273A

INTERNATIONAL COURT OF JUSTICE

THE CASE CONCERNING THE ZETIAN PROVINCES

THE STATE OF ARDENIA

v.
THE STATE OF RIGALIA

2011
MEMORIAL FOR APPLICANT

TABLE OF CONTENTS

TABLE OF CONTENTS ......................................................................................................... ii

INDEX OF AUTHORITIES .................................................................................................. vii

1.

TREATIES AND CONVENTIONS ........................................................................................ vii

2.

UNITED NATIONS RESOLUTIONS AND OTHER DOCUMENTS ........................................... viii

3.

DOCUMENTS OF INTERNATIONAL ORGANIZATIONS ......................................................... ix

3.1. OECD DOCUMENTS ................................................................................................. ix
3.2. DOCUMENTS OF OTHER INTERNATIONAL ORGANIZATIONS ......................................... ix

4.

INTERNATIONAL CASES AND ARBITRAL DECISIONS ........................................................ ix

5.

MUNICIPAL CASES AND LAWS ......................................................................................... xi

6.

TREATISES AND OTHER BOOKS ...................................................................................... xii

7.

JOURNAL ARTICLES ....................................................................................................... xiii

STATEMENT OF JURISDICTION .................................................................................... xiv

QUESTIONS PRESENTED BEFORE THE COURT.......................................................... xv

STATEMENT OF FACTS .................................................................................................... xvi

SUMMARY OF PLEADINGS .............................................................................................. xxi

PLEADINGS ............................................................................................................................ 1
A.

RIGALIAS PREDATOR DRONE STRIKES IN RIGALIA AND IN ARDENIA VIOLATE

INTERNATIONAL LAW AND THE COURT SHOULD ORDER THEIR IMMEDIATE CESSATION . 1

I.

RIGALIAS STRIKES IN RIGALIA AND ARDENIA VIOLATE IHRL........................................... 1

ii

1.

IHRL is the legal regime applicable to Rigalias strikes ....................................... 1

(a)

(b)

II.

III.

There is no armed conflict between Rigalia and the Zetians ...................... 2

i)

There is no international armed conflict (IAC) .............................. 2

ii)

There is no non-international armed conflict (NIAC) .................... 3

The ICCPR binds Rigalia also when it strikes in Ardenia.......................... 3

2.

Ardenia has standing because Rigalia breaches erga omnes obligations ............... 4

3.

Rigalias strikes violate the ICCPR ...................................................................... 5

(a)

The strikes violate the principles of due process ....................................... 5

(b)

The strikes violate the right to life............................................................. 6

ALTERNATIVELY, RIGALIAS STRIKES IN RIGALIA AND ARDENIA VIOLATE IHL.................. 7

1.

Were the Court to rule that there is an armed conflict, then it is a NIAC............... 7

2.

Ardenia has standing because Rigalia breaches erga omnes obligations ............... 7

3.

Rigalias strikes violate IHL ................................................................................ 8

(a)

The strikes violate the principle of distinction ........................................... 8

(b)

The strikes violate the principle of proportionality .................................... 9

ADDITIONALLY, RIGALIAS STRIKES IN ARDENIA VIOLATE ARDENIAS SOVEREIGNTY ...... 10

1.

Ardenia did not consent to the strikes ................................................................. 10

2.

Rigalias strikes are not a lawful exercise of its right to self-defense .................. 11
(a)

Rigalia was not the victim of an armed attack ......................................... 11

(b)

Assuming there was an armed attack, it was not attributable to Ardenia . 12

(c)

In any event, the strikes are unnecessary ................................................ 13

IV.

IN

LIGHT OF THE ABOVE, ARDENIA RESPECTFULLY ASKS THE COURT TO ORDER THE
IMMEDIATE CESSATION OF THE STRIKES .......................................................................... 13

B.

THE ATTACK ON THE BAKCHAR VALLEY HOSPITAL (THE HOSPITAL) IS ATTRIBUTABLE

TO RIGALIA, RIGALIA HAS AN OBLIGATION TO INVESTIGATE THE ATTACK AND TO
COMPENSATE ARDENIA THEREFORE AND, MOREOVER, THE ATTACK WAS A
iii

DISPROPORTIONATE AND UNLAWFUL ACT OF AGGRESSION AGAINST THE PEOPLE OF

ARDENIA....................................................................................................................... 14

I.

THE

ATTACK IS ATTRIBUTABLE TO RIGALIA BECAUSE IT FORMS PART OF RIGALIAS

UNLAWFUL CAMPAIGN OF DRONE STRIKES IN ARDENIA; CONSEQUENTLY, RIGALIA MUST
INVESTIGATE AND COMPENSATE ARDENIA THEREFORE .................................................... 14

1.

The attack is attributable to Rigalia because it acknowledged and adopted it as part

of its campaign .................................................................................................. 14
(a)

The attack is not attributable to Rigalia on any other ground of

attributability other than acknowledgment and adoption ........................ 15

(b)

Rigalias acknowledgement and adoption of the attack is unequivocal.... 16

2.

The attack is an IWA because it forms part of an unlawful campaign of drone

strikes ................................................................................................................ 17

3.

Rigalia has to make reparation in the form of investigation and compensation ... 17
(a)

(b)
II.

i)

Rigalia must investigate the attack on the basis of IHRL ............ 18

ii)

Rigalia must investigate the attack on the basis of IHL ................ 18

Rigalia must fully compensate Ardenia for the attack, notwithstanding

Morganias possible co-responsibility .................................................... 19

WERE

THE COURT TO RULE THAT RIGALIAS STRIKES IN ARDENIA WERE NOT UNLAWFUL,
THE ATTACK IS NEVERTHELESS ATTRIBUTABLE TO RIGALIA; CONSEQUENTLY, RIGALIA
MUST STILL INVESTIGATE AND COMPENSATE ARDENIA THEREFORE ................................. 20

1.

III.

Rigalia must investigate the attack as a form of satisfaction ................... 18

The attack is attributable to Rigalia on the basis of its joint military action with
Morgania .......................................................................................................... 20
(a)

Rigalia contributed to the attack on the Hospital .................................... 20

(b)

Rigalias contribution is attributable to it ............................................... 21

2.

The attack is an IWA because it breached IHL ................................................... 21

3.

Rigalia has to make reparation for the attack on the Hospital in the form of
investigation and compensation ......................................................................... 22

MOREOVER, THE ATTACK IS AN ACT OF AGGRESSION AGAINST ARDENIA ......................... 23

iv

C.

RIGALIAS

I.

RIGALIAS BAN VIOLATES THE PRINCIPLE OF NON-DISCRIMINATION UNDER INTERNATIONAL

LAW............................................................................................................................... 24

II.

III.

BAN OF THE MAVAZI FOR ZETIAN WOMEN AND GIRLS VIOLATES THEIR
RIGHTS UNDER INTERNATIONAL LAW ........................................................................... 24

1.

The ban is not objectively and reasonably justifiable .......................................... 25

2.

The ban is not proportional ................................................................................ 26

RIGALIAS BAN IS NOT A LAWFUL LIMITATION OF THE FREEDOM TO MANIFEST ONES

RELIGION ....................................................................................................................... 28
1.

The enforcement of human rights is not one of the limitation grounds of Article
18(3) ICCPR ...................................................................................................... 29

2.

The ban is not necessary to enhance public safety .............................................. 30

ALTERNATIVELY, RIGALIAS BAN IS NOT A LAWFUL DEROGATION UNDER ARTICLE 4 ICCPR

..................................................................................................................................... 30
1.

The ban is not proportional ................................................................................ 31

2.

The ban does not conform with Rigalias obligations under international law .... 32

D.

ARDENIA DID NOT VIOLATE THE OECD ANTI-BRIBERY CONVENTION (ABC) OR THE
OECD DECISION ON MNE GUIDELINES ...................................................................... 32

I.

ARDENIA DID NOT VIOLATE THE ABC ............................................................................. 33

1.

2.

Ardenia did not breach any obligation to investigate and prosecute allegations of
bribery ............................................................................................................... 33
(a)

Ardenia initiated an inquiry into the activities of MDI ............................ 33

(b)

Moreover, Ardenia has prosecutorial discretion .................................... 34

Ardenia did not fail to comply with the ABCs MLA provision ..................................... 35
(a)

Ardenia was entitled to assess Rigalias MLA Request under the ABCs
provision on MLA ................................................................................... 35

(b)

The MLA provision does not oblige Ardenia to guarantee the outcome of
Rigalias MLA request ............................................................................ 36

(c)

In any event, Ardenia did not deny MLA on grounds of bank secrecy but
was complying with the ABC in a reasonable manner ............................. 38

II.

ARDENIA DID NOT VIOLATE THE OECD DECISION ON MNE GUIDELINES ......................... 39
1.

Rigalia has no standing to invoke the OECD Decisions on MNE Guidelines ..... 39

2.

In any event, Ardenia did not violate the OECD Decision on MNE Guidelines .. 40

PRAYER FOR RELIEF ........................................................................................................ 43

vi

INDEX OF AUTHORITIES

1.

TREATIES AND CONVENTIONS

Charter of the United Nations, 15 U.N.C.I.O. 335 (1945) ....................................................10, 24

Convention on Combating Bribery of Foreign Public Officials in International Business
Transactions, http://www.oecd.org/dataoecd/4/18/38028044.pdf (1997) ....... 34, 35, 36, 38
Convention on the Elimination of All Forms of Discrimination against Women, 1 U.N.T.S. 1249,
(1979) ................................................................................................................ 24, 26, 27
Convention on the Organization for Economic Cooperation and Development, 888 UNTS 179
(1960) ........................................................................................................................... 40
Convention on the Rights of the Child, 1577 U.N.T.S. 3 (1989)..................................... 24, 26, 28
Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, 75 U.N.T.S. 31 (1949) ...................................................................... 8
Geneva Convention (II) for the Amelioration of the Condition of the Wounded, Sick and
Shipwrecked Members of the Armed Forces at Sea, 75 U.N.T.S. 85 (1949) .................... 8
Geneva Convention (III) Relative to the Treatment of Prisoners of War, 75 U.N.T.S. 135 (1949) .
....................................................................................................................................... 8
Geneva Convention (IV) Relative to the Protection of Civilian Persons in Times of War, 5
U.N.T.S. 2871(1949) ....................................................................................................... 8
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (1966) ..... 3, 6, 24, 31, 32
International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3 (1966) ....26, 27
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protections of Victims of International Armed Conflicts, 1125 U.N.T.S. 3 (1977) ........... 2
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protections of Victims of Non-International Armed Conflicts, 1125 U.N.T.S. 609 (1977) .
................................................................................................................................... 3, 8
Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 33 (1969)............................ 33, 34, 37

vii

2.

UNITED NATIONS RESOLUTIONS AND DOCUMENTS

Basic Principles and Guidelines on the Right to Remedy and Reparation for victims of
International human rights and International Humanitarian Law, G.A. Res. 60/147,
U.N.Doc. A/60/147 (2006) .......................................................................................19, 22
Declaration on Principles of International Law concerning Friendly Relations and Co-operation
Among States, G.A. Res. 2625 (XXV), U.N.Doc. A/1883 (1970) .................................. 10
Definition of Aggression, G.A. Res. 3314, U.N.Doc. A/9631 (1974) ........................................ 23
Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the
ILC on the Work of its Fifty-third Session, U.N.Doc. A/56/10 (2001) ...... 5, 14, 15, 17, 19
HRC, Concluding Observations on Israel, U.N.Doc. CCPR/CO/78/ISR (2003) .......................... 6
HRC, General Comment 18, Non-discrimination, U.N.Doc. HRI/GEN/1/REV.6 (2003) ........... 24
HRC, General Comment 22 (Article 18), U.N.Doc. HRI/GEN/1/Rev.6 (2003) .............. 28, 29, 30
HRC,

General Comment 29, States of Emergency (article 4 ICCPR), U.N.Doc.

