for democracy. This support for Cuban democracy only grew as Spanish atrocities upon Cubans increased.

2.3 Finally, when the United States could no longer remain neutral with regards to such violent conflict

in its close neighbor, it intervened in the war, landing troops and ultimately liberating Cuba from Spanish rule.

2.4 Following the liberation, the United States was left with a complicated situation, as Cuba played host

to a number of American interests. The 1890s were the golden age of colonialism, and Cuba’s independence would be constantly threatened by other colonial powers. The United States, in turn, sought to protect the fledgling democracy from such colonial interests and to ensure the freedom of those it had fought to liberate.

2.5 In the interest of continued protection of Cuban independence, the United States requested and

received leases for two bays suitable for naval stations in order to extend the US fleets operating range and thus ensure the United States’ ability to act in defense of Cuban independence. The first such bay was Bahia Honda, on Cuba’s northwest coast. The second was Guantanamo Bay, located on Cuba’s southeastern shore.

2.6 The lease was first codified in the 23 February 1903 Agreement Between the United States and Cuba

for the Lease of Lands for Coaling and Naval Stations. This document, however, was only a rough statement of intent intended to meet the requirement in the Cuban Constitution that such a lease exist.

2.7 The lease was clarified in the 2 July 1903 Lease to the United States by the Government of Cuba of

Certain Areas of Land and Water for Naval or Coaling Stations in Guantanamo and Bahia Honda. It was this second document that set the actual terms for the lease, including the $2000 lease in US gold


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coin, the boundaries of criminal and administrative jurisdiction with regards to the Base and the surrounding regions, and limitations upon trade and commerce to prevent the Base from competing with Cuban commerce.

2.8 The Base quickly proved its utility to the United States, extending its naval operations southward to

protect the Caribbean and enabling the Fleet to conduct exercises throughout the year thanks to its temperate climate.

2.9 In return, the American presence fostered and encouraged American trade with Cuba, which served

to buoy the fledgling Cuban democracy. 2.10 With time, it became clear to the United States that Guantanamo Bay would be of continuing use,

whereas Bahia Honda was never developed as a permanent base. As such, the United States saw fit in 1912 to attempt to renegotiate the lease. The renegotiated terms, which were agreed upon but never ratified by either party, involved the abandonment of Bahia Honda, the expansion of Guantanamo, and the increase in rent payments. Had Cuba feared the threat of force, it would have been obligated to ratify this agreement. The fact it did not implies that Cuba was acting free from undue United States pressures. In fact, at this time the United States willingly returned the Bahia Honda base to Cuba.

2.11 Throughout the first part of the 20th century, relations between Cuba and the United States were

consistent. On occasion, the United States offered support to the Cuban government to maintain power. There were occasional disputes over trivial issues, such as agricultural uses of the Bases’ lands or the interactions of base personnel and Cuban civilians, but no significant problems arose to threaten the lease.

2.12 In 1934 the United States changed its policy towards Latin America, resulting in the abandonment of

the Platt Amendment. In the renegotiated Treaty of Friendship between the US and Cuba, it was agreed by both parties that the Guantanamo lease be left unchanged.

2.13 One issue surrounding the lease that did arise during this period was the annual cost of the lease,

which was to be $2000 paid in US gold coin. In 1934, the United States went off the gold standard. As the gold dollar and the standard dollar held different values at the start: $1.693125 conventional dollars per gold dollar—it was decided to keep the payments at the value of the gold dollar. Since then, the real cash amount paid has thus increased from US$2000 to US$3386.25 in 1934, US$3,676.50 (1972), and in 1973 to its final level of US$4,085.00. This change from gold to non-gold payment is legal, as per the precedents set in 1929 by Judgments 14 and 15 of the Sixteenth session of the Permanent Court of International Justice.

2.14 Though the role of the Base as a “naval coaling station” faded with the increasing reliance on

modern petroleum-based fuels, the Base continued as a fueling point for the South Atlantic fleet. It became a staging point for fleet exercises and a base for training and equipping ships on shake-down cruises.

2.15 During times of war, the usage of the Base flared. During World War II (which Cuba joined 9

December 1941), for instance, the Base found itself in a strategic location, controlling key passages to the Panama Canal. The Base became a convoy rallying point where Allied ships from many nations converged and joined with military escort so that they could safely travel through waters that were heavily patrolled by German U-boats. During this era, the Base was outfitted with the facilities becoming of such an essential base, including an anti-submarine net, airfields, training ranges, marine barracks, a coast guard base, and an army outpost.

2.16 In 1959, the Cuban Revolution signaled a drastic change in the function of the Base. Long intended

to protect a friendly state, the Base became the outpost on the frontier with a hostile nation.


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Throughout the Cold War, the Base hosted numerous military assets intended to protect American interests should hostilities arise. The Cuban government, of course, tried during this time to claim the Base illegal or to terminate the lease; much to their chagrin the lease was, per its original terms, unalterable without the consent of both parties.

2.17 In the modern era, the Base has seen its role change in response to the changing needs of the United

States and the world. It has been used to house Cuban and Haitian refugees during times of turmoil in the Caribbean. Though such use is outside the scope of naval operations, it is nonetheless a component of military activity that was later agreed to in theory by Cuba when it agreed to allow the United States to house Kosovo refugees at the Base in 1999. The most recent and most publicized use of the Base has been as a military detention center, a wholly acceptable and militarily essential use of the Base. Military prisons and detention centers are essential installations for the functioning of any armed service, and the usage of Guantanamo in such a manner is only the continuation of its use as a functioning naval base of the United States Navy. The Cuban Government has agreed to this usage; declaring in an unsigned statement, “we shall not set any obstacles to the development of the operation” with regards to the detention centers (Strauss 167).

2.18 It is clear the Guantanamo Bay Naval Base is of a critical value to the United States. It has become a

major base in the War on Drugs and has demonstrated flexibility with regards to detainment, refugee housing, and sudden military mobilization. The Base is clearly still an essential component of American defense policy.

2.19 Cuba, however, has been trying to regain the Base through means contrary to the three agreements

between Cuba and the United States regarding the Base. Through public denunciations and a steadfast refusal to cash the annual rent checks, Cuba has attempted to illegitimatize the lease. However, as will be shown, these efforts fail to significantly threaten the lease.

Chapter Three: Jurisdiction 3.1 The United States disputes Cuba’s assertion that this case meets the requirements set out by Article

36, Section 2 of the Statute of the Court. 3.2 The United States disputes the assertion that Cuba is the correct party to bring this case. The lease

was originally signed with the Republic of Cuba. As the Republic of Cuba has been overthrown and replaced with a military dictatorship, the current government of Cuba is not the correct party to bring this case.

3.3 Cuba has failed to meet the requirements of any sub-section of Article 36, Section 2:

a. The interpretation of a treaty: Although the United States agrees that there is in fact a treaty in dispute, nowhere is it said in the treaty that independent arbitration is a provision of its terms. In short, the Court does not have jurisdiction to rule because neither party agreed that it should have jurisdiction to rule.

b. Any question of international law. The United States does not believe there is a question of treaty interpretation; as Cuba is not the correct party to bring the suit, the treaty is invalidated.

c. The existence of any fact that, if established, would constitute a breach of an international obligation. The United States has fulfilled all commitments to Cuba under the terms of the original treaty. Cuba’s failure to cash the rent checks does not constitute a breach on the part of the United States; rather, it is a failure on the part of Cuba to appropriately manage her finances.

d. The nature or extent of the reparation to be made for the breach of international obligation. Since there was no breach of an international obligation, there is no need to discuss reparations.

3.4 Therefore, the Court does not have the jurisdiction to render a decision on this matter.


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Chapter Four: The United States Occupation of Guantanamo Bay is not in Violation of the Law 4.1 One of Cuba’s primary contentions in arguing the illegitimacy of the lease upon the Base stems from

the Vienna Convention, Article 52 which states that a treaty is invalid when it is procured through force or the threat of force. While it is possible to claim the original leases were signed under duress as Cuba was, at that time, under military occupation, this claim is entirely baseless for, in 1934, Cuba reaffirmed the lease upon Guantanamo and left it intact when there were no United States troops in Cuba and there was no threat of the use of force should the lease be altered. Aside from this point, it is important to remember that, per Article 4 of the Vienna Convention, the existing convention cannot be applied retroactively to previously endorsed treaties, which all three Guantanamo related treaties are.

4.2 Per Article 4 of the Vienna Convention, Cuba’s argument that Article 62 of the Vienna Convention

on the Laws of Treaties invalidates the lease is also incorrect, since the change of situation occurred before the passage of the Convention (1976). Because the lease continued during that time, it is clear that after the 1976 ratification of the Convention, no severe change occurred. Furthermore, it is important to note that Article 62 specifically states that it cannot be used to invalidate a treaty that deals with aspects of boundary, which the treaties concerning Guantanamo Bay do. Thus, Article 62 cannot be invoked in arguing the illegality of the Guantanamo lease.

