The government of Mig Green is a government in exile

According to the professor of public international law Stefan Talmon to be considered as a government an authority in exile must fulfill four criteria: existence of state, representative character, independence of the government in exile and international illegality of the government in situ.

First of all, it is essential to establish the existence of state. If there is no state, logically there is no government because a government in exile “is not a subject of international law but the ‘representative organ’ of the international legal person ‘State’ and, as such, the depository of its sovereignty”.[12] Aprophe has an established territory, stable population and sovereignty; hence it acknowledges the existence of state Aprophe. Thus, the government of Green represents the Republic of Aprophe – an existing, sovereign and independent state. Secondly, it is important to prove the representative character of the government. The representative character of Green’s government can be demonstrated by the fact that “several parliamentarians belonging to Green’s party also fled to Rantania…”[13]. Moreover, “forty Aprophian Ambassadors, including the Permanent Representatives to the United Nations and to the Kingdom of the Netherlands, renounced Andler and declared their allegiance to Green”[14]. In addition Green is supported by several hundreds of civilians and about 800 members of the army’s National Homeland Brigade, who are situated in two villages in the north of Aprophe. To sum it up, Green’s authority satisfies the representative character since it is countenanced by the people of Aprophe, the exile community and other nations.

The third criterion is independence of the government. The government of Rantania and Green’s government are in good relationships, they keep alliance. Green makes decisions in its own discretion and without any pressure. Consequently, Green’s regime is independent from Rantania. Fourthly, the government in situ is internationally illegal for some reasons. One of them is that Andler violated human rights by unlawful seizure of power. It constitutes a breach of human rights since Green was a legally elected president of Aprophe – the representative of the national will. The next reason is dissolving parliament and giving naked promises to call new elections and to honor all civil rights and liberties. Furthermore, “as a general rule, a government that seizes power from a democratically elected government in an internal coup d`etat is thus (still) not illegal in international law”[15]. The Andler’s regime came to power by the means of coup d`etat, therefore her regime isinternationally illegal.

With respect to the international practice of considering a government in exile as a government in international law there are some examples of the recognition of democratically elected governments forced into exile by unlawful and unconstitutional means for instance, the continuing recognition of President Delvalle Government by theUnited States of America[16], the recognition of President Aristide Government by the member States of the Organization of American States[17]. Green’s government also was forced into exile but 31 nations stated that they would carry out diplomatic relations including “negotiating with the Government of the receiving State”[18] only with Green. It means that these nations recognize Green’s government. Having summarized all the facts above, we can draw a conclusion that Green’s authority is a legitimate government in exile, so it is entitled to represent Aprophe in judicial proceedings and international affairs. Therefore, the Andler regime and its representatives cannot appear before this court in the name of the Republic of Aprophe.

B. The Court has no authority to handle the Applicant’s claims

The Court has no jurisdiction over this case since Andler does not have constitutional authority to act as a President of Aprophe. This fact is important in relation to her actions in international intercourse particularly in relation to submission of the claims to this Court. It is necessary to apply “…a general legal principle according to which the act of an official cannot juridically be set up as an act of State unless it was within the sphere of competency of that official. The act of an incompetent official is not an act of the State”.[19] Moreover, Article 7 of the Vienna Convention on the Law of Treaties states that a head of a state is entitled to represent its state.[20] However, Andler is not a legitimate head of a state and the valid successor to the former legitimate government, thus she is an incompetent official. Furthermore, she does not have the authority to represent Aprophe in international affairs, her act of claims’ submission to this court is not attributable to Aprophe and lacks the legal effect. It appears from the abovementioned conclusions that Andler and her associates cannot appear before this court in the name of the Republic of Aprophe, consequently the Court has no jurisdiction over the Applicant’s claims.

Date: 2016-01-14; view: 498