467R INTERNATIONAL COURT OF JUSTICE

2011

CASE CONCERNING THE ZETIAN PROVINCES

STATE OF ARDENIA (APPLICANT) v. STATE OF RIGALIA (RESPONDENT)

MEMORIAL FOR THE RESPONDENT

TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................................. i INDEX OF AUTHORITIES.......................................................................................................... iv STATEMENT OF JURISDICTION.............................................................................................. xi QUESTIONS PRESENTED......................................................................................................... xii STATEMENT OF FACTS .......................................................................................................... xiii SUMMARY OF PLEADINGS.................................................................................................. xviii PLEADINGS .................................................................................................................................. 1 I. Drone strikes against terrorists in Rigalia and Ardenia are consistent with Rigalias rights under international law ................................................................. 1 A. Ardenia lacks standing to claim diplomatic protection for Zetian terrorists............................................................................................................ 1 In any event, drone strikes conducted inside Rigalia with its consent are not prohibited under international law ................................................................ 1 i. ii. C. Rigalia is entitled to use force to maintain order within its borders. ...................... 1 Zetian terrorists are not fighting for self-determination .......................................... 2 Rigalia is engaged in a non-international armed conflict with Zetian terrorists, in which international humanitarian law applies and extraterritorial operations are permitted..................................................................... 5 i. ii. The hostilities between the Zetian terrorists and the State of Rigalia constitute a non-international armed conflict. ......................................................... 5 International humanitarian law is lex specialis to the armed conflict between the Zetian terrorists and Rigalia, and permits extraterritorial operations ................................................................................................................ 7 Drone strikes are a legitimate exercise of Rigalias inherent right to self-defence against an ongoing armed attack. .......................................................... 9 The right to self-defence under Article 51 of the U.N. Charter includes defence against armed attacks conducted by non-state actors. ............................... 9 Terrorist bombings and other attacks constitute an ongoing armed attack against Rigalia ............................................................................................ 10 Strikes against Zetian terrorists meet the requirements of self-defence................ 11 States exercising the inherent right to self-defence may trespass upon neutral territory to respond to an armed attack. .................................................... 13 i

B.

D. i. ii. iii. iv.

v.

In the alternative, Ardenia is complicit in the terrorist bombings inside Rigalia, and is therefore a legitimate target of Rigalian self-defence ................... 13 Rigalia has a duty to take action against terrorists using Ardenia as a safe haven under UNSCR 1373. ....................................................................................... 14

E.

II. The accidental attack on the Bakchar Valley hospital was not an act of aggression and is not attributable to Rigalia, nor does Rigalia have any obligation to investigate the attack or compensate Ardenia ........................................ 16 A. i. ii. iii. B. i. ii. C. The attack on the Bakchar Valley hospital was not an act of aggression ............... 16 The attack upon the hospital lacked the requisite animus agressionis to constitute an act of aggression .......................................................................... 16 The U.N. Security Council has not declared the attack to be an act of aggression .............................................................................................................. 16 The attack does not meet the definition of aggression adopted by the U.N.. ........ 17 The attack is not attributable to Rigalia.................................................................... 17 The drone which attacked the hospital was not under the direction and control of Rigalia ................................................................................................... 17 The attack on the hospital was due to force majeure ............................................ 18 Rigalia has no duty to investigate the attack or to compensate Ardenia ................. 19

III. Rigalias limited ban on the wearing of the Mavazi for Zetian women and girls is consistent with international law........................................................................ 20 A. i. ii. iii. The Mavazi ban is required for Rigalia to meet its obligations under conventional international law.................................................................................. 20 The Mavazi ban is required for Rigalia to comply with the International Covenant on Civil and Political Rights ................................................................. 20 The Mavazi ban is required for Rigalia to comply with the Convention on the Elimination of All Forms of Discrimination against Women ..................... 20 The Mavazi ban is required for Rigalia to comply with the International Covenant on Economic, Social and Cultural Rights ............................................. 21 Rigalias Mavazi ban does not violate customary or conventional international law on non-discrimination .................................................................. 21 Rigalias Mavazi ban does not violate international law on religious rights ii

B.

C.

and freedoms .............................................................................................................. 23 i. ii. The Mavazi ban justifiably limits a cultural tradition ........................................... 23 In the alternative, if wearing a Mavazi is a religious practice, conventional international law justifies the ban.......................................................................... 24 The Mavazi ban does not violate the rights of minorities under conventional international law ........................................................................................................ 26 In the alternative, the Mavazi ban is justified by the state of emergency in Rigalia. ................................................................................................................... 27

D.

E.

IV. Ardenia has violated the OECD Anti-Bribery Convention and the OECD Decision on the MNE Guidelines ....................................................................... 29 A. i. ii. Ardenia has a duty to investigate the alleged criminal acts of RRI and MDI, and to provide mutual legal assistance under the OECD Convention .................... 29 The alleged criminal acts of RRI and MDI violate Ardenias domestic laws....... 29 The alleged criminal acts of RRI and MDI do not fall under a small facilitation payments exception30 Ardenias failure to investigate and prosecute the alleged corruption violates the Convention.............................................................................................. 31 i. ii. iii. C. Ardenia violated Article 5 of the OECD Convention ........................................... 31 Ardenia cannot justify its violation of Article 5 of the OECD Convention on the ground of national security ......................................................................... 31 In the alternative, the issue should be resolved in favour of Rigalia .................... 33 Ardenias failure to provide mutual legal assistance to Rigalia violates Article 9(1) of the OECD Convention, and is not justifiable...................... 33 Ardenia has breached the Decision of the Council on the OECD Guidelines for Multinational Enterprises.................................................................................... 34 The Decision and the Procedural Guidance are legally binding .......................... 34 Ardenias NCP breached the Decision by failing to respond to the CRBC .......... 35 Ardenias NCP breached the Decision by failing to respond to the CRBCs second request. ........................................................................................ 37 Ardenia cannot justify violating the Convention under customary international law. ....................................................................................................... 37

B.

D. i. ii. iii.

E.

PRAYER FOR RELIEF ............................................................................................................... 39 iii

INDEX OF AUTHORITIES

TREATIES Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 17 December 1997, 337 I.L.M 8, 112 Stat. 3302. Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, 1249 U.N.T.S. 13. Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 221. Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3. Geneva Conventions of 12 August 1949, 12 August 1949, [1950] U.N.T.S. 32. International Convention Against the Taking of Hostages, 17 December 1979, 1316 U.N.T.S. 205. International Convention for the Suppression of the Financing of Terrorism, 10 January 2000, 2178 U.N.T.S. 197. International Convention for the Suppression of Terrorist Bombings, 15 December 1997, 2149 U.N.T.S. 256. International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171. International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 U.N.T.S. 3. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 U.N.T.S. 3. Protocol 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, 1125 U.N.T.S. 609. 14, 29, 32, 33, 34

4, 21

25

4, 24

6, 8

14

14

14

2, 4, 20, 22, 23, 24, 26, 27 2, 4, 21

6, 8

iv

JURISPRUDENCE Juan Carlos Abella v. Argentina (1997), Inter-Am. Comm. H.R. No. 55/97, Annual Report of the Inter-American Commission on Human Rights:1997, OEA/Ser.L/V/II.95 Doc. 7 rev. 271. Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), [2003] I.C.J. Rep. 161. Case Relating to Certain Aspects of the Laws on the use of Languages in Education in Belgium (1968) 1 E.H.R.R. 252. Dahlab v. Switzerland, no. 42393/98, [2001] V E.C.H.R. 462. Dogru v. France, no. 27058/05, [2008], E.C.H.R. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] I.C.J. Rep. 136. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Declaration of Judge Buergenthal, [2004] I.C.J. Rep. 240. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Separate Opinion of Judge Kooijmans, [2004] I.C.J. Rep. 219. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] I.C.J. Rep. 226. Merg Case, Italian-United States Conciliation Commission Decision No.55, IV Collection of Documents 236, 10 June 1955. Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Trial Judgment (2 September 1998) (International Criminal Tribunal for Rwanda). Prosecutor v. Boskoski and Tarculovski, IT-04-82-T, Trial Judgment (10 July 2008) (International Criminal Tribunal for the former Yugoslavia). Prosecutor v. Haradinaj et al., IT-04-84-T, Trial Judgment (3 April 2008) (International Criminal Tribunal for the former Yugoslavia). 6

10, 11, 12

23

26 25 28

10

10

7, 11

5, 7

Prosecutor v. Dusko Tadi aka "Dule, IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995) (International Criminal Tribunal for the former Yugoslavia). Reference Re Qubec Secession, [1998] 2 SCR 217, (Supreme Court of Canada), 20 August 1998. R. v. Director of the Serious Fraud Office, [2008] UKHL 60. Leyla Sahin v. Turkey, no. 44774/98, [2005] 44 E.H.R.R. 5. U.S. v. Von Leeb et al., (1948) 11 N.M.T. 462 (Nuremberg Military Tribunal).

5, 8

32 23, 25, 26 16

UNITED NATIONS DOCUMENTS Ago, Roberto (UN Special Rapporteur on State Responsibility), The Internationally Wrongful Act of the State, Source of International Responsibility. U.N. Doc A/CN.4/318/Add.5-7, (1971). Charter of the United Nations, 26 June 1945, Can. T.S. 1945 No. 7. Economic and Social Council, General Comment 16, UN ESCOR, 34th Sess., UN Doc. E/C.12/2005/3, (2005). General Assembly, Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), 24 October 1970. General Assembly, Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, GA Res. 50/6, 9 November 1995. General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, GA Res. 60/147, 16 December 2005. General Assembly, Definition of Aggression, GA Res. 3314 (XXIX), 14 December 1974. 12

2, 4, 9, 15, 16 21

19

17

vi

Human Rights Committee, Communication No. 208/1986, U.N. Doc. CCPR/C/37/D/208/1986, (1986). Human Rights Committee, General Comment No. 18, U.N. Doc. HRI/GEN/1/Rev.1, (1994). Human Rights Committee, General Comment No. 22, U.N. Doc. HRI/GEN/1/Rev.1, (1994). Human Rights Committee, General Comment No. 28, U.N. Doc. CCPR/C/21/Rev.1/Add.10, (2000). Human Rights Committee, General Comment No. 29, U.N. Doc CCPR/C/21/Rev.1/Add.11, (2001). International Law Commission, Draft Articles on Diplomatic Protection, U.N. Doc. A/61/10, (2006). International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, U.N. Doc. A/56/10, (2001). Jahangir, Asma (UN Special Rapporteur on Freedom of Religion or Belief), Civil and Political Rights, Including the Question of Religious Intolerance. U.N. Doc.E/CN.4/2006/5, (2006). Rome Statute of the International Criminal Court, 17 July 1998, 2187 U.N.T.S. 3.