4.3 Cuba is indeed correct to note that commercial enterprises have existed within the Base throughout

the years. Many, such as E.P. Pawley’s, were terminated by the Base Commandant due to their illegal status under the 2 July Lease. While Cuba is correct to note that commercial enterprises such as McDonald’s currently operate upon the Base, these franchises are owned by the US Naval Exchange, and are operated as non-profit entities whose revenue is invested in troop entertainment funds. These franchises are essential to the wellbeing and morale of American troops based at Guantanamo, and they serve no commercial or economic benefit to either the United States or private enterprise.

4.4 Similarly, contractors are allowed to operate within the bounds of the Guantanamo Naval Base if

their operations are for military purposes. Though this is, in the strictest sense, in conflict with the 2 July Lease, it is common practice to allow such commercial operations in leased military spaces where such operations are of military significance. In the past, contractors have been used without complaint in the Subic Bay Naval Base, as well as in the earlier treaty ports. In fact, given the role contractors have played in Afghanistan and Iraq, it seems safe to say they are essential to military operations, and thus it is only logical their operations be considered military and not commercial in nature.

4.4 Furthermore, Cuba has yet to raise official protest over the presence of these enterprises within the

Base. This lack of protest constitutes implicit acceptance of the limited employment of private enterprise for military purposes within the Base, and establishes a customary norm to allow private enterprise in the base when it is for a militarily tangible purpose.

4.5 Cuba also argues that, through the improvement and modification of the Base throughout the years,

the United States has exceeded the usage of Guantanamo described as a “coaling and naval station” in the 23 February 1903 lease agreement. If interpreted literally to refer not to a naval facility in general but to the specific level of development described in 1903 as a “naval station,” it is entirely possible to reach the conclusion that Cuba argues — that the current United States presence is in excess of the initial mandate. This argument is similar to the claim that the Base cannot be used as an oiling station, because though oil and coal serve the same function, coal is specifically mentioned in the lease whereas oil is not. The intention of the lease on Guantanamo was to allow the United States a forward supply base from which American and allied interests in the Caribbean could be protected. It would be illogical, through a treaty establishing such a Base, to limit the ability of the lessee to improve the Base in kind with modern military technologies. The description of “coaling and naval station” would, in the era of the lease agreements, have been the pinnacle of modern base


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construction. Guantanamo was not limited by these terms; it was rather described by them. The intention of the lease agreements, that Guantanamo be a modern naval facility capable of servicing the Fleet’s ships and protecting American interests, still stands. This involves technology not even conceived in 1903, the usage of which is merely a continuation of the lease’s mandate.

4.6 The final argument of Cuba is that its refusal to cash the annual rent checks signifies payment has not

been issued. This is perhaps true, in the sense that since the checks have not been cashed, money has not technically changed hands. However, there is a critical distinction that must be made, between true and token payments. A token payment is when a lease payment is set at a symbolic and insignificant amount, such as leasing an area of land for a dollar a year. Currently, the United States pays US$4,085.00 to lease the Base, amounting to US$0.1418 per acre, annually. This amount is clearly well below commercial land values. Thus, it is safe to conclude that the lease payments are token payments. As token payments, they are of less significance than a real payment in that they are symbolic and not meant to actually recoup the lessor for the use of their territory. Thus, even if Cuba’s failure to cash checks does mean that payment has never been rendered, because the payments are token payments failure to render them does not constitute a significant enough breach of obligation to nullify the treaties agreeing to the lease.

Chapter Five: Submissions 5.1 For these reasons, the Submissions of the United States are as follows, May it please the Court: (a) To adjudicate and declare that it has the jurisdiction to rule in this matter; (b) To adjudicate and declare that Cuba is the proper party to bring suit in this matter, and the United

States is the proper party for suit to be brought against; (c) To adjudicate and declare that the United States lease is now and has always been a legally binding

and internationally accepted document; (d) To adjudicate and declare that there is no existing circumstance that indicates the lease is no longer

legal or binding upon both parties; And, in light of the forgoing, i. To adjudicate and declare that the lease of Guantanamo Bay by the United States is legal and will

continue in its present form until changed in accordance with the terms of the lease. ii. To adjudicate and declare that the United States, since no wrong has been committed with

regards to the lease, owes no reparations in this matter.


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APPENDIX A AGREEMENT BETWEEN THE UNITED STATES AND CUBA FOR THE LEASE OF LANDS FOR

COALING AND NAVAL STATIONS; FEBRUARY 23, 1903 Signed by the President of Cuba, February 16, 1903; Signed by the President of the United States, February 23, 1903 AGREEMENT

Between the United States of America and the Republic of Cuba for the lease (subject to terms to be agreed upon by the two Governments) to the United States of lands in Cuba for coaling and naval stations.

The United States of America and the Republic of Cuba, being desirous to execute fully the provisions of Article VII of the Act of Congress approved March second, 1901, and of Article VII of the Appendix to the Constitution of the Republic of Cuba promulgated on the 20th of May, 1902, which provide:

"ARTICLE VII. To enable the United States to maintain the independence of Cuba, and to protect the people thereof, as well as for its own defense, the Cuban Government will sell or lease to the United States the lands necessary for coaling or naval stations, at certain specified points, to be agreed upon with the President of the United States."

have reached an agreement to that end, as follows:

ARTICLE I

The Republic of Cuba hereby leases to the United States, for the time required for the purposes of coaling and naval stations, the following described areas of land and water situated in the Island of Cuba:

1st. In Guantanamo (see Hydrographic Office Chart 1857). From a point on the south coast, 4.37 nautical miles to the eastward of Windward Point Light House, a line running north (true) a distance of 4.25 nautical miles;

From the northern extremity of this line, a line running west (true), a distance of 5.87 nautical miles;

From the western extremity of this last line, a line running southwest (true) 3.31 nautical miles;

From the southwestern extremity of this last line, a line running south (true) to the seacoast.

This lease shall be subject to all the conditions named in Article II of this agreement.

2nd. In Northwestern Cuba (see Hydrographic Office Chart 2036).

In Bahia Honda (see Hydrographic Office Chart 520b).

All that land included in the peninsula containing Cerro del Morrillo and Punta del Carenero situated to the westward of a line running south (true) from the north coast at a distance of thirteen hundred yards east (true) from the crest of Cerro del Morrillo, and all the adjacent waters touching upon the coast line of the above described peninsula and including the estuary south of Punta del Carenero with the control of the headwaters as necessary for sanitary and other purposes.

And in addition all that piece of land and its adjacent waters on the western side of the entrance to Bahia


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Honda including between the shore line and a line running north and south (true) to low water marks through a point which is west (true) distant one nautical mile from Pta. del Cayman.

ARTICLE II

The grant of the foregoing Article shall include the right to use and occupy the waters adjacent to said areas of land and water, and to improve and deepen the entrances thereto and the anchorages therein, and generally to do any and all things necessary to fit the premises for use as coaling or naval stations only, and for no other purpose.

Vessels engaged in the Cuban trade shall have free passage through the waters included within this grant.

ARTICLE III

While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas with the right to acquire (under conditions to be hereafter agreed upon by the two Governments) for the public purposes of the United States any land or other property therein by purchase or by exercise of eminent domain with full compensation to the owners thereof.

Done in duplicate at Habana, and signed by the President of the

[SEAL] Republic of Cuba this sixteenth day of February, 1903.

T. ESTRADA PALMA

Signed by the President of the United States the twenty-third of February, 1903.

[SEAL] THEODORE ROOSEVELT


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APPENDIX B LEASE OF CERTAIN AREAS FOR NAVAL OR COALING STATIONS The United States of America and the Republic of Cuba, being desirous to conclude the conditions of the lease of areas of land and water for the establishment of naval or coaling stations in Guantanamo and Bahia Honda the Republic of Cuba made to the United States by the Agreement of February 16/23, 1903, in fulfillment of the provisions of Article Seven of the Constitutional Appendix of the Republic of Cuba, have appointed their Plenipotentiaries to that end. The President of the United States of America, Herbert G. Squiers, Envoy Extraordinary and Minister Plenipotentiary in Havana. And the President of the Republic of Cuba, Jose M. Garcia Montes, Secretary of Finance, and acting Secretary of State and Justice, who, after communicating to each other their respective full powers, found to be in due form, have agreed upon the following Articles: ARTICLE I The United States of America agrees and covenants to pay to the Republic of Cuba the annual sum of two thousand dollars, in gold coin of the United States, as long as the former shall occupy and use said areas of land by virtue of said agreement. All private land and other real property within said areas by acquired forthwith by the Republic of Cuba. The United States of America agrees to furnish to the Republic of Cuba the sums necessary for the purchase of said private lands and properties and such sums shall be accepted by the Republic of Cuba as advance payment on account of rental due by virtue of said agreement. ARTICLE II The said areas shall be surveyed and their boundaries distinctly marked by permanent fences or inclosures. The expenses of construction and maintenance of such fences or inclosures shall be borne by the United States. ARTICLE III The United States of America agrees that no person, partnership, or corporation shall be permitted to establish or maintain a commercial, industrial or other enterprise within said areas. ARTICLE IV Fugitives from justice charged with crimes or misdemeanors amenable to Cuban Law, taking refuge within said areas, shall be delivered up by the United States authorities on demand by duly authorized Cuban authorities. On the other hand the Republic of Cuba agrees that fugitives from justice charged with crimes or misdemeanors amenable to United States law, committed within said areas, taking refuge Cuban territory, shall on demand, be delivered up to duly authorized United States authorities.