CCPR/C/21/Rev.1/Add.11 (2001) ............................................................................. 5, 28

HRC, General Comment 31, Nature of the Legal Obligation Imposed on States Parties to the
Covenant, U.N.Doc. CCPR/C/21/ Rev. 1/Add/13 (2004) ................................................. 3
HRC, General Comment 6, Right to Life (Article 6), CCPR General Comment 30/04/82 No.6,
(1982) ............................................................................................................................. 6
Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, U.N.Doc. A/
HRC.14/24 Add.6 (2010) ................................................................................................ 6
Report submitted by Asma Jahangir, Special Rapporteur on freedom of religion or belief:
Mission to France (18-19 September 2005), E/CN.4/2006/5/Add.4 (2006).................... 27
S.C. Res. 573, U.N.Doc. S/Res/573 (1985) ............................................................................... 23
UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation
Provisions in the International Covenant on Civil and Political Rights, E/CN.4/1985/4
(1984) ........................................................................................................................... 31
Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc A/810 at 71 (1948) . 24,
26

viii

3.

DOCUMENTS OF INTERNATIONAL ORGANIZATIONS

3.1.

OECD DOCUMENTS

OECD Decision of the Council on the OECD Guidelines for Multinational Enterprises (2000) 40
OECD Declaration on International Investment and Multinational Enterprises (2000) ... 40, 41, 42
OECD Guidelines for Multinational Enterprises (2000) ............................................................ 40
OECD, Investment Committee, Brazil, Reviews of Foreign Direct Investment Series, (1998).......
................................................................................................................................39, 40
OECD, Investment Committee, Estonia, Reviews of Foreign Direct Investment Series, (2001) ....
................................................................................................................................39, 40
OECD, Investment Committee, Lithuania, Reviews of Foreign Direct Investment Series, (2001) .
................................................................................................................................39, 40

3.2.

DOCUMENTS OF OTHER INTERNATIONAL ORGANIZATIONS

Inter-American Commission on Human Rights, Third Report on the Situation of Human Rights in
Colombia, OEA/ Ser.L./II. 102 Doc. 9 rev. 1 (1999)........................................................ 9
OAS, Resolution of the twenty-fifth meeting of consultation of ministers of foreign affairs,
Doc. OEA:Ser;F/iI.25, RC/RES.1/08 rev (2008)............................................................ 23

4.

INTERNATIONAL CASES AND ARBITRAL DECISIONS

Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia & Herzegovina. v. Serbia & Montenegro), 2007 I.C.J....................................... 12
Case Concerning Barcelona Traction Light and Power Company Limited (Belgium v. Spain)
1970 I.C.J........................................................................................................................ 4
Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the
Congo v. Uganda), 2005 I.C.J. ............................................................................. 3, 11, 12
Case Concerning Certain Questions of Mutual Legal Assistance in Criminal (Djibouti v. France),
2008 I.C.J.................................................................................................................36, 37
Case Concerning the Factory at Chorzw, Merits, 1928 P.C.I.J...........................................13, 17

ix

Diplomatic and Consular Staff in Tehran (United States v. Iran), 1980 I.CJ. ............................ 14
Dissenting Opinion of Judge Tanaka, South-West Africa cases, 1966 I.C.J................................ 24
ECtHR, Andreou v. Turkey, 45653/99 , 27 October 2009 ............................................................ 4
ECtHR, Case relating to certain aspects of the laws on the use of languages in education in
Belgium, 23 July 1968 ............................................................................................24, 25
ECtHR, Dahlab v. Switzerland, 42393/98, 15 February 2001.................................................... 28
ECtHR, Dogru v. France, 27058/05, 4 December 2008 ............................................................ 27
ECtHR, Isayeva v. Russia, 57947/00,57948/00 and 57949/00, 24 February 2005 ...................... 18
ECtHR, Issa and Others v. Turkey, 31821/96, 16 November 2004 .............................................. 4
ECtHR, Leyla ahin v. Turkey (Grand Chamber), 44774/98, 10 November 2005 ..................... 27
ECtHR, Marckx v. Belgium, 13 June 1979 ................................................................................ 24
ECtHR, McCann and Others v. United Kingdom, 19009/04, 27 September 1995 .................. 6, 18
ECtHR, McKerr v. the United Kingdom, 28883/95, 4 May 2001 ................................................ 6
ECtHR, Pad and Others v. Turkey, 60167/00, 28 June 2007 ....................................................... 4
ECtHR, Solomou and Others v. Turkey, 36832/97, 24 June 08 .................................................... 4
ECtHR, X v. United Kingdom, 5 November 1981 ..................................................................... 25
Gabkovo-Nagymaros Project (Hungary v. Slovakia), 1997 I.C.J. ......................................34, 38
HRC, Barboeram-Adhin and Others v. Suriname, Comm. No. 146/1983 and 148 to 154/1983,
U.N.Doc. Supp. No. 40 (A/40/40) at 187 (1985).............................................................. 6
HRC, Bautista de Arellana v. Colombia, Comm. No. 563/1993, U.N.Doc.
CCPR/C.35/D/363/1993 (1995)..................................................................................... 18
HRC, F.H. Zwaan-de Vries v. The Netherlands, Comm. No. 182/1984, U.N.Doc. CCPR/C/OP/2
(1990) ........................................................................................................................... 24
HRC, Guido Jacobs v. Belgium, Comm. No. 943/2000, U.N.Doc. CCPR/C/81/D/943/2000 (2004)
..................................................................................................................................... 24
HRC, Hudoyberganova v. Uzbekistan, Comm. No. 931/2000 U.N.Doc. CCPR/C/82/D/931/2000
(2004) ......................................................................................................................27, 28

HRC, Husband of Maria Fanny Suarez de Guerrero v. Columbia, Comm. No. R.11/45, U.N.
Doc. Supp. No. 40 (A/37/40) (1982) ............................................................................... 6
HRC, Kavanagh v. Ireland, Comm. No. 1114/2002, U.N.Doc. CCPR/C/76/D/1114/2002/Rev.1
(2002) ......................................................................................................................24, 25
HRC, Riley et al. v. Canada, Comm. No. 1048/2002, U.N.Doc. CCPR/C/74/D/1048/2002 (2002)
..................................................................................................................................... 25
HRC, S.W.M. Broeks v. The Netherlands, Comm. No. 172/1984, U.N.Doc. CCPR/C/OP/2 (1990)
..................................................................................................................................... 24
HRC, Singh Bhinder v. Canada, Comm. No. 208/1986, U.N.Doc. CCPR/C/37/D/208/1986
(1989) ........................................................................................................................... 25
ICTY, Prosecutor v. Tadi, Trial Judgment, IT-94-1-IT, 7 May 1997 ......................................... 3
Inter-American Court of Human Rights, Advisory Opinion No. 4, Proposed amendments to the
naturalization provisions of the Constitution of Costa Rica. ......................................... 25
Legal Consequences of the Construction of the Wall on Palestinian Territory, Advisory Opinion,
2004 I.C.J............................................................................................................ 4, 7, 8,11
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. ............. 7, 8, 11
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), 1986
I.C.J. ........................................................................................................................10, 11
Minority schools in Albania, Series A/B, No. 64, 1935 P.C.I.J. ................................................. 32
Oil Platforms (Islamic Republic of Iran v. U.S.), 2003 I.C.J. ................................................11, 13
Separate Opinion of Judge Simma, Case Concerning Armed activities on the Territory of the
Congo (Democratic Republic of the Congo v. Uganda), 2005 I.CJ. ................................. 8
The Corfu Channel Case (United Kingdom v. Albania), 1949 I.C.J. .......................................... 23

5.

MUNICIPAL CASES AND LAWS

Dcision n 2010-613 DC, Loi interdisant la dissimulation du visage dans lespace public (2010)
..................................................................................................................................... 27
Hamdan v. Rumsfeld, Secretary of Defense et al., 548 U.S.__ (slip op., 53) (2006) ..................... 2

xi

The Public Committee against Torture in Israel v. The Government of Israel, HCJ 769/02 (2005)
................................................................................................................................... 8, 9

6.

TREATISES AND OTHER BOOKS

CASSESE, International Criminal law (2008) ............................................................................ 23

CHINKIN, The Continuing Occupation? Issues of Joint and Several Liability and Effective
Control in SHINER and WILLIAMS (ed.), The Iraq War and International Law (2008) ... 19
CRAWFORD, PELLET and OLLESON, The Law of International Responsibility, (2010) ............19, 20
CRAWFORD, The International Law Commissionss Articles on State Responsibility: Introduction,
Text and Commentaries (2002)........................................................................... 15, 19, 20
DUFFY, The War on Terror and the Framework of International law (2005) ............................ 9
EVANS, International Law (2010) ............................................................................................. 18
FLECK, Humanitarian Law of Armed Conflicts (1995) ................................................................ 3
GILL &FLECK, The Law of Military Operations, (2010) .............................................................. 3
GRAY, International law and the Use of Force (2004) .............................................................. 12
HENCKAERTS & DOSWALD-BECK, Customary International Humanitarian Law, Volume I, Rules
(2005) .............................................................................................................. 8, 9, 21, 22
IACHR, Third Report on the Situation of Human Rights in Colombia, OEA/ Ser.L./II. 102 Doc. 9
rev. 1 (1999) ................................................................................................................... 9
JANIS, KAY and BRADLEY, European Human Rights Law Texts and Materials (2008) ............... 18
LUBELL, Extraterritorial Use of Force Against Non-State actors (2010) ..............................1, 2, 4
MELZER, Interpretative Guidance on Direct Participation in Hostilities under International Law
(2009) ............................................................................................................................. 9
NOWAK, UN Covenant on Civil and Political Rights: CCPR Commentary (2005).... 25, 29, 30, 31
ROSENNE (ed.), The International Law Commissions Articles on State Responsibility, (1991).. 16
RUYS, Armed Attack and Article 51 of the UN Charter (2010) .................................................. 12
SHAW, International Law (2008) ................................................................................................ 3

xii

SMITH, Textbook on International Human Rights (2010)........................................................... 26

7.

JOURNAL ARTICLES

BYMAN, Do Targeted Killings Work?, Brookings 14-07-2009................................................. 9

CASSESE, The international legal communitys legal response to terrorism, ICLQ (1989) .. 12
FARER, Drawing the right line, AJIL (1987)........................................................................... 12
FENRICK, The Targeted Killings Judgment and the Scope of Direct Participation in Hostilities,
JICJ (2007) ..................................................................................................................... 8
GILLARD, Reparations for violation of international humanitarian law, IRRC (2003) ........18, 22
HPCR, Manual on International Law Applicable to Air and Missile Warfare (2009) .................. 8
KATZ, Analysis: Lies, leaks, death tolls & statistics, Jerusalem Post 29-10-2010......................... 9
KRETZMER, Targeted Killing of Suspected Terrorists, EJIL (2005) ......................................... 5
NEUMANN, Applying the Principle of Proportionality: Force Protection and Cumulative
Assessment in International Law and Morality, YIHL (2004) ......................................... 9
O CONNELL, The Choice of Law Against Terrorism, JNSL (2010) ......................................... 3
RUYS, License to kill? State Sponsored Assassination under International Law, Working Paper
76, K.U. Leuven, Institute for International Law (2003) .................................................. 9
SASSOLI, Transnational armed groups and international humanitarian law, HPCR (2006) ........ 2
SMITH State Responsibility and the Principle of Joint and Several Liability, YJIL (1988) ...... 20
STEPHENS, Human Rights and Armed Conflict The Advisory Opinion of the International Court
of Justice in the Nuclear Weapons case, YHRDLJ (2001)............................................... 5

xiii

STATEMENT OF JURISDICTION

The State of Ardenia and the State of Rigalia have made unconditional declarations recognizing
the compulsory jurisdiction of the International Court of Justice, pursuant to article 36 (2) of the
Courts Statute. Ardenia has submitted the dispute by Application dated May 5, 2010, in
accordance with Article 40 (1) of the Statute of this Court. Each party shall accept the judgment
of this Court as final and binding and shall execute it in good faith in its entirety.

xiv

QUESTIONS PRESENTED BEFORE THE COURT

I.