OECD, OECD Guidelines for Multinational Enterprises, (Paris: OECD, 2008), online: OECD <http://www.o ecd.org/ dataoecd/56/36 /1922428.pdf>. 22, 24

22

24

20, 27

27

17, 18, 37 Security Council, Threats to International Peace and Security Caused by Terrorist Acts, SC Res. 1368, 12 September 2001. Security Council, Threats to International Peace and Security Caused by Terrorist Acts, SC Res. 1373, 28 September 2001. 22, 25

OECD DOCUMENTS OECD, Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and Related Documents, (Paris: OECD, 2010), online: OECD <http://www.oecd.org/dataoecd/4/18/38028044.pdf>.

16

10, 14

10, 14, 15

vii

30, 31, 32

34, 35, 36, 37

viii

OECD, Legal Affairs Division, Legal Instruments, online: <http://www.oecd.org/document/46/0,3746,en_21571361_38481278 _40899182_1_1_1_1,00.html>. OECD, Public Affairs Division, Policy Brief: Fighting Bribery in International Business Deals, September 2008.

34

29

BOOKS AND ARTICLES Currie, John H.. Public International Law, 2nd ed. (Toronto: Irwin Law, 2008). Dinstein, Yoram. War, Aggression and Self-Defence, 3rd ed. (Cambridge: Cambridge University Press, 2001). Howard, David & Elisa Wiygul, FCPA Compliance: The Vanishing Facilitating Payments Exception?, online: < http://www. dechert.com/library/4-7-10-WCSL-Howard_and_WiygulFCPA_Compliance-The_Vanishing_Facilitating_ Payments_Exception.pdf> (June 2010). Hunter, Thomas. Targeted Killing: Self-Defence, Preemption and the War on Terrorism (Charleston: Booksurge, 2009). Jinks, Derek. September 11 and the Laws of War (2003) 28 Yale J. Intl L. 1. Lubell, Noam. Extraterritorial Use of Force Against Non-State Actors (Oxford: Oxford University Press, 2010). McInerney, Thomas F., The Regulation of Bribery in the United States (2002) 73 Int Review of Penal Law 81. Melzer, Nils. Targeted Killing in International Law (Oxford: Oxford University Press, 2008). Provost, Ren. International Human Rights and Humanitarian Law (Cambridge: Cambridge University Press, 2002). Rose-Ackerman, Susan & Billa, Benjamin, Treaties and National Security (2008) 40 International Law and Politics 437. 33

16

30

13

6, 8, 9, 10, 11, 13, 14, 17 31

11, 12, 13

28

31, 32, 33

ix

Sassli, Marco. Transnational Armed Groups and International Humanitarian Law (2006) Harvard University Program on Humanitarian Policy and Conflict Research, Occasional Paper Series Number 6. Shaw, Malcolm. International Law, 6th ed. (Cambridge: Cambridge University Press, 2008). Shirazi, Faegheh & Mishra, Smeeta, Young Muslim Women on the Face Veil (2010) 13(1) ICS 43.

1, 2, 9, 15, 20, 22, 27 21, 23

MISCELLANEOUS Council of Europe, P.A., 23st Sess., Islam, Islamism and Islamophobia in Europe, Resolution 1743 (2010). International Committee of the Red Cross (ICRC), Customary International Humanitarian Law database, Rule 1: The Principle of Distinction between Civilians and Combatants. Online: http://www.icrc.org/customary-ihl/eng/print/v1_rul_rule1. International Committee of the Red Cross (ICRC), Customary International Humanitarian Law database, Rule 14: Proportionality in Attack. online: http://www.icrc.org/ customary-ihl/eng/print/v1_rul_rule14. International Committee of the Red Cross (ICRC), Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law 90:872 Intl Rev. R.C., December 2008. Koh, Harold H., Speech: The Obama Administration and International Law online: <http://www.state.gov/s/l/releases/ remarks/139119.htm>, 25 March 2010. 24

12

12

13

STATEMENT OF JURISDICTION

The State of Rigalia (Respondent) and the State of Ardenia (Applicant) have submitted their differences concerning the Zetian Provinces to the International Court of Justice pursuant to the Special Agreement (Compromis) jointly notified to the court on 5 May 2010, as amended in December 2010. The Courts jurisdiction is invoked under Article 36(2) read with Article 40(1) of the Statute of the International Court of Justice, 1950. The Parties shall accept any Judgment of the Court as final and binding upon them and shall execute it in its entirety and in good faith.

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QUESTIONS PRESENTED

I. Whether Predator Drone strikes against Zetian terrorists in Rigalia and Ardenia are consistent with Rigalias rights under international law;

II. Whether the accidental attack on the Bakchar Valley hospital was an act of aggression and attributable to Rigalia;

III. Whether Rigalias limited ban on the wearing of the Mavazi is consistent with international law; and

IV. Whether Ardenias failure to fully investigate alleged corruption involving Rigalian Refining Incorporated and Mineral Dynamics Incorporated, its failure to provide prompt and effective legal assistance to Rigalia in conducting its own investigation, and the failure of its National Contact Point to respond to a complaint by the Committee for Responsible Business Conduct, constitute breaches of its international obligations under the OECD Anti-Bribery Convention and Decision on MNE Guidelines.

xii

STATEMENT OF FACTS

The parties to this dispute are the adjacent States of Rigalia and Ardenia. Rigalia is a developing country which, outside of its cities, is mountainous and economically underdeveloped. Its population is 65% ethnic Rigalians and 35% ethnic Zetians, although Zetians make up nearly 100% of the populace of Rigalias Northern Provinces. The Northern Provinces comprise approximately one-third of Rigalias land mass, and are home to the countrys most important natural resource, columbite-tantalite (coltan).

Situation in the Northern Provinces The Northern Provinces have historically been governed by Zetian tribal councils whose members adhere to the orthodox Masinto religion. Under tribal council rules, Zetian women and girls over the age of 14 are obliged to wear a Mavazi, a traditional head covering made from the hide of the Zorax. The Mavazi covers the entire head and face, making identification of the wearer difficult, and heats up quickly in the sun, making it difficult for the wearer to work outdoors. Women who refuse to wear a Mavazi are expelled from the Northern Provinces and, if they remain, are arbitrarily detained in their own homes or publicly flogged. Furthermore, tribal council rules prohibit women from driving or holding paid employment, and girls are often married off as young as 8 or 9 years of age. These practices violate both Rigalian domestic law and international human rights conventions. Although the Government has at times attempted to enforce national laws in the Northern Provinces, it has preferred to avoid a direct confrontation with tribal leaders. For many years, the Zetian Democratic Party (ZDP) has sponsored a secession movement in Rigalia with the aim of establishing an independent state comprising the Northern

xiii

Provinces of Rigalia and the Southern Provinces of Ardenia, which are also largely populated by Zetians. In May 2008, the collective tribal councils of the Northern Provinces met together for the first time in 20 years and, as a Joint Tribal Council, issued a ZDP-influenced Manifesto demanding increased autonomy with an eventual goal of independence, a larger portion of revenues from coltan mining operations, and respect for their traditional way of life. Realizing that direct confrontation over the inalienable human rights of Zetian women could no longer be avoided, President Khutai responded to the Manifesto by announcing his intention to enforce existing law and modernize the Northern Provinces. This announcement angered Zetians who preferred the status quo, and fighting broke out in the Northern Provinces, with Rigalian soldiers attempting to keep the peace. Large protest marches were held by supporters of the Zetian Refugees Fund (ZRF), which became violent when protesters rebelled and resisted arrest. In an attempt to quell the increasing violence, President Khutai invoked the emergency powers clause of the Rigalian constitution and imposed a ban on groups organizing and assembling in public places. However, the ban had minimal effect. Certain Zetian tribal leaders and their supporters began mounting a terror campaign to achieve independence by attacking infrastructure and kidnapping Rigalian citizens. In December 2008 a bridge was blown up in Rigaliaville, and in early 2009 a school and a hospital were bombed. These attacks killed at least 155 civilians and wounded 112 more. The attack on the school was conducted by a man wearing a Mavazi. Meanwhile, President Arwen of Ardenia met with tribal leaders from both sides of the border and allegedly offered her support both for the continued enforcement of the Mavazi rule,

xiv

and for a future Zetian State located on Rigalian territory. Left with few choices, President Khutai declared his government to be at war with the Zetian secessionist movement and its supporters in both Rigalia and Ardenia. He also successfully urged the Rigalian Parliament to pass legislation banning the wearing of a Mavazi in public places, both as a way to protect womens rights and as a measure to defend against disguised suicide bombers. Lastly, he appealed to the President of Morgania for military assistance in pursuing Zetian terrorists in the mountainous terrain of the Northern and Southern Provinces (collectively the Zetian Provinces). Morganian assistance came in the form of Predator drones, unmanned aerial vehicles armed with Hellfire missiles which can be directed at targets on the ground. Between September 2009 and March 2010, fifty strikes were conducted against targets in the Zetian Provinces, including a strike against the terrorist leader Adar Bermal on the night of 15 March, which coincided with a tragic, accidental attack upon the Bakchar Valley hospital.