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ARTICLE V Materials of all kinds, merchandise, stores and munitions of war imported into said areas for exclusive use and consumption therein, shall not be subject to payment of customs duties nor any other fees or charges and the vessels which may carry same shall not be subject to payment of port, tonnage, anchorage or other fees, except in case said vessels shall be discharged without the limits of said areas; and said vessels shall not be discharged without the limits of said areas otherwise than through a regular port of entry of the Republic of Cuba when both cargo an vessel shall be subject to all Cuban Customs laws and regulations and payment of corresponding duties and fees. It is further agreed that such materials, merchandise, stores and munitions of war shall not be transported from said areas into Cuban territory. ARTICLE VI Except a provided in the preceding Article vessels entering into or departing from the Bays of Guantanamo and Bahia Honda within the limits of Cuban territory shall be subject exclusively to Cuban laws and authorities and orders emanating from the latter in all that respects port police, Customs or Health, and authorities of the United States shall place no obstacle in the way of entrance and departure of said vessels except in case of a state of war. ARTICLE VII This lease shall be ratified and the ratification shall be exchanged in the City of Washington, within seven months from this date. In witness whereof, We, the respective Plenipotentiaries, have signed this lease and hereunto affixed our Seals. Done at Havana, in duplicate in English and Spanish this second day of July nineteen hundred and three. H. G. Squiers Jose M. Garcia Montes


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THE ABILITY OF TAIWAN TO STAND BEFORE THE INTERNATIONAL COURT OF JUSTICE

ADVISORY OPINION TOPIC B

I. The Secretary General of the United Nations to the Registrar of the International Court

of Justice June 8 2007 Pursuant to Article 96, Paragraph 2, of the United Nations Charter, I have the privilege to inform you that the General Assembly has passed Resolution 63/520. In this resolution, the General Assembly requests, with all due expedience, an advisory opinion from the International Court of Justice in response to the following situation, described by Japanese Minister of Justice Eisuke Mori. “On 5 July 2009 the Republic of China initiated efforts to raise the Africa Maru, a merchant vessel of the Imperial Japanese Navy sunk on 20 October 1942 by the USS Finback 11.3 miles west north-west of Da-an, Taiwan. This action was executed without the consent of Japan and over the objections of the Japanese Chief of the Maritime Staff. The raising of this vessel is in violation of customary and codified laws, which declare that vessels cannot be salvaged without the consent of the flag nation. Japan desires to bring this case before the International Court of Justice, as Japan feels international obligations owed to it have been neglected. However, there is confusion regarding whom suit should be brought against, as the territory and waters of Taiwan are contested territory, with the possessor lacking state status and thus being ineligible to appear before the International Court of Justice and the claimant of the territory not currently possessing it. Thus, Japan requests the assistance of the Court in determining whether suit should be brought against the People’s Republic of China or the Republic of China in this matter.” In addressing these issues, it would be advisable to address the popularly recognized theories of statehood, and the role they play in this matter. A copy of the resolution and relevant documentation is enclosed. Sincerely, (signed) Ban Ki-Moon II. Resolution 63/520 The General Assembly, Guided by Article 96 of the Charter of the United Nations, Bearing in mind General Assembly Resolution 2758 and its consequences upon United Nations relations with the Republic of China and the People’s Republic of China, Realizing the uncertain legal status of Taiwan before the world community, Further realizing with concern the difficult situation this contest of sovereignty puts nations in when the People’s Republic of China is felt to be in violation of its international obligations,


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1. Decides, in accordance with Article 96 Paragraph 1 of the Charter of the United Nations, to request that pursuant to Article 65 of the Statute of the Court, the International Court of Justice render an advisory opinion on the following questions:

i. Is the Republic of China or the People’s Republic of China the proper party to be responsible for the obligations of the island of Taiwan?

ii. If the Republic of China is the proper party against which suit should be brought, is the inability of the Republic of China to appear before the Court a violation of international law?

III. Facts of the Case 1. Formosa, later known as Taiwan, is an island of 34,507 square kilometers located 180

kilometers to the east of mainland China. Taiwan is host to a mix of cultures, thanks to its rich and diverse history and ideal location along many international trade routes. Such a history, however, makes it difficult to establish the national origin of the inhabitants and where control of Taiwan should rest.

2. Taiwan was first settled 15,000 years ago by aboriginal inhabitants of Malay-Polynesian descent. The existence of Taiwan was known to the Chinese on the mainland since the Three Kingdoms period of 230. From the 14th century onward, Chinese emigrants seeking refuge from government control and taxes began to migrate to the island. In 1430, Ming Dynasty Admiral Cheng Ho visited the island, though his presence did not lead to territorial claims by the Chinese Emperor nor the establishment of governance, because unlike the European land-claim system of expansion, China’s lands and borders had been passed through tradition and thus were not as easily expanded. In 1544, the Portuguese arrived on Taiwan and were soon joined by settlers from the Netherlands and Spain, all of whom vied for control of the island of Formosa (Taiwan) and the trade opportunities it offered in the Pacific. The Dutch drove the Spanish from the Island in 1642 and placed it under control of the Dutch East India Company.

3. Ming Dynasty loyalists defeated the Dutch in Taiwan in 1662, seizing the island for military

uses. Following the fall of the Ming dynasty to the Manchus, Ming loyalists under Koxinga fled to the island and formed the Kingdom of Tungning with the goal of retaking the mainland and restoring the Ming dynasty. Acting only in response to the threat these loyalists posed and not out of desire or territorial expansion, the Qing emperor annexed Taiwan by force to remove the remaining resistance forces. Despite this titular control, the Qing dynasty sought to rule passively to keep the island undeveloped and under populated in order to discourage resistance. Taiwan became a portion of the Fujian province (the province immediately to the west of Taiwan); though the island became so prone to frequent unrest and rebellion that it was said of Taiwan, “every three years an uprising, every five years a rebellion” (“Taiwan’s History” 10). Those who migrated to the island from China acted out of personal reasons such as persecution, and were in fact discouraged from doing so by the government. In the 1870’s when Taiwanese pirates began attacking foreign ships, the Emperor is reported to have declared that “Taiwan is beyond our territory” (“Taiwan’s 400”). Only in 1887 did the Qing dynasty recognize Taiwan as an individual province in an attempt to outmaneuver Japanese expansion, providing for the permanent governance and official status of Taiwan as a component of China.

4. In 1894, hostilities broke out in a conflict known as the First Sino-Japanese War, a war

between Japan and China over who would control Korea. Although China’s army was numerically stronger, the modernization of Japan’s Meiji regime gave Japan the upper hand strategically and ultimately granted them victory. Though the war was fought primarily over Korea, as part of the 17 April 1895 Treaty of Shimonoseki concluding the war, China ceded the Liaodong Peninsula, Taiwan, and the Pescadores to Japan (See Appendix A)


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(“Country”). In May 1895 local leaders on Formosa declared the self-governed Republic of Formosa a political entity that, owing to poor leadership and inexperienced troops, failed as a state and hastened Japanese occupation of the island by forcing Japanese intervention to protect against the republic’s troops (Library). Periodic struggles against Japanese rule continued into the early twentieth century, with the last armed uprising against the Japanese recorded in 1916. Nonviolent resistance continued, however, through organizations such as the Taiwanese Cultural Association, which sought to obtain cultural and limited political rights for the Taiwanese people from the Japanese government.

5. The formation of the Republic of China in 1912, following the fall of the Qing Dynasty, ended over 2000 years of dynasty rule. The newly formed Republic of China constituted mainland China and Mongolia (“Chinese”)

6. The Japanese not only sought to crush opposition through paternalistic rule, but also to

create a prosperous society and, ultimately, to turn the Taiwanese into loyal Japanese subjects. Japan rapidly invested in infrastructure in Taiwan, especially railroads and electricity. Japan also established the Bank of Taiwan to encourage the expansion of private sector investments by Japanese citizens on the island. These modern investments in Taiwan’s infrastructure were unparalleled during the prior Chinese possession of Taiwan.

7. When the Second Sino-Japanese began in 1937, Taiwan’s industrial capacity expanded to

produce war materiel for the Japanese. Meanwhile, Japan intensified its efforts to integrate the Taiwanese people into Japanese society to ensure their wartime support. Japanese language education was offered along with the option of adopting Japanese names. Taiwan was treated as and ultimately became a part of the Japanese homeland and not simply occupied territory as it had long been under Chinese rule. Taiwanese residents volunteered for and were conscripted into the Imperial Japanese Army and Navy, and many died in service of the Japanese Empire. Due to the location of Japanese bases and industrial complexes within Taiwan, it was subject to severe aerial bombardment by the Allies aimed at neutralizing these military targets, just as the Japanese homeland was.