Whether Rigalias Predator Drone strikes in Rigalia and in Ardenia violate international
law and whether the Court has authority to order their immediate cessation;

II.

Whether the attack on the Bakchar Valley hospital is attributable to Rigalia, whether
Rigalia ought to investigate the attack, and whether Rigalia ought to compensate Ardenia
therefore; moreover, whether the attack constitutes a disproportionate and unlawful act of
aggression against the people of Ardenia;

III.

Whether Rigalias ban of the Mavazi for Zetian women and girls violates their rights
under international law;

IV.

Whether or not Ardenia violated the OECD Anti-Bribery Convention and the OECD
Decision on MNE Guidelines.

xv

STATEMENT OF FACTS

The State of Ardenia is a small but prosperous nation, situated on the northern border of the State
of Rigalia. Ardenia has a decentralized system of government, with a high degree of autonomy
for its 10 provinces. It is inhabited by several ethnic groups, one of which is the Zetians. They
live in the two southernmost provinces of Ardenia. An important group of Zetians also lives in
the three northernmost provinces of Rigalia. Because of their nomadic nature, they were granted
full citizenship rights in both countries, in a 1924 agreement between the States.
Zetians living in Ardenia enjoy a large amount of autonomy with regard to such matters as family
law and religion. Most Zetians adhere to an orthodox interpretation of the Masinto religion.
Women following this interpretation wear a traditional veil called Mavazi.
Zetians living in Rigalia do not have the same amount of autonomy as those living in Ardenia.
Moreover, Rigalia continuously fails to adequately satisfy Zetian needs. In response thereto, the
Zetian Democratic Party (ZDP) was established to defend the interests of Zetians living in
Rigalia. While Zetians living in Ardenia sympathize with their Rigalian brethren, they have never
participated in the separatist tendencies of the ZDP.
In support of all Zetians, the Zetian Refugee Fund (ZRF), was set up in Ardenia. Its purpose is to
provide humanitarian and educational assistance to Zetians living in both Ardenia and Rigalia.
The ZRF receives financial support from Mineral Dynamics Incorporated (MDI). This Ardenian
state-owned enterprise has an active community service program, the details of which are
published on its website. In 1997, MDI concluded a contract with Rigalia Refining Incorporated
(RRI), a Rigalian state-owned company. According to this contract, MDI was granted exclusive

xvi

exploitation rights of the Moria Mine. This mine, located in the Northern Provinces, is the site of
Rigalias most important resource: the mineral coltan. In 2002, this contract was renewed amidst
allegations of bribery by the media.
On May 5, 2008, Zetian tribal councils of the Northern Provinces issued a Manifesto as a result
of a regional Joint Tribal Council meeting. This Manifesto called for increased Zetian autonomy
in both Rigalia and Ardenia, and for an increased share in revenues from the exploitation of
coltan.
In reaction to this Manifesto, Ardenias President Arwen organized an information campaign
underlining Ardenias continuous support of Zetian culture. This support consisted of providing
education funds and agricultural subsidies for Zetian tribal areas. By contrast, Rigalias President
Khutai strongly condemned the Manifesto. In a televised interview, President Khutai made
inflammatory remarks denouncing Zetian customs as barbaric and Zetian leaders as having a
backwards mentality.
These remarks enraged Zetians, inciting sporadic fighting in the Northern Provinces and a
solidarity march on both Rigalian and Ardenian capitals. President Khutai reacted aggressively to
these episodes: he imposed strict surveillance measures, banned the right to public assembly by
invoking the emergency power clause in Rigalias Constitution, and introduced a bill into
Parliament to ban the Mavazi. The ban would prohibit all Rigalians from wearing a Mavazi in
public and from receiving public services while wearing one. One of President Khutais
justifications for the ban was his goal to emancipate Zetian women, even though no such
concerted effort was ever made in the past.

xvii

Amidst increasing tensions, Rigalia was confronted with a series of criminal acts by several
Zetian tribal leaders. These acts included the December 2008 blowing up of a bridge in
Rigaliaville, and a series of suicide bombings in January and February 2009.
To appease Zetian discontent, President Arwen met with tribal leaders in January 2009. They
discussed how best to strengthen the friendly ties with the Zetians. Unconfirmed media reports
alleged that the meeting resulted in a secret agreement. Infuriated by this, President Khutai
declared war against the Zetian secessionist movement and its supporters. Moreover he urged
Parliament to adopt his controversial Mavazi ban.
In a further attempt to unduly pressure the Ardenian government, President Khutai instigated an
investigation into allegations of bribery by MDI surrounding the renewal of the Moria Mine
Contract. On April 30, 2009, Ardenia received a request for mutual legal assistance (MLA) from
Rigalia with respect to MDIs activities. The request asked for MDIs bank records since 2001
and for correspondence between ZRF high officials and the presidents of RRI or MDI. Moreover,
it asked for correspondence between the ZRF and provincial tribal councils. To investigate these
allegations, Ardenia initiated its own inquiry.
In March 2010, Rigalia brought up the MLA request during the meeting of the OECD Working
Group on Bribery. There, Ardenia emphasized that it never rejected the request. Rather, it was
trying to find a way to satisfy Rigalia, given that its legislation did not allow access to certain
information on bank records. With respect to the demand of access to correspondence between
the ZRF and provincial tribal councils, Ardenia reminded Rigalia that this fell outside of the
scope of the corruption investigation. On June 3, 2009, for reasons of national security, Ardenias
Public Prosecutor dropped the inquiry into MDIs activities.

xviii

On July 1, 2009 the Committee for Responsible Business Conduct (CRBC), a Rigalian nongovernmental organization, filed a complaint against RRI and MDI with the National Contact
Point (NCP) of Ardenia. Two days later, Ardenias NCP answered the CRBC. In its response, the
NCP denied its competence to examine the complaint on three grounds: (1) the complaint should
be dealt with by the Rigalian NCP as the alleged misconduct of RRI and MDI took place in
Rigalia, (2) the MNE guidelines were inapplicable to RRI and (3) in any event, it could not deal
with the complaint because an investigation concerning these allegations had already been
launched in both Ardenia and Rigalia. Despite this clear answer, the CRBC sent a superfluous
second letter with regard to the same issue to Ardenias NCP.
Frustrated by the Zetian situation, President Khutai called upon its ally, the State of Morgania.
Morgania readily agreed to cooperate with the Rigalian Defense Force because it felt threatened
in its economic interests. For seven months, attacks were carried out by Predator Drones
launched from Rigalian territory and operated by Morganian soldiers. These operators based their
decision to strike on information provided by ex-convicts, who were hired by the Rigalian
government. The strikes resulted in the deaths of more than 200 Zetian civilians in Rigalia and
killed 15 Zetian separatist leaders.
Without any warning, on March 15, 2010, a Predator Drone struck at night on Ardenian territory.
The strike hit the Bakchar Valley hospital, killing 150 persons and wounding 200 more, although
it was clearly marked by a Red Cross emblem. Another strike killed Adar Bermal, a member of
the Zetian separatist movement, as well as his entire family. Ardenia immediately lodged a
protest against these strikes with Rigalia. Subsequently, President Arwen condemned the Rigalian
Drone program as illegal under international law and more specifically condemned the Bakchar
Valley hospital attack as an act of aggression.

xix

On March 22, 2010, the United Nations Security Council urged Ardenia and Rigalia to resolve
their dispute peacefully. After unsuccessful diplomatic correspondence, Ardenia brought the
matter before the International Court of Justice on May 5, 2010.

xx

SUMMARY OF PLEADINGS

Although it deplores the violence that certain Zetian leaders have used in the pursuit of their
secessionist cause, Ardenia condemns Rigalias strikes as a manifest breach of international law.
Since Zetian terrorist attacks constitute internal disturbances, the legality of Rigalias use of
lethal force against individuals must be evaluated according to international human rights law
(IHRL). Ardenia can invoke Rigalias violation of IHRL because it contains erga omnes
obligations. The strikes neither occur after any form of due process, nor are they a necessary and
proportionate use of lethal force against individuals. Therefore, the strikes are unlawful
extrajudicial executions.
Were the Court to rule that Zetian violence reaches the threshold of an armed conflict, Rigalias
strikes are still illegal because they violate international humanitarian law (IHL). Ardenia can
invoke Rigalias violation of IHL, since it contains erga omnes obligations. The strikes violate
IHL, because they also target civilians not directly participating in hostilities and because they
cause excessive civilian casualties. Additionally, the strikes in Ardenia violate Ardenias
sovereignty because Ardenia did not consent to the strikes and because they do not meet all the
requirements of lawful self defense.
The attack on the Bakchar Valley Hospital is the deadliest example of Rigalias unnecessary use
of force against Ardenia. The attack is attributable to Rigalia because it acknowledged and
adopted it as being a direct consequence of its unlawful drone campaign. It follows that since the
campaign is unlawful, the attack is also unlawful. Consequently, Rigalia must make reparation to
Ardenia for it, by way of investigation and compensation.

xxi

Were the Court rule that Rigalias drone campaign is lawful, the attack remains unlawful because
it constitutes a breach of IHL. Since Rigalia contributed to the attack by way of joint action with
Morgania, the attack is also attributable to Rigalia. Consequently, Rigalia must investigate and
compensate Ardenia for the attack. Finally, the attack constitutes an act of aggression against
Ardenia because it not only violates Ardenias territorial integrity but is also of extreme gravity.
The alleged incidental nature of the attack does not alter this conclusion.
Moreover, Rigalias ban of the Mavazi violates also IHRL. The ban violates the fundamental
principle of non-discrimination: as it targets only the Mavazi, it discriminates not only on the
basis of religion, but also disproportionately affects Zetian women. Additionally, precluding
women wearing the Mavazi from receiving any public services violates their other human rights,
e.g. their right to education. Furthermore, the ban is not necessary to enhance public safety. There
was only one terrorist attack where a Mavazi was used. Banning all Mavazis in response to one
incident is disproportionate. Thus, the ban is not a lawful limitation of the right to manifest ones
religion. For the same reasons, the ban is not a lawful derogation under Article 4 ICCPR, since it
disregards Rigalias other human rights obligations and because it is disproportionate to the threat
caused by the Mavazi.
Furthermore, Ardenia did not violate any obligation to investigate allegations of bribery. It did
initiate an inquiry into MDIs activities. The subsequent suspension was merely an exercise of
Ardenias prosecutorial discretion under the OECD Anti-Bribery Convention. In exercising this
discretion, Ardenia was not improperly influenced by political concerns: it dropped the month
long investigation only after carefully balancing the need to maintain the rule of law against
national security. Moreover, Ardenia complied with the Conventions MLA Provision. The
provision only requires Ardenia to initiate proceedings, which it did, but does not oblige it to

xxii

guarantee the outcome of the MLA process. The pending delay is, in fact, Ardenia complying
with its obligations to the fullest extent possible under its internal laws. Therefore, Ardenia does
not breach the OECD Anti-Bribery Convention.
Finally, Ardenia did not violate the OECD Decision on MNE Guidelines (Decision). Firstly,
Rigalia, a non-Member to the OECD, has no standing to invoke the Decision before the Court. In
any event, however, Ardenia did not breach the Decision. Upon receiving the CRBCs complaint,
the Ardenian NCP communicated its decision not to examine the issues any further, in full
accordance with the requirements under the Decision.

xxiii

PLEADINGS

A.