Alleged Corruption Involving Mineral Dynamics Incorporated (MDI) and Rigalian Refining Incorporated (RRI) Rigalia has mostly positive bilateral economic relations with Ardenia, and the two countries enjoy healthy cross-border trade and investment. In 1997, the Government of Rigalia and state-owned RRI awarded a five-year coltan exploration and development contract to MDI, a major Ardenian state-owned corporation. Under the guise of a community service program, MDI provides financial support to the ZRF, an Ardenian-registered charity long-suspected of promoting Zetian autonomy. After MDIs contract was renewed for an additional 10 years in 2002, it was reported that the deal had been secured through MDIs offer of continued support for the ZRF and payments

xv

amounting to $10 million in cash and shares held in trust for Clyde Zangara, founder of the ZRF and nephew of Leo Bikra, the President of RRI. The Government of Rigalia believes that some of these monies are being funnelled to the ZDP. It has also been reported that members of Zetian tribal councils have been paid mandatory undocumented fees to ensure the protection of the Moira coltan mine and the smooth delivery of raw materials to RRIs processing facility. As required under domestic and international law, Rigalia opened a criminal investigation into these corruption allegations, and subsequently suspended Leo Bikra as President of RRI. On 30 April 2009, the Government of Rigalia sent a request for mutual legal assistance (MLA) to the Government of Ardenia, asking it to provide information regarding MDIs financial transactions as well as its correspondence with the ZRF, Clyde Zangara and the tribal councils. Ardenia initiated its own investigation, but has thus far not responded to Rigalias MLA request, citing domestic law which precludes it from accessing the required bank records, and contending that the correspondence between ZRF officers and tribal council members is irrelevant to the corruption investigation. On 3 June 2009, Ardenias Public Prosecutor Sam Strong dropped his investigation, citing national security concerns. It is known, however, that MDI engaged in intense lobbying of members of the Ardenian government and judiciary in an effort to get the inquiry dropped. Furthermore, President Arwen publicly hinted that the decision to end the inquiry was at least partly based on economic considerations. On 1 July 2009, the Committee for Responsible Business Conduct (CRBC), a Rigalian non-governmental organization, filed a complaint with the Ardenian National Contact Point (NCP) for violations of the MNE Guidelines by MDI and RRI. The Ardenian NCP refused to examine the complaint on the grounds that: (1) it should be dealt with by the Rigalian NCP; (2)

xvi

the Guidelines do not apply to RRI; and (3) investigations were ongoing in both countries. The CRBC subsequently asked the Ardenian NCP to organize a meeting with all parties to discuss the issues, but this request was never answered.

xvii

SUMMARY OF PLEADINGS

I.

Even if Ardenia has standing to claim diplomatic protection for Zetian terrorists, which is

contested, strikes against terrorists inside Rigalia are consistent with international law. States are permitted the use of force to maintain order within their own borders, and the principle of State sovereignty precludes outside intervention in matters within domestic jurisdiction. The only exception to this arises where a people are fighting for self-determination, however the Zetians do not meet this definition. Strikes conducted inside Ardenia are lawful because Rigalia is engaged in a noninternational armed conflict with Zetian terrorists and, under the applicable international humanitarian law, has the right to take such extraterritorial actions. Furthermore, the strike was a legitimate exercise of Rigalias inherent right to self-defence against an ongoing armed attack under Article 51 of the U.N. Charter. Alternatively, Ardenias tolerance of Zetian terrorists operating within its borders, failure to cooperate with Rigalias anti-corruption investigation, and signing of a secret peace agreement make it complicit in the terrorist attacks inside Rigalia. As such, Ardenia is a legitimate target of Rigalian self-defence. Additionally, Rigalia has a duty to take action against terrorists who use Ardenia as a safe haven, as Ardenia had a clear obligation to act under UNSCR 1373 and failed to do so.

II.

The accidental attack on the Bakchar Valley hospital was not an act of aggression

because it lacked the requisite animus agressionis. This is demonstrated by the fact that the hospital was never an intended target, and that the missile which hit the hospital was launched in error. Additionally, the attack cannot constitute an act of aggression because the U.N. Security

xviii

Council has not explicitly declared it to be so, nor does it meet the definition of aggression adopted by the U.N. General Assembly. The hospital attack is not attributable to Rigalia since neither the drone nor its operator were under Rigalian direction and control. Both were under exclusive Morganian command, meaning that the attack cannot be attributed to Rigalia. In fact, the attack was due to force majeure, precluding any international wrongfulness. Furthermore, as the attack is not attributable to Rigalia, no duty to investigate or compensate Ardenia arises.

III.

Rigalias limited Mavazi ban is a prerequisite to Rigalia meeting its international

obligations under conventional international law. The ban applies to all Rigalians, and does not violate customary or conventional international law on non-discrimination, since it is a reasonable and objective limitation enacted to protect human rights and prevent terrorist attacks. Furthermore, the ban does not violate religious freedom, since conventional international law and jurisprudence justify limits on cultural traditions to secure equality for women. If wearing a Mavazi is held to be a religious obligation, the ban is nonetheless justifiable as a limit on the manifestation of religion under conventional international law. Moreover, if the ban violates the minority rights of ethnic-Zetians, it is justified under conventional international law to prevent the tribal councils subjugation of women. In the alternative, the ban has justifiably limited derogable rights due to the state of emergency in Rigalia.

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IV.

Ardenia has violated the OECD Anti-Bribery Convention by failing to investigate the

alleged criminal acts of RRI and MDI, and by failing to provide prompt and effective MLA to Rigalia. Ardenias failure to investigate cannot be justified on the ground of national security because no such exception exists under the Convention, nor was it Ardenias true motive for dropping the inquiry. Moreover, Ardenias failure to provide prompt and effective MLA cannot be justified on the grounds of bank secrecy, due to Article 9(3) of the Convention, or irrelevance, since the requested information is within the scope of Rigalias investigation. Additionally, Ardenias failure to respond to an issue of merit raised by the CRBC violated the OECD Decision on MNE Guidelines. Ardenias NCP was obligated to process the request regarding RRI, which is a MNE under the Guidelines, and the request did not undermine national investigations. Moreover, Ardenias NCP violated the Decision by failing to respond to the CRBCs second request for a meeting. Ardenia is unable to justify these violations under the customary international law doctrine of necessity, since they seriously impair Rigalias efforts to combat Zetian terrorists.

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PLEADINGS

I.

Drone strikes against terrorists in Rigalia and Ardenia are consistent with Rigalias rights under international law. A. Ardenia lacks standing to claim diplomatic protection for Zetian terrorists. Although all Zetians hold dual citizenship, 1 the principle of dominant and effective

nationality is decisive regarding the admissibility of claims. 2 Where an aggrieved individual is a national of both potential State parties to a dispute, only the State to which they have closer ties may make a claim on their behalf. 3 In this case, criteria such as place of residence, family connections, participation in public life and gravity of interests all weigh towards Rigalian being the terrorists master nationality. 4 Of the terrorist leaders targeted, only one was residing in Ardenia and he was merely using it as a safe haven from which to initiate attacks on Rigalia. 5 Therefore, only Rigalia may make a claim for diplomatic protection on behalf of the Zetian terrorists, and Ardenias claim is inadmissible. B. In any event, drone strikes conducted inside Rigalia with its consent are not prohibited under international law. i. Rigalia is entitled to use force to maintain order within its borders.

It is customary international law that States have the right to use force to maintain 1 Compromis, 8. 2 Merg Case, (1955) Italian-U.S. Conciliation Commission Decision No.55, p.236; International Law Commission, Draft Articles on Diplomatic Protection, U.N. Doc.A/61/10, (2006), art.7. 3 Malcolm Shaw, International Law, 6th ed. (Cambridge: University Press, 2008), p.815 [Shaw]. 4 Compromis, 8, 9, 13. 5 Compromis, 9. 1

domestic order. 6 The prohibition of the use of force found in the Charter of the United Nations (U.N. Charter) is limited to relations between States, and Article 2(7) thereof codifies the principle of State sovereignty7 by precluding foreign intervention in matters which are essentially within the domestic jurisdiction of any State. 8 As strikes against Zetian terrorists inside Rigalia are a purely domestic matter, the principle of State sovereignty applies. ii. Zetian terrorists are not fighting for self-determination.

A recognized exception to the State sovereignty principle is where a people are fighting against colonial oppression and alien occupation and against racist regimes in the exercise of their right to self-determination in accordance with the [U.N.] Charter. 9 Such conflicts are deemed international, 10 and States have a duty to refrain from using force against the oppressed people. 11 Rigalia recognizes the right of oppressed peoples to self-determination in accordance with the principles of the U.N. Charter and other international instruments to which it is a party, 12 but submits that the Zetian terrorists are not seeking self-determination in accordance

6 Shaw, n.3, p.1126. 7 Shaw, n.3, p.1148. 8 Charter of the United Nations, art.2(7) [U.N. Charter]. 9 Protocol Additional to the Geneva Conventions of 12 August 1949 (Protocol I), 8 June 1977, 1125 U.N.T.S. 3., art.1(4). 10 Shaw, n.3, p.1148. 11 UNGA, Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA.Res.2625(XXV), 24 October 1970, Preamble. 12 U.N. Charter, n.8, arts.15, 73; International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 U.N.T.S. 3, art.1 [ICESCR]; International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, art.1 [ICCPR]. 2

with those principles. First, the Northern Provinces have been an integral part of Rigalia since the countrys founding, and their populations have always enjoyed the full benefits of Rigalian citizenship. 13 Persons of Zetian ethnicity comprise 35% of the total Rigalian population and almost 100% of the populace in the Northern Provinces, 14 and enjoy the same protections under the law as every other Rigalian. 15 These facts show that the Zetians are neither under colonial oppression nor alien occupation, and that the Government of Rigalia is not a racist regime. Second, Zetian terrorists are not seeking liberation in accordance with the principles of the U.N. Charter. Rather, they are themselves oppressors seeking to continue their illegal subjugation of Zetian women. 16 Tribal councils require females over the age of 14 to wear a Mavazi, and punish those who refuse through expulsion, arbitrary detention and public flogging. 17 Additionally, they deny Zetian women the right to drive or have paid employment, and girls are often forcibly married as young as 8 or 9 years of age. 18 These rules and punishments violate Rigalian domestic law, 19 the principles of the U.N. Charter which promot[e] and encourage[e] respect for human rights and for fundamental freedoms for all