8. Upon the United States’ entry into World War II, the Republic of China (ROC) renounced

the previous treaties concluded with Japan and declared that one of its wartime objectives was the return of Taiwan to China, a goal which the Allied Powers endorsed during the Cairo Conference (“Press”). The ongoing feuds between the Communist People’s Liberation Army (PLA) and the Nationalist Government were temporarily reduced through US mediation with the purpose of focusing military might on Japan.

9. On 15 August 1945 Japan surrendered to allied forces, bringing a formal end to World War

II. Yet despite Japan’s surrender, in some places, Japanese forces continued to police territories under occupation until the Allies were able to take over their administration. Thus, although the surrender occurred on 15 August 1945, and the official surrender was signed on 2 September 1945, the surrender of the Japanese on Taiwan was officiated (carried out administratively, rather than just in title) on 25 October 1945. For almost two months after the surrender, the Japanese were allowed to maintain control of Taiwan, and, in fact, were tasked to do so by the United States government. When Japan surrendered to the Allies, the Allied nations began an occupation of Japanese territory, including Taiwan. Japan officially surrendered its title to Taiwan in Article 2 of the 8 September 1951 San Francisco Peace Treaty, in which Japan declared that it “renounces all right, title, and claim to Formosa…”(“Treaty of Peace With Japan”). While many in Taiwan welcomed the “liberation” and the return to Chinese rule, many others felt themselves more Japanese than Chinese, and felt the Japanese to be much fairer rulers than the Chinese would prove to be.

10. The San Francisco Peace Treaty designated the United States to be the principal occupying power of former Japanese territories, and it specified that Japan must renounce its claim to


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Taiwan; however, it never designated who possessed sovereignty over the island following the war, though it was at the time assumed to rest with China (“Treaty of Peace with Japan”). A separate 1952 Peace Treaty between the Republic of China (successor to the Nationalist Government) and Japan, the Treaty of Taipei, addressed the specific problem of Taiwan and other territories formerly Japanese in origin now controlled by the Republic of China.

11. After the end of World War II, the Chinese Civil War between the Republic of China (ROC)

and the Kuomintang party under Chiang Kai-shek Kuomintang and the People’s Liberation Army under Mao Zedong again reignited on 26 June 1946. Though the Koumingtang held greater military resources, the People’s Liberation Army (PLA) possessed more manpower and was able to fight a popularly backed guerilla campaign.

12. During the post-war period, the Republic of China’s control of Taiwan was more repressive

than the Japanese had been, creating mainlander-Taiwanese tensions that lead to several violent incidents (Library 3). The worst of these incidents was the 228 Incident, a government crackdown estimated to have cost 28,000 lives that responded to protests against the supposedly corrupt ROC sparked after the arrest of a Taipei cigarette vendor (Joint Forum). This event triggered the “White Terror, a series of purges of Taiwanese home-rule supporters, political-elites, and suspected communists by the Kuomintang. The protests led to the introduction of martial law in Taiwan, including sedition laws against supporters of the Communists or of Taiwanese independence. Under martial law, it was also illegal to form new political parties, thus making the Republic of China on Taiwan a one party state.

13. The People’s Liberation Army slowly emerged victorious from the Chinese Civil War, and

on 1 October 1949, Mao Zedong proclaimed the formation of the People’s Republic of China (PRC). At this time, direct contact between the PRC and the ROC officially ended.

14. Simultaneous with the proclamation of the PRC, Chiang Kai-shek and approximately two

million supporters of the Republic of China fled to Taiwan, where Chiang Kai-shek proclaimed Taipei, Taiwan the temporary capital of the ROC. The evacuation, protected by the Republic of China’s Navy, was orderly, with some companies such as Civil Air Transport moving their critical assets (in this case 2 ships of aircraft repair machinery) to the island by ship.

15. Thus, the ROC came to possess Taiwan, the Chou-shan (Zhoushan), Ta-chen (Dachen),

Kinmen, Hainan, and Matsu islands, while the newly proclaimed People’s Republic of China possessed mainland China (See Appendix B). The PRC soon began a campaign of island-hopping, invading and seizing the islands of Hainan, Zhoushan, and Dachen. However, at the time, the PRC did not have the naval or air forces required to invade Taiwan itself, and the presence of the United States 7th Fleet in the Strait of Taiwan and US garrisons on Taiwan discouraged such aggression, as the United States had pledged to assist the ROC if it was attacked.

16. When the Kuomintang government arrived on Taiwan, it established a government that was

largely the same as it had been on the mainland. In both the legislative body (the Yuan) and the National Assembly, most seats were held by those elected from mainland China constituencies, even though those constituencies were no longer administered by the ROC. Though the Taiwanese were quick to voice protest over this unfair system of “self-government,” it wasn’t until 1969 that this system began to change with the deaths of some of the mainland representatives. However, the transition was slow and difficult, and the majority of legislators from the mainland constituencies maintained their roles without reelection into the 1990’s; this meant that the pre-1945 population of Taiwan was under-


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represented in the national government. In 1959, the Taiwan Provincial Assembly was established to allow the Taiwanese localized self-rule of the province, though the national government and thus the majority of policy would continue to be unfairly dominated by mainlanders. During the exodus to Taiwan, the term limitations on the mainland representatives was suspended indefinitely, and in 1960, the National Assembly modified the constitution to allow Chiang Kai-shek to exceed the two-term limit then in place during “the period of communist rebellion” (“Country” 4).

17. Critical to understanding the present situation in Taiwan is considering the economic

changes Taiwan underwent. In 1945, the Kuomintang took control of Taiwan and seized the state-run industries of the Japanese and nationalized them, later privatizing them in the 1950s. Land reforms also helped stabilize the economy by providing permanent ownership to those working the land, and by the 1960’s Taiwan’s economy shifted from domestic consumption to export, relying on low labor costs to remain competitive. Through these domestic changes guided by the Kuomintang government and foreign investment, Taiwan saw its exports grow eightfold during the 1960’s, then making Taiwan the world’s fastest growing economy until by 1988 the per capita GNP (US$4,800) was 10 times that of the PRC (“Country” 5).

18. Despite these economic advances, the ROC lost ground in the realm of international

politics. Although in 1945, the ROC had been one of the original permanent members of the Security Council, in 1971 the UN General Assembly voted to oust the ROC, and to turn its seat over to the PRC. In 1972, Japan switched its official diplomatic recognition to the PRC, maintaining unofficial relations with the ROC through nongovernmental means. Following a similar change in policy towards China, the United States ended its recognition of Taiwan in 1979, nullified the Sino-American Mutual Defense Treaty, and officially recognized the PRC as the only government of China. Through the 1979 Taiwan Relations Act, however, quasi-official relations continuing through other means such as the American Institute in Taiwan.

19. In 1975, Chiang Kai-shek died and was succeeded by his son, Premier Chiang Ching-kuo.

Chiang began to open the ROC to “Taiwanization,” and soon, non-party independents were winning numerous local and provincial assembly positions. Though this process, the ROC government on Taiwan became more representative of its constituents and thus more democratic. This process cost the ROC political capital in its claim to the Chinese mainland by weakening the ROC’s status as a government in exile, but at the same time the process also gave the ROC a stronger claim to the lands it currently controlled by increasing its democratic representation of these lands.

20. At the onset of the mainland reform era in 1979, Beijing started to make diplomatic

overtures to Taiwan, but these were met with the ROC policy of “no contacts, no negotiations, and no compromise.” This policy set back the fledgling growth of relations significantly, though relations continued to form as the ROC’s policies changed with time.

21. On 10 December 1979, a violent clash occurred between Tang-wai (a party organized from

those opposing the one-party state) demonstrators and Kuomintang supporters and police. The incident sparked renewed attempts by the government to repress activism among the middle class, which led to popular opposition that ultimately led to reform of the Kuomintang. The next major political change occurred in September 1986, when the Tang-wai defied the government ban (which existed unenforced until 1991) on new political parties and founded the pro-independence Democratic Progressive Party, which Chiang allowed to stand. Chiang facilitated a resolution to end martial law — in place since 1948 — and in December 1986, the first legal two-party Legislative Yuan election was held, with the DPP taking 12 of 73 open seats. Chiang also made token gestures of peace and stability,


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such as allowing Republic of China citizens to visit the mainland for the first time since the exodus to Taiwan.

22. In January 1988, Chiang Ching-kuo died and was succeeded by his vice-president, Lee Teng-

hui. During the 1989 elections, the Kuomintang became factionalized, and while the National Assembly elected pro-seperatism Lee president, a conservative one-China supporter, Hau Pei-tsun, was elected premier. Such division in their rival party emboldened the DPP to promote Taiwanese independence from the mainland. Lee Tung-hui continued his reforms by reducing the size of the National Assembly and the Legislative Yuan, thus reforming the legislative structure and increasing Taiwanese representation in government. In 1991, Lee Tung-hui declared an end to hostilities with the mainland regime, abandoned the claim that the ROC governed the mainland, and stated that Taiwan no longer disputed the People’s Republic of China’s control of the mainland, a move the PRC silently approved of. Following a 1994 amendment to the constitution that allowed popular election of the executive, Lee became Taiwan’s first popularly elected president in 1996.