RIGALIAS PREDATOR DRONE STRIKES IN RIGALIA AND ARDENIA VIOLATE

INTERNATIONAL LAW AND THE COURT SHOULD ORDER THEIR IMMEDIATE CESSATION

Rigalias Predator Drone strikes are illegal on two grounds. First, the strikes, which attack
individuals in Rigalia and Ardenia, violate international human rights law (IHRL). Alternatively,
they violate international humanitarian law (IHL). Second, the strikes in Ardenia violate
Ardenias sovereignty.

I.

RIGALIAS STRIKES IN RIGALIA AND ARDENIA VIOLATE IHRL

1.

IHRL is the legal regime applicable to Rigalias strikes

In times of peace, IHRL regulates the legality of lethal force against individuals. 1 The
International Covenant on Civil and Political Rights (ICCPR) is one of the human rights
instruments that regulates such use of force.2 Its provisions also bind a State when operating
extraterritorially. Ardenia submits that the lawfulness of the strikes must be evaluated according
to IHRL because: first, there is no armed conflict between Rigalia and the Zetians and second,
since Rigalia is a Party to the ICCPR,

it must respect its provisions also when it strikes in

Ardenia.

LUBELL, Extraterritorial use of force against Non-State actors, 236 (2010).

Infra I.3.(a).

Compromis, 37 [C.].

(a)

There is no armed conflict between Rigalia and the Zetians

i)

There is no international armed conflict (IAC)

An IAC takes place between two or more States4 or between people exercising their right to selfdetermination.5 There were several terrorist attacks in Rigalia mounted by Zetian tribal leaders.6
However, as will be explained below,7 Ardenia did not instruct, direct or control those attacks,
and is hence not responsible for them. Moreover, the violent activities of some Zetian tribal
leaders,8 cannot be representative of all Zetians. Consequently, the terrorist attacks are not an
expression of Zetians right to self-determination. It follows that there is no IAC between Rigalia
and Zetians. The fact that terrorist attacks take place from Ardenian territory9 does not alter this
conclusion.10

Art.2 API.

Art.1(4) API.

C.18.

See III.2.(b).

C.18.

C.34.

10

Hamdan v. Rumsfeld, 548 U.S.__ (slip op., 53) (2006), 628-631; LUBELL, n1, 236; SASSOLI,
Transnational armed groups and international humanitarian law, HPCR, 5 (2006).

ii)

There is no non-international armed conflict (NIAC)

A NIAC requires armed violence between governmental authorities and armed groups
subordinate to these authorities, 11 which exceeds internal disturbances.12 Neither terrorist attacks
by individuals13 nor the employment of military forces against them14 are factors that, as such,
give rise to an armed conflict. Moreover, the practice of States involved in a continuous struggle
against terrorist organizations, such as Spain, Italy and the UK, proves that concerted terrorist
activities do not amount to a NIAC: these States have countered systematic and deadly terrorist
attacks, with law-enforcement methods, not with IHL mechanisms. 15 Likewise, the occurrence of
several terrorist attacks in Rigalia are mere internal disturbances and do not qualify as a NIAC.

(b)

The ICCPR binds Rigalia also when it strikes in Ardenia

A Party to the ICCPR must respect its provisions vis--vis all individuals within its territory, and
subject to its jurisdiction.16 The requirements of territory and jurisdiction are not cumulative
but alternative.17 The term jurisdiction in human rights treaties covers individuals that are

11

FLECK, Humanitarian Law of Armed Conflicts, 47 (1995).

12

Art.1(2) APII; SHAW, International Law, 1195 (2008).

13

ICTY, Prosecutor v. Tadic, Trial Judgment, IT-94-1-IT, 562, 7 May 1997.

14

GILL &FLECK, The Law of Military Operations, 35 (2010).

15

OCONNELL, The Choice of Law Against Terrorism, JNSLP, 348 (2010).

16

Art.2(1) ICCPR.

17

Human Rights Committee [HRC], General Comment 31, Nature of the Legal Obligation
Imposed on States Parties to the Covenant, CCPR/C/21/ Rev. 1/Add/13 (2004), 10; Case
Concerning the Armed Activities on the Territory of the Congo, (DRC v. Uganda) 2005 I.C.J.,
3

under the authority and control of a State.18 Such authority and control can result from acts by
State agents committed outside of that States territory and resulting in the death of an
individual. 19
Since Rigalia is Party to the ICCPR,20 it must respect its provisions vis--vis individuals either on
its territory or subject to its jurisdiction. Rigalia has authority and control over those individuals
in Ardenia who are struck by its missiles, because the strikes result in their death or extreme
wounding. 21 Consequently, those individuals fall under Rigalias jurisdiction in the meaning of
the ICCPR. Rigalia is therefore bound by the ICCPR also when striking in Ardenia.

2.

Ardenia has standing because Rigalia breaches erga omnes obligations

This Court has held that human rights obligations are owed towards the international community
as a whole.22 Consequently, any State can invoke another States responsibility for their

178-180 [Armed Activities]; Legal Consequences of the Construction of the Wall on Palestinian
Territory, Advisory Opinion, 2004 I.C.J,111 [Wall Opinion].
18

ECtHR, Pad and others v. Turkey, 60167/00, 28 June 2007, 54 [Pad].

19

ECtHR, Andreou v Turkey, 45653/99, Admissibility decision, 3 June 2008, 25; Pad n18;
ECtHR, Issa v. Turkey, 31821/96, 16 November 2004, 71-72 (2004); ECtHR, Solomou and
other v. Turkey, 36832/97, 24 June 2008, 50-51; LUBELL, n1, 219.
20

C.37.

21

C.29-30.

22

Barcelona Traction Light and Power Company Limited, (Belgium v. Spain) 1970 I.C.J., 3334[Barcelona Traction]; Wall Opinion, n17, 136.

violation.23 Therefore, Ardenia has standing to invoke Rigalias violation of the ICCPR before
this Court.

3.

Rigalias strikes violate the ICCPR

The right to life and the principles of due process needed to safeguard the right to life are nonderogable. 24 However, Rigalias use of lethal force against Zetians violates them.

(a)

The strikes violate the principles of due process

Presumption of innocence and trial by a competent and independent judge are the cornerstones of
a criminal law system compatible with human rights standards.25 Rigalias strikes, however,
manifestly deprive the Zetians of these rights. Consequently, Rigalias strikes are unlawful
extrajudicial executions.

23

Art.48(1)b, Responsibility of States for Internationally Wrongful Acts 2002, G.A. Res. 56/83,
U.N.Doc. A/56/10[DASR].
24

HRC, General Comment 29, States of Emergency, U.N.Doc. CCPR/C/21/Rev.1/Add.11

(2001),15 [General Comment 29]; STEPHENS, Human Rights and Armed Conflict The
Advisory Opinion of the International Court of Justice in the Nuclear Weapons case, YHRDLJ,
6-7 (2001).
25

KRETZMER, Targeted Killing of Suspected Terrorists, EJIL, 178 (2005).

(b)

The strikes violate the right to life

Every human being has the inherent right to life and no one shall be arbitrarily deprived thereof. 26
A State may use lethal force only when absolutely necessary and strictly proportionate.27
Accordingly, a State using lethal force against individuals has an obligation to contemplate all
alternative means to lethal force28 and to use force only when necessary to repel an imminent
threat to life 29. A law enforcement operation, which has the sole objective to kill and is used as a
deterrent for future attacks,30 does not meet these standards. 31
There is no evidence that Rigalia first attempted to halt the Zetians with non-lethal means, before
striking them. Moreover, while the terrorist attacks in Rigalia are committed by several tribal
leaders,32 Rigalias strikes are directed at all suspected Zetian separatists,33 without establishing
whether they pose an imminent terrorist threat. The sole objective of Rigalias drone program is

26

Art.6(1) ICCPR; HRC, General Comment 6, Right to Life (Article 6), CCPR General Comment
30/04/82 No.6, (1982), 3.
27

HRC, Barboeram-Adhin and Others v. Suriname, Comm. No. 146/1983 and 148 to 154/1983,
U.N.Doc. Supp. No. 40 (A/40/40) at 187 (1985), 14.3; HRC, Husband of Maria Fanny Suarez
de Guerrero v. Columbia, Comm. No. R.11/45, U.N.Doc. Supp. No. 40 (A/37/40) at 137 (1982)
13.1-13.3; ECtHR, McCann and Others v. United Kingdom, 148-150 (1995) [McCann].
28

HRC, Concluding observations

15[Observations Israel].

on

Israel,

U.N.Doc.

CCPR/CO/78/ISR

(2003),

29

ECtHR, Kelly and others v. UK, 30054/96, in ECtHR in McKerr v. the United Kingdom,
28883/95 (2001).
30

Observations Israel, n28, 15.

31

ALSTON, Study on Targeted Killings, Report of the Special Rapporteur on extrajudicial,

summary or arbitrary executions, A/ HRC.14/24 Add. 6 (2010), 11.
32

C.18.

33

C.28.

to kill Zetian separatists. Therefore, Rigalia violates their right to life and the right of all innocent
bystanders who are also struck by the drones.34

II.

ALTERNATIVELY, RIGALIAS STRIKES IN RIGALIA AND IN ARDENIA VIOLATE IHL

1.

Were the Court to rule that there is an armed conflict, then it is a NIAC

Situations of violence that exceed internal disturbances between a State and non-State armed
groups are NIACs.35 Therefore, would the Court rule that the struggle between Rigalia and Zetian
terrorists exceeds internal disturbances, the conflict is a NIAC.
In situations of armed conflict, the legality of the use of lethal force against individuals must be
interpreted according to IHL standards. 36 Consequently, the legality of Rigalias strikes must be
assessed according to IHL.

2.

Ardenia has standing because Rigalia breaches erga omnes obligations

According to this Court there is an obligation on all Parties to the Geneva Conventions (GCs) to
ensure respect of their provisions and their related instruments, given the importance of the rights

34

C.30.

35

Supra I.1.(a).ii).

36

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. 1996, 25[Nuclear
Weapons]; Wall Opinion, n17, 106.

and obligations contained therein. 37 This implies that every Party has a right to invoke another
States violation of IHL. 38 In other words, IHL contains erga omnes obligations. Therefore,
Ardenia has standing to invoke Rigalias violation of IHL before this Court.

3.

Rigalias strikes violate IHL

The principles of distinction and proportionality are customary IHL. 39 Consequently, they apply
to every NIAC. However, Rigalias strikes violate these principles.

(a)

The strikes violate the principle of distinction

States may never make civilians the object of an attack.40 In a NIAC States may only target
civilians directly participating in hostilities, for such time as they take part in hostilities.41
Arguably, direct participation also includes holding a leading role in planning attacks.42 By
contrast, mere support to a partys military effort is not direct participation.43

37

Art.1 GCIV; Wall Opinion, n17, 158.

38

Armed Activities, n17, Separate Opinion Judge SIMMA, 34.

39

HENCKAERTS & DOSWALD-BECK, Customary International Humanitarian Law, Volume I,

Rules, 3, 46(2005) [HENCKAERTS].
40

Art.13 APII; Nuclear Weapons, n36, 69; HENCKAERTS, n39, 5-7.