13 Compromis, 8. 14 Compromis, 2. 15 Compromis, 14. 16 Compromis, 13. 17 Compromis, 3. 18 Compromis, 4. 19 Compromis, 4. 3

without distinction,20 as well as important international treaties to which Rigalia is a party. 21 Rigalia seeks only to enforce existing domestic law and uphold U.N. principles, while the terrorists seek to defeat those principles and prolong their subjugation of Zetian women. Lastly, the sanctity of territorial integrity is a principle of customary international law, only to be violated in situations of the most extreme and unremitting persecution, amounting to the denial of a meaningful expression of self-determination. 22 The U.N. General Assembly has resolved that the right to self-determination: [S]hall not be construed as authorizing or encouraging any action that would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and selfdetermination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind. 23 As noted above, the Government of Rigalia treats all of its citizens equally under the law, regardless of their culture, ethnicity or any other characteristic. Limiting those aspects of Zetian cultural tradition which are incompatible with domestic and international human rights law does not alter that, nor does it deny Zetians the right to continued full participation in their

20 U.N. Charter, n.8, Preamble, art.1(3). 21 ICESCR, n.12, arts.2(2), 3, 6(1), 7(a); ICCPR, n.12, arts.2(1), 3, 7, 9(1), 18(2), 23(3); Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3, arts.34(a), 36, 37(a) [CRC]; Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, 1249 U.N.T.S. 13, Preamble, arts.1, 3 [CEDAW]. 22 Reference Re Qubec Secession, [1998] 2 SCR 217, 134 [Qubec Secession]; Shaw, n.3, p.523. 23 UNGA, Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, GA Res.50/6, 9 November 1995, art.1. 4

government through the Rigalian political system. 24 C. Rigalia is engaged in a non-international armed conflict with Zetian terrorists, in which international humanitarian law applies and extraterritorial operations are permitted. i. The hostilities between the Zetian terrorists and the State of Rigalia constitute a non-international armed conflict.

According to the International Criminal Tribunal for the former Yugoslavia (ICTY), an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups [emphasis added]. 25 For a situation to meet this definition, it is necessary that a certain threshold of armed violence be crossed, 26 it must be protracted, 27 and the organized armed group must have the necessary characteristics to be a party to an armed conflict. 28 Although non-international armed conflicts are governed by Common Article 3 and Additional Protocol II (APII) of the Geneva Conventions, neither of these indicate the threshold of violence required other than stipulating that APII does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other

24 Compromis, 21. 25 Prosecutor v. Dusko Tadi, IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995) (International Criminal Tribunal for the former Yugoslavia), 70 [Tadi]. 26 Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Trial Judgment (2 September 1998) (International Criminal Tribunal for Rwanda), 619. 27 Tadi, n.25, 70. 28 Prosecutor v. Boskoski and Tarculovski, IT-04-82-T, Trial Judgment (10 July 2008) (International Criminal Tribunal for the former Yugoslavia), 194-206 [Boskoski]. 5

acts of a similar nature. 29 With respect to the minimum duration required for an armed conflict to exist, sometimes very intense incidents are held to be armed conflicts despite being very short. One such incident was only 30 hours long. 30 This implies that a continuum exists, on which even a very lowintensity conflict could meet the threshold if it continued over a long period of time. In the present case fighting has been ongoing for over 2-years, 31 and therefore the minimum threshold of violence is met even if days or weeks elapse between attacks. International jurisprudence indicates that the intensity of violence should be measured, among other things, by the extent of casualties and material destruction. 32 Since fighting began in the Northern Provinces, Zetian terrorists have bombed a bridge, a hospital and a school, 33 killing at least 155 civilians and wounding 112 more. 34 In response to these atrocities, more than 50 drone strikes have been conducted, resulting in the elimination of 15 important terrorist leaders and an unconfirmed number of collateral casualties. 35 From this, the violence must be

29 Geneva Conventions of 12 August 1949, [1950] U.N.T.S. 32, art.3 [CA3]; Protocol Additional to the Geneva Conventions of 12 August 1949 (Protocol II), 8 June 1977, 1125 U.N.T.S. 609, art.1(2) [APII]. 30 Juan Carlos Abella v. Argentina (1997), Inter-Am. Comm. H.R. No.55/97, OEA/Ser.L/V/II.95 Doc. 7 rev. p.271; Noam Lubell, Extraterritorial Use of Force Against Non-State Actors (Oxford: University Press, 2010), p.105 [Lubell]. 31 Compromis, 15, 16, 27. 32 Prosecutor v. Haradinaj et al., IT-04-84-T, Trial Judgment (3 April 2008) (International Criminal Tribunal for the former Yugoslavia). 33 Compromis, 18. 34 Compromis, 18. 35 Compromis, 29. 6

characterized as more than a mere internal disturbance, and the necessary threshold is met. Additionally, Zetian terrorists constitute an organized armed group. In Prosecutor v. Boskoski and Tarculovski, the ICTY held that for an armed group to be considered organised, it would need to have some hierarchical structure and its leadership requires the capacity to exert authority over its members. 36 In the present case, the Zetian tribal councils meet those requirements. 37 The proposed Zetian flag, 38 a rank structure and a chain of command capable of exercising authority over the planning and initiation of all military actions within Rigalia 39 further support that the terrorists are an organized armed group. ii. International humanitarian law is lex specialis to the armed conflict between the Zetian terrorists and Rigalia, and permits extraterritorial operations.

In its Nuclear Weapons opinion, the International Court of Justice (ICJ) held that international humanitarian law is lex specialis during armed conflicts, and that violations of human rights could only be decided by reference to the law applicable in armed conflict and not deduced from international human rights law. 40 With regard to non-international armed conflicts, the ICTY in Tadi held that: International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international 36 Boskoski, n.28, 195, 206. 37 Compromis, 3, 13. 38 Compromis, 15. 39 Compromis, 30. 40 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] I.C.J. Rep. 226, 25 [Nuclear Weapons]. 7

humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there [emphasis added]. 41 As noted above, Common Article 3 and APII govern non-international armed conflicts. Both of these are applicable to armed conflict[s] not of an international character occurring in the territory of one of the High Contracting Parties. 42 APII includes the additional requirement that the organized armed group must exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. 43 Eminent theorists argue that, read contextually, Common Article 3, APII and Tadi permit military operations to be conducted against an organized armed group in the territory of another State, so long as that State is a party to the Geneva Conventions and so long as the group is carrying out attacks from the territory. 44 This court should therefore hold that Rigalia is engaged in a non-international armed conflict with the Zetian terrorists, that international humanitarian law applies as lex specialis, and that extraterritorial operations against terrorists operating in the Southern Provinces of Ardenia are lawful.

41 Tadi, n.25, 70. 42 CA3, n.29; APII, n.29, art.1(1). 43 APII, n.29, art.1(1). 44 Lubell, n.30, pp.99-104; Derek Jinks, September 11 and the Laws of War 28 Yale J. Intl L. 1 (2003), pp.40-41; Marco Sassli, Transnational Armed Groups and International Humanitarian Law (2006) Harvard University Program on Humanitarian Policy and Conflict Research, Occasional Paper No.6, p.9. 8

D. Drone strikes are a legitimate exercise of Rigalias inherent right to self-defence against an ongoing armed attack. i. The right to self-defence under Article 51 of the U.N. Charter includes defence against armed attacks conducted by non-state actors.

Article 51 of the U.N. Charter codified the jus cogens rule that States have the inherent right to defend themselves against armed attacks and does not, explicitly or implicitly, specify that the attack must be attributable to another State. 45 Customary international law has recognized the right to self-defence as including defence against attacks by non-state actors since the Caroline case of 1837. 46 Evidence of this is found in State practice: Iran and Turkey have both invoked Article 51 to attack Kurdish terrorists in Iraq, as has Israel to strike at Islamic Jihad in Syria and Hezbollah in Lebanon, as has Ethiopia to intervene against Islamic militias in Somalia. 47 Most analogous to the present case, however, is the invocation of Article 51 by the United States to conduct its own drone campaign against al-Qaeda in Pakistan. 48 Although not uncontroversial, neither the Security Council nor any State, save Pakistan itself, has objected. The right has also been explicitly affirmed by the U.N.. In the wake of the 9/11 terrorist attacks in the United States, the Security Council recognized, in the context of threats to international peace and security caused by terrorist acts, the inherent right of self-defence

45 U.N. Charter, n.8, art.51; Lubell, n.30, p.31. 46 Lubell, n.30, p.31; Shaw, n.3, p.1131; 47 Lubell, n.30, p.30. 48 Harold H. Koh, Speech: The Obama Administration and International Law online: <http://www.state.gov/s/l/releases/remarks/139119.htm>, 25 March 2010. 9

in accordance with the [U.N.] Charter. 49 Additionally, two judges of this court have opined that armed attacks can be perpetrated by non-state actors, 50 and as one of them wrote: It would be unreasonable to deny the attacked State the right to self-defence merely because there is no attacker State, and the [U.N.] Charter does not so require. 51 ii. Terrorist bombings and other attacks constitute an ongoing armed attack against Rigalia.