23. Though not recognized internationally as a state, the Republic of China fulfills many of the

functions of a state for its people, as defined by the Montevideo Convention on the Rights and Duties of States (Appendix C). Montevideo defines a state as having “The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.” Taiwan has a permanent population, a defined territory, a government, and the capacity to enter into relations with other states. Further, Montevideo defines the rights of a state as “to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.” Though Montevideo is considered the foremost codification of statehood, countless other theories of statehood exist. The Court should work to take the consensus of these theories into consideration as necessary.

24. Major changes in cross-strait relations occurred in the early 1980’s as the PRC and ROC

began to allow economic and educational exchanges as well as travel and tourism across the strait of Taiwan. In 1991, Lee Teng-hui organized three bodies to administer relations with China: the National Unification Council, the Mainland Affairs Council, and the Straits Exchange Foundation. In 1993, members from the private Straits Exchange Foundation met in Singapore with their counterparts in the PRC (the Association for Relations Across the Taiwan Strait) for the first cross-strait talks in over forty years. Hostilities again rose, however, following Lee Tung-hui’s visit to the United States in 1995 and China’s missile test-firing off Taiwan’s coast in 1996. Relations were suspended in 1999 following Lee Tung-hui’s declaration that a “special state-to-state relationship existed between Taiwan and China” (Library 6).

25. In March 2000, the DPP candidate for the presidency, Chen Shui-bian, defeated the

Kuomintang candidate, ending the 51 years of Kuomintang control over Taiwan. Beijing favors the traditional stance of the Kuomintang to the pro-independence DPP, and thus was displeased with the rise to power of the DPP in 2000. President Chen tempered his party’s outspoken support of independence with the declaration of the “five nos,” a policy stating that the status quo would be maintained so long as the PRC refrained from hostile military actions. However, he incurred China’s discontent by declaring general dialogue be conducted without precondition, while the People’s Republic of China insists on recognition of the “one China” concept as a prerequisite to dialogue. In January 2005, a breakthrough was made when Beijing consented to charter flights across the strait, the first of which occurred on 29 January. A step backwards was made in March of 2005, though, when China passed a new Taiwan anti-secession law stating that China would “never forswear the use of


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force…[and] non-peaceful means…would be our last resort when all our efforts for a peaceful reunification should prove futile.” In response, pro-independence demonstrators condemned the law and burned the People’s Republic of China’s flag in protest (Library 25). In 2008, political control again returned to the Kuomintang, indicating the successful democratization of Taiwanese government.

26. Since 1993, Taiwan has unsuccessfully campaigned for readmission into the United Nations

and since 1997 has failed to obtain observer status in the World Health Organization among other prominent international organizations. Taiwan does belong to the, the International Chamber of Commerce, the World Confederation of Labor, and the World Trade Organization, none of which require statehood for membership. This means, of course, that membership in these organizations does not implicitly imply recognition of statehood by third parties. However, the ROC does have official state to state diplomatic relations with (and thus recognition of statehood from) 23 states.

IV. Matters for Legal Consideration

4.1. In order to address the request of the General Assembly, it will be necessary for the Court to consider the history of the Republic of China and the People’s Republic of China, as well as the past actions taken by the UN with regards to these two parties. Furthermore, in addressing this situation, the Court will need to consider the precedents set by prior actions taken by the international community in the adjudication of disputes involving governing bodies not recognized globally as states, or those recognized but not yet accepted into the United Nations.

4.2. The Court will also need to consider whether the geographic area of Taiwan holds the legal status of a state, either as governed by the Republic of China or the People’s Republic of China. When determining this, the Court needs to consider whether it is possible for a distinct area with distinct population to exist without a representative state, whether a state can be held responsible for an area it does not exert control over, and whether a state can exist in spite of codified law to the contrary. In responding to these questions, the Court will need to address the multiple theories of statehood.

4.3. Two essential theories of statehood are recognized by many, the declarative theory and the

constitutive theory. In the declarative theory, which is represented by the Montevideo Convention, statehood is based not on external factors but rather on the “state” in question meeting a fixed set of criteria. The constitutive theory, on the other hand, bases statehood on recognition by other states as such. In determining whether Taiwan is the proper party to appear before the Court and whether Taiwan is even able to appear before the Court, it will be essential to address these two theories, though delegates are encouraged to consider alternative theories.

4.4. To assist delegates in these discussions is the well-published record of Taiwanese relations

internationally and Taiwan’s domestic policies and politics, which address much of the body of both these theories.

4.5. This situation is also complicated, however, by Japan’s claim to the island before the end of

World War II, and the periods of ambiguity regarding Taiwan’s status once it was removed from Japanese jurisdiction. To decide who should represent Taiwan, the Court will need to consider whether Taiwan’s actions and background call into question association with either the ROC or the PRC, and if they do, which party has the strongest claim to Taiwan.

4.6. The Court will also need to consider means by which Taiwan could come before the ICJ without UN membership, if such a measure should be felt necessary. In the past, special


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negotiated agreements have been used to allow nations not yet in the United Nations to appear before the Court, such as was done in the case “Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania)”. Should the Court find Taiwan to not be a state or to be a non-member state, the Court will need to address whether a similar agreement could be used to allow Taiwan to appear before the International Court of Justice?


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APPENDIX A: TREATY OF SHIMONOSEKI CONCESSIONS TO JAPAN

APPENDIX B: ROC CONTROLLED TERRITORIES AS OF ROC FLIGHT TO TAIWAN


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APPENDIX C CONVENTION ON RIGHTS AND DUTIES OF STATES

The Governments represented in the Seventh International Conference of American States:

Wishing to conclude a Convention on Rights and Duties of States, have appointed the following Plenipotentiaries:

Honduras: Miguel Paz Baraona, Augusto C. Coello, Luis Bogran

United States of America: Cordell Hull, Alexander W. Weddell, J. Reuben Clark, J. Butler Wright, Spruille Braden, Miss Sophonisba P. Breckinridge

El Salvador: Hector David Castro, Arturo Ramon Avila, J. Cipriano Castro

Dominican Republic: Tulio M. Cestero

Haiti: Justin Barau, Francis Salgado, Antoine Pierre-Paul, Edmond Mangones

Argentina: Carlos Saavedra Lamas, Juan F. Caffertata, Ramon S. Castillo, Carlos Brebbia, Isidoro Ruiz Moreno, Luis A. Podesta Costa, Raul Prebisch, Daniel Antkoletz

Venezuela: Cesar Zumeta, Luis Churton, José Rafael Montilla

Uruguay: Alberto Mane, Juan José Amezaga, José G. Antuna, Juan Carlos Blanco, Senora Sofia A. V. De DeMicheli, Martin R. Echegoyen, Luis Alberto De Herrera, Pedro Manini Rios, Mateo Marques Castro, Rodolfo Mezzera, Octavio Morata, Luis Morquio, Teofilo Pineyro Chain, Dardo Regules, José Serrato, José Pedro Varela

Paraguay:Justo Pastor Benitez, Geronimo Riart, Horacio A. Fernandez, Senorita Maria F. Gonzalez

Mexico: José Manuel Puig Casauranc, Alfonso Reyes, Basilio Vadillo, Genaro V. Vasquez, Romeo Ortega, Manuel J. Sierra, Eduardo Suarez

Panama: J. D. Arosemena, Eduardo E. Holguin, Oscar R. Muller, Magin Pons

Bolivia: Casto Rojas, David Alvestegua, Arturo Pinto Escalier

Guatemala: Alfredo Skinner Klee, José Gonzalez Campo, Carlos Salazar, Manuel Arroyo

Brazil: Afranio De Mello Franco, Lucillo A. Da Cunha Bueno, Francisco Luis Da Silva Campos, Gilberto Amado, Carlos Chagas, Samuel Ribeiro

Ecuador: Augusto Aguirre Aparicio, Humberto Albornoz, Antonio Parra, Carlos PUIG Vilassar, Arturo Scarone

Nicaragua: Leonardo Arguello, Manuel Cordero Reyes, Carlos Cuadra Pasos


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Colombia: Alfonso Lopez, Raimundo Rivas, José Camaceo Carreno

Chile: Miguel Cruchaga Tocornal, Octavio Senoret Silva, Gustavo Rivera, José Ramon Gutierrez, Felix Nieto Del Rio, Francisco Figueroa Sanchez, Benjamin Cohen

Peru: Alfredo Sole Y Muro, Felipe Barreda Laos, Luis Fernan Cisneros

Cuba: Angel Alberto Giraudy, Herminio Portell Vila, Alfredo Nogueira

Who, after having exhibited their Full Powers, which were found to be in good and due order, have agreed upon the following:

Arti c l e 1

The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.

Arti c l e 2

The federal state shall constitute a sole person in the eyes of international law.

Arti c l e 3

The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts. The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law.

Arti c l e 4

States are judicially equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law.

Arti c l e 5

The fundamental rights of states are not susceptible of being affected in any manner whatsoever.

Arti c l e 6

The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.

Arti c l e 7

The recognition of a state may be express or tacit. The latter results from any act which implies the intention


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of recognizing the new state.

Arti c l e 8

No state has the right to intervene in the internal or external affairs of another.