41

Common Art.3 GC; Art.13(3) APII; HPCR, Manual on International Law Applicable to Air
and Missile Warfare, 86&117 (2009).
42

The Public Committee against Torture in Israel v. The Government of Israel, HCJ 769/02
(2005), 39[Targeted Killings]; FENRICK, TheTargeted Killings Judgment and the Scope of
8

Rigalia asked Morgania to strike all suspected separatists.44 As clarified by President Khutais
statement, targets of the strikes are not only Zetians taking up arms against the government but
also those merely supporting violent secession.45 Rigalias strikes are, therefore, not only
directed against the planners of the attacks. They also target supportive civilians who do not in
any way assume leading roles in the attacks. Therefore, Rigalias strikes violate the principle of
distinction.

(b)

The strikes violate the principle of proportionality

A State may not engage in an attack that is expected to cause civilian injury which is excessive in
relation to its expected military advantage.46 The Israeli and US drone campaigns against,
respectively, Palestinian terrorists and Al Qaeda, reportedly caused a civilian-combatant casualty
ratio of 1:347 and 10:148. The Rigalian campaign of drone strikes has a ratio of 25:1.49 Despite the

Direct Participation in Hostilities, JICJ, 338, (2007); MELZER, Interpretative Guidance on

Direct Participation in Hostilities under International Law, 16,34&36 (2009).
43

Inter-American Commission on Human Rights, Third Report on the Situation of Human Rights
in Colombia, OEA/ Ser.L./II. 102 Doc. 9 rev. 1 (1999), 53&56; Targeted Killings, n42,
34&35; DUFFY, The War on Terror and the framework of international law, 230 (2005); RUYS,
License to kill? State Sponsored Assassination under International Law, Working Paper 76,
K.U. Leuven, Institute for International Law (2003).
44

C.28.

45

C.22.

46

HENCKAERTS, n39, 46; NEUMANN, Applying the principle of proportionality: Force Protection
and Cumulative Assessment in International Law and Morality, YIHL, 96 (2004).
47

KATZ, Analysis: Lies, leaks, Death Tolls & Statistics, Jerusalem Post 29-10-2010.

48

BYMAN, Do Targeted Killings Work?, Brookings 14-07-2009.

similarity with the Israeli and US campaigns in terms of means of combat, the Rigalias
campaign causes more than double the civilian deaths. Hence, the campaign is clearly
disproportionate.

III.

ADDITIONALLY, RIGALIAS STRIKES IN ARDENIA VIOLATE ARDENIAS SOVEREIGNTY

The prohibition to use force against the territory of another State is a cardinal principle of
international law.50 There are only two exceptions to this prohibition: a States consent to the use
of force in its territory51 and a States exercise of the right to self-defense in accordance with
Article 51 of the UN Charter. However, none of these exceptions apply.

1.

Ardenia did not consent to the strikes

Nothing in the case indicates that Ardenia ever consented to Rigalias strikes in Ardenian
territory. The fact that Ardenia publicly condemned Rigalias drone program as illegal, 52 proves
this. Consequently, Rigalia cannot rely on Ardenian consent to justify the strikes.

49

C.29-30.

50

Art.2(4) UN Charter[Charter]; Military and Paramilitary Activities in and against Nicaragua

(Nicaragua v. United States), 1986 I.C.J., 212[Nicaragua].
51

Friendly Relations Declaration, G.A.Res.2625 (XXV), 121, U.N.Doc. A/1883 (1970).

52

C.32.

10

2.

Rigalias strikes are not a lawful exercise of its right to self-defense

Lawful self-defense requires that the State was the victim of an armed attack53 that is attributable
to another State54 and that the force used in self-defense is necessary55 and proportionate56. In this
case, the first three requirements were not fulfilled.

(a)

Rigalia was not the victim of an armed attack

An armed attack eliciting lawful self-defense must be of sufficient gravity. 57 This Court ruled that
a series of military attacks, carried out by missiles and mines, and leading to dozens of civilian
deaths were not of sufficient gravity. 58 A fortiori, criminal acts, entailing kidnappings and a few
suicide bombings, cannot qualify as armed attacks. Therefore, Zetian terrorist attacks are not an
armed attack.

53

Nicaragua, n50, 101&103; Oil Platforms (Iran v. United States) I.C.J. 2003, 51[Oil
Platforms].
54

Armed Activities, n17, 146-147; Wall Opinion, n17, 139.

55

Nuclear Weapons, n36, 41; Oil Platforms, n53, 51&73-76.

56

Id.

57

Nicaragua, n50, 191; Oil Platforms, n53, 51.

58

Oil Platforms, n53.

11

(b)

Assuming there was an armed attack, it was not attributable to Ardenia

If the attack is carried out by non-State actors, it will be attributable to a State when: the non-state
actors are sent or act on behalf of that State; or, that State is substantially involved in the attacks
carried out by the non-State actors.59
The concept of being sent by or acting on behalf of a State requires that State to instruct,
direct or control the acts of the non-State actors.60 Several Zetians launched attacks
autonomously, in pursuit of their ultimate goal of independence. 61 Consequently, the Zetian
attacks cannot be attributed to Ardenia.
Moreover, although the Court never clarified the notion of substantial involvement, it is agreed
that it implicitly excluded a States acquiescence in the presence of an armed group on its
territory.62 Therefore, Ardenias tolerance of Zetian meetings on its territory63 cannot qualify as
substantial involvement of Ardenia in Zetian attacks.

59

Nicaragua, n50, 195.

60

Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), I.C.J.1996, 392; Armed Activities, n17,
147.
61

C.7.

62

CASSESE, The international legal communitys legal response to terrorism, ICLQ, 559
(1989); GRAY, International law and the Use of Force, 111 (2004); RUYS, Armed Attack and
Article 51 of the UN Charter, 415 (2010); FARER, Drawing the right line , AJIL, 112-116
(1987).
63

C.19.

12

(c)

In any event, the strikes are unnecessary

Necessity implies that, before resorting to armed force against another State, the former should
first complain to the latter about the situation. 64 Nothing indicates that, before resorting to force,
Rigalia complained to Ardenia about the alleged presence of Zetian armed groups within its
territory. Hence, Rigalia did not grant Ardenia any possibility to take appropriate action against
Zetian terrorists. It follows that its drone strikes are unnecessary.
Since the non-fulfillment of each of these requirements independently leads to unlawful selfdefense, Rigalias strikes are unlawful.

IV.

IN

LIGHT OF THE ABOVE, ARDENIA RESPECTFULLY ASKS THE

IMMEDIATE CESSATION OF THE STRIKES

COURT

TO ORDER THE

A State that violates an international obligation binding upon it, shall be liable to make reparation
to the State victim of that breach. 65 Ardenia submits that cessation of the internationally wrongful
act (IWA) is the most appropriate form of reparation. Consequently, the Court should order the
cessation of the strikes.

64

Oil Platforms, n53, 76.

65

Case Concerning the Factory at Chorzw, Merits, 1928 P.C.I.J., 29[Chorzw Factory].
13

B.

THE ATTACK ON THE BAKCHAR VALLEY HOSPITAL (THE HOSPITAL) IS ATTRIBUTABLE

TO RIGALIA, RIGALIA HAS AN OBLIGATION TO INVESTIGATE THE ATTACK AND TO
COMPENSATE ARDENIA THEREFORE AND, MOREOVER, THE ATTACK WAS A
DISPROPORTIONATE AND UNLAWFUL ACT OF AGGRESSION AGAINST THE PEOPLE OF
ARDENIA

Firstly, the attack on the Hospital is attributable to Rigalia because it forms part of an unlawful
campaign of drone strikes in Ardenia, which Rigalia adopted and acknowledged as its own.
Therefore, Rigalia must make reparation to Ardenia, by investigating the attack and
compensating for it. Alternatively, were the Court to rule that Rigalias campaign is not unlawful
as such, the attack is nevertheless attributable to Rigalia on the basis of its joint action with
Morgania. The attack constitutes an IWA because it violates IHL. Consequently, Rigalia must
investigate the attack and compensate Ardenia therefore. Additionally, the attack on the Hospital
also constitutes an act of aggression.

I.

THE

ATTACK IS ATTRIBUTABLE TO RIGALIA BECAUSE IT FORMS PART OF RIGALIAS

UNLAWFUL CAMPAIGN OF DRONE STRIKES IN ARDENIA; CONSEQUENTLY, RIGALIA MUST
INVESTIGATE AND COMPENSATE ARDENIA THEREFORE

1.

The attack is attributable to Rigalia because it acknowledged and adopted it as part of its
campaign

Under Article 11 of the Draft Articles on State Responsibility (DASR), an act that was not
committed by an organ of a State can nevertheless be attributed to that State, if and to the extent
that that State acknowledges and adopts that act.66 Two conditions must be fulfilled: first, the act

66

Art.11 DASR; Diplomatic and Consular Staff in Tehran (United States v. Iran), I.C.J. 1980,
74-75.

14

is not attributable to the State on the basis of any other ground of attributability67 set out in the
DASR;68 second, the acknowledgment and adoption must be clear and unequivocal, but need not
be explicit. 69 Provided these conditions are fulfilled, a State will be considered to have
acknowledged and adopted an act even if it did not approve of it, sought to prevent it and deeply
regretted it.70

(a)

The attack is not attributable to Rigalia on any other ground of attributability other than
acknowledgment and adoption

Under Article 4 DASR, only those acts that are committed by organs of a State are attributable to
that State.71 The attack on the Hospital was committed by a drone operator,

72

member of the

Morganian Army. 73 Therefore, she is an organ of Morgania. Since the operator is not an organ of
Rigalia, her acts are not attributable to Rigalia on the basis of Article 4 DASR.
Moreover, under Article 6 DASR, an act of a State organ can be attributed to another State when
that organ is placed at the disposal of the other State.74 The organ in question must, inter alia, act

67

CRAWFORD, The International Law Commissions Articles on State Responsibility, 121-123

(2002)[CRAWFORD].
68

Art.4-10 DASR.

69

CRAWFORD, n67,123.

70

Id.

71

Art.4 DASR.

72

C.30.

73

C.29.

74

Art.6 DASR.
15

under exclusive direction and control of the State at whose disposal it is placed. 75 In the present
case, nothing indicates that the operator was acting under exclusive direction and control of
Rigalia. Consequently, the attack on the Hospital cannot be attributed to Rigalia on the basis of
Article 6 DASR.
The other grounds of attributability set out in the DASR relate to scenarios that are clearly not
applicable in the case at hand. Therefore, the attack cannot be attributed to Rigalia on any ground
of attributability, other than Article 11 DASR.

(b)

Rigalias acknowledgement and adoption of the attack is unequivocal

After the attack on the Hospital took place, Rigalias defense minister defined the attack in a
press statement as a regrettable consequence of Rigalias fight to defend itself and its people. 76
Thus, the strikes against Zetians in Ardenia were explicitly adopted as acts of Rigalia. 77 Such
adoption was neither extemporary nor equivocal. Rigalias perseverance in adopting the strikes as
its own, unambiguously appears from its first counterclaim, wherein the strikes against Zetians
are defined as Rigalias. 78 Since the attack on the Hospital was openly defined by Rigalias
defense minister as being a direct consequence of the campaign against Zetians, Rigalia also
acknowledged and adopted that attack. This is further corroborated by Rigalias second

75

CRAWFORD, n67,103; ROSENNE (ed.), The International Law Commissions Articles on State
Responsibility, 286 (1991).
76

C.31.

