2011 Best Canadian Respondent Memorial

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467R

INTERNATIONAL COURT OF JUSTICE

2011

CASE CONCERNING THE ZETIAN PROVINCES

STATE OF ARDENIA(APPLICANT)

v.

STATE OF RIGALIA(RESPONDENT)

MEMORIAL FOR THE RESPONDENT


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TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................. i

INDEX OF AUTHORITIES.......................................................................................................... iv

STATEMENT OF JURISDICTION.............................................................................................. xi

QUESTIONS PRESENTED ......................................................................................................... xii

STATEMENT OF FACTS .......................................................................................................... xiii

SUMMARY OF PLEADINGS.................................................................................................. xviii

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

I. Drone strikes against terrorists in Rigalia and Ardenia are consistent

with Rigalias rights under international law ................................................................. 1

A. Ardenia lacks standing to claim diplomatic protection forZetian terrorists............................................................................................................ 1

B. In any event, drone strikes conducted inside Rigalia with its consentare not prohibited under international law ................................................................ 1

i. Rigalia is entitled to use force to maintain order within its borders. ...................... 1

ii. Zetian terrorists are not fighting for self-determination .......................................... 2

C. Rigalia is engaged in a non-international armed conflict with Zetian

terrorists, in which international humanitarian law applies andextraterritorial operations are permitted..................................................................... 5

i. The hostilities between the Zetian terrorists and the State of Rigaliaconstitute a non-international armed conflict. ......................................................... 5

ii. International humanitarian lawis lex specialis to the armed conflictbetween the Zetian terrorists and Rigalia, and permits extraterritorialoperations ................................................................................................................ 7

D. Drone strikes are a legitimate exercise of Rigalias inherent right toself-defence against an ongoing armed attack. .......................................................... 9

i. The right to self-defence under Article 51 of the U.N. Charterincludesdefence against armed attacks conducted by non-state actors. ............................... 9

ii. Terrorist bombings and other attacks constitute an ongoing armedattack against Rigalia ............................................................................................ 10

iii. Strikes against Zetian terrorists meet the requirements of self-defence ................ 11

iv. States exercising the inherent right to self-defence may trespass uponneutral territory to respond to an armed attack. .................................................... 13


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v. In the alternative, Ardenia is complicit in the terrorist bombings insideRigalia, and is therefore a legitimate target of Rigalian self-defence ................... 13

E. Rigalia has a duty to take action against terrorists using Ardenia as a safehaven under UNSCR 1373. ....................................................................................... 14

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

aggression and is not attributable to Rigalia, nor does Rigalia have any

obligation to investigate the attack or compensate Ardenia ........................................ 16

A. The attack on the Bakchar Valley hospital was not an act of aggression............... 16

i. The attack upon the hospital lacked the requisite animus agressionisto constitute an act of aggression .......................................................................... 16

ii. The U.N. Security Council has not declared the attack to be an act of

aggression .............................................................................................................. 16iii. The attack does not meet the definition of aggression adopted by the U.N.. ........ 17

B. The attack is not attributable to Rigalia.................................................................... 17

i. The drone which attacked the hospital was not under the direction andcontrol of Rigalia ................................................................................................... 17

ii. The attack on the hospital was due toforce majeure ............................................ 18

C. Rigalia has no duty to investigate the attack or to compensate Ardenia ................. 19

III. Rigalias limited ban on the wearing of the Mavazi for Zetian women andgirls is consistent with international law........................................................................ 20

A. The Mavazi ban is required for Rigalia to meet its obligations underconventional international law.................................................................................. 20

i. TheMavazi ban is required for Rigalia to comply with theInternationalCovenant on Civil and Political Rights................................................................. 20

ii. TheMavazi ban is required for Rigalia to comply with the Conventionon the Elimination of All Forms of Discrimination against Women ..................... 20

iii. TheMavazi ban is required for Rigalia to comply with theInternationalCovenant on