Arti c l e 9

The jurisdiction of states within the limits of national territory applies to all the inhabitants. Nationals and foreigners are under the same protection of the law and the national authorities and the foreigners may not claim rights other or more extensive than those of the nationals.

Arti c l e 10

The primary interest of states is the conservation of peace. Differences of any nature which arise between them should be settled by recognized pacific methods.

Arti c l e 11

The contracting states definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measure. The territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily.

Arti c l e 12

The present Convention shall not affect obligations previously entered into by the High Contracting Parties by virtue of international agreements.

Arti c l e 13

The present Convention shall be ratified by the High Contracting Parties in conformity with their respective constitutional procedures. The Minister of Foreign Affairs of the Republic of Uruguay shall transmit authentic certified copies to the governments for the aforementioned purpose of ratification. The instrument of ratification shall be deposited in the archives of the Pan American Union in Washington, which shall notify the signatory governments of said deposit. Such notification shall be considered as an exchange of ratifications.

Arti c l e 14

The present Convention will enter into force between the High Contracting Parties in the order in which they deposit their respective ratifications.

Arti c l e 15

The present Convention shall remain in force indefinitely but may be denounced by means of one year's notice given to the Pan American Union, which shall transmit it to the other signatory governments. After the expiration of this period the Convention shall cease in its effects as regards the party which denounces but


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shall remain in effect for the remaining High Contracting Parties.

Arti c l e 16

The present Convention shall be open for the adherence and accession of the States which are not signatories. The corresponding instruments shall be deposited in the archives of the Pan American Union which shall communicate them to the other High Contracting Parties. IN WITNESS WHEREOF, the following Plenipotentiaries have signed this Convention in Spanish, English, Portuguese and French and hereunto affix their respective seals in the city of Montevideo, Republic of Uruguay, this 26th day of December, 1933.


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RESEARCH AND PREPARATION QUESTIONS As mentioned in the Note on Research and Preparation, it is imperative that delegates answer each of these questions in their position papers. TOPIC A 1. Does the Court have jurisdiction to rule in this case? 2. Assuming the fulfillment of the terms of the lease, are the various lease agreements legal? 3. Does Cuba have any options available to it to end the leases without United States consent? Has it

attempted to exercise those options? 4. Have either of the parties to the lease failed in their obligations under the lease? 5. If one or both parties have failed in their obligations under the lease, what would be the appropriate

remedial action? Are they failed obligations severe enough to warrant the dissolution of the lease? 6. Do the lease agreements limit the usage of the base territory? If they do, clarify what they do and do

not restrict. TOPIC B 1. Is the Court competent to rule in this case? 2. At the immediate end of World War II, what party had the rightful ownership of Taiwan? If rightful

ownership cannot be established, who had de jure and de facto sovereignty over Taiwan? 3. How have events since that point changed the rightful ownership or de jure and de facto sovereignty

over Taiwan? 4. If a state claims territory such as Peoples Republic of China does in this case, does it then assume

responsibility for the obligations under international law of that territory? 5. Who is, at present, the proper party to be held responsible for the international obligations of the

territory of Taiwan? 6. Can the party responsible for the international obligations of the territory of Taiwan represent the

territory of Taiwan before the ICJ?


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LEGAL APPENDIX A: OVERVIEW OF PUBLIC INTERNATIONAL LAW

THE THEORY OF INTERNATIONAL LAW: HISTORY International Law, like the concept upon which the United Nations was founded, is based upon the sovereignty of individual states. A state fundamentally controls activities within its borders and can regulate its activities as it chooses, provided it does not violate international law. Public international law, then, is a set of limits on sovereignty that states have accepted; for instance, all states have agreed, at least theoretically, to grant immunity to foreign diplomats traveling within their boundaries. International law sprung up and developed as a result of increased global interaction; without inter-state relations, international law need not exist. International law throughout this appendix refers to “public international law,” governing interactions between states. This can be distinguished from “private international law,” which—though not unrelated— primarily concerns interaction between businesses and other non-governmental entities in the global marketplace. Public international law itself has often referred only to interactions accepted by “civilized” states, an amorphous term which indicates nations that have accepted a sense of global responsibility—much as the United Nations Charter offers the organization open only to “peace-loving” States. The concept and tenets of international law have been developing for millennia. The Greek city-states in the first century B.C. had domestic laws, but also had treaties and codes that governed trade and other interactions between colonies. In the medieval era (specifically the 17th century), Hugo Grotius, often called the “father of international law,” published The Law of War and Peace (De Jure Bellis Ac Pacis) which set forth several important principles relating to nations’ interactions, including the theory of pacta sunt servanda, that nations must obey treaties they sign. States soon began to realize that the establishment of standardized norms of international relations, codified through International Law, was necessary for protection, and defense treaties and alliances came into existence across the globe. Mutual defense treaties that codified military alliances were a prevalent factor throughout the world wars of the 20th century. International law has always had both theoretical and practical aspects, which play off each other in the practice of international law. On a theoretical level, two primary “schools” of or sets of beliefs concerning international law developed: natural law and positivism. Believers in natural law hold that certain inalienable rights and obligations simply “exist” for States, in harmony with nature and individuals, and that all States are automatically bound by these; this is similar to the 18th century enlightenment scholars’ view of natural domestic law by John Locke and others who posited certain “inalienable” rights bestowed upon all mankind. Positivism within international law, by contrast, requires states to actively consent to international obligations before they become binding—either expressly (e.g., by signing a treaty) or by implication (e.g., by behaving a particular way over an extended period of time). Some scholars have termed a third, intermediate school as the “eclectics,” which recognizes the existence and interaction of both. However, positivism is the primary school of international law known today, and international relations of the past century (including the very founding principles of the United Nations) have largely been based on the fundamentality of sovereignty. Because international law is so theoretical and amorphous, many have wondered if international law is really “law.” For a more complete introduction to the historical development of international law—knowledge of which is helpful to interpreting the themes and under-riding spirit of modern public international law in practice—see a good international law textbook, such as the first chapter of William Slomanson’s Fundamental Perspectives on International Law. Other textbooks and guides are referenced in the first portion of this paper.


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THE PRACTICE OF INTERNATIONAL LAW: SOURCES International law stems from several sources, both unwritten and written, that are listed in Article 38.1 of the ICJ Statute: The Court, whose function it is to decide, in accordance with international law, such disputes as are submitted to it, shall apply: a. International conventions, whether general or particular, establishing rules expressly recognized by contesting states; b. International custom, as evidence of a general practice accepted as law; c. The general principles of law recognized by civilized nations; d. Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. Legal scholars have understood this as an essentially hierarchical view of international law: treaties and conventions are the strongest form of international law, customs equally strong and binding although harder to discern, principles of law more theoretical, and writings and teachings “subsidiary means.” This would match with the positivist theory of international law discussed earlier; treaties show the strongest signs of consent by the States to be bound formally to certain provisions, while writings of individual scholars show the least. Internat iona l Convent ions The Vienna Convention on the Law of Treaties (1980) sets forth the rules that govern the creation and interpretation of international, multilateral, and bilateral conventions. (The Vienna Convention is a ratified treaty for many states, but it is also considered a binding component of customary international law for all states.) States conclude treaties in order to posit specific rights and responsibilities, usually for mutual gain; they normally serve as codifications of previously existing practice, rather than sudden creations of new law. They are written documents that are then signed and ratified by states (and only by states). While treaties specify exactly what terms by which they come into law, most require that nations first sign a treaty and then ratify it. The difference between signature and ratification—the steps which follow the negotiation of the treaty—is largely a process of domestic law; in the US, for instance, the President signs the treaty and then the Senate ratifies it. A treaty is generally not binding until it is ratified. States agreeing to a treaty may also specify certain reservations—areas of the treaty with which they do not agree and do not consent to follow. Such reservations are usually specified in writing at time of signature. In most cases, states can also accede to a treaty later, even after it has come into force. Treaties, once duly applicable upon a state, constitute binding international law; the concept is called by the Latin term pacta sunt servanda (agreements must be obeyed, roughly translated). Good faith performance of treaty requirements is considered a fundamental precept on which all international law is based. In interpreting a treaty, one must pay attention to both the letter and the “spirit” of the treaty. The letter of the treaty constitutes the text, including the preamble and the main body of the treaty. Presumably, the drafters of the treaty chose words that they thought would specifically delineate the responsibilities and obligations conveyed by the instrument, and therefore the text—down to the punctuation and capitalization of clauses—is the primary source for interpretation. However, international law also takes into account the context of the treaty—its “spirit”—which can often be ascertained by analyzing the pre-ambulatory clauses, the phraseology of the convention (including the presence or absence of particular items), and the history behind the creation of the document. The letter of the treaty must not contradict the spirit, nor vice versa; both should be seen hand-in-hand in analyzing how a treaty functions under international law and in applying it to a particular case. Other specific precepts concerning the functioning of treaties—including states’ ability to withdraw from a treaty, issues of state succession, etc.—are most definitively posited in the Vienna Convention.