77

Supra claim A.

78

C.40.

16

counterclaim which explicitly defines the attack as part of [ an] operation to defend against
Zetian terrorists.79 As mentioned, the fact that Rigalia regrets the attack and sought to prevent
it,80 does not alter this conclusion.

2.

The attack is an IWA because it forms part of an unlawful campaign of drone strikes

The attack is an integral part of a drone campaign which violates IHRL, IHL and the prohibition
to use force, as set out in Claim A. It follows that the attack is also unlawful.

3.

Rigalia has to make reparation in the form of investigation and compensation

Any State that commits an IWA has a duty to make reparation for the injury resulting from it. 81
Reparation can take the form of satisfaction, compensation, or both.82 Ardenia submits that
Rigalias duty to make reparation is to take the form both of investigation and compensation.

79

Id.

80

C.31.

81

Art.31 DASR; Chorzw Factory, n65, 29.

82

Art. 34 DASR.

17

(a)

Rigalia must investigate the attack as a form of satisfaction

Satisfaction can take the form of any appropriate modality. 83 Ardenia submits that the most
appropriate modality to make satisfaction in this case is an investigation into the attack. Next to
the duty to make satisfaction under the rules of State responsibility, the duty to investigate also
arises under IHRL and IHL.

i)

Rigalia must investigate the attack on the basis of IHRL

Under IHRL, any State has a duty to investigate an act of intentional or unintentional killing
caused by the use of lethal force by State agents or persons acting on the States behalf. 84
Considering that the attack led to the death of 150 civilians and to the wounding of 200 more,
Rigalia has a duty to investigate it.

ii)

Rigalia must investigate the attack on the basis of IHL

It is accepted that all violations of IHL give rise to a duty to make reparation, 85 and that such
reparation can take the form of an investigation.86 Since, as set out above, the attack constitutes

83

EVANS, International Law, 466 (2010).

84

HRC, Bautista de Arellana v. Colombia, Comm. No. 563/1993, U.N.Doc.

CCPR/C.35/D/363/1993, 8.6 (1995); ECtHR, Isayeva v. Russia, 57947/00,57948/00 and
57949/00, 24 February 2005, 209; McCann, n27, 202-214; JANIS, KAY, BRADLEY, European
Human Rights Law Texts and Materials, 130 (2008).
85

GILLARD, Reparations for violation of international humanitarian law, IRRC, 534

(2003)[GILLARD].

18

an indiscriminate and disproportionate attack,87 it violates IHL. Consequently, Rigalia must

investigate the attack under IHL.

(b)

Rigalia must fully compensate Ardenia for the attack, notwithstanding Morganias
possible co-responsibility

When a single course of conduct is attributable to multiple States, it is internationally wrongful

for all of them. 88 Accordingly, a State victim of an IWA concurrently attributable to two States
can claim all damages from each of them, 89 provided that it does not obtain compensation greater
than the injury suffered.90 Hence, Ardenia can obtain full compensation from Rigalia,
notwithstanding Morganias possible co-responsibility for the attack.

86

Basic Principles and Guidelines on the Right to Remedy and Reparation for victims of
International human rights and International Humanitarian Law, G.A. Res. 60/147, U.N.Doc. A/
60/147, 4 (2006)[Van Boven Principles].
87

Supra claim A,II.

88

CHINKIN, The Continuing Occupation? Issues of Joint and Several Liability and Effective
Control in SHINER and WILLIAMS (ed.), The Iraq War and International Law, 168-169 (2008);
CRAWFORD, n67, 272 (2002).
89

CRAWFORD, PELLET & OLLESON, The Law of International Responsibility, 282 (2010)
[CRAWFORD ET AL.], 282.
90

Art.47 DASR; CRAWFORD ET AL., n89, 282.

19

II.

WERE

THE COURT TO RULE THAT RIGALIAS STRIKES IN ARDENIA WERE NOT UNLAWFUL,
THE ATTACK IS NEVERTHELESS ATTRIBUTABLE TO RIGALIA; CONSEQUENTLY, RIGALIA
MUST STILL INVESTIGATE AND COMPENSATE ARDENIA THEREFORE

1.

The attack is attributable to Rigalia on the basis of its joint military action with Morgania

When two or more States take joint action to the detriment of a third State, they are co-authors of
any IWA derived from their joint action.91 For the IWA to be attributable to a State, it is not
required that each State performs the IWA in its entirety.92 It suffices that: first, each State
contributes to the IWA by way of joint action; and second, that this contribution is attributable
to the State participating in the joint action.93

(a)

Rigalia contributed to the attack on the Hospital

Rigalia contributed to the attack on the Hospital by way of joint action with Morgania for three
reasons. Firstly, Rigalia urged Morgania to carry out the military operation leading to the attack
on the Hospital. 94 Secondly, Rigalia put its territory at Morganias disposal for this operation. 95

91

CRAWFORD ET AL., n89, 282; CRAWFORD, n67, 272; SMITH State Responsibility and the
Principle of Joint and Several Liability, YJIL, 228 (1988).
92

CRAWFORD ET AL., n89, 282.

93

Id.

94

C.29.

95

C.28.

20

Thirdly, Rigalia hired the informants that provided the targeting information necessary for the
operation.96

(b)

Rigalias contribution is attributable to it

The decision to urge Morgania to carry out the military operation was made by the Rigalian
Defense Force,97 an organ of the Rigalian State. Consequently that decision is attributable to
Rigalia. Moreover, the decisions to put Rigalian territory at the disposal of Morgania and to hire
informants were also made by Rigalia, 98 and are hence attributable to it. Therefore, Rigalia
contributed to the attack on the Hospital by way of joint action with Morgania. Consequently, the
attack, which results from Rigalian and Morganian joint action, is also attributable to Rigalia.

2.

The attack is an IWA because it breached IHL

Under customary IHL, a State has the duty to take all feasible precautions to spare civilian
population and objects.99 Ardenia submits that this obligation is all the more compelling on a
State when operating next to a protected building. Medical units are protected from attacks.100
Consequently, the Hospital is a protected building. Ardenia submits that striking missiles next to
96

C.29.

97

Id.

98

C.28&29.

99

HENCKAERTS, n39, 51-52.

100

HENCKAERTS, n39, 91-93.

21

a protected hospital, at night, without warning, and without being able to abort the attack,101
constitutes a breach of the duty to take all feasible precautions.
Regardless of whether the duty to take all feasible precautions rested also upon Rigalia, Ardenia
submits that in any case Morgania clearly failed to do so. Since the attack is also attributable to
Rigalia on the basis of its joint action with Morgania, the IWA is also attributable to Rigalia.

3.

Rigalia has to make reparation for the attack on the Hospital in the form of investigation
and compensation

Every State has an obligation to investigate violations of IHL. 102 Therefore, since the attack on
the Hospital constitutes a breach of IHL, Rigalia must investigate it. Moreover, according to
customary IHL, every State violating IHL must compensate for it.103 As set out above, regardless
of Morganias possible co-responsibility, 104 Ardenia submits that Rigalia must compensate
Ardenia for the attack on the Hospital.

101

C.30.

102

Van Boven Principles, n86; GILLARD, n85.

103

HENCKAERTS, n39, 539.

104

Supra n90.

22

III.

MOREOVER, THE ATTACK IS AN ACT OF AGGRESSION AGAINST ARDENIA

Aggression is the first use of armed force by a State against the territorial in tegrity or political
sovereignty of another State or in any other manner inconsistent with the Charter.105 Moreover,
an important criterion used to determine whether an attack qualifies as aggression is its gravity. 106
The words against the territorial integrity of a State should not be interpreted strictly: they also
encompass acts which are not directed at exercising political pressure against a State.107
Moreover, a targeted killing operation undertaken by Israel against terrorists hiding in Tunisia,
and causing the death of approximately ten individuals, constituted an act of aggression.108 By
analogy, Rigalias operation against Adar Bermal, in the context of which the Hospital was
attacked leading to 150 deaths and 200 wounded, also amounts to an act of aggression.
Finally, aggression as an IWA between States does not require the subjective element of intent.109
Therefore, the alleged incidental nature of the Hospital attack should not prevent the Court
from qualifying it as an act of aggression.

105

Art.1 Definition of Aggression, G.A. Res.3314, 143, U.N.Doc. A/9890 (1974) [Definition of
Aggression].
106

Art.2 Definition of Aggression.

107

Corfu Channel (UK v. Albania), 1949 I.C.J., 35; OAS, Resolution of the twenty-fifth meeting
of consultation of ministers of foreign affairs, 17 March 2008, Doc. OEA:Ser;F/iI.25,
RC/RES.1/08 rev.1.
108

S.C. Res. 573, U.N.Doc. S/Res/573 (1985).

109

CASSESE, International Criminal Law,157&159 (2008).

23

C.

RIGALIAS

BAN OF THE MAVAZI FOR

RIGHTS UNDER INTERNATIONAL LAW

ZETIAN

WOMEN AND GIRLS VIOLATES THEIR

As stated before, Ardenia has standing to invoke Rigalias IHRL breaches. 110 Rigalias ban
violates the principle of non-discrimination under international law. Additionally, the ban is not a
lawful limitation of the freedom to manifest ones religion. And finally, the ban is not a lawful
derogation under Article 4 ICCPR.

I.

RIGALIAS BAN VIOLATES THE PRINCIPLE OF NON-DISCRIMINATION UNDER INTERNATIONAL

LAW

The prohibition of discrimination is an important principle in international law.111 For a

distinction to be lawful under Article 26 ICCPR, three conditions must be fulfilled: first, the
measure must pursue a legitimate aim; 112 second, the differentiation must be objectively and
reasonably justifiable;113 and third, there must be a reasonable relationship of proportionality
between the means employed and the aim sought.114 Ardenia does not dispute that the ban

110

Supra A.I.2.

111

See e.g.: Art.1(3), 13(1)(b), 55(c)&76 Charter; Art.2&7 UDHR; Art.2(1)&26 ICCPR; Art.2 of
the Convention of the Rights of the Child [CRC]; Art.1 Convention on the Elimination of All
Forms of Discrimination Against Women [CEDAW].
112

HRC, General Comment 18, Non-discrimination, U.N.Doc. HRI/GEN/1/REV.6 (2003), 13.

113

South-West Africa cases, 1966 I.C.J., Dissenting Opinion of Judge TANAKA, 306; HRC,
S.W.M. Broeks v. The Netherlands, Comm. No. 172/1984, U.N.Doc. CCPR/C/OP/2 (1990);
HRC, F.H. Zwaan-de Vries v. The Netherlands, Comm. No. 182/1984, U.N.Doc. CCPR/C/OP/2
(1990); ECtHR, Case relating to certain aspects of the laws on the use of languages in
education in Belgium, 23 July 1968 [Belgian Linguistics Case].
114

General Comment 18, n112; HRC, Guido Jacobs v. Belgium, Comm. No. 943/2000, U.N.Doc.
CCPR/C/81/D/943/2000 (2004); HRC, Kavanagh v. Ireland, Comm. No. 1114/2002, U.N.Doc.
CCPR/C/76/D/1114/2002/Rev.1 (2002)[Kavanagh]; ECtHR, Marckx v Belgium, 13 June 1979;
24

pursues a legitimate aim in trying to protect public safety. However, the ban does not meet the
other two requirements.

1.