The ICJ has distinguished armed attacks from lesser incidents such as border skirmishes by holding that an armed attack will involve the most grave forms of the use of force. 52 Such force is epitomized by territorial intrusions, human casualties or considerable destruction of property. 53 Furthermore, if any single incident in a series is deemed insufficient to meet the threshold for an armed attack, then an accumulation of such incidents will still give rise to the right of self-defence. 54 As noted above, numerous terrorist bombings and other attacks have killed or wounded

49 UNSC, Threats to International Peace and Security Caused by Terrorist Acts, SC Res.1368, 12 September 2001, Preamble,[UNSCR 1368]; UNSC, Threats to International Peace and Security Caused by Terrorist Acts, SC Res. 1373, 28 September 2001, Preamble [UNSCR 1373]. 50 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Declaration of Judge Buergenthal, [2004] I.C.J. Rep. 240, 6; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Separate Opinion of Judge Kooijmans, [2004] I.C.J. Rep. 219, 35 [Wall-Kooijmans]; Lubell, n.30, p.32. 51 Wall-Kooijmans, n.50, 30. 52 Case Concerning Oil Platforms (Iran v. U.S.), [2003] I.C.J. Rep. p.161, 51 [Oil Platforms]. 53 Lubell, n.30, p.50. 54 Lubell, n.30, pp.51-53. 10

hundreds of people, and destroyed significant public infrastructure. 55 Such attacks are ongoing, and if anything the threat to Rigalia and its allies has intensified. 56 This court should therefore hold that Rigalia is under an ongoing armed attack by Zetian terrorists, and that its inherent right to self-defence under Article 51 of the U.N. Charter has been engaged. iii. Strikes against Zetian terrorists meet the requirements of self-defence.

Actions taken in self-defence against an armed attack must be necessary and proportionate, and must be conducted against legitimate military targets. 57 In the case of an ongoing armed attack, immediate resort to the use of force is justified in order to stop the attack. 58 Furthermore, where another State is being used for safe haven and is unwilling or unable to act, the victim State will have no option but to use extraterritorial force, and the requirements of necessity will have been met. 59 In the present case, the ongoing armed attack by Zetian terrorists, coupled with Ardenias failure to carry out its international obligations, is sufficient to demonstrate the necessity of the strikes in both Rigalian and Ardenian territory. 60 For defensive actions to be proportionate, they should be measured in relation to the threat that is being faced and the means necessary to end the attack. 61 This does not mean,

55 Compromis, 15, 18. 56 Compromis, 27. 57 Oil Platforms, n.52, 51; Nuclear Weapons, n.40, 41. 58 Lubell, n.30, p.45. 59 Nils Melzer, Targeted Killing in International Law (Oxford: University Press, 2008), p.288 [Melzer]; Lubell, n.30, p.46. 60 Compromis, 30. 61 Lubell, n.30, p.64. 11

however, that the defending State cannot use means disproportionate to those used by the attacker. 62 Customary international law, according to the International Committee of the Red Cross (ICRC), is that [l]aunching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited [emphasis added]. 63 In the present case the military advantage gained through the elimination of 15 top terrorist leaders, and particularly Adar Bermal, who was a direct participant 64 in the hostilities by virtue of being a major decision-maker in the planning and initiation of all military activities within Rigalia, 65 is significant compared to the expected harm to civilians and civilian objects. The death of Bermals relatives, while regrettable, is not excessive considering the number of innocent Rigalians whose deaths have been averted. Closely related to this is the requirement that the target be a legitimate military one, open to attack in the exercise of self-defence. 66 Under the customary international law principle of distinction, attacks directed against civilians are prohibited. 67 The view of the ICRC and leading

62 Roberto Ago, The Internationally Wrongful Act of the State, Source of International Responsibility. U.N. Doc A/CN.4/318/Add.5-7, (1971), 121. 63 ICRC Customary International Humanitarian Law database, Rule 14: Proportionality in Attack. online: <http://www.icrc.org/customary-ihl/eng/print/v1_rul_rule14>; Lubell, n.30, pp.65-66. 64 Melzer, n.59, pp.341-342, 426-427. 65 Compromis, 30. 66 Oil Platforms, n.52, 51. 67 ICRC Customary International Humanitarian Law database, Rule 1: The Principle of Distinction between Civilians and Combatants. online: http://www.icrc.org/customaryihl/eng/print/v1_rul_rule1. 12

commentators is that under international humanitarian law, ...members of [non-state] organized armed groups cease to be civilians for as long as they remain members. 68 In other words, civilians who join an organized armed group are considered legitimate military targets at all times while they remain members. Numerous examples of State practice by Israel, Russia, Pakistan, the United States and the United Kingdom support this. 69 As military leaders of an organized armed group and direct participants in hostilities, Commander Bermal and the other terrorists were legitimate targets. iv. States exercising the inherent right to self-defence may trespass upon neutral territory to respond to an armed attack.

As discussed above, it is lawful for a State engaged in a non-international armed conflict to conduct military operations in the territory of another State that is being used as a safe haven by the non-state organized armed group. 70 It would, therefore, be absurd to deny the same right to a State exercising its right to self-defence against an armed attack, particularly if the other State is unwilling or unable to take action against the non-state organized armed group themselves. 71 v. In the alternative, Ardenia is complicit in the terrorist bombings inside Rigalia, and is therefore a legitimate target of Rigalian self-defence.

Ardenias failure to honour its international obligations has made it a legitimate target of 68 ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law 90:872 Intl Rev. R.C., December 2008, p.71; Melzer, n.59, pp.341-342. 69 Thomas Hunter, Targeted Killing: Self-Defence, Preemption and the War on Terrorism (Charleston: Booksurge, 2009), pp.79-81; Melzer, n.59, p.xi. 70 See I.C(ii), above. 71 Lubell, n.30, pp.41-42. 13

Rigalian self-defence. In particular, Ardenia has tolerated Zetian terrorists operating within its borders, 72 refused to cooperate with Rigalian corruption investigators, 73 and, most significantly, signed a secret peace agreement offering to support a future Zetian State located on Rigalian territory. 74 These acts and omissions violate international conventions concerning the taking of hostages, 75 the suppression of terrorist bombings, 76 the financing of terrorism 77 and bribery of foreign public officials, 78 as well as U.N. Security Council Resolutions (UNSCR) 1368 and 1373. 79 As a result, Ardenia has effectively aligned itself with the Zetian terrorists, justifying any attack held to have been conducted upon Ardenia. 80 E. Rigalia has a duty to take action against terrorists using Ardenia as a safe haven under UNSCR 1373. Article 25 of the U.N. Charter makes decisions of the Security Council legally binding

72 Compromis, 19. 73 Compromis, 22-23. 74 Compromis, 20. 75 International Convention Against the Taking of Hostages, 17 December 1979, 1316 U.N.T.S. 205, art.4. 76 International Convention for the Suppression of Terrorist Bombings, 15 December 1997, 2149 U.N.T.S. 256, arts.5, 7. 77 International Convention for the Suppression of the Financing of Terrorism, 10 January 2000, 2178 U.N.T.S. 197, arts.8, 9. 78 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 17 December 1997, 337 I.L.M 8, 112 Stat. 3302, at art.5 [OECD Convention]. 79 UNSCR 1368, n.49, art.3; UNSCR 1373, n.49, arts.1, 2. 80 Lubell, n.30, pp.47-48. 14

upon all member States. 81 In UNSCR 1373 the Security Council [r]eaffirmed the need to combat by all means threats to international peace and security caused by terrorist acts [emphasis added], 82 and: Decide[d] that all States shall: (a) Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists; (b) Take the necessary steps to prevent the commission of terrorist acts,; (c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens; (d) Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens; 83 It went on to express its determination to take all necessary steps in order to ensure the full implementation of this resolution, in accordance with its responsibilities under the Charter [emphasis added]. 84 Given the failure of Ardenia to fulfill its obligations under this resolution, 85 Rigalia has a legal duty to conduct strikes upon terrorists operating in Ardenian territory, so as to carry into effect the legally binding instructions of the Security Council.

81 U.N. Charter, n.8, art.25; Shaw, n.3, p.1208. 82 UNSCR 1373, n.49, Preamble. 83 UNSCR 1373, n.49, arts.2(a)-2(d). 84 UNSCR 1373, n.49, art.8. 85 Compromis, 19-20. 15

II.

The accidental attack on the Bakchar Valley hospital was not an act of aggression and is not attributable to Rigalia, nor does Rigalia have any obligation to investigate the attack or compensate Ardenia. A. The attack on the Bakchar Valley hospital was not an act of aggression. i. The attack upon the hospital lacked the requisite animus agressionis to constitute an act of aggression.

It is customary international law that crimes against peace, including aggression, require both the actus reus and the appropriate mens rea, or animus agressionis. 86 The Rome Statute of the International Criminal Court specifies that an attack upon a hospital is a war crime, but only if it was carried out intentionally. 87 Although the jurisdiction of the International Criminal Court covers individual criminal responsibility, the same standards should be applied to States. As the hospital was not the intended target, and the missile that struck the hospital was launched in error, 88 the mental element required to make the attack an act of aggression is absent. ii. The U.N. Security Council has not declared the attack to be an act of aggression.

Article 39 of the U.N. Charter stipulates that the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression. 89 That this has not been determined in the present case indicates that the Security Council accepts the strike 86 Yoram Dinstein, War, Aggression and Self-Defence, 3rd ed. (Cambridge: University Press, 2001), p.125; U.S. v. Von Leeb et al., (1948) 11 N.M.T. 462 (Nuremberg Military Tribunal), p.486. 87 Rome Statute of the International Criminal Court, 17 July 1998, 2187 U.N.T.S. 3, art.8(2)(b)(ix). 88 Compromis, 30. 89 U.N. Charter, n.8, art.39. 16

against Adar Bermal to be part of a non-international armed conflict as well as a valid exercise of the right to self-defence, and the missile launched at the hospital to be an unfortunate mistake on the part of the Morganian drone operator. iii. The attack does not meet the definition of aggression adopted by the U.N..