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Internat iona l Customary Law Customary law is one of the most difficult and most important elements of public international law; in some ways, it reflects the essence of international law: reactive (shaped by state practice rather than simply constructed) and changeable (developing over time). Customary law, as the name suggests, consists of patterns of behavior that are so ingrained in state practice (in “custom”) that they become binding components of international law. Customary law does not simply “pop up.” It must be defined and shaped gradually over time; it is a function of the number of states which practice—not just verbally consent to—the custom as well as the length of acceptance and the intensity or consistency by which it is practiced. Past state action generally helps to demonstrate the existence of a law as custom, as do international statements (such as General Assembly resolutions, which, although not binding, can be evidence of global sentiment on an issue, particularly if passed unanimously). Some schools of legal thought argue that custom can exist for smaller segments of the global community, in order to take into account cultural, political, and economic differences. For instance, a particular standard could constitute customary law for Europe, or for all developing nations, or for all Islamic states. Customary law must not contradict treaty law, of course, but in most cases treaties are merely the codification of previously existing custom. Also, customary law allows a state to “opt out” by being a “persistent objector.” A persistent objector is a state that has consistently rejected a customary norm, in practice rather than just in rhetoric. This prevents a state from being held to a rule that it never chose to adopt. However, a state may not use the persistent objector defense when it has historically never violated the particular law, or when it egregiously violates the most fundamental rules accepted as custom. A “peremptory norm” (jus cogens) is an element of customary law so strong and fundamental, one from which no derogation is permitted. The Vienna Convention prohibits the conclusion of treaties that violate jus cogens. For instance, because the UN Charter and the international community so clearly have chosen to prohibit the aggressive use of antagonistic force, a treaty that legalized unprovoked, violent, unsanctioned force between several nations would not be valid. Princ ip l e s o f In t ernat iona l Law The principles of international law are those concepts that are generally recognized by “civilized nations.” In part, this allows elements of domestic law to infuse into international law, for if most major legal systems have a particular principle, it can be considered a subsidiary component of international law. Principles are not binding components of international law like treaties and custom; instead, they are meant to be supplemental evidence to fill in missing gaps and to provide a more complete legal code. Scho lar ly Wri t ings and “Prec edent” Academic writings of influential international legal publicists and scholars are the final, and least binding, sources of International Law. The International Court of Justice—and International Law as a whole—does not adhere to stare decesis (literally, “to stand as a decision,” or more commonly termed “precedent”) as might a domestic court (e.g., the United States’s judicial system). While it is not uncommon for decisions by the ICJ to reference older decisions, it can theoretically—and often does—rule differently in two similar cases as the facts of international law change. However, writings of scholars and previous findings of courts may serve as persuasive evidence of custom, principle, or legal interpretation. PLAYERS IN INTERNATIONAL LAW Because of its historical origins, international law has always governed interactions between states. International law is based on “good faith”—that states will do their best to follow the letter of the law, and that the intention behind their actions will be fundamentally obedient. Recent trends in international law have


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seen the inclusion of other players—international governmental organizations (IGOs), non-governmental organizations (NGOs), transnational businesses, and individuals—although their position in public international law is tenuous at best. For instance, only states can be parties before the Court, and only states can join the United Nations. It is worth pausing briefly to clarify some confusing terms. While international law still has not adequately and universally defined all terms, states are generally recognized to have a definable territory, a working government, a non-transient population, and the ability to have foreign relations with other states. This definition was accepted by the Montevideo Convention on the Rights and Duties of States (1933). (Arguably, these are requirements to be a State, but fulfilling all requirements does not necessarily make one a state; statehood, to some extent, is a function of recognition of statehood by other states.) A state is a sovereign unit of international diplomacy. A nation, by contrast, is less well-defined; it refers to a general “group” of persons, often linked by a common language, culture, heritage, or other attribute. There can be multiple “nations”—or distinct national identities—within a state (e.g., American Indian reservations within the United States of America), although some might argue that the right to “self-determination” allows each nation to deserve statehood. For the purposes of international law, a government is a political entity that engages in international relations for the state; this can be confusing when a state seems to have multiple or no working governments, or when different states recognize different governments in another state (as was until recently the case with Afghanistan). However, despite the historical restriction of international law to state, numerous non-governmental organizations now participate as observers within the UN, the Charter discusses the organization’s relationship to other inter-governmental organizations, and trans-national corporations often lobby the UN and other IGOs. Furthermore, as regional organizations like the European Union gain influence, some might say are taking on the characteristics of states (producing money, holding a standing army, having a parliament). It is clear that international law must learn to cope with a variety of players, and only time will tell how it deals with these new challenges. One direction of international relations points towards the individual becoming the subject of international law, a move reflecting globalization’s ideal of people as citizens of a world community. Historically, citizenship in a state was seen as a bond between an individual and his government; the allegiance of citizenship was mutual, with the individual having responsibilities to the State (e.g., taxes, military service) and the state having responsibilities to the individual (e.g., legal protection, infrastructure). With the rise of international law, state responsibilities extended beyond the domestic to the international; states, to some extent, are seen as responsible for the international protection of their citizens. Therefore, if harm is done against a citizen of state X by the government of state Y, a case in the ICJ would be brought by state X, not by the citizen. International human rights laws have conferred additional obligations on states with respect to the individual. Rather than a state’s citizens serving as the sovereign charges of nothing more than their government, the government is subject to certain international requirements, such as those specified in the Universal Declaration of Human Rights. And humanitarian peacekeeping operations—like NATO’s air strikes in the Balkans—demonstrate that certain players in the international community (largely Western States) believe that actors other than a citizen’s own government may come to his or her aid. Under this theory, harm done to an individual is seen as harm to a wide community; genocide in one country has repercussions on surrounding nations and the world as a whole. (This theory is sometimes called the “universality principle”; the “nationality principle” specifies that states have jurisdiction over their nationals/citizens—no matter where they may be located at a given time—and the “territorial principle” suggests that states have power to create and to enforce laws which govern its sovereign physical territory.) Still, for now, states remain the primary subjects of international law, and the only qualified players that hold sovereignty in the international arena. A complicated set of laws, customs, and principles govern the existence of states, the succession of states, the separation (secession) of states, and the recognition of governments.


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RESOLUTION OF DISPUTES: THE INTERNATIONAL COURT OF JUSTICE The International Court of Justice, according to Article 92 of the UN Charter, is the “principal judicial organ of the United Nations,” and functions according to its Statute. All states party to the UN Charter are automatically party to the Statute of the Court; other states may become parties to the Statute without joining the UN at the decision of the General Assembly. The Court is composed of fifteen members from different States, elected by the General Assembly and Security Council as the most competent international legal scholars, not as representatives of their respective governments. In cases where a matter before the Court includes one party bearing the same nationality as a sitting judge, the other party may choose a person to act as a sixteenth judge in that case. The Statute grants the Court jurisdiction to hear two types of cases: contentious cases between states and advisory opinions from authorized UN organs. All cases must concern questions of international law. Contentious cases must normally concern a valid legal argument, which many scholars believe requires a specific, actual injury to the state itself (or citizens of the state). Jurisdiction is largely consensual; parties must opt to refer a case to the Court. In some cases, a treaty will provide that a dispute concerning its interpretation can be referred to the ICJ by either party; most treaties contain some method for dispute resolution. States can also provide for “compulsory ipso facto” jurisdiction under Statute Article 36.2. In such cases, a state files a declaration that it automatically accepts the Court’s jurisdiction over certain matters that its declaration specifies. In cases where one party disputes the Court’s jurisdiction, the Court has the final privilege of settling the issue under Article 36.6.


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LEGAL APPENDIX B: CHOICE OF LAW

To explain the concept of choice of law, it is best to begin with a hypothetical situation. Consider a car accident that occurs in New Jersey involving cars from New York and Pennsylvania. Since traffic laws routinely vary from state to state, it is likely that New Jersey, New York, and Pennsylvania will each have different laws regarding the incident. One might be more lax than another, or might place responsibility on a different individual. Of course, the lawyers for the two parties would wish for the case to be tried in the state with the laws most favorable to their client. This is choice of law: the process of choosing which legal codes or definitions to apply in a given situation. Choice of law also is important in the enforcement of treaties. In many cases, treaties will vaguely define important concepts of which the definition is thought implicit. For instance, in the 16 February 1903 lease agreement between Cuba and the United States for Guantanamo Bay and Bahia Honda, the term “naval station” is used to define the maximum level of development allowed at Guantanamo. However, naval station is never defined as a term. The parties had different definitions of the term in 1903 and have different definitions of the term now. It falls to the Court to decide which definition to apply. In a contentious case such as the case between Cuba and the United States, especially one where older treaties are concerned, it is likely the treaty terms will be poorly defined. Thus, the Court will be faced with the task of determining how to define terms, where the use of different definitions may significantly affect the meaning of the treaty. Unlike domestic courts, the ICJ is young, judicially speaking. It lacks standard precedent or defined procedure to address issues of choice of law. Justices will need to consider contemporary examples and past practices of the Court and similar bodies to determine how it wishes to proceed in this matter.


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GUIDELINES FOR POSITION PAPERS Well before we arrive at the Hilton, I will be privy to your individual logic and conclusions regarding the cases before the Court, having read each of your position papers. The position paper is a brief document which will give you a chance to introduce yourself and your ideas to the Dais before the conference begins. However, more importantly, the position paper forces you to consider and evaluate the cases before the Court and the laws involved in them. Obviously, traditional position papers would be useless in our simulation of the Court, as you will not be representing countries but rather your own experiences, reasoning, and judicial expertise. The Court has no blocs, no standing national policies to research, and no country maps to place on the cover page. What it does have, however, is submissions to the Court, the law, and a body of individual legal experts. The last part is essential: though we will expect you to provide details on the submissions to the Court and on the international law involved, what we are really looking for in your position papers is how these interact with your logic and experience to lead you to a stance on the issue. The length of these papers will also differ from the tradition position paper length. Your position papers should be a minimum of four double-spaced pages per topic with size twelve Times New Roman font. This is more than what is asked of conventional committees, but is the minimum amount of writing that will still provide the Dais with constructive insight into your thoughts and a real chance to get to know you before the conference begins. You are certainly welcome to exceed four pages per topic, though you should bear in mind that a critical skill within the field of international law is presenting your ideas clearly and succinctly. Treat your position paper like an opening statement before the Court. Begin by summarizing the case, and pointing out any aspects you may have doubts about. Evaluate the jurisdiction of the Court, and whether the case in question falls inside it. Address the laws involved and decide whether they are pertinent; if they are pertinent, relate them to the facts of the case. Explain whether or not the laws were violated and if so, how. Be sure to quote the key points of law in this case as you address them to show that you have given thought to the word of the law. Finally, address the direction you feel the Court should move in when deciding this case. If you feel aspects of the case were not addressed properly in the background guide or that relevant laws were overlooked, mention that and elaborate on how those issues will affect the Court. Please remember position papers are not a school assignment for a grade, but rather are a means for you to introduce yourself and your ideas to the Dais for the first time. Write to convey your ideas as clearly and effectively as you can, but ultimately, write to help yourself comprehend the cases before the Court. Position Papers are due 16 February 2010, and should be submitted via mail (see the beginning of this document for the Director’s address). Papers submitted on time will be returned at the start of the Mandatory Rules Briefing for the ICJ, which will be held before the start of the Conference on Wednesday. NOTE: The rules briefing held Wednesday before opening ceremonies is MANDATORY1 for ICJ Justices. If you have any questions on this or anything else, please feel free to contact the President of the Court at [email protected].

1 Within reason. Exceptions will be made if your school’s travel plans do not allow you to attend provided you or your Faculty Advisor contacts the Dais in advance.


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BIBLIOGRAPHY COMMITTEE HISTORY “History—International Court of Justice.” International Court of Justice. 2009. International Court of Justice.

6 Jun. 2009 <http://www.icj-cij.org/court/index.php?p1=1&p2=1>. This website, maintained by the Court, chronicles the history of the Court and the bodies and events which preceded its creation. It is a valuable source for anyone seeking information about the origins of the Court. “List of All Cases.” International Court of Justice. 2009. International Court of Justice. 6 June 2009 <http://www.icj-cij.org/docket/index.php?p1=3&p2=2>. This site, maintained by the Court, represents its docket since its inception and allows a cursory viewing of the many matters that

have been brought before the Court. Rosenne, Shabtai. The World Court: What it is and How it Works. New York: Oceana Publications, 1962. Provides a useful history of the ICJ and its origins as well as the changes it has undergone; contains the Charter of the United

Nations, the Statute of the Court, and other documents that help explain how the Court functions; also provides and analyzes important Court decisions.

TOPIC A “Agreement Between the United States of America and the Republic of Cuba for the Lease to the United

States of Lands in Cuba for Coaling and Naval Stations.” 23 Feb. 1903. The first of the three official lease agreements between the United States and Cuba. Joint Task Force Guantanamo. 6 Jun. 2009 <http://www.jtfgtmo.southcom.mil/index.html>. The website of the US Military force currently using Guantanamo, this site contains public-release information about the commercial and military facilities on the island as well as the current mission of the base. Lazar, Joseph. “International Legal Status of Guantanamo Bay.” The American Journal of International Law

62 (1968): 730-740. An excellent piece detailing the lease on Guantanamo and addressing issues from the contemporary period of interest in the late 1960’s. “Lease of Certain Areas for Naval or Coaling Stations.” 2 Jul. 1903. The second of the three official lease agreements between the United States and Cuba. Maris, Gary. “Guantanamo: No Rights of Occupancy.” The American Journal of International Law 63

(1969): 114-116. A contemporary account of the politics of the lease upon Guantanamo Bay during the Cold War Era. Provides valuable legal considerations indicating the common approaches to the issue at that time. Maris, Gary. “International Law and Guantanamo.” The Journal of Politics 29 (1967): 261-286. Another contemporary account of the politics of the lease upon Guantanamo Bay during the Cold War Era. This document provides yet more valuable legal considerations indicating the common approaches to the issue at that time. “Obama Vow on Guantanamo Inmates.” BBC News. 21 May 2009. 6 Jun. 2009

<http://news.bbc.co.uk/2/hi/americas/8062017.stm>. A useful newspaper source in understanding American feelings regarding the detainees held in Guantanamo. “Proposed Agreement Between the United States and Cuba for the Enlargement of the Guantanamo Naval

Station.” 1912. The proposed but never ratified 1912 modification to the lease agreement for Guantanamo.


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“Statement by the Government of Cuba to the National and International Public Opinion.” Granma

International. 14 Jan. 2002. An public statement by the Government of Cuba regarding the Guantanamo naval base. A good source to understand Cuba’s stance on the issue in the recent past. Strauss, Michael. The Leasing of Guantanamo Bay. Westport: Praeger Security International, 2009. The premier analysis of the lease on Guantanamo Bay, this book provides critical assessment and information that is hard to reach through conventional sources. “Treaty of Relations.” 9 Jun. 1934. The 1934 treaty of relations that left the Guantanamo Lease as established. TOPIC B UN Sources “Chinese History: The Republic of China (1911-1949).” Chinaknowledge. 2000.

<http://www.chinaknowledge.de/History/Rep/rep-event.html> This provides a chronological event history detailing the establishment and splintering of the Republic of China. "Country Profile: Taiwan." Library of Congress Federal Research Division. Mar 2005. 10 Jul. 2009.

<lcweb2.loc.gov/frd/cs/profiles/Taiwan.pdf>. This is an excellent resource, providing not only a complete and comprehensive history of Taiwan (as a geographic space) but also description of the current government structure and international situation affecting Taiwan. Davidson, James. The Island of Formosa Past and Present. New York: Macmii.Lan & Co, 1903. This resource provides an extensive description of the geography and history of the Island of Formosa (Taiwan), as written at the turn of the century by a United States Consul. The source is extremely useful in understanding the events leading to Japanese colonization and the resultant Chinese claims to the island. Joint Forum. "Taiwan's 228 Incident: The Political Implications of February 28, 1947." The Brookings

Institution. 22 Feb 2007. 15 Jul. 2009. <http://www.brookings.edu/~/media/Files/events/2007/0222taiwan/20070222.pdf>.

These transcripts provide valuable information both on the 228 incident and the responses to it throughout the coming decades, both in terms of repression and ultimate acceptance. It is useful in understand the tumultuous origins of Republic of China control of Taiwan following the end of World War II. "Political History." Kapi'olani Community College: Asia-Pacific Digital Library. 2003. This source provides a summary overview of Taiwan's political histor through the present, which is very useful in understanding the progression of events in the islands past. "Press Release from the Cairo Conference." 1 Dec. 1943. 10 Jul. 2009.

<http://www.taiwandocuments.org/cairo.htm>. This press-release provides valuable insight into the agreements and decisions made during the Cairo conference, as they affect the current status of Taiwan. "Taiwan’s History." 13 May 2003. 10 Jul. 2009.

<http://203.192.15.114:9001/web/webportal/W5042131/Uadmin/A5046382.html>. This source is an excelling history of Taiwan through World War II, providing useful background information, especially on the pre-colonial and colonial periods in Taiwan. “Taiwan’s 400 Year’s of History.” New Taiwan: Ilba Formosa. 28 Jun. 2007. 10 July 2009.

<http://www.taiwandc.org/hst-1624.htm>.


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This source provides a detailed history of Taiwan that is useful for understanding the varying claims made upon the island into the present era. "Treaty of Peace between the Republic of China and Japan." 28 Apr. 1952. This treaty, signed between the Republic of China and Japan, resolved the remaining conflicts of World War II. It is an important document to be considered in understanding the means by which the Republic of China came to control Taiwan. "Treaty of Peace with Japan." 8 Sep. 1951. This treaty, the official treaty of peace between Japan and the Allies in World War II, is essential in that it details the allotments of Japanese-controlled territories following the end of hostilities. "Treaty of Shimonoseki." 17 Apr. 1895. This treaty constitutes the agreement ending the first Sino-Japanese War, and as such is valuable in understanding the transfer of Taiwan and related lands from the Chinese to the Japanese.

background guidein darfur (unamid). however, i have many years of mun experience outside of nhsmun...

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