The ban is not objectively and reasonably justifiable

According to the Human Rights Committee (HRC), every distinction may be justified if it is
based on reasonable and objective criteria.115 What is to be considered reasonable depends,
among other things, on the specific circumstances of the case and the general situation in the
State concerned. 116 The European Court of Human Rights (ECtHR) assesses the existence of an
objective and reasonable justification in relation to the aim and effects of the measure. 117
In Singh Bhinder v. Canada religious headgear was prohibited in very specific circumstances,
namely only at work to ensure the workers safety. 118 The HRC found this measure reasonable
and objective.119 However, Rigalias ban targets all Rigalians in the entire public space. 120 It is
not limited in any way and is consequently not reasonable.

Inter-American Court of Human Rights, Advisory Opinion No. 4, Proposed amendments to the
naturalization provisions of the Constitution of Costa Rica.
115

E.g. Kavanagh, n113; NOWAK, UN Covenant on Civil and Political Rights: CCPR
Commentary, 628 (2005).
116

NOWAK, Id.

117

ECtHR, Belgian Linguistics Case.

118

HRC, Singh Bhinder v. Canada, Comm. No. 208/1986, U.N.Doc. CCPR/C/37/D/208/1986

(1989).
119

See also: HRC, Riley et al. v. Canada, Comm. No. 1048/2002, U.N.Doc.
CCPR/C/74/D/1048/2002 (2002); ECtHR, X v. United Kingdom, 5 November 1981.

25

Moreover, the ban only appears to be objective. Rigalias ban is directed against all Rigalians
wearing a Mavazi. 121 However, nearly all people wearing the Mavazi are Zetian women
practicing the Masinto religion. Thus, in reality Rigalias apparently neutral measure affects
Zetian women disproportionately. The ban causes them serious disadvantages, because they are
the only ones whose right to manifest their religion is adversely affected. Moreover, if they do
decide to wear a Mavazi, they are prohibited from receiving public services.
For these reasons, Rigalias ban is not based on any objective or reasonable justification and does
not meet this requirement.

2.

The ban is not proportional

In order for a measure to be proportional, there has to be a balance between the advantages and
disadvantages caused by the measure. In other words, the means to achieve a certain objective
may not be unreasonable. 122
Anyone choosing to wear a Mavazi is precluded from receiving any form of public service.123
This would mean that anyone wearing a Mavazi may not receive public education, a human right
guaranteed in several treaties. 124 This restriction of the access to education also amounts to a
120

C.16.

121

Id.

122

SMITH, Textbook on International Human Rights, 177-178 (2010).

123

C.16.

124

Art.14 International Covenant on Economic, Social and Cultural Rights (ICESCR); Art.26
UDHR; Art.28 CRC; Art.10 CEDAW.
26

violation of Article 18(2) ICCPR,125 as it has the same effect as forcing Masinto believers to
abandon their religion in order to receive education. It could also exclude them from receiving
social security or insurance if it is provided for by Rigalia. 126 Thus, the sanction used by Rigalia
violates several other human rights. Other, less severe sanctions, for example a fine, could have
been used.127
In other States, a prohibition on headscarves has only been accepted in very limited
circumstances. Turkey could ban the headscarf in universities because of the importance of
secularism in Turkey, which guarantees its democratic values.128 France could also limit
headscarves in schools, for similar reasons. 129 However, there is no indication that secularism is
as important in Rigalia as in the aforementioned countries. Furthermore, the UN Special
Rapporteur on freedom of religion or belief has expressed serious doubts concerning headscarf
bans, as it mainly affects certain religious minorities. Additionally, it denies children the right to
freely wear a religious symbol as part of their belief. 130 The headscarf could also be banned to
protect the denominational neutrality of schools or to protect children at ages where they are

125

HRC, Hudoyberganova v. Uzbekistan,

CCPR/C/82/D/931/2000 (2004)[Hudoyberganova].
126

Comm.

No.

931/2000

U.N.Doc.

Art.9 ICESCR; Art.26 CRC; Art.11(e) CEDAW.

127

Judgment of the French Constitutional Court on the French burqa law: Dcision n 2010-613
DC du 7 octobre 2010, Loi interdisant la dissimulation du visage dans lespace public, 5: a fine
of 150 euros was considered proportional.
128

ECtHR, Leyla ahin v. Turkey (Grand Chamber), 44774/98, 10 November 2005.

129

ECtHR, Dogru v. France, 27058/05, 4 December 2008.

130

Report submitted by Asma Jahangir, Special Rapporteur on freedom of religion or belief:

Mission to France (18-19 September 2005), E/CN.4/2006/5/Add. 4 (8 March 2006).

27

more easily influenced. 131 None of these limited exceptions, however, are present in this case.
Therefore, the means employed by Rigalia to enhance public safety are unreasonable and
disproportional.
Consequently, Rigalias ban violates the principle of non-discrimination under international law
because it does not have any objective or reasonable justifications and because it causes
disproportionate disadvantages.

II.

RIGALIAS

BAN IS NOT A LAWFUL LIMITATION OF THE FREEDOM TO MANIFEST ONES

RELIGION

The right to freely manifest ones religion is expressed in terms of worship, observance,
teaching and practice. These terms should not be narrowly construed and include a broad range
of acts.132 The decision to wear a religious sign, such as a veil, falls within the scope of this nonexhaustive list.133 It follows that the Mavazi as a manifestation of the Masinto religion is a
religious sign protected by the right to manifest ones religion.
Any limitation of the right to freedom to manifest ones religion134, as guaranteed by Article 18
ICCPR, must meet three requirements: it must be prescribed by law, it must be based on one of
the limitation grounds listed in Article 18(3) ICCPR, and it must be necessary for attaining this

131

ECtHR, Dahlab v. Switzerland, 42393/98, 15 February 2001.

132

HRC, General Comment 22 (Article 18), U.N.Doc. HRI/GEN/1/Rev.6 (2003), 4.

133

General Comment 29, n24, 4; Hudoyberganova, n124.

134

This right is also guaranteed specifically for children in Art.14(3) CRC.

28

purpose.135 Ardenia submits that Rigalias ban is unlawful insofar as its goal is to enforce the
human rights of all Rigalian women. Additionally, the ban is not necessary to attain Rigalias
other purpose of enhancing public safety.

1.

The enforcement of human rights is not one of the limitation grounds of Article 18(3)
ICCPR

Article 18(3) ICCPR contains an exhaustive list of limitation grounds with regard to the freedom
to manifest ones religion. There can be no limitation of this right on any other ground. 136 Rigalia
has adopted the ban on two grounds: first, public safety; and second, to enforce the human rights
of all Rigalian women. 137 The latter is not a legitimate limitation ground. In contrast to human
rights, the term fundamental rights is understood as meaning those rights that are more strongly
protected in national law with special remedies.138 Rigalia can only limit the freedom of religion
to protect those rights of others that have the character of fundamental rights within Rigalian law.
Consequently, Rigalia cannot adopt its ban with the goal of enforcing the human rights of
women.

135

NOWAK, n11, 425.

136

General Comment 22, n32, 8.

137

C.16.

138

NOWAK, n11, 430.

29

2.

The ban is not necessary to enhance public safety

The requirement of necessity implies that the restriction must be proportional in severity and
intensity for the purpose being sought.139 In addition, the restriction may not become the rule. 140
There was one incident where a suicide bomber used a Mavazi to approach a government school
unquestioned.141 However, this is the only case where a Mavazi was used with malicious intent.
Based on this one incident Rigalia adopted a total ban on the Mavazi. 142 One incident does not
make a total ban necessary to protect public safety. Consequently, there is no reasonable
relationship between one incident and the total ban adopted by Rigalia.
For the reasons set out above, Rigalias ban cannot be considered a lawful limitation of the
freedom to manifest ones religion.

III.

ALTERNATIVELY, RIGALIAS BAN IS NOT A LAWFUL DEROGATION UNDER ARTICLE 4 ICCPR

In any event, Rigalias ban is not a lawful limitation of the freedom to manifest ones religion.
Five cumulative conditions have to be fulfilled before there can be a lawful derogation under
Article 4 ICCPR: first, the existence of a public emergency threatening the life of the nation;
second, the official proclamation of the emergency; third, the measure has to be proportional;
fourth, the measure must conform with other obligations under international law; and fifth, the
139

NOWAK, n11, 426; HRC, General Comment 22, 8.

140

General Comment 22, n32, 4; NOWAK, Id.

141

C.18.

142

C.16 juncto C.21.

30

measure may not be discriminatory. 143 Ardenia submits that Rigalias ban does not fulfill the
third and fourth conditions.

1.

The ban is not proportional

Derogations are only possible to the extent strictly required by the exigencies of the
situation. 144 The degree of interference must stand in a reasonable relation to what is necessary
to combat the emergency. 145 There has been only one incident with the Mavazi. 146 Rigalia even
expressed its intent to ban the Mavazi before this suicide bombing. 147 Banning the Mavazi
completely based on one attack is not proportional. Moreover, the threat Rigalia faces does not
come from Zetian women wearing a Mavazi. Thus, it is hard to see why banning the Mavazi is
necessary to combat the public emergency.

143

Art.4(1) ICCPR.

144

Art.4(1) ICCPR.

145

Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR, 51; NOWAK,
n11, 97-98.
146

C.18.

147

C.16.

31

2.

The ban does not conform with Rigalias other obligations under international law

The sanction imposed by the ban infringes upon other human rights, like the right to education
and the right to social security. 148 Additionally, banning the Mavazi violates the Zetians minority
rights.149 The Permanent Court of International Justice stated that there would be no true
equality between a majority and a minority if the latter were deprived of its own institutions, and
were consequently compelled to renounce that which constitutes the very essence of its being as a
minority. 150
By banning the Mavazi, Rigalia denies the Zetian women the right to exercise an integral part of
their religion and culture.
Because of this inconsistency with its obligations under international law and because Rigalias
ban does not comply with the proportionality requirement, Rigalias ban is not a lawful
derogation under Article 4 ICCPR.

D.

ARDENIA DID NOT VIOLATE THE OECD ANTI-BRIBERY CONVENTION (ABC)

OECD DECISION ON MNE GUIDELINES

OR THE

Ardenia did not violate the ABC because: first, it did not breach any obligation to investigate and
prosecute allegations of bribery and second, it did not fail to comply with the Conventions

148

Supra n124&126.

149

Art.27 ICCPR.

150

Minority Schools in Albania, 1935 P.C.I.J., 17.

32

provision on mutual legal assistance (MLA). Moreover, Ardenia did not violate the Decision of
the OECD Council on the OECD Guidelines for Multinational Enterprises (OECD Decision).

I.

ARDENIA DID NOT VIOLATE THE ABC

1.

Ardenia did not breach any obligation to investigate and prosecute allegations of bribery

Ardenia submits that it did not breach any obligation to investigate and prosecute allegations of
bribery because: first, it did initiate an inquiry into the activities of Mineral Dynamics
Incorporated (MDI); and second, it has prosecutorial discretion.

(a)

Ardenia initiated an inquiry into the activities of MDI

Both Ardenia and Rigalia are party to the ABC, which was drafted under the auspices of the
OECD. Ardenia, an OECD member since 1995, 151 is party to all instruments adopted by the
Organization.152 Rigalia signed the Anti-Bribery Convention and submitted its ratification
instrument to the OECD Secretary-General. 153 Ardenia recognizes that therefore, the two States
are bound by the provisions in the Convention and must perform it in good faith. 154

151

Clarifications, 2 [Cl.]

152

C.38.

153

Cl.3.

154

Art.26 Vienna Convention on the Law of Treaties[VCLT]; Gabikovo-Nagymaros Project,

(Hungary/Slovakia), 1997 I.C.J., 142 [Gabikovo-Nagymaros].

33

According to this Court, good faith requires parties to apply treaties in a reasonable manner. 155 As
mentioned before, the ABC asks Parties to investigate and prosecute bribery while at the same
time recognizing their prosecutorial discretion.156 Ardenia received a notification by Rigalia
concerning allegations of bribery against MDI surrounding the renewal of the Moria Mine
contract with RRI. Thereupon, Ardenia immediately initiated an inquiry into the activities of
MDI.157 After a period of investigation, however, the Public Prosecutor of Ardenia was forced to
drop the inquiry for reasons of national security. 158 The decision to suspend the investigation was
made only after carefully balancing the need to maintain the rule of law against the wider public
interest in security. 159 Considering the prompt inquiry that followed the notification of Rigalia
and the careful balance that was made before the subsequent suspension, Ardenia submits that it
has complied in good faith with its obligation under the ABC.

(b)

Moreover, Ardenia has prosecutorial discretion

As mentioned before, Ardenia recognizes that the principle of pacta sunt servanda requires
parties to perform their treaties in good faith. 160 Pursuant to Article 5 ABC, investigation and
prosecution of the bribery of a foreign public official shall be subject to the applicable rules and

155

Gabikovo-Nagymaros, n153, 142.

156

Art.5 ABC; ABC Commentaries, 27.

157

C.23.

158

C.25

159

Id.

160

Art.26 VCLT.

34

principles of each Party. The Commentaries jointly adopted with the ABC (Commentaries),
emphasize the fundamental nature of the prosecutorial discretion in this provision. 161 Although
Ardenia recognizes that prosecutorial discretion should be exercised on professional motives and
not be subject to improper influence by concerns of a political nature,162 it seems unreasonable
to exclude all considerations of national security. Therefore, Ardenia submits that it is not a
violation of the ABC to take into account such fundamental issues as national security while
exercising prosecutorial discretion.

2.

Ardenia did not fail to comply with the ABCs MLA provision

Ardenia submits that it did not fail to comply with the ABCs MLA provision because: first, it
was entitled to assess Rigalias request for legal assistance on its own terms; second, the
provision does not oblige Ardenia to guarantee the outcome of Rigalias MLA request; and third,
in any event, rather than denying MLA for bank secrecy reasons, Ardenia was complying with
the ABC in a reasonable manner.

(a)

Ardenia was entitled to assess Rigalias MLA Request under the ABCs provision on
MLA.

Under Article 9(1) ABC, each Party is required to provide prompt and effective legal assistance
to another Party that sends a request for MLA for the purpose of investigating bribery of foreign

161

ABC Commentaries, 27.

162

Id.

35

public officials. An important caveat to this requirement is the fact that the assistance must be
given to the fullest extent possible under its laws and relevant treaties and arrangements.163
This Court has recently held that such an MLA provision does not automatically create an
obligation to provide MLA.164 On the contrary, each request for legal assistance is to be assessed
on its own terms by each Party.165 Therefore, Ardenia is not obliged to render MLA simply and
solely because Rigalia makes an MLA request, although it recognizes that it is, indeed, obliged to
assess the request, which it did166.

(b)

The MLA provision does not oblige Ardenia to guarantee the outcome of Rigalias MLA
request

As mentioned before, under the ABC parties must provide MLA to the fullest extent possible
under its laws and relevant treaties and arrangements.167 According to this Court, the ultimate
treatment of a request for mutual assistance in criminal matters clearly depends on the decision
by the competent national authorities, following the procedure established in the law of the

163

Art.9 ABC.

164

Case Concerning Certain Questions of Mutual Assistance in Criminal Matters, (Djibouti v.

France), 2008 I.C.J., 119 [Mutual Assistance Case].
165

Id.

166

C.24.

167

Art.9(1) ABC.

36

requested State.168 While a State must ensure that proceedings are set in motion to answer an
MLA request, it is not obliged to thereby guarantee the outcome. 169
Ardenia has been seeking a way to satisfy Rigalias MLA request in connection with the criminal
investigation into MDIs activities, given its legislation regarding access to certain information on
bank records.170 This is not an attempt on the part of Ardenia to invoke its internal law in order to
escape its international obligations under the ABC.171 On the contrary, it never rejected the MLA
request.172
It can be inferred from this Courts judgment, that an MLA provision is to be realized in
accordance with the procedural law of the requested State.173 As the Court clarified, a requested
State invoking its internal law in this respect, is not justifying an alleged failure to perform the
international obligations flowing from an MLA provision, but, on the contrary, is applying them
according to the terms of that provision. 174 Therefore, Ardenia was not acting in breach of Article
27 of the Vienna Convention on the Law of Treaties when it was applying its obligations
according to the terms of the ABC, within the framework of its national legislation.

168

Mutual Assistance Case, n164, 123.

169

Id.

170

C.24.

171

Invocation of internal law as justification for failure to perform an international obligation is

prohibited by Art.27 VCLT, to which both Ardenia and Rigalia are Party (see: C.37).
172

C.24.

173

Mutual Assistance Case, n164, 123.

174

Mutual Assistance Case, n164, 124.

37

For these reasons, Ardenia submits that it complied with the ABC, because it correctly started
MLA proceedings within the context of its internal legislation and is not obliged to guarantee the
outcome.

(c)

In any event, Ardenia did not deny MLA on grounds of bank secrecy but was complying
with the ABC in a reasonable manner

As mentioned before, this Court has held that a good faith performance of a treaty requires parties
to apply it in a reasonable manner.175 Although the ABC explicitly rules out bank secrecy as a
justification for declining to render MLA, 176 it is important to note that the delay in Ardenias
response was in no way a denial of assistance on this ground.177 Ardenia recognizes that it did not
immediately respond to Rigalias MLA request. The delay in its response, however, can be
explained by the fact that Ardenia was trying to find a way to comply with the request within the
context of its national legislation. 178
On the one hand the ABC stipulates that parties shall provide MLA promptly and not decline to
render assistance on the ground of bank secrecy. On the other hand, the Convention also states
that parties must do so to the fullest extent possible under its laws 179 Therefore, in cases
where internal legislation with respect to access to bank information proves to be an obstacle to

175

Gabikovo-Nagymaros, n153, 142.

176

Art.9(3) ABC

177

C.24.

178

Id.

179

Art.9(1) ABC.

38

the effective rendering of MLA, the term prompt should be interpreted against a more lenient
standard than in other cases. In this context, a period of delay, which in other cases could be
considered a breach of the MLA obligation in the Convention, could in fact constitute compliance
in good faith. For these reasons, Ardenia submits that it was complying with the ABC in a
reasonable manner.

II.

ARDENIA DID NOT VIOLATE THE OECD DECISION ON MNE GUIDELINES

Rigalia has no standing to invoke the OECD Decision on MNE Guidelines, because it is not
legally bound by the decision and consequently obtains no rights from it. In any event, Ardenia
did not violate the OECD Decision on MNE Guidelines because it correctly replied to the
complaint submitted to it.

1.

Rigalia has no standing to invoke the OECD Decisions on MNE Guidelines

The OECD Declaration on International Investment and Multinational Enterprises (OECD

Declaration) is a political agreement amongst adhering States, including members and nonmembers of the OECD. 180 States adhering to the Declaration make a commitment to recommend
the observance of the MNE Guidelines to multinational enterprises operating in their

180

OECD, Investment Committee, Brazil, Reviews of Foreign Direct Investment Series, 63,
(1998) [Brazil Review]; OECD, Investment Committee, Estonia, Reviews of Foreign Direct
Investment Series, 67, (2001) [Estonia Review]; OECD, Investment Committee, Lithuania,
Reviews of Foreign Direct Investment Series, 67, (2001) [Lithuania Review].

39

territories. 181 The OECD Declaration, however, is supplemented by four legally binding
Decisions of the OECD Council182 on implementation procedures.183 One of them is the OECD
Decision on MNE Guidelines,184 which is at issue in this case.
Pursuant to Article 5 of the Convention on the Organization for Economic Co-operation and
Development, the OECD Council may take decisions which bind all OECD Members.185 Rigalia
has never been a Member of the OECD.186 Considering that the OECD Decision on MNE
Guidelines is not a treaty, but a unilateral act issued by an International Organization, it cannot
bestow obligations or rights upon third Parties. Therefore, as a non-Member to the OECD,
Rigalia is neither bound by the OECD Decision on MNE Guidelines, nor obtains any rights from
it. As such, it has no standing to invoke the Decision.

181

OECD, International Investment Committee, The OECD Declaration and Decisions on

International Investment and Multinational Enterprises: Basic Texts, Paris: OECD, 8 November
2000, 5-7 [DAFFE/IME(2000)20]; OECD, Working Party on the OECD Guidelines for
Multinational Enterprises, The OECD Guidelines for Multinational Enterprises: Text,
Commentary and Clarifications, Paris: OECD, 31 October 2001, 2 [MNE Guidelines].
182

Art.5 OECD Convention.

183

DAFFE/IME(2000)20, n181, 25-35; Brazil Review, n180, 63; Estonia Review, n180, 67;
Lithuania Review, n180, 67.
184

OECD Decision [C(2000)96/FINAL].

185

Art.5&7 OECD Convention.

186

C.38.

40

2.

In any event, Ardenia did not violate the OECD Decision on MNE Guidelines

As mentioned before, pursuant to the OECD Decision on MNE Guidelines, adhering countries
must set up NCPs whose job is, among other things, to contribute to the solution of problems
which may arise with respect to the implementation of the Decision.187 Additionally, according
to the Procedural Guidance of the Decision, the NCP must make an initial assessment of
whether the issues raised merit further examination and respond to the party or parties raising
them when providing assistance to the resolution of such issues.188
Upon receiving the complaint against MDI and RRI submitted to it by the Rigalian nongovernmental Committee for Responsible Business Conduct (CRBC), Ardenias NCP, in full
compliance with the Procedural Guidance of the OECD Decision on MNE Guidelines,
determined that the issues raised could not merit further examination. 189 Two days after the
complaint was filed, the NCP communicated this decision to the CRBC in a letter in which it also
clearly explained the reasons for the decision and urged the Committee to file the complaint with
the NCP of Rigalia. 190 In view of those circumstances, Ardenia submits that its NCP correctly
responded to the CRBCs complaint against MDI and RRI and did not breach the OECD
Decision on MNE Guidelines.

187

DAFFE/IME (2000)20, n181, 25.

188

DAFFE/IME (2000)20, n181, 28.

189

C.26.

190

Id.

41

The fact that subsequently the CRBC unnecessarily sent a letter to Ardenias NCP in which it
requested the organization of a meeting with all parties involved with the issues, 191 does not alter
Ardenias submission. According to the Procedural Guidance of the OECD Decision on MNE
Guidelines the NCP must only consult with the parties when it has concluded that the issues merit
further examination.192 Considering that Ardenias NCP had already concluded that this was not
the case, and had already unequivocally communicated this to the CRBC, the NCP was neither
obliged to respond a second time, nor to organize any meeting. 193 Therefore, Ardenia did not
violate the OECD Decision on MNE Guidelines.

191

Id.

192

DAFFE/IME (2000)20, n181, 28.

193

C.36.

42

PRAYER FOR RELIEF

The State of Ardenia respectfully requests this Honorable Court to adjudge and declare that:

(a) Rigalias Predator Drone strikes in Rigalia and in Ardenia violate international law and the
Court should order their immediate cessation;

(b) The attack on the Bakchar Valley hospital constitutes an act of aggression that is attributable
to Rigalia and which Rigalia ought to investigate; and, moreover, that Rigalia ought to
compensate Ardenia for the attack;

(c) Rigalias ban of the Mavazi for Zetian women and girls violates their rights under
international law; and

(d) Ardenia did not violate the OECD Anti-Bribery Convention or the OECD Decision on MNE
Guidelines.

43