2011 Best Canadian Applicant Memorial

8/2/2019 2011 Best Canadian Applicant Memorial

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TEAM 453A

THE 2011 PHILLIP C. JESSUP INTERNATIONAL LAW MOOT COURT COMPETITION

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE, THE HAGUE

CASE CONCERNING THE ZETIAN PROVINCES

- Between -

The State of Ardenia

Applicant

- and -

The State of Rigalia

Respondent

Memorial for the Applicant


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TABLE OF CONTENTS

INDEX OF AUTHORITIES......................................................................................................... i

STATEMENT OF JURISDICTION......................................................................................... vii

QUESTIONS PRESENTED ..................................................................................................... viii

STATEMENT OF FACTS.......................................................................................................... ix

SUMMARY OF PLEADINGS .................................................................................................. xv

PLEADINGS ................................................................................................................................. 1

I. RIGALIAS DRONE STRIKES IN RIGALIA AND ARDENIA VIOLATE

INTERNATIONAL LAW AND THE COURT SHOULD ORDER THEIR IMMEDIATE

CESSATION................................................................................................................................... 1

1. Ardenia has standing to bring this claim.............................................................................. 1

(a) International law permits Ardenia to bring a claim as parens patriae for its citizens .... 1

(b) Zetians dual nationality does not bar diplomatic protection.......................................... 1

2. International human rights law applies to the drone campaign ........................................... 3

(a) There was no international armed conflict justifying the use of force............................. 3

(b) There was no non-international armed conflict justifying the use of force ..................... 3

i. Hostilities had not reached a minimum level of intensity ................................................ 4

ii. Zetian insurgents are not parties to a conflict.............................................................. 4

(c) No other type of armed conflict exists in law ................................................................... 5

3. Under international human rights law, Rigalias campaign is unlawful .............................. 5

(a) The campaign is a crime against peace ........................................................................... 5

(b) The campaign violates the right to life............................................................................. 6

i. The strikes were not absolutely necessary ....................................................................... 7

ii. The strikes were not strictly proportionate ...................................................................... 8

4. In the alternative that there is an armed conflict, Rigalias drone strikes violateinternational humanitarian law (IHL) ......................................................................................... 9

(a) The law of international armed conflict applies to this conflict...................................... 9

(b) The law of international armed conflict prohibits the strikes ........................................ 10

(c) Human rights law continues to apply............................................................................. 11

5. The Court should order the immediate cessation of the drone strikes ............................... 12


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II. THE ATTACK ON THE BAKCHAR VALLEY HOSPITAL IS ATTRIBUTABLE TO

RIGALIA, RIGALIA HAS AN OBLIGATION TO INVESTIGATE THE ATTACK AND TO

COMPENSATE ARDENIA THEREFORE AND, MOREOVER, THE ATTACK WAS A

DISPROPORTIONATE AND UNLAWFUL ACT OF AGGRESSION AGAINST THE

PEOPLE OF ARDENIA ............................................................................................................... 12

1. The attack on the Bakchar Valley hospital is attributable to Rigalia ................................. 12

(a) The Morganian forces carrying out the strikes were acting on Rigalias behalf.......... 13

(b) The informants were acting on Rigalias behalf............................................................ 14

(c) Mistake and contravention of authority do not negate attribution to Rigalia ............... 15

2. Rigalia has an obligation to investigate the attack and to compensate Ardenia therefore . 15

3. The attack was a disproportionate and unlawful act of aggression against the people of

Ardenia ...................................................................................................................................... 17

(a) The attack violated Ardenias sovereignty and political independence ......................... 17(b) The attack is not a lawful exercise of self-defence ......................................................... 18

i. Zetian insurgents were not acting on Ardenias behalf................................................. 18

ii. Rigalia was not subject to an armed attack................................................................... 18

iii. In the alternative that the right to self-defence exists, the attack was not a lawful

exercise of that right.............................................................................................................. 19

III. RIGALIAS MAVAZI BAN VIOLATES ZETIANS RIGHTS UNDER INTERNATIONAL

LAW ............................................................................................................................................. 20

1. Ardenia has standing to challenge Rigalia's Mavazi ban on behalf of Zetians living in

Rigalia ....................................................................................................................................... 20

(a) Ardenia can bring a claim as parens patriae for its citizens ........................................ 20

(b) Alternatively, the Mavazi ban is a breach of obligations erga omnes, compelling

Ardenia to bring a claim ........................................................................................................... 20

2. Rigalia's Mavazi ban violates the freedom of religion rights of Zetian women and girls

under international law .............................................................................................................. 22

(a) The Mavazi ban violates Rigalia's treaty obligations on freedom of religion ............... 22

(b) The Mavazi ban is not a permissible limitation on freedom of religion. ....................... 22

i. The Mavazi ban does not fall under enumerated grounds of permissible limitations

under treaty law ..................................................................................................................... 22

ii. The Mavazi ban is too broad and lacks proportionality to be a permissible limitation 24

iii. The Mavazi ban can be distinguished from cases where Courts have permitted

limitations on freedom of religion ......................................................................................... 26


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3. Rigalia's Mavazi ban is discriminatory in violation of international treaty law ................... 26

(a) The Mavazi ban discriminates against Zetian women and girls .................................... 26

(b) The Mavazi ban discriminates against Zetians as a minority cultural group ................ 28

IV. ARDENIA DID NOT VIOLATE THE OECD ANTI-BRIBERY CONVENTION OR

THE OECD DECISION ON MNE GUIDELINES ...................................................................... 28

1. Ardenia did not breach the OECD Anti-Bribery Convention ........................................ 28

(a) The alleged acts of bribery do not fall under the Convention ........................................ 28

i. The recipients of the alleged bribes are not foreign public officials ............................. 28

ii. The alleged acts are not bribes ..................................................................................... 29

(b) Ardenia fulfilled its obligations under the Convention in addressing Rigalia's concerns 31

i. Ardenia pursued an investigation in accordance with the Convention ........................ 31

ii. The balance of the Mutual Legal Assistance (MLA) information requested by Rigalia isoutside the scope of the Convention ...................................................................................... 33

2. The Ardenian National Contact Point (NCP) did not breach the OECD Decision on MNE

Guidelines (the Decision) ...................................................................................................... 33

(a) It is the prerogative of the NCP to decide whether issues raised merit further

examination ............................................................................................................................... 33

(b) The NCP responded to the CRBC with sufficient reasons for why it was not the

appropriate Contact Point to deal with its concerns ................................................................ 34

PRAYER FOR RELIEF............................................................................................................. 35


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i

INDEX OF AUTHORITIES

Multilateral Treaties and Conventions

Charter of the United Nations, 26 June 1945, Can TS 1945 No 7..

Convention on the Elimination of All Forms of Discrimination Against Women, 18December 1979, 1249 UNTS 13 (entered into force 3 September 1981)...

Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3 (enteredinto force 2 September 1990)..

Convention (IV) relative to the Protection of Civilian Persons in Time of War, 12August 1949.

International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS171..

International Covenant on Economic, Social and Cultural Rights, 16 December 1966,UNGAOR 21st Sess, Supp No 16, UN Doc A/RES/2200(XXI)[A-C], 993 UNTS 3(entered into force 3 January 1976) Article 15

OECD Convention on Combating Bribery of Foreign Public Officials inInternational Business Transactions, 17 December 1997, 37 ILM 1 (entered intoforce 15 February 1999)..

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating tothe Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977...

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating tothe Protection of Victims of Non-International Armed Conflicts (Protocol II) , 8 June1977.

Universal Declaration of Human Rights, UNGAOR, 3d Sess, Supp No 14, UN DocA/RES/217(III)A (1948).

International Court of Justice Cases

Avena et al (Mexico v USA), [2004] ICJ Rep 59.

Barcelona Traction,Light and Power Co. Ltd. (Belgium v Spain), [1970] ICJ Rep 3...

Case Concerning Armed Activities on the Territory of the Congo (DRC v Uganda),Judgement, [2005] ICJ Rep 168..

17, 19

27

22, 23

3, 9

6, 16,22, 23,

27, 28

28

29, 31,32, 33

9, 10,12, 15,

17

4

6, 22

16

21

6, 12,15,

17,18


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Gabckovo-Nagymaros Project (Hungary v Slovakia), [1997] ICJ Rep 81..

Interhandel (Switzerland v USA) [1959] ICJ Rep 6, 27..

Legal Consequences of the Construction of a Wall in the Occupied PalestinianTerritory, Advisory Opinion, [2004] ICJ Rep 136..

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJRep 226

Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v USA)[1986] ICJ Rep 14

Nottebohm (Liechtenstein v Guatemala), [1955] ICJ Rep 4, 24.

South West Africa (Ethiopia v South Africa; Liberia v South Africa), PreliminaryObjections [1962] ICJ Rep 319...

Permanent Court of International Justice Cases

Factory at Chorzw, Jurisdiction (1927), PCIJ (Ser A) No 9, 21..

Mavrommatis Palestine Concessions, Judgement No 2 (1924), PCIJ (Ser A) No 2, 12.

Minority Schools in Albania (1935), Advisory Opinion, PCIJ (Ser A/B No 64)

International Criminal Tribunals

Prosecutor v Dusco Tadic, IT-94-1, Decision on Defence Motion for InterlocutoryAppeal on Jurisdiction (2 October 1995) (International Criminal Tribunal for the

former Yugoslavia, Appeals Chamber) online: ICTY ...............

Prosecutor v Dusko Tadic, IT-94-1-A, Judgement (15 July 1999) (InternationalCriminal Tribunal for the former Yugoslavia, Appeals Chamber) online: ICTY


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International Human Rights Courts

Dahlab v Switzerland, No 42393/98, [2001] V ECHR...

Dogru v France, No 27058/05, [2008] ECHR, 49 EHRR 8...

Finucane v UK, No29178/95 [2003] ECHR 328...

Ergi v Turkey, No 66/1997/850/1057 [1998] ECHR..

Kaya v Turkey, No158/1996/777/978 [1998] ECHR, 28 EHRR 1

Manoussakis and Others v Greece, No 18748/91 [1996] IV ECHR, 23 EHRR 387.

McCann v UK(1995), 324 ECHR (Ser A), EHRR 97

Myrna Mack-Chang v Guatemala (2003), Inter-Am Ct HR (Ser C) No 101..

calan v Turkey, No 46221/99 [2005] IV ECHR, 41 EHRR 45

Sahin v Turkey, No 44774/98, [2005] ECHR, 41 EHRR 8

Velsquez-Rodrguez v Honduras (1988), Inter-Am Ct HR (Ser C) No 4.

General Claims Commissions

Youmans (USA) v United Mexican States (1924) 4 RIAA 10 (US-Mexico General

Claims Commission)...

National Case Law

Public Committee Against Torture et al v Government of Israel et al (2006), SupremeCourt of Israel, HCJ 769/02.

R v Director of the Serious Fraud Office, [2008] UKHL 60...........................................

UN Resolutions and Documents

Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victimsof Gross Violations of International Human Rights Law and Serious Violations ofInternational Humanitarian Law, UNGAOR, 60th Sess, UN Doc A/RES/60/147(2005)..

26

26

16

16

16

24

7, 8, 15

16

7

26

16

15

17

32

16


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iv

Basic principles of the legal status of the combatants struggling against colonial analien domination and racist regimes, UNGAOR, 28th Sess, Supp No 30, UN DocA/RES/3103(XXVIII) (1973), 142.

Code of Conduct for Law EnforcementOfficials, UNGAOR, 34th Sess, UN DocA/RES/34/169 (1979)..

Crawford, James (Special Rapporteur). Second Report on State Responsibility, ILC,51st Sess, UN Doc A/CN.4/498 (1999)..

Declaration on Principles of International Law Concerning Friendly Relations andCo-operation Among States in Accordance with the Charter of the United Nations,UNGAOR, 25th Sess, UN Doc A/RES/2625(XXV) (1970) 121

Declaration on the Rights of Indigenous Peoples, UNGAOR, 61st Sess, UN DocA/RES/61/295 (2007)..

Definition of Aggression, UNGAOR, 29th Sess, UN Doc A/RES/3314(XXIX),(1974)..

General Comment No 22: The right to freedom of thought, conscience and religion(Article 18), UNHRCOR, 48th Sess, UN Doc CCPR/C/21/Rev.1/Add.4 (1993).

General Comment No 31 [80]: The Nature of the General Legal Obligation Imposedon States Parties to the Covenant, UNHRCOR, 80th Sess, 2187th Mtg, UN DocCCPR/C/21/Rev.1/Add.13 (2004)..

International Law Commission.Draft Articles on Diplomatic Protection, UNGAOR,61st Sess, Supp No 10, UN Doc A/61/10 (2006)

-----.Draft Articles on Responsibility of States for Internationally Wrongful Acts,UNGAOR, 56th Sess, Supp No 10, UN Doc A/56/10 (2001) 43

Lopez v Uruguay, Views under article 5(4) of the Optional Protocol to the ICCPR(July 1981), UNHCROR, 13th Sess, UN Doc CCPR/C/13/D/52/1979..

Model Protocol for a Legal Investigation of Extra-Legal, Arbitrary and SummaryExecutions, Part III UN Doc E/ST/CSDHA/.12 (1991)..

Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary

and Summary Executions, ESC Res 1989/65, UNESCOR, 1989, Supp No 1, UN DocE/1989/89.

United Nations Basic Principles on the Use of Force and Firearms by LawEnforcement Officials, 7 September 1990, UN Doc A/CONF.144/28/Rev.1, 112.

10

6, 7, 8

20

6, 10

6

17, 19

22, 23,

24, 25

6, 16

1, 2

1,2,12-

17,19,21

7

16

6

6, 7, 8, 9


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United Nations Declaration on the Elimination of All Forms of RacialDiscrimination, UNGAOR, 18th Sess, UN Doc A/RES/18/1904 (1963)...

OECD Publications, Meetings and Decisions

OECD. 2008 Annual Meeting of the National Contact Points: Report by the Chair,(24-25 June 2008)

-----.Bribery in Public Procurement: Methods, Actors and Counter-Measures(OECD, 2007).

OECD Guidelines for Multinational Enterprises: Decision of the Council, Decisionadopted June 2000 (OECD, 2008)..................

OECD, Working Group on Bribery. Phase I and II Reviews of Denmark, England

and Wales, in Mark Pieth, Lucinda Low & Peter Cullen, eds, The OECD Conventionon Bribery: A Commentary (Cambridge: Cambridge University Press, 2007)...........

-----. Phase I Review of Germany, in Mark Pieth, Lucinda Low & Peter Cullen, eds,The OECD Convention on Bribery: A Commentary (Cambridge: CambridgeUniversity Press, 2007)

-----.Recommendation of the Council for Further Combating Bribery of ForeignPublic Officials in International Business Transactions (adopted by the Council 26November 2009, with amendments adopted 18 February 2010), online: OECD:

Travaux prparatoires of the OECD Convention Combating Bribery of ForeignPublic Officials (1999) International Trade Corruption Monitor F-1033..

Legislation

Loi no 2010-1192 du 11 octobre 2010, JO, 12 October 2010..

Books

Brownlie, Ian. Principles of Public International Law, 4th ed (New York: OxfordUniversity Press, 1990)

21

34

30

34

32

32

31

31

25

21


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vi

Cullen, Peter. "Article 5: Enforcement" in Mark Pieth, Lucinda Low & Peter Cullen,

eds, The OECD Convention on Bribery: A Commentary (Cambridge: CambridgeUniversity Press, 2007), 289

Fleck, Dieter, ed. The Handbook of International Humanitarian Law, 2d ed (Oxford:Oxford University Press, 2008).......................................................................................

Moir, L. The Law of Internal Armed Conflict(London: Cambridge University Press,2000)

Nowak, Manfred & Tanja Vospernik. Permissible Restrictions on Freedom of

Religion or Belief in Tore Lindholm & Bahia Tahzib-lie, eds, Facilitating Freedomof Religion or Belief: A Deskbook(Leiden: Martinus Nijhoff Publishers, 2004)...

Miscellaneous

Crowley, Philip J. Daily Press Briefing (14 July 2010), online: United StatesDepartment of State .

Damian Green says burka ban would be un-British,BBC News (18 July 2010)online: BBC News ...

International Committee of the Red Cross. How is the Term Armed Conflict

Defined in International Humanitarian Law? (Opinion Paper, March 2008), online:

ICRC

-----. International Humanitarian Law and International Human Rights Law

(January 2003), online: ICRC/EHL .

Maillot, Karine. Le Parlement europen soppose linterdiction totale de laburqua (24 June 2010), online: Zinfos974 )...

Vierecke, Andreas. Burka Debate in Germany and Europe An Interview withHeiner Bielefeldt, online: Goethe-Institut:

31, 32,33

10

10

23

25

25

4, 5

3

25

25


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STATEMENT OF JURISDICTION

The State of Ardenia, Applicant, and the State of Rigalia, Respondent, have submitted

their differences concerning the Zetian Provinces by Special Agreement dated 5 May 2010,

without reservation, to the International Court of Justice in accordance with Article 40(1) of the

Statute of the International Court of Justice. The parties have agreed to the contents of the

Compromis, subject to the Corrections and Clarifications issued 1 December 2010. In

accordance with Article 36(1) of the State of the International Court of Justice, each party will

accept the judgment of this Court as final and binding and shall execute it in its entirety and in

good faith.


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QUESTIONS PRESENTED

I. Whether the drone campaign against Zetian terrorists in Rigalia and Ardenia is consistent

with international law;

II. Whether the attack on the Backchar Valley Hospital is attributable to Rigalia;

III. Whether Rigalia has an obligation to investigate the attack on the Bakchar Valley

Hospital and compensate Ardenia therefore;

IV. Whether the attack on the Backchar Valley Hospital was part of a legitimate and

proportionate operation to defend against Zetian terrorists;

V. Whether Rigalias ban of the Mavazi for Zetian women and girls is consistent with

international law;

VI. Whether Ardenias failure to investigate and prosecute the alleged corruption and to

provide mutual legal assistance to Rigalia constitute breaches of the OECD Anti-bribery

Convention; and

VII. Whether the failure of the Ardenian NCP to respond to the complaint by the CRBC

constitutes a breach of the OECD Decision on MNE Guidelines.


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STATEMENT OF FACTS

Rigalia and Ardenia

1. Rigalia is composed of 65% ethnic Rigalians and 35% ethnic Zetians. Zetian tribes

comprise nearly 100% of the populace in Rigalias Northern Provinces. Teemu Khutai is

Rigalias President.

2. Ardenia borders Rigalia to the north. Ethnic Zetians make up 90% of the populace in

Ardenias Southern Provinces. Glenda Arwen is Ardenias President.

3. When Ardenia and Rigalia came into existence in 1924, they each granted Zetians full

citizenship in a formal agreement between the states, recognizing Zetians nomadic lifestyle.

While many Zetians are now settled in either state, intermarriage and close affinities continue

between Zetians in both states.

4. Ardenia is a highly decentralized state, in which Zetians in the Southern Provinces enjoy

substantial autonomy. Rigalia is highly centralized, although Zetian tribal council rules have

virtually 100% practical effect in the Northern Provinces.

5. Zetians practice the Masinto religion, one of the tenets of which requires females older

than 14 to wear a Mavazi. The Mavazi covers the head and face, and contains ornate colours and

designs unique to each tribe.

Economy


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6. Rigalian Refining Inc. (RRI), headed by Leo Bikra, oversees Rigalias most important

resource, coltan, located in the Northern Provinces. In 1997, an Ardenian company, Mineral

Dynamics Incorporated (MDI), won a coltan mining contract with RRI to explore and develop

Rigalias coltan reserves. This contract was renewed in 2002.

ZDP and the Zetian Manifesto

7. The Rigalia-based Zetian Democratic Party (ZDP) has long endorsed a separate Zetian

state. Zetians in Ardenia traditionally have been sympathetic to the nationalist cause, if not

politically active.

8. At a joint tribal council meeting dominated by radical ZDP members in the Northern

Provinces, participants issued a Manifesto on 5 May 2008, calling for increased autonomy for

tribal lands; a greater share of coltan mining revenues for Zetians; and respect for Zetians way

of life.

Rigalias Reaction, Escalation of Violence

9. Khutai reacted by stating that central Rigalian law governs people in the Northern

Provinces. In a televised interview, he pledged to modernize the Zetians, disparaging their

traditions and attributing their lack of prosperity to their backwards mentality and insularity.

10. Khutais remarks provoked sporadic fighting in the Northern Provinces. Tens of

thousands of protestors marched on the Rigalian and Ardenian capitals.

11. Khutai responded with increasing severity, sending soldiers to the Northern Provinces,

heightening surveillance and arresting protestors, and banning public organization and assembly.

These measures provoked further violence and resistance to arrest.


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12. Rigalian officials also detained suspected ZDP members. Citing womens rights and

public safety concerns, Khutai introduced a bill banning the Mavazi in public and when

receiving public services.

Zetians Fears, Ardenias Peace Efforts

13. Meanwhile, Rigalian Zetians held meetings in Ardenia out of fear of Rigalian troops,

according to evidence gathered by the International Loan Syndicate Association (ILSA).

14. The Ardenian government responded to the Manifesto with an information campaign,

supporting Zetian schools and agriculture to win hearts and minds, and suggesting that women

can choose to remove the Mavazi at home and in special womens gardens.

15. Ardenia acknowledged that Arwen met with Zetian tribal leaders to discuss how to

strengthen friendly relations. However, Rigalian press allegations that she concluded a secret

agreement with tribal leaders to support a future Zetian state on Rigalian territory, have not

been confirmed.

Rigalias War

16. Eventually, a group of tribal leaders, all ZDP members, mounted a violent campaign for

independence. On 22 March 2009, Khutai declared his government at war with the Zetian

secessionist movement and its supporters in both states. Also, Parliament enacted the Mavazi

ban.

Rigalias Corruption Allegations

17. In an attempt to pressure the Ardenian government, Rigalia opened an investigation into

allegations of bribery during the 2002 renewal of MDIs contract. These allegations were based


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on media rumours and statements of a former MDI employee, accusing Bikra of securing the

contract through a promise of payments to the Zetians Refugee Fund (ZRF), a charitable

organization headed by Bikras nephew, Clyde Zangara. Rigalia also alleges that MDI responded

to solicitations from members of the provincial tribal councils to pay mandatory undocumented

fees.

18. For its investigation, Rigalia requested Mutual Legal Assistance (MLA) from Ardenia,

including MDIs bank records and correspondence between the ZRF and Zetian tribal councils.

On 23-24 March 2010, during a Working Group on Bribery meeting, Ardenia stated that it was

working on how to satisfy Rigalias MLA request given domestic legislative constraints and

because some of the information sought was irrelevant to the corruption investigation.

19. The Ardenian Prosecutor subsequently dropped its investigation into the bribery

allegations, citing national interests and resource constraints. Within a month, the Committee for

Responsible Business Conduct (CRBC), a non-governmental organization funded in part by

Rigalia, filed a complaint against MDI and RRI with the Ardenian National Contact Point

(NCP). The NCP decided not to examine the complaint further, and responded to CRBC with its

reasons, including that it was not the appropriate contact point.

Rigalias Predator Drone Campaign

20. Frustrated over the Zetian situation and impatient over the bribery allegations, Khutai

initiated a series of attacks on separatists along the Rigalian-Ardenian border with the help of

President Sophia Ratko of Morgania. Ratko instructed her Air Force to deploy Predator Drones

to Fort Raucus, a Morganian base in Rigalia.


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21. The unmanned drones, launched from Fort Raucus, have cameras that project images

onto a screen in Morganville. Morganian army members in Morganville operate the drones,

deciding whether to fire missiles from them based on information from informants on the

ground, whom the Rigalian government recruits from prisons and pays.

22. From mid-September 2009 until late March 2010, at the urging of Rigalias Defence

Force under Khutais command, more than 50 drone strikes against suspected separatists killed

an estimated fifteen separatist leaders and 230 Zetian civilians in Rigalia.

Attack on Ardenian Hospital

23. On 15 March 2010, a drone strike in Ardenia, at night and without warning, killed Admar

Bermal a prominent ZDP member and decision-maker in secessionist activities at home. It

also killed his entire family.

24. A missile also struck the public Bakchar Valley hospital that night, killing 150 persons

and wounding 200. The drone operator fired on it when distracted by an informants call,

although informants were not authorized to contact operators directly.

25. Ardenia immediately lodged a protest with Rigalia, which denied targeting innocent

civilians. Arwen then held an international press conference condemning the drone program as

illegal under international law.

Ardenias Continued Peace Efforts

26. Pursuant to Arwens notification that she was deeply concerned about the drones and

tensions with Rigalia, the UN Security Council discussed the Zetian situation and on 22 March

urged the states to resolve their differences peacefully.


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27. On 28 March, Arwen sent a diplomatic note to Khutai discussing concern over the

drones, hospital attack and Mavazi ban, and how best to proceed. On 15 April, Khutai rejected

these propositions, adding that Ardenia was violating its international obligations in failing to act

regarding the bribery allegations.

28. Following three days of fruitless negotiations between the states in late April, Ardenia

filed an application at this Court on 5 May. The Court has decided that Morgania is not a

necessary third party to the case.


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SUMMARY OF PLEADINGS

Standing

Ardenia has standing to bring aparens patriae claim against Rigalia to challenge the

Predator Drone campaign and the Mavazi ban on behalf of Zetians. The rules on diplomatic

protection apply to Zetians because they are Ardenian citizens. Their dual nationality is not a bar

to this claim because Ardenia is Zetians predominant nationality and the Citizenship Agreement

creates a sui generis right to act.

With respect to the Mavazi ban in particular, alternatively, Ardenia or any other state, is

able to bring a claim because the Mavazi ban breaches Rigalias obligations erga omnes. By

enacting the Mavazi ban, Rigalia failed to refrain from racial discrimination against Zetians and

contravened its human rights treaty obligations that guarantee freedom of religion and anti-

discrimination.

I.

Rigalias Predator Drone campaign on Zetians is contrary to international human rights

law. Its actions are a crime against peace as they deprive Zetians of their right to determine their

political status, and to pursue their economic, social, and cultural development as an indigenous

people. Rigalia is also violating the fundamental human right to life of its targets and other

victims by engaging in a use of force that is neither absolutely necessary nor proportionate. Thus,

Rigalia is failing to fulfil its international human rights obligations duties that remain

incumbent on the state at all times and in carrying out law enforcement activities.


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Because there is no armed conflict justifying the use of force, only the above rules of

international human rights law apply to the situation.International armed conflicts occur

between states that are parties to the Geneva Conventions, not non-state, non-party entities like

the Zetian activists.Non-international armed conflictrefers to situations where hostilities have

reached a significant level of severity between a state and a highly organized non-state group. It

does not refer to sporadic violence involving an unorganized collection of radical members of a

community, as in the Zetian situation. Alternatively, if there is an armed conflict in this case,

Rigalias drone campaign violates the rules of international humanitarian law that govern armed

conflict under the Geneva Conventions and Additional Protocols, in causing indiscriminate and

disproportionate civilian harm.

II.

Rigalia is responsible for the Bakchar Valley attack, which damaged a public hospital in

Ardenia and killed and wounded many victims. Rigalia, in using organs of another state for its

own purposes and recruiting informants from within Rigalia, bears responsibility for the drone

campaign as a whole and the hospital attack in particular. Consequently, Rigalia must investigate

the attack, and compensate Ardenia therefore.

The hospital attack was, furthermore, an act of aggression against the people of Ardenia,

violating Ardenias sovereignty and political independence as it strives to live peacefully as a

multi-ethnic state. This unwarranted use of force is not justified by the right to self-defence,

which does not apply in this case because Rigalia was not subject to an armed attack attributable

to Ardenia. In any event, the hospital attack was an unnecessary and disproportionate use of

force.

III.


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The Mavazi ban is illegal under international law because it denies freedom of religion

and is discriminatory. The Mavazi ban infringes on freedom of religion by preventing Zetian

females from manifesting their religion. The purported rationale behind the Mavazi ban does not

fulfil the necessity test prescribed in treaty law to constitute a permissible limitation on freedom

of religion. The law is too broad, lacks proportionality and is applied in a discriminatory manner.

In further violation of Rigalias international treaty obligations, the Mavazi ban discriminates on

the basis of gender and targets a minority cultural group.

IV.

Ardenia did not breach the OECD Anti-Bribery Convention (Convention) since the

alleged acts and impugned actors do fall under the Convention. In any case, Ardenia conducted

an investigation in accordance with the Convention, and exercised prosecutorial discretion in

deciding not to continue with the bribery investigation. Rigalias Mutual Legal Assistance

request seeks irrelevant information and thus, Ardenia is not required to fulfil its request.

Ardenia did not breach the OECD Decision on MNE Guidelines as it responded

sufficiently to the CRBC with sufficient reasons for why the Ardenian National Contact Point

did not further examine its complaint.


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1

PLEADINGS

I. RIGALIAS DRONE STRIKES IN RIGALIA AND ARDENIA VIOLATE

INTERNATIONAL LAW AND THE COURT SHOULD ORDER THEIR IMMEDIATECESSATION

1. Ardenia has standing to bring this claim

(a) International law permits Ardenia to bring a claim as parens patriae for its citizens

A state can protect its subjects when injured by internationally unlawful acts of another

state if they have been unable to obtain satisfaction through the ordinary channels."1

Ardenia

can protect Zetians, including those in Rigalia, as they Ardenian citizens and have exhausted

local remedies in Rigalia.2

(b) Zetians dual nationality doesnot bar diplomatic protection

The 1924 Agreement creates a sui generis right to Ardenia to bring a claim against

Rigalia. Ordinarily dual nationals obtain their status through birth (jus soli), descent (jus

sanguinis) or naturalization initiated by individuals themselves. Ardenia and Rigalia have

formally recognized that both are a legitimate country of citizenship for Zetians. It is a unique

state-driven conferral of dual nationality.

Further, a state may protect a dual national against the other state of nationality if the

former is the state of predominant nationality, as determined by such factors as attachment,

1Mavrommatis Palestine Concessions, Judgment No 2 (1924), PCIJ (Ser A) No 2, 12;

Interhandel (Switzerland v USA) [1959] ICJ Rep 6, 27. See alsoILC,Draft Articles onResponsibility of States for Internationally Wrongful Acts, UNGAOR, 56th Sess, Supp No 10,UN Doc A/56/10 (2001) 43, Article 42 [Responsibility];ILC,Draft Articles on DiplomaticProtection, UNGAOR, 61st Sess, Supp No 10, UN Doc A/61/10 (2006) [Protection].2

Compromis, clarification 5.


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2

family ties and activities.3

All Zetians are more attached to Ardenia. Those residing in Rigalia

have strong family ties in Ardenia through their nomadic heritage4 and cross-border marriages.5

They share political sympathies, and have sought greater coltan revenues for Zetians in both

states.6

Unlike with Rigalia, Zetians relations with Ardenia remain friendly: Arwen has reached

out to Zetians, who have been comfortable meeting in and with the Ardenian state. 7

Since determining predominant nationality varies according to each cases

circumstances,

8the unique 1924 Agreement should be brought to bear. As with the minority

protection treaties during the interwar period,9

3Responsibility, supra n1, Article 44; Protection, supra n1, Article 7 and commentary. See also

Nottebohm (Liechtenstein v Guatemala), [1955] ICJ Rep 4, 24.

the need to protect minorities irrespective of their

place of residence or nationality is relevant. Here, the sui generis conferral of dual nationality

creates a situation whereby predominant nationality must be determined by the state willing to

protect the minority group. That state is Ardenia.

4 Compromis, para 8.5Ibid, paras 9 (intermarriage),11 (Ilona Bikras family in Ardenia),17 (Arwens Zetian spouse). 6Ibid, paras 9,13,15.

7Ibid, paras 17,20.

8Protection, supra n1, Article 7 commentary.

9Minority Schools in Albania (1935), Advisory Opinion, PCIJ (Ser A/B No64).


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3

2. International human rights law applies to the drone campaign

International humanitarian law (IHL) applies to armed conflicts.10

Absent armed conflict,

human rights law provides rules for evaluating state conduct.11

(a) There was no international armed conflict justifying the use of force

International armed conflict occurs between parties to the Geneva Conventions.12

Rigalias declaration of war13 was on the non-party Zetians, while Ardenia and Rigalia, both

parties, were not in an armed conflict. Rather, as Arwen asserted, they are addressing

disturbances to public safety and public order.14

(b) There was no non-international armed conflict justifying the use of force

Common Article 3 of the Geneva Conventions, and Additional Protocol II, govern non-

international armed conflicts. Protocol II defines such conflict as between a state and organized

armed groups which, under responsible command, exercise such control over a part of its

territory as to enable them to carry out sustained and concerted military operations and to

10Convention (IV)relative to the Protection of Civilian Persons in Time of War, 12 August 1949

[Geneva Convention] Common Articles 2,3 [CA2,CA3].11

ICRC, International Humanitarian Law and International Human Rights Law (January2003), online: ICRC/EHL.12

CA2, supra n10, para 1 and commentary.13

Compromis, para 21.

14Ibid, para 32.


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4

implement this Protocol.15

This threshold, requiring a level of both intensity of hostilities and

party organization, also applies to Common Article 3.16

i. Hostilities had not reached a minimum level of intensity

Armed conflict exists where there is protracted, large-scale violence between parties.17

The sporadic Zetian unrest, coupled with political demonstrations and later, bombings that

were limited to one bridge and two government buildings, did not amount to such intensity. 18

Moreover, these incidents were not, as inLimaj, a series of attacks over a widespread and

expanding geographic area.19

ii. Zetian insurgents are not parties to a conflict

Zetians carrying out violent acts are not an organized armed group under responsible

military command. InLimaj, such a group existed because it had a General Staff, unit

commanders, subordinate units, soldiers, disciplinary rules, military police, and recruitment and

15Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the

Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, Article 1[APII].16 ICRC, How is the Term Armed Conflict Defined in International Humanitarian Law?

(Opinion Paper, March 2008), 3, online: ICRC [ICRC Opinion]. See alsoProsecutor v Dusco Tadic, IT-94-1-T, Opinion and Judgment(7 May 1997), paras 561-568(ICTY, Trial Chamber), online: ICTY[Tadic trial]; Prosecutor v Fatmir Limaj,IT-03-66-T,Judgement (30 November 2005), para 84 (ICTY, Trial Chamber), online: ICTY

[Limaj].17

Tadic, IT-94-1, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction (2October 1995), para 70 (ICTY, Appeals Chamber) [Appeals Decision].18

Compromis, paras 15-16,18.19

Limaj, supra n16, para 168.


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5

equipping procedures.20

Moreover, the violent acts of radical Zetians do not represent the Zetian community. All

Zetians historical sympathy for the nationalist cause and even, prior to the violence, their

participation in demonstrations,

There is no indication that the ZDP affiliates who launched the violent

campaign had such organizational structure.

21is not the same as advocating or identifying with violence.

Conversely, that Zetians as a whole enjoy a degree of organization and territorial control in both

states does not mean that the few who launched the violent campaign possessed such an

organizational structure for the purposes ofAPII. Rather, their acts resemble banditry,

unorganized and short-lived insurrections, or terrorist activities,22

(c) No other type of armed conflict exists in law

which are not captured under

APII.

The ICRC acknowledges that there is no other type of armed conflict than international and

non-international conflict.23

3. Under international human rights law, Rigalias campaign is unlawful

Thus, there was no armed conflict here.

(a) The campaign is a crime against peace

All peoples have the right to determine their political status and to pursue their economic,

social, and cultural development.24 Rigalias use of force to deprive Zetians of this right

contravenes the UN Charterand constitutes a crime against peace.25

20Ibid, paras 95-134.21

Compromis, paras 9,15.22

Tadic Trial, supra n16, para 562.23

ICRC Opinion, supra n16, 1.


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6

Moreover, self-defence does not legitimize Rigalias use of force. A state may exercise

self-defence against another state, and only when it claims and proves that attacks against it are

imputable to that state.26

(b) The campaign violates the right to life

Rigalia, therefore, cannot justify its offensive against non-state actors

suspected Zetian separatists on the basis of self-defence.

All individuals have a fundamental right to life and not to be arbitrarily deprived

thereof.27

Use of force in law enforcement must coincide with respect for this human right,28

even in situations of political instability or public emergency.29

Moreover, a state owes this

obligation extra-territorially to individuals over whom it exercises jurisdiction,30

24

International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171,Article 1 [ICCPR];Declaration on the Rights of Indigenous Peoples, UNGAOR, 61st Sess, UNDocA/RES/61/295 (2007), Preamble, Article 3.

as with extra-

25Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, UNGAOR, 25th

Sess, UN Doc A/RES/2625(XXV) (1970) 121,122-124 [Relations].26

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,Advisory Opinion, [2004] ICJ Rep 136, para 139 [Wall];Armed Activities on the Territory of theCongo (DRC v Uganda),Judgment, [2005] ICJ Rep 168,para 130 [Activities].

27ICCPR, supra n24, Article 6(1); Universal Declaration of Human Rights, UNGAOR, 3d Sess,Supp No 14, UN Doc A/RES/217(III)A (1948), Article 3 [UDHR].28

UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, 7September 1990, UN Doc A/CONF.144/28/Rev.1, 112, Preamble, Principle 5 [Basic Principles];

Code of Conduct for Law EnforcementOfficials, UNGAOR, 34th Sess, UN Doc A/RES/34/169(1979), Preamble, Article 2 [Code].29ICCPR, supra n24, Articles 4(1),4(2);Basic Principles, supra n28, Principle 8; Principles onthe Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions,ESC Res 1989/65, UNESCOR, 1989, Supp No1, UN Doc E/1989/89, Article 19 [Investigation].30

ICCPR, supra n24, Articles 2,6; Wall, supra n26, para 111;Activities, supra n26, paras 178-80; General Comment No 31[80]: The Nature of the General Legal Obligation Imposed on


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7

territorial arrests31

or killings.32

Thus, neither the fact that Rigalia perceived a public

emergency,33

i. The strikes were not absolutely necessary

nor the cross-border nature of Rigalias response, derogates from Rigalias

obligation to respect the right to life.

A states law enforcement officials must use force only when strictly necessary and to

the extent required for the performance of their duty,34 as in the case of an imminent threat of

death or serious injury.35

InMcCann, the use of force may have been necessary since officials

believed their targets could detonate bombs at any moment, but even then only if they made

sufficient allowances for the possible erroneousness of their intelligence.36 Moreover, officials

should only use force when less extreme means to remove the threat are unavailable.37

The Rigalian authorities and their agents conducted the drone campaign under no belief

mistaken or otherwise that their targets posed such an imminent threat, but rather on the basis

States Parties to the Covenant, UNHRCOR, 80th Sess, 2187th Mtg, UN DocCCPR/C/21/Rev.1/Add.13(2004), para 10 [Comment 31].

31SeeLopez v Uruguay, Views under article 5(4) of the Optional Protocol to the ICCPR (1981),

UNHCROR, 13th Sess, UN Doc CCPR/C/13/D/52/1979, para 12; calan v Turkey, No46221/99 [2005] IV ECHR.32 See e.g.McCann v UK,21 ECHR (Ser A) 97 [McCann].

33 See Compromis, paras 16 (Rigalias invocation of emergency powers), 21 (war declaration). 34

Code, supra n28, Article 3, restated inBasic Principles, supra n28, Preamble.35

Basic Principles, supra n28, Principle 9.36

McCann, supra n32, paras 206-210.37

Basic Principles, supra n28, Principles 9,14.


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8

of their targets status as prominent Zetian separatists.38

Nor is there evidence of significant

investigation into the reliability of such a belief, beyond an ILSA report alleging Zetian meetings

in Ardenia, and Rigalian press allegations of an Ardenian-Zetian agreement. 39

Moreover, Rigalia did not consider less extreme alternatives to ensure that lethal force

was strictly unavoidable in order to protect life.

40UnlikeMcCann, where officials considered

it impossible to arrest targets due to a belief that they possessed explosives, there is no evidence

that Rigalia considered less forceful means in individual cases like Bermals.41

Nor is there

evidence of cooperative initiatives like those to which Zetians were receptive in Ardenia.42

ii. The strikes were not strictly proportionate

Use of force in law enforcement is an exceptional measure that should be proportionate to

the seriousness of the offence and to the legitimate objective to be achieved. 43 Even had

Rigalias use of lethal force been necessary pursuant to some legitimate objective, Rigalia failed

to exercise such restraint so as to decrease the risk of unnecessary harm. 44

Specifically, Rigalia did not minimize damage and injury to preserve human life, ensure

immediate assistance and medical aid to injured or affected persons, or notify the latters

38Compromis, para 30.

39Ibid, paras 19-20.

40Basic Principles, supra n28, Principle 9. See also Code, supra n28, Article 3.

41

Even inMcCann (supra n32), the ECHR still found the use of force unlawful.42

Compromis, para 17.43Basic Principles, supra n28, Principle 5(a); Code, supra n28, Article 3 and commentary. SeealsoMcCann, supra n32, para 149.44

SeeBasic Principles, supra n28, Principles 5,9; McCann, supra n32, para 135.


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relatives or close friends.45

Rather, Rigalia disregarded human life, not only unnecessarily killing

some fifteen targets, but harming approximately 230 citizens by mid-March.46 The 15 March

attack not only killed Bermal, but his entire family and 25 civilians, while injuring 112 more,

with no indication that they received assistance or that their loved ones were notified.47

4. In the alternative that there is an armed conflict, Rigalias drone strikes violate

international humanitarian law (IHL)

The

extent of harm shows that the attacks intensity and scope far outstripped any objective behind

them.

The Geneva Conventions apply to international armed conflicts including situations of

occupation on a states territory.48 These situations include armed conflicts in which peoples are

fighting against colonial domination and alien occupation and against racist regimes in the

exercise of their right to self-determination.49

(a) The law of international armed conflict applies to this conflict

The Northern Provinces are largely governed by Zetians, who also exercise territorial

control there,50

45

Basic Principles, supra n28, Principles 5(b)-5(d).

yet they struggle under the de jure central Rigalian government that is oppressive


47 Compromis, para 30.

48 CA2, supra n10.49Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to theProtection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, Article 1, paras3-4 [API].50

Compromis, paras 3-4.


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and racist in its intolerance of Zetian culture, traditions, and desire for autonomy.51

Thus, they

are a people struggling against a racist regime, their struggle is legitimate and Rigalias

intervention unlawful, and the resulting armed conflict is international.52

In the alternative that the conflict is not international, the rules of international armed

conflict should apply nonetheless. As then-ICTY President Antonio Cassese has stated, [T]here

has been a convergence such that internal strife is now governed to a large extent by the rules

and principles which had traditionally only applied to international conflicts.

53

(b) The law of international armed conflict prohibits the strikes

APIprohibits attacks that fail to discriminate between the civilian population and

combatants or between civilian objects and military objectives. 54 Attacks in which the attacker

has no direct view of the objective require especially great caution.55

Attacks that cause

disproportionate death and injury to civilians, or damage to civilian objects, in relation to the

anticipated military advantage, are also prohibited.56

51 Compromis, para 14.52API, supra n49, Article 1 commentary;Basic principles of the legal status of the combatantsstruggling against colonial an alien domination and racist regimes, UNGAOR, 28th Sess, SuppNo 30, UN Doc A/RES/3103(XXVIII) (1973) 142, paras 1-3;Relations, supra n25, Theprinciple of equal rights and self-determination of peoples.53

Memorandum to Preparatory Committee for the Establishment of the ICC (22 March 1996), inL Moir, The Law of Internal Armed Conflict(London: Cambridge University Press, 2000), 51.

See alsoAppeals Decision, supra n17, para 127; Dieter Fleck, ed, The Handbook of InternationalHumanitarian Law, 2d ed (Oxford: Oxford University Press, 2008), 608.

54API, supra n49,Article 51.

55Ibid, Article 57(2)(b) commentary.

56Ibid, Article 57(a)(iii) and commentary.


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The strikes are indiscriminate. Although attackers have no direct view of targets,

insufficient caution was taken in discriminating civilians from combatants. Rather, the suspected

Zetian separatists who were targeted and died were not combatants, but political leaders. Nor

were they civilians acting as unlawful combatants directly participating in acts of war likely to

cause harm at the time of the strikes, as required byAPI.57

Furthermore, the expected collateral civilian casualties, which became ever more

apparent as the strikes progressed, were disproportionate to the expected military gain. Even

before the 15 March strike, more than 230 civilians died, out of proportion to the fifteen targets

killed. Moreover, Rigalia did not take all feasible precautions in choosing means and methods to

avoid civilian damage,

Rather, they were targeted as

civilians, even as with Bermal at home with family.

58 and failed to provide civilians with effective advance warning.59

Instead, Rigalia chose unnecessarily deadly means, as indicated above, and persisted with the

attacks which in cases like Bermals occurred without warning60

(c) Human rights law continues to apply

despite their

disproportionate civilian harm.

The existence of armed conflict and consequent application of IHL does not preclude the

application of human rights law: some principles like respect for life apply at all times, and

57Ibid, Article 51(3) and commentary.

58Ibid, Article 57(2)(a)(ii),(4).

59Ibid, Article 57(2)(c).



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courts must consider which legal regimes apply in any given situation.61

5. The Court should order the immediate cessation of the drone strikes

InActivities, for

example, Uganda simultaneously had violated the principle of non-use of force, human rights

law and humanitarian law. Similarly in this case, armed conflict and humanitarian law do not

prevent the Court from considering human rights.

The consequence of internationally wrongful conduct is the cessation and non-repetition of

such conduct.62

II. THE ATTACK ON THE BAKCHAR VALLEY HOSPITAL IS ATTRIBUTABLE

TO RIGALIA, RIGALIA HAS AN OBLIGATION TO INVESTIGATE THE ATTACK

AND TO COMPENSATE ARDENIA THEREFORE AND, MOREOVER, THE ATTACK

WAS A DISPROPORTIONATE AND UNLAWFUL ACT OF AGGRESSION AGAINST

THE PEOPLE OF ARDENIA

Because, as the foregoing arguments show, the strikes violate international law,

they must cease immediately.

1. The attack on the Bakchar Valley hospital is attributable to Rigalia

The conduct of individuals acting under a states instructions or control is attributable to the

state, as is the conduct of organs placed at the states disposal by another state.63

61 SeeActivities, supra n26, para 216; Wall, supra n26, para 106;Legality of the Threat or Use ofNuclear Weapons, Advisory Opinion, [1996] ICJ Rep 226, para 25 [Weapons].62Responsibility, supra n1, Article 30. For armed conflict specifically, seeAPI, supra n49,Articles 85(3)(a)-(e),57(2)(b) and commentary.

63Responsibility, supra n1, Articles 4-6.


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(a) The Morganian forces carrying out the strikes were acting on Rigalias behalf

The conduct of a states organ, placed at the disposal of another state, are attributable to

the latter where the organ acts with the consent, under the authority of and for the purposes of

the receiving state.64

Rigalia not only consented to having the Morganian army an organ of Morgania act

on its behalf, but solicited it to do so. Ratko instructed Morganias Air Force to deploy drones

to Fort Raucus, thereby placing the organ at Rigalias disposal such that it could act, ultimately,

under Rigalias authority: strikes were conducted at the urging of Rigalias Defence Force,

under Khutais command, with Rigalias defence minister instructing Morgania.

65 At most,

Morganias army acted on the joint instructions of Morgania and Rigalia, in which case its

conduct is attributable to both states.66

Moreover, Morganias army was acting for Rigalias purposes. It wasRigalia that

declared war on Zetian separatists, who seek secessionfrom Rigalia. Even Rigalias defence

minister referred to the situation as Rigalias fight to defend itself and its people.

67

64Ibid, Article 6 commentary.

Morgania,

like all states, has an interest in combating terrorism. However, the drone campaign is a Rigalian

affair, for which Rigalia simply is using Morganias weapons and organs.

65Compromis, paras 29,31.

66SeeResponsibility, supra n1, Articles 6, 47 and commentary.



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14

(b) The informants were acting on Rigalias behalf

Conduct in fact authorized by the state is attributable to the state, even where the actors

are private individuals acting as auxiliaries while remaining outside the official structure of

the State and not forming part of its police or armed forces. 68 In recruiting and compensating

with large money payments and relocation from jail the informants,69

Moreover, individuals conduct is attributable to a state if the actors are under the states

direction or control,

Rigalia offered them a

quid pro quo that established its authority over their conduct.

70 as determined by the test of effective control.71 Rigalia did more than

provide financial support and arms, which alone is insufficient to establish effective control. 72

A state establishes effective control over individuals conduct in another state, even if

only by necessary implication, by issuing specific instructions.

Rather, Rigalia made the informants conduct possible in the first place by actively recruiting

and paying them for its own purpose of cracking down on Zetians.

73Given that Rigalia recruited

informants, who were notauthorized to talk to drone operators, the Court can reasonably infer

that Rigalia didotherwise issue positive instructions to informants,74

68

Responsibility, supra n1, Article 8 commentary.

thereby establishing


70Responsibility, supra n1, Article 8.71Tadic, IT-94-1-A, Judgement (15 July 1999),paras 124,137 (ICTY Appeals Chamber) [TadicAppeal].72

Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v USA) [1986] ICJRep 14, para 116 [Nicaragua].73

Tadic Appeal, supra n71, para 118.74

Compromis, para 31.


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effective control. Alternatively, a state establishes effective control through retroactive public

approval of conduct.75 Rigalia implicitly did so: although it sought to deny responsibility,76 it

never condemned the attack. Rather, in admitting that it was a regrettable consequence of

Rigalias fight against separatism, the defence minister acknowledged the incident as an

acceptable part of conduct carried out on Rigalias behalf.77

(c) Mistake and contravention of authority do not negate attribution to Rigalia

Conduct on a states behalf is attributable to it even when in breach of the authority

granted by the state.78 Thus, the hospital strike remains attributable to Rigalia even though an

informants contravention of authority, in talking directly to a drone operator, led to the attack.

Similarly, the operators consequent error in firing at the hospital, although not within her

authority, does not detract from Rigalias ultimate responsibility.79

2. Rigalia has an obligation to investigate the attack and to compensate Ardenia

therefore

Unlawful conduct attributable to a state entails the states responsibility and duty to bear

the consequences.80

75Tadic Appeal, supra n71, para 118.

Because the hospital attack was unlawful and attributable to Rigalia, the

state must bear the consequences by investigating it and compensating Ardenia.

76 Compromis, para 34.77

Ibid, para 31.

78Responsibility, supra n1, Article 7;Activities, supra n26, para 214; Tadic Appeal, supra n71,

paras 119,121;McCann, supra n32, para 185; Youmans(USA) v United Mexican States (1924) 4RIAA 10;API, supra n49, Article 91.79 Compromis, para 30.80Responsibility, supra n1,Articles 1-2.


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States must ensure a remedy for those whose rights or freedoms they violate.81

Such

remedy in the case of unlawful killings includes an effective investigation,82 even where it has

not been established that the state was directly involved in the killing,83

and especially where

there has been a series of such killings.84

A state responsible for unlawful conduct must make full reparation for the injury caused,

which may take the form of compensation for damage and which may be owed to another state

where the latter was injured.

Because the hospital attack violated the victims right

to life, and given that it took place in the context of a series of killings, Rigalia has an obligation

to investigate it.

85 The 15 March attack injured Ardenia by damaging a public

hospital.86

Moreover, Rigalia has a duty to investigate and compensate even if there was an armed

conflict. The ILC provides that all internationally wrongful acts entail legal consequences,

Therefore, Rigalia, as the responsible state, must compensate Ardenia.

81ICCPR, supra n24,Article 3(a).82Comment 31, supra n30, para 8;Basic Principles and Guidelines on the Right to a Remedyand Reparation for Victims of Gross Violations of International Human Rights Law and SeriousViolations of International Humanitarian Law, UNGAOR, 60th Sess, UN DocA/RES/60/147(2005), Articles 18,22;Investigation, supra n29, Articles 8-9,19;Model Protocol for a LegalInvestigation of Extra-Legal, Arbitrary and Summary Executions, UN DocE/ST/CSDHA/.12 PartIII (1991). See also Finucane v UK, No29178/95 [2003] ECHR 328; Inter-AmCtHR,Mack-Chang v Guatemala (2003), Inter-AmCtHR (Ser C) No 101, para 156 [Mack-Chang].83

See Kaya v Turkey, No158/1996/777/978 [1998] ECHR; Ergi v Turkey, No 66/1997/850/1057[1998] ECHR; Velsquez-Rodrguez v Honduras (1988), Inter-AmCtHR (Ser C) No 4, paras172-177.84Mack-Chang, supra n82, para 152.85 SeeResponsibility, supra n1, Articles 31,33-34,36; Factory at Chorzw, Jurisdiction (1927),PCIJ (SerA) No 9, 21;Gabckovo-Nagymaros Project (Hungary v Slovakia), [1997] ICJ Rep81, para 152;Avena (Mexico v USA), [2004] ICJ Rep 59, para 119.86

Compromis, para 30.


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without distinguishing between those committed under human rights law and those committed

under IHL.87 As such, the Court should order an investigation even if there was an armed

conflict, as Israels High Court has done.88

Rigalia must compensate, whether the attack violated

human rights law, IHL, or the principle of non-use of force.89

3. The attack was a disproportionate and unlawful act of aggression against the people

of Ardenia

Aggression is an unwarranted threat or use of force that is inconsistent with the UN

Charter.90 A state may use force in self-defence against an armed attack, 91 as an exception to this

general prohibition.

92

(a) The attack violated Ardenias sovereignty and political independence

Violations of other states sovereignty, territorial integrity or political independence are

prohibited.93

Before 15 March, Arwen stated that the drone strikes violated Ardenias

sovereignty, and indicated that they violated Ardenias political independence by undermining

Ardenias efforts to live peacefully in a multi-ethnic-state.94

87

Responsibility, supra n1, Article 28.

The hospital attack confirmed and

88Public Committee Against Torture v Government of Israel (2006), Supreme Court of Israel,

HCJ 769/02.89

API, supra n49, Article 91 and commentary;Activities, supra n26, para 259.90

Definition of Aggression, UNGAOR, 29th Sess, UN Doc A/RES/3314(XXIX) (1974), Article1[Aggression].91

Charter of the United Nations, 26 June 1945, CanTS 1945 No 7, Article 51 [Charter].92

See e.g.Activities, supra n26, para 112.93

Charter, supra n91, Article 2;Aggression, supra n90, Article 1.94

Compromis, para 32.


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18

exacerbated these violations by further terrifying Ardenians and aggravating Zetian discontent.

Indeed, although Rigalia has been involved in border skirmishes for years,95 this attack exceeded

the scope of prior acceptable conduct or of mutual understandings in efforts to maintain peace. 96

(b) The attack is not a lawful exercise of self-defence

i. Zetian insurgents were not acting on Ardenias behalf

A states right of self-defence exists only if it claims that armed attacks against it are

imputable to another state.97

Moreover, a state cannot rely on self-defence without sufficient evidence that another

state was in a conspiracy to participate in or support military action against it.

Rigalia neither sustained armed attacks by Ardenia, nor claims that

the perceived armed attacks by Zetians are imputable to Ardenia.

98 Rigalias

evidence of Zetian meetings in or with Ardenia does not demonstrate Ardenias involvement in

an anti-Rigalian conspiracy and therefore does not ground a claim that Rigalia acted in self-

defence.99

ii. Rigalia was not subject to an armed attack

Mere assistance to rebels through weapons provision or logistical support cannot

constitute an armed attack.100

95Ibid, para 1.

Thus, even if Ardenia were supporting Zetian insurgents, such

96Cf.Activities, supra n26, paras 110-111.97

Wall, supra n26, para 139.98

Activities, supra n26, paras 121-130.99

Compromis, paras 19-20.100

Nicaragua, supra n72,para 195.


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support would not justify Rigalias resort to self-defence. Moreover, even if Ardenia were

sending bands into Rigalia, their conduct would constitute an armed attack only if it were equally

serious as an actual armed attack by regular armed forces, rather than a mere frontier

incident.101

iii. In the alternative that the right to self-defence exists, the attack was not a lawful exercise

of that right

As indicated above, the separatists conduct was not serious enough to warrant the

drone strikes. Similarly, even if such conduct were attributable to Ardenia, it was not serious

enough to constitute an armed attack warranting the vicious hospital strike.

Self-defence is exercised lawfully when in response to an armed attack and in compliance

with the twin principles of necessity and proportionality.102

Use of force in self-defence must be necessary to eliminate the main danger to a

state.

103As with the case of the drone programme more generally, the 15 March strike on

Bermals home and the hospital was not necessary to eliminate any danger from the insurgents,

or from Ardenia itself. Rather, Rigalia could have sought less forceful means, including

participation in the mediation and cooperation that Ardenia itself was initiating,104

to arrive at a

peaceful resolution with both Ardenia and the Zetians. Indeed, under the UN Charter, it was

incumbent on Rigalia to do so, especially with the Security Councils urging.105

101

Ibid;Aggression, supra n90, Article 3(g).102

SeeResponsibility, supra n1, Article 21 and commentary;Nicaragua, supra n72, para 176;Weapons, supra n61, para 41.103

Nicaragua, supra n72, para 237.104

Compromis, paras 20,32.105

Ibid, para 32; Charter, supra n91, Article 33.


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Similarly, the attack is out of proportion to any perceived armed attack. Although the

number of individuals killed on 15 March is roughly equal to the cumulative number of

individuals killed in attacks by Zetian insurgents, the strike killed more than any individual

attack against Rigalia had done. Moreover, the number of wounded appears to be greater than

even the cumulative number of those wounded in the attacks to which the strike responded. 106

III. RIGALIAS MAVAZI BAN VIOLATES ZETIANS RIGHTS UNDER

INTERNATIONAL LAW

Thus, Rigalias disproportionate response negates any claim the state has in self-defence.

1. Ardenia has standing to challenge Rigalia's Mavazi ban on behalf of Zetians living

in Rigalia

(a) Ardenia can bring a claim as parens patriae for its citizens

As argued in Section I.1(a), Ardenia is entitled to protect Zetians from injury caused by

Rigalia, despite being Ardenian-Rigalian dual nationals. The injury can stem from the existence

of a law that has the potential to directly and adversely affect an individual. 107

(b) Alternatively, the Mavazi ban is a breach of obligations erga omnes, compelling

Ardenia to bring a claim

The Mavazi ban

directly and adversely affects Zetians who don the Mavazi in Rigalia as it infringes upon their

rights under international law to religious freedom and non-discrimination. Thus, Ardenia, as

Zetians state of citizenship, has standing.

The Mavazi ban constitutes racial and religious discrimination and breaches international

106 Compromis, paras 18,30.

107 James Crawford, Special Rapporteur, Second Report on State Responsibility, ILC, 51st Sess,UN Doc A/CN.4/498 (1999), para 78.


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human rights treaties, all of which are obligations erga omnes (i.e., owed to all states). Any state

can intervene when obligations erga omnes are breached;108 indeed this Court has stated that it is

incumbenton all states to ensure that breaches to obligations erga omnes do not continue.109

The Mavazi ban is a form of racial discrimination. This Court established that: the

principles and rules concerning the basic rights of the human person, including protection from

slavery and racial discriminationare obligations erga omnes.110 Racial discrimination includes

discrimination on the basis of ethnicity.111

The Mavazi ban only targets the Zetian ethnic

minority, preventing them from donning headdress specific to this ethnic group. By targeting

religious headdress, it is also a form of religious discrimination, which international law

increasingly views as tantamount to racial discrimination.112

Further, obligations stemming from treaties of universal application, such as human

rights treaties, are also obligations owed to all states.

113

108Responsibility, supra n1, Article 48(1)(b).

As argued below in Section III.2, the

Mavazi ban contravenes several international human rights instruments on freedom of religion,

109Wall, supra n26, paras 157-159. The Courts more recent pronouncements trump its previousview expressed in South West Africa (Ethiopia v South Africa; Liberia v South Africa),

Preliminary Objections [1962] ICJ Rep 319, in which third-party standing before the ICJ was not

accepted for a breach of obligations erga omnes [SW Africa].110

Barcelona Traction,Light and Power Co Ltd (Belgium v Spain), [1970] ICJ Rep 3, para 34[Barcelona Traction].

111United Nations Declaration on the Elimination of All Forms of Racial Discrimination,UNGAOR, 18th Sess, UN Doc A/RES/18/1904 (1963), Article 1.

112 Ian Brownlie, Principles of Public International Law, 4th ed (New York: Oxford UniversityPress, 1990), 513 n29.113

Barcelona Traction, supra n110, para 34.


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womens and childrens rights and the rights of minority cultures. Because the Mavazi ban goes

against obligations erga omnes, Ardenia has a right, and even an obligation, to bring a claim.

2. Rigalia's Mavazi ban violates the freedom of religion rights of Zetian women and girls

under international law

(a) The Mavazi ban violates Rigalia's treaty obligations on freedom of religion

The Mavazi ban prevents Zetians who believe it is their religious duty to wear the Mavazi

from manifesting their religion. Freedom of religion is a fundamental international human right

enshrined in treaty as well as in custom. 114 TheICCPR specifies that everyone has a right to

freedom of religion and to manifest their religion.115

Manifestation includes the wearing of

distinctive clothing or head coverings,116

such as the Mavazi. The Convention on the Rights of

the Child(CORC) echoes the right of the child to freedom of religion, and adds that states must

respect parents' religious guidance of their children.117

(b) The Mavazi ban is not a permissible limitation on freedom of religion.

These two treaty obligations protect the

right of Zetian women and girls to wear the Mavazi if it is their sincere religious belief, or in the

case of girls, if their parents guide them to do so.

i. The Mavazi ban does not fall under enumerated grounds of permissible limitations under

treaty law

The Mavazi ban is not justified under international law as it fails the necessity test for

114UDHR, supra n27, Article 18;ICCPR, supra n24, Article 18; Convention on the Rights of the

Child, 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), Article 14

[CORC].115

ICCPR, supra n24, Article 18.

116General Comment No 22: The right to freedom of thought, conscience and religion (Article18), UNHRCOR, 48th Sess, UN Doc CCPR/C/21/Rev.1/Add.4 (1993), para 4 [Comment 22].117

CORC, supra n114, Article 14.


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limitations in the two treaties. Limitations on the freedom to manifest one's religion are only

permitted when necessary for reasons of protecting public safety, order, health or morals or the

fundamental rights and freedoms of others.118

The Rigalian government claims that the ban is

necessary for reasons of public safety and to promote women's rights.119

Rigalia has not convincingly established the public safety benefit of banning the Mavazi.

The public safety limitation is for situations of specific danger that threatens the safety of

persons.

As outlined below,

neither of these propositions satisfy the requirements of the necessity test.

120Since courts must proceed from the need to protect the guaranteed rights, and ensure

that limitations are not applied so as to vitiate those rights, limitations should be strictly

interpreted and can only be applied for the purposes for which they are prescribed.121

The

Rigalian government fails to explain how banning the Mavazi will protect the public when loose

clothing, non-Masinto head coverings and disguises continue to be permitted. The act of one

individual using a Mavazi to hide a bomb122

does not preclude others from doing the same under

other forms of permitted garb. Further, the security failure in the Mavazi bombing incident is

with Rigalias policy not to question those wearing a Mavazi; not with the garb itself.123

118ICCPR, supra n24; CORC, supra n114, Article 14(3); Comment 22, supra n116, para 8.

Protecting women and girls who sincerely believe wearing the Mavazi is their religious duty

119 Compromis, paras 16,34.120

Manfred Nowak & Tanja Vospernik Permissible Restrictions on Freedom of Religion orBelief in Tore Lindholm & Bahia Tahzib-lie, eds, Facilitating Freedom of Religion or Belief: ADeskbook(Leiden: Martinus Nijhoff Publishers, 2004) 147, 150.121

Comment 22, supra n116, para 8.122

Compromis, para 18.123Ibid.


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overrides the questionable safety benefits associated with banning it.

Rigalias claim of promoting womens rights does not satisfy the necessity test either.

Women's rights is not one of the permissible grounds of the test. Nor can it be construed under

the morality ground, because it is not for the state or courts to determine whether religious

beliefs or manifestations are legitimate according to an objective standard.124

Even if womens rights fall under an enumerated ground, the Mavazi ban actually

discriminates against women and therefore does not qualify as a permissible limitation. This is

because limitations on freedom of religion cannot be imposed for discriminatory purposes or

applied in a discriminatory manner.

Thus, the state is

not able to question the belief of Zetian women and girls who choose (or are guided, in the latter

case) to wear the Mavazi, on the grounds of morality.

125Discrimination occurs when members of a minority group

are excluded from participation in rights, interests and opportunities which a majority of the

population can enjoy.126 The Mavazi ban is discriminatory as it unjustifiably only targets a

practice of the Masinto religion and prevents Zetian women who wear the Mavazi from

participating in public life.127

ii. The Mavazi ban is too broad and lacks proportionality to be a permissible limitation

The Mavazi ban is too sweeping as it prohibits women and girls from manifesting their

124Manoussakis and Others v Greece No 18748/91 [1996] IV ECHR, para 47.

125Comment 22, supra n116,para 8.

126SW Africa, supra n109 (Judge Tanaka, Dissenting Opinion), 307.



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religion in any public setting.128 Limitations must directly relate and be proportionate to the

specific need on which they are predicated.129

Current state practice does not support such excessive restriction. The recently passed

French law prohibiting any facial coverings

This excessive restriction is not proportionate to

any stated purpose of the law as it prevents Zetians who believe it is their religious duty to wear

the Mavazi from any public life, effectively making them prisoners in their own homes.

130 the only law of its kind in the world was

widely criticized by other states and international bodies as being excessive because, although it

does not target a specific religion in its text, it effectively excludes Muslim women who wear the

niqab from public activity.131 The United States, a country for which national security is a

significant concern, has stated that it takes a different approach from that of France in balancing

security and religious freedom.132 Similarly, the United Kingdom has stated that such an

excessive ban is un-British and is at odds with its vision of a tolerant and mutually respectful

society.133

128 Compromis, para 16.

It remains to be seen whether the French ban will be upheld by courts, but in the case

of the Mavazi ban, the requirements under international law to limit religious freedom are not

129Comment 22, supra n116, para 8.

130Loi no 2010-1192 du 11 octobre 2010, JO, 12 October 2010.

131Criticized by the Council of Europe (see Karine Maillot, Le Parlement europen soppose

linterdiction totale de la burqua (24 June 2010), online: Zinfos974

) and the UN Human Rights Council Special Rapporteur on the

Freedom of Religion and Belief (see Andreas Vierecke, Burka Debate in Germany and Europe An Interview with Heiner Bielefeldt, online: Goethe-Institut:).

132 Philip J Crowley, Daily Press Briefing (14 July 2010), online: United States Department of

State.133 See Damian Green says burka ban would be un-British,BBC News (18 July 2010) online:BBC.


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met.

iii. The Mavazi ban can be distinguished from cases where Courts have permitted limitations

on freedom of religion

The European Court of Human Rights has upheld limitations on freedom of religion

regarding religious headdress in situations that are distinct from the present case.134 Those cases

were about limited prohibitions of religious headdress, such as in public education settings, in

contrast to the outright public ban of the Mavazi. They were addressing religious symbols

broadly and did not target one specific religion, unlike the Mavazi ban. Further, the state policies

aimed at maintaining a strong tradition of secularism in their societies where different religious

groups must coexist. In Rigalia, Zetians live within their own community in the Northern

Provinces where the practice of their religion is pervasive and not in opposition to other religious

groups.135

3. Rigalia's Mavazi ban is discriminatory in violation of international treaty law

Secularism is not the policy rationale being adopted; rather, Rigalia has only singled

out Zetian religious practice for unfounded reasons and has applied it in a discriminatory

manner. International law does not permit such a discriminatory and sweeping incursion on a

fundamentally held human right.

(a) The Mavazi ban discriminates against Zetian women and girls

The Mavazi ban discriminates against Zetians on the basis of gender as it specifically

targets the religious practice of women and girls. This violates Articles 2, 3 and 26 of the ICCPR,

which guarantee the right to equality and non-discrimination with respect to the rights and

134Dogru v France, No 27058/05, [2008] ECHR, 49 EHRR 8;Dahlab v Switzerland, No42393/98, [2001] V ECHR; Sahin v Turkey, No 44774/98, [2005] ECHR, 41 EHRR 8.135

Compromis, para 2.


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freedoms, including freedom of religion, enshrined in the Covenant.136

The Convention on the

Elimination of Discrimination Against Women, which also prohibits discrimination, explains that

"the term discrimination against women shall mean any distinction, exclusion or restriction

made on the basis of sex which has the effect or purpose of impairing or nullifying the

recognition, enjoyment or exercise by women... on a basis of equality of men and women, of

human rights and fundamental freedoms in the political, economic, social, cultural, civil or any

other field."137

The Mavazi ban affects only Zetian women and nullifies their participation in public life,

effectively hindering their ability to enjoy or exercise any human rights and fundamental

freedoms in all of the above listed spheres. If Rigalia were really interested in ameliorating the

lives of Zetian women, as it claims, it would target the tribal council decrees forcing women to

wear the Mavazi,

138instead of infringing on the rights of those who sincerely believe it is their

duty to wear the Mavazi. Also, Rigalia could make a sincere attempt to address the inequality

Zetian women face in education, employment and marriage, which they have not.139

136

ICCPR, supra n24, Articles 2,3,26.

Instead,

they are using womens rights as a pretext for imposing the Mavazi ban in an effort to punish

Zetians. This assertion is supported by Rigalias timing for enacting the Mavazi ban, which

coincided with heightened clashes between Zetians and the Rigalian government over the Zetian

secessionist movement and protests against Rigalias disparaging remarks about Zetian

137Convention on the Elimination of All Forms of Discrimination Against Women, 18 December1979, 1249 UNTS 13 (entered into force 3 September 1981), Article 1. 138

Compromis, para 2.139

Ibid, paras 3-4.


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culture.140

(b) The Mavazi ban discriminates against Ze

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