The U.N. General Assembly has defined an act of aggression as the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State. 90 In order for the strike to constitute an act of aggression it would need to have been intentionally directed at Ardenia. 91 In the present case, Rigalias objectives were to gain a military advantage over the Zetian terrorists, to defend its citizens from ongoing Zetian attacks, and to carry out its obligation to act against international terrorism under UNSCR 1373. It would, therefore, constitute an error of law to characterize the attack as an act of aggression. B. The attack is not attributable to Rigalia. i. The drone which attacked the hospital was not under the direction and control of Rigalia.

Article 6 of the ILC Draft Articles on State Responsibility indicates that for a State to be responsible for the actions of an organ of another State which has been put at its disposal: Not only must the organ be appointed to perform functions appertaining to the State at whose disposal it is placed, but in performing the functions entrusted to it by the beneficiary State, the organ must also act in conjunction with the machinery of that State and under its exclusive direction and control, rather than on instructions from the sending State. [emphasis added]. 92 90 UNGA, Definition of Aggression, GA Res.3314 (XXIX), 14 December 1974, art.1. 91 Lubell, n.30, pp.26-27. 92 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, U.N. Doc.A/56/10, (2001), art.6 commentary 2 [State Responsibility]. 17

In the present case, although Morganian Predator drones are aiding Rigalian forces in combatting Zetian terrorism, they are not under Rigalias exclusive direction and control. The drones themselves are launched by Morganian soldiers from a Morganian Air Force base, and are operated remotely by members of the Morganian Army in Morganville. 93 Command of the operators is exercised entirely by Morgania, 94 with Rigalias sole contribution being to recruit and pay the informants who submit targeting information to Morganian authorities for action. 95 On that basis, this court should hold that the accidental attack on the hospital cannot to be attributed to Rigalia. ii. The attack on the hospital was due to force majeure.

Wrongfulness is precluded in situations of force majeure because the event was unavoidable. A situation of force majeure arises where three elements are met: (a) the act in question must be brought about by an irresistible force or an unforeseen event; (b) which is beyond the control of the State concerned; and (c) which makes it materially impossible in the circumstances to perform the obligation. 96 Not exercising direction or control of the drones, Rigalia lacked the means either to foresee or control the events which transpired in the control centre. 97 It was therefore materially impossible

93 Compromis, 28-29. 94 Compromis, 30. 95 Compromis, 29. 96 State Responsibility, n.92, art.23 commentary 2. 97 Compromis, 30. 18

for Rigalia to prevent the attack upon the hospital, making it a result of force majeure. C. Rigalia has no duty to investigate the attack or to compensate Ardenia. Rigalia concedes that States to which a serious violation of international humanitarian law is attributable have a duty both to investigate the violation 98 and to make reparations. 99 However, since the attack on the hospital is not attributable to Rigalia, nor to any organ or individual under its exclusive direction and control, and was in fact due to force majeure, neither duty arises here.

98 UNGA, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, GA Res.60/147, 16 December 2005, art.4 [UNGAR 60/147]. 99 UNGAR 60/147, n.98, art.15. 19

III. Rigalias limited ban on the wearing of the Mavazi for Zetian women and girls is consistent with international law. A. The Mavazi ban is required for Rigalia to meet its obligations under conventional international law. i. The Mavazi ban is required for Rigalia to comply with the International Covenant on Civil and Political Rights (ICCPR).

The ICCPR requires States to ensure the equal right of men and women to all rights set out in the Covenant. 100 Positive measures must be adopted to achieve the effective and equal empowerment of women, 101 and these may include measures designed to prevent violations which arise from specific regulations of clothing to be worn by women in public. 102 The ban is required because the tribal council Mavazi rule dictates that all Zetian women must wear a Mavazi or face expulsion, arbitrary detention or public flogging. 103 Such punishments violate the ICCPR, which requires that minorities have continuous access to their native culture, protects liberty and security, and prohibits inhuman or degrading treatment or punishment. 104 ii. The Mavazi ban is required for Rigalia to comply with the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

100 ICCPR, n.12, art.3. 101 UNHRC, General Comment No. 28, U.N. Doc. CCPR/C/21/Rev.1/Add.10, (2000), para.3 [GC28]. 102 GC28, n.101, 13. 103 Compromis, 3. 104 ICCPR, n.12, arts.7, 9, 27; GC28, n.100, 13; Shaw, n.3, p.295. 20

Article 2(f) of the CEDAW obliges States to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women. 105 The tribal council Mavazi rule constitutes discrimination against women under Article 1 of the CEDAW, since it is a custom that impairs the equality rights of Zetian women by restricting their activities and acting as a symbol of female subjugation. 106 iii. The Mavazi ban is required for Rigalia to comply with the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Article 3 of the ICESCR includes an obligation to protect, requiring States to take steps aimed directly towards the elimination of prejudices, customary and all other practices that perpetuate the notion of inferiority or superiority of either of the sexes. 107 This can be done by adopting legislation to eliminate discrimination and to prevent third parties from interfering directly or indirectly with the enjoyment of all human rights. 108 The Mavazi ban fulfils this obligation by abrogating the tribal council rule, which perpetuates female oppression by isolating women in the Northern Provinces. 109 B. Rigalias Mavazi ban does not violate customary or conventional international law on non-discrimination.

105 CEDAW, n.21, art.2. 106 CEDAW, n.21, art.1; Compromis, 3,16. 107 ICESCR, n.12, art.3; General Comment 16, UNESCOR, 34th Sess., U.N. Doc.E/C.12/2005/3, (2005), 19 [GC16]. 108 GC16, n.107, 19. 109 Compromis, para.14; Faegheh Shirazi & Smeeta Mishra, Young Muslim Women on the Face Veil (2010) 13(1) ICS 43, p.52 [Veil]. 21

First, the principle of non-discrimination is customary international law. 110 However, when a prohibition is worded in a neutral and all-embracing way, it indicates that the limitation does not violate the principle of non-discrimination. 111 The Mavazi ban is not discriminatory as it applies to all Rigalians. 112 Second, Article 26 of the ICCPR prohibits discrimination in law or in fact. 113 As previously discussed, however, Article 3 of the ICCPR requires States to take affirmative action in order toeliminate conditions which cause or help to perpetuate discrimination. 114 When these actions involve differentiation through legislation, it will not constitute discrimination under Article 26 so long as the legislation sets out differentiation that is reasonable and objective, with an aimto achieve a purpose which is legitimate under the Covenant. 115 The U.N. Human Rights Committee (UNHRC) applied these criteria in the Bhinder case to establish that a hard hat requirement, which constituted de facto discrimination against the Sikh religion, was nonetheless compatible with Article 26. 116 Any differential treatment of Zetian women which arises from the Mavazi ban is

110 Shaw, n.3, p.275. 111 Asma Jahangir, Civil and Political Rights, Including the Question of Religious Intolerance, UNESCOR, 2006, UN Doc.E/CN.4/2006/5, 55 [Jahangir]. 112 Compromis, 16. 113 ICCPR, n.12, art.26; UNHRC, General Comment 18, UN Doc. HRI/GEN/1/REV.1, (1994), para.12 [GC18]. 114 See I.A(i), above; GC18, n.113, 2,10. 115 GC18, n.113, 13. 116 UNHRC, Communication No. 208/1986, U.N. Doc. CCPR/C/37/D/208/1986, 6.2 [Bhinder]. 22

reasonable and objective, as it is only a limited restriction, banning the wearing of a Mavazi in public places or when receiving public services. 117 Furthermore, any differential treatment achieves a legitimate aim, as there is proportionality between the legislation and the objective sought. 118 Specifically, the enforcement of human rights and protection of the public from terrorist attacks is proportionate to the bans limited interference in the lives of Zetian women. 119 C. Rigalias Mavazi ban does not violate international law on religious rights and freedoms. i. The Mavazi ban justifiably limits a cultural tradition.

Wearing a Mavazi is a tribal custom rather than an obligation under the Masinto religion 120 and as such, there is no violation of religious rights under Article 18(1) of the ICCPR. 121 The characterization of the Mavazi as a cultural tradition is validated in two ways: First, ornate headscarves, which vary according to country or regime, are commonly cultural traditions. 122 The Mavazi has various colours and designs that are unique to each tribe, suggesting cultural rather than religious significance. 123 Second, the Mavazi, which covers the entire head (including the face), is analogous to a niqab (face veil), 124 which many Islamic

117 Compromis, 16. 118 Case Relating to Certain Aspects of the Laws on the use of Languages in Education in Belgium (1968) 1 E.H.R.R. 252, 10. 119 Compromis, 16. 120 Compromis, 14. 121 ICCPR, n.12, art.18. 122 Leyla Sahin v. Turkey, no. 44774/98, [2005] 44 E.H.R.R. 5, 92 [Sahin]. 123 Compromis, 3. 124 Compromis, 3; Veil, n.109, p.44. 23

women regard as a cultural tradition rather than a religious obligation. 125 Furthermore, international practice and opinion justifies limiting this tribal custom. The Council of Europe recognizes the necessity of legal restrictions on cultural traditions to offer women equal opportunities. 126 Specifically, it allows for limitations when traditions threaten a womans dignity and freedom. 127 The tribal council Mavazi rule threatens a womans freedom to dress as she chooses and violates her dignity, as she will be expelled, arbitrarily detailed or publicly flogged should she violate it. 128 ii. In the alternative, if wearing a Mavazi is a religious practice, conventional international law justifies the ban.

The Mavazi ban does not violate Articles 18(1) or 18(2) the ICCPR because Article 18 distinguishes between freedom of religion and freedom to manifest religion. 129 The latter includes the right to wear head coverings, such as the Mavazi. 130 Freedom to manifest religion may be limited under Article 18(3) of the ICCPR and Article 14(3) of the Convention on the Rights of the Child (CRC), as demonstrated in the Bhinder case. 131 The European Court of Human Rights (ECHR) set out a three-part test under Article

125 Council of Europe, P.A., 23st Sess., Islam, Islamism and Islamophobia in Europe, Resolution 1743 (2010), 15 [Islam]. 126 Islam, n.125, 17. 127 Islam, n.125, 15. 128 Compromis, 3. 129 ICCPR, n.12, art.18. 130 UNHRC, General Comment 22, U.N. Doc. HRI/GEN/1/Rev.1, (1994), 3, 4; Compromis, 3. 131 ICCPR, n.12, art.18(3); CRC, n.21, art.14(3); Bhinder, n.116, 6.2. 24

9(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, the language of which mirrors the aforementioned ICCPR and CRC articles. To determine if a right has been lawfully restricted, the limitation must: (1) be prescribed by law; (2) pursue a legitimate aim; and (3) be necessary. 132 Each situation must be evaluated on a case-by-case basis. 133 In the present case, all three elements are met. First, the ban is prescribed by law. This element requires that the impugned measure: (1) have some basis in domestic law; (2) be accessible to the person concerned; and (3) be foreseeable as to its effects. 134 The ban has a definite basis in domestic law since it was adopted by Rigalias Parliament. 135 The ban is accessible because similar legislation has been confirmed in case law, which is an accepted method of determining accessibility. 136 It is also accessible because Zetians have been consistently subject to Rigalian law, and President Khutai publicized the ban to the country on various occasions. 137 Finally, the effects of the ban were foreseeable, as President Khutai made his goal of modernizing the Northern Provinces known in May 2008. 138 Second, the ban has legitimate aims, which are to eliminate discrimination against 132 Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, art.9(2); Sahin, n.122, 72-155; Dogru v. France, no.27058/05, [2008], E.C.H.R., 49-78 [Dogru]. 133 Jahangir, n.111, 51. 134 Sahin, n.122, 74. 135 Compromis, 21. 136 Sahin, n.122, 78; Dogru, n.132, 59. 137 Compromis, 6, 14, 16. 138 Compromis, 14. 25

women, enforce the human rights of women and children, and protect the public from terrorist attacks. 139 Third, the ban is necessary to prevent terrorist attacks such as those in early 2009, 140 and to protect fundamental rights and freedoms - specifically gender equality and non-discrimination. International jurisprudence supports this claim, with the ECHR holding that it is difficult to reconcile the wearing of the Islamic headscarf with equality and non-discrimination. 141 Moreover, even if wearing the Mavazi is presented or perceived as a compulsory religious duty, the ECHR has held that this should not limit consideration of the impact the requirement has on those who exercise their right to religious freedom by choosing not to wear it. 142 As women who do not wear a Mavazi are expelled from Northern Provinces, or face arbitrary detention and public floggings, the Rigalian government has a duty to consider these impacts and legislate accordingly. 143 D. The Mavazi ban does not violate the rights of minorities under conventional international law. As ethnic Zetians comprise of 35% of the Rigalian population, Rigalia concedes that their rights to enjoy their own culture and profess and practice their own religion are protected under Article 27 of the ICCPR. 144 However, these rights do not authorize any State, group or

139 Compromis, 16. 140 Compromis, 18, 34. 141 Dahlab v. Switzerland, no.42393/98, [2001] V E.C.H.R. 462. 142 Sahin, n.122, 108. 143 Compromis, 3. 144 Compromis, 1; ICCPR, n.12, art.27. 26

person to violate the right to the equal enjoyment by women of any Covenant rights. 145 If Rigalia has violated the minority rights of ethnic Zetians, the justification of the Mavazi ban under Article 3 of the ICCPR, discussed above, overrides the violation. 146 E. In the alternative, the Mavazi ban is justified by the state of emergency in Rigalia. If Rigalia has violated its obligations under the ICCPR with respect to nondiscrimination, religious freedoms or minority rights, the violation is justified under Article 4 of the ICCPR, which allows a State to derogate temporarily from a part of its obligations under the Covenant, so long as the right is not listed in the Article. 147 Neither Article 26 nor 27, regarding non-discrimination and minority rights, respectively, are listed as non-derogable in Article 4(2). 148 Article 18, which deals with freedom of religion, is listed as non-derogable, however Article 18(3) sets out a permissible restriction on the right and thus, the manifestation of religion may nonetheless be derogated. 149 A three-part test determines if States have lawfully derogated obligations under Article 4: (i) the measure derogating from the provision must be of an exceptional and temporary nature; (ii) the situation must amount to a public emergency which threatens the life of the nation; and (iii) the State party must have officially proclaimed a state of emergency. 150 In the present case, the test is met.

145 GC28, n.101, 32; Shaw, n.3, pp.318-319. 146 See s.III.A(i), above. 147 UNHRC, General Comment 29, U.N. Doc CCPR/C/21/Rev.1/Add.11, (2001), 1 [GC29]. 148 ICCPR, n.12, art.4(2). 149 GC29, n.147, 7. 150 GC29, n.147, 2. 27

First, the ban is of an exceptional nature and, while it is not temporary, the ICJ has held that a quasi-permanent state of emergency due to continuous threats can allow for a specific derogation to continue for a prolonged period of time. 151 The ongoing terrorist attacks on Rigalia thus make it acceptable that the ban is not temporary in nature. 152 Secondly, the armed conflict with the Zetian terrorists amounts to a public emergency that threatens the life of the nation, as it has a collective effect on the community and the state. 153 Finally, President Khutais invocation of the emergency powers clause of the Rigalian constitution, coupled with his declaration of 22 March 2009, constitute a proclamation of the state of emergency. 154

151 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] I.C.J. Rep. 136, 127-136. 152 Compromis, 18. 153 Ren Provost, International Human Rights and Humanitarian Law (Cambridge: University Press, 2002) p.272; Compromis, 16, 18. 154 Compromis, 16, 21. 28

IV.

Ardenia has violated the OECD Anti-Bribery Convention and the OECD Decision on the MNE Guidelines. A. Ardenia has a duty to investigate the alleged criminal acts of RRI and MDI, and to provide mutual legal assistance (MLA) under the Convention. i. The alleged criminal acts of RRI and MDI violate Ardenias domestic laws.

In accordance with the OECD Anti-Bribery Convention (the Convention), Ardenia has implemented legislation criminalizing bribery of foreign public officials (FPOs). 155 Bribes are payments for the purpose of obtaining or retaining business or other improper advantage[s], including obtaining government contracts and seeking preferential treatment. 156 The Convention defines a FPO as any person exercising a public function in a foreign country or any official or agent of a public international organization. 157 Foreign bribery is a crime regardless of whether the bribe is done through an intermediary, or whether the advantage is for the [FPO] or a third party. 158 Leo Bikra, the director of RRI, is a FPO with family ties to the ZRF; therefore, MDIs payments to the ZRF to secure a contract renewal with RRI violate Ardenias legislation. 159 Furthermore, the tribal council leaders are FPOs as they exercise a public function; thus, MDIs

155 OECD Convention, n.78, art.1; OECD, Public Affairs Division, Policy Brief: Fighting Bribery in International Business Deals, September 2008, p.3 [Policy Brief]; Compromis, 38. 156 OECD Convention, n.78, art.1; Policy Brief, n.155, p.3. 157 OECD Convention, n.78, art.1. 158 Policy Brief, n.155, p.3. 159 Compromis, 10-12. 29

response to solicitations from the tribal councils for preferential treatment also violates Ardenias legislation. 160 ii. The alleged criminal acts of RRI and MDI do not fall under a small facilitation payments exception.

According to OECD Commentaries on the Convention (Convention Commentaries), small facilitation payments are small amounts paid to induce a government official to expedite fulfilment of a non-discretionary duty and do not constitute bribery under the Convention. 161 In the present case, MDIs support to the ZRF allegedly amounts to $10 million, which is not a small amount. 162 Furthermore, as there is no evidence that the undocumented fees being paid to the tribal councils are small, they do not fall under this exception either. 163 Alternatively, if the alleged acts of MDI do constitute facilitation payments, they should nonetheless be investigated. Based on comments from the OECD urging parties to combat facilitation payments in the OECD Recommendations for Further Combating Foreign Bribery (Anti-Bribery Recommendations), it is arguable that the most stringent domesticbribery laws applicable in a given case should be applied. 164 Since Rigalian law has no exception for

160 Compromis, 3, 12. 161 David Howard & Elisa Wiygul, FCPA Compliance: The Vanishing Facilitating Payments Exception?, (2010) online: < http://www.dechert.com/library/4-7-10-WCSLHoward_and_Wiygul-FCPA_Compliance-The_Vanishing_Facilitating_Payments_ Exception.pdf>, p.1. [FCPA]; OECD, Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and Related Documents, (Paris: OECD, 2010), online: OECD <http://www.oecd.org/dataoecd/4/18/38028044.pdf> at p.14, 9 [Convention Documents]. 162 Compromis, 12. 163 Compromis, 12. 164 Convention Documents, n.161, p.21, 6; FCPA, n.161, p.1. 30

facilitation payments, it is more stringent and should be applied. Furthermore, significant State practice suggests that facilitation payments can only be exempt from investigation when they are lawful under the laws of the recipients country. 165 As RRI and the tribal council members in question are Rigalian, Ardenias exception does not apply. 166 B. Ardenias failure to investigate and prosecute the alleged corruption violates the Convention. i. Ardenia violated Article 5 of the Convention.

The Anti-Bribery Recommendations state that complaints of briberyshould be seriously investigated and credible allegations assessed by competent authorities. 167 According to the Convention Commentaries, this recommendation compliments Article 5, and parties to the Convention have accepted it. 168 Ardenias decision to suspend the investigation at a preliminary stage did not satisfy the obligation to seriously investigate. 169 ii. Ardenia cannot justify its violation of Article 5 of the Convention on the ground of national security.

Ardenia cannot justify dropping the investigation due to a public interest in security. 170

165 Thomas F. McInerney, The Regulation of Bribery in the United States (2002) 73 Int Review of Penal Law 81, pp.82-85. 166 Compromis, 38. 167 Convention Documents, n.161, p.28. 168 Convention Documents, n.161, p.16. 169 Compromis, 25. 170 Compromis, 25. 31

There is no explicit national security exception under Article 5. 171 Additionally, by listing specific proscriptions in Article 5, treaty-makers did not imply that other factors are within the discretion of the parties. 172 Furthermore, despite some much-criticized national jurisprudence to the contrary, 173 there is no implicit national security exception under customary international law, and commentators have rejected an open-ended right to national security exceptions to treaties. 174 In any event, national security was not the reason Ardenia dropped the inquiry. As President Arwen hinted, Ardenia dropped the investigation due to economic concerns. 175 This is not justifiable under Article 5, which states that investigations shall not be influenced by considerations of national economic interest. 176 Furthermore, Public Prosecutor Strong was not exercising legitimate prosecutorial discretion under Article 5 because, as the Convention Commentaries suggest, it is required that prosecutorial discretion not [be] subject to improper influence by concerns of a political nature. 177 Since the Convention requires a broad reading of political concerns, Prosecutor Strong could not legitimately drop his investigation due to

171 Susan Rose-Ackerman & Benjamin Billa, Treaties and National Security (2008) 40 International Law and Politics 437, p.438 [Rose-Ackerman]. 172 Rose-Ackerman, n.171, p.459. 173 R. v. Director of the Serious Fraud Office, [2008] UKHL 60. 174 Rose-Ackerman, n.171, pp.441, 490. 175 Compromis, 25. 176 OECD Convention, n.78, art.5. 177 Convention Documents, n.161, p.16, 27. 32

economic concerns stemming from the political lobbying of corporations, such as MDI. 178 Additionally, the principle of pacta sunt servanda obliges parties to perform treaties in good faith. 179 Ardenia violated this by claiming that the investigation was dropped due to national security concerns when its true motives were otherwise. iii. In the alternative, the issue should be resolved in favour of Rigalia.

Commentators assert that ambiguities surrounding Article 5 should be resolved in favour of vigorous enforcement. 180 Thus, regardless of uncertainty regarding Strongs motives, Ardenias actions should be interpreted as a breach of the Convention. Furthermore, Article 5 should be vigorously enforced because Ardenias failure to prosecute allegations of corruption will itself have national security consequences. 181 C. Ardenias failure to provide MLA to Rigalia violates Article 9(1) of the Convention, and is not justifiable. Article 9(1) states that each Party shallprovide prompt and effective legal assistance to another Party for the purpose of criminal investigations [emphasis added]. 182 Ardenias failure to respond to Rigalias MLA request for over a year violated this obligation. 183 Furthermore, none of Ardenias justifications address its failure to provide the correspondence between Clyde Zangara/ZRF officers and Leo Bikra/the President of MDI; this is a flagrant 178 Rose-Ackerman, n.171, p.441. 179 John H. Currie, Public International Law, 2nd ed. (Toronto: Irwin Law, 2008), p.153. 180 Rose-Ackerman, n.171, p.459. 181 Rose-Ackerman, n.171, p.459. 182 OECD Convention, n.78, art.9(1). 183 Compromis, 23, 24. 33

violation of Article 9(1). The failure to provide MDIs bank records cannot be justified, as Article 9(3) of the Convention states that a party cannot decline to render MLA on the ground of bank secrecy. 184 Furthermore, Ardenia cannot justify failing to provide correspondence between ZRF officers and members of the tribal councils by claiming it is not relevant. 185 In the present case, the investigation involves determining if MDI supported the ZRF to renew its contract with RRI. 186 The tribal council members are influential associates of the ZDP, which is allegedly receiving funding from the ZRF, thus the aforementioned correspondence is within the scope of the investigation under Article 9(1). 187 D. Ardenia has breached the Decision of the Council on the OECD Guidelines for Multinational Enterprises (the Decision). i. The Decision and the Procedural Guidance (the Guidance) are legally binding.

Under the Decision, adhering States are required to set up National Contact Points (NCP) to handle enquiries about all matters covered in the OECD Guidelines for Multinational Enterprises (the Guidelines). 188 The Decision is legally binding on Ardenia, as OECD

184 Compromis, 24; OECD Convention, n.78, art.9(3). 185 Compromis, 24. 186 Compromis, 12. 187 Compromis, 9, 12; OECD Convention, n.78, art.9(1). 188 OECD, OECD Guidelines for Multinational Enterprises, (Paris: OECD, 2008), online: OECD <http://www.oecd.org/dataoecd/56/36/1922428.pdf>, p.30 [Guidelines Materials]. 34

decisions are legally binding on all Member[s]. 189 Furthermore, the Decision states that NCPs shall take due account of the Guidance. 190 The use of the term shall implies that the Guidance is legally binding as well. 191 ii. Ardenias NCP breached the Decision by failing to respond to the CRBC.

The Guidance states that NCPs will respond to enquiries about the Guidelines fromnon-governmental organizations. 192 According to the Commentary on the OECD Guidelines for Multinational Enterprises (the Guidelines Commentary), the NCP is expected to respond to interested parties following an initial assessment; should the NCP decide the issue does not merit further consideration, it must give reasons. 193 The allegations in the present case are significant, and indicate an issue of merit. The CRBC, a non-governmental organization, complained that MDI and RRI violated chapter VI of the Guidelines, based on allegations that MDI retained business with RRI by offering to fund the ZRF, and obtained improper advantages by responding to solicitations from the tribal councils to pay undocumented fees. 194 The three reasons given by Ardenias NCP, discussed below, do not justify the decision to terminate the investigation after an initial

189 OECD, Legal Affairs Division, Legal Instruments, online: <http://www.oecd.org/document /46/0,3746,en_21571361_38481278_40899182_1_1_1_1,00.html>[Legal Instruments]; Compromis, 38. 190 Guidelines Materials, n.188, p.30. 191 Guidelines Materials, n.188, p.30. 192 Guidelines Materials, n.188, pp.33-34. 193 Guidelines Materials, n.188, p.59. 194 Guidelines Materials, n.188, p.21. 35

assessment. 195 First, there is a sufficient nexus between the alleged misconduct and Ardenia to justify the CRBCs decision to contract Ardenias NCP. Specifically, the tribal council is composed of ethnic Zetians who have citizenship in Ardenia; thus, the improper advantage it received spanned both countries. 196 Furthermore, the ZRF, which allegedly obtained funds from MDI, has offices in Ardenia. 197 In any event, the Guidelines Commentary states that, where appropriate, issues may be pursued at the bilateral level. 198 If it is determined that the CRBC erred by failing to contact Rigalias NCP, the CRBC was nonetheless correct in contacting Ardenias NCP due to the aforementioned nexus. Second, RRI is a multinational enterprise (MNE) under the Guidelines, which state that MNEs are entities established in more than one country. 199 By contracting work to MDI, RRI established itself in a second country. 200 In the alternative, if RRI is not a MNE, the Guidelines state that multinational and domestic enterprises are subject to the same expectations wherever the Guidelines are relevant to both. 201 As the Guidelines apply to MDI, a MNE working for RRI, the Guidelines are also relevant to RRI. 202

195 Compromis, 26. 196 Compromis, 8. 197 Compromis, 11. 198 Guidelines Materials, n.188, p.58. 199 Guidelines Materials, n.188, p.12. 200 Compromis, 10. 201 Guidelines Materials, n.188, p.12. 202 Compromis, 10. 36

Third, the Guidelines apply regardless of investigations in Ardenia and Rigalia. According to the Guidelines Commentary, the Guidelines are supplementary principles and standards of behaviour. 203 In this case, the Guidelines do not undermine national investigations; rather, they work in conjunction with Ardenia and Rigalias corruption investigations. iii. Ardenias NCP breached the Decision by failing to respond to the CRBCs second request.

According to the Guidance, where an issue raised merits further consideration, the NCP will consult and assist the NCP in another country. 204 Additionally, the Decision states that NCPs in different countries shall co-operateon any matter related to the Guidelines. 205 Ardenias NCP violated these obligations by failing to respond to the CRBCs request for a meeting involving Ardenia and Rigalias NCPs. 206 E. Ardenia cannot justify violating the Convention under customary international law. States can invoke the doctrine of necessity when it does not seriously impair an essential interest of the Statetowards which the obligation exists.207 It is within Rigalias essential interest to complete the corruption investigation, as it is engaged in armed conflict against the Zetian terrorists and any funds being funnelled to the ZDP or the tribal councils would likely find

203 Guidelines Materials, n.188, p.39. 204 Guidelines Materials, n.188, p.34. 205 Guidelines Materials, n.188, p.30. 206 Compromis, 26. 207 State Responsibility, n.192, p.49. 37

their way into the hands of Rigalias enemies. 208 Thus Ardenia is unable to invoke necessity, and must carry out its obligations under the Convention.

208 Compromis, 12, 21. 38

PRAYER FOR RELIEF

For the reasons set out in this Memorial, the State of Rigalia requests the Court to adjudge and declare that: I. Predator drone strikes against Zetian terrorists in Rigalia and Ardenia are consistent with Rigalias rights under international law;

II. The accidental attack on the Bakchar Valley hospital was neither an act of aggression nor attributable to Rigalia;

III. Rigalias limited ban of the Mavazi for Zetian women and girls is consistent with international law; and

IV. Ardenias failure to investigate alleged corruption involving RRI and MDI, its failure to provide legal assistance to Rigalia in conducting its own investigation, and the failure of its National Contact Point to respond to a complaint by the Committee for Responsible Business Conduct, constitute breaches of its international obligations under the OECD Anti-Bribery Convention and Decision on MNE Guidelines.

All of which is respectfully submitted, Team 467R Agents for the Government of the State of Rigalia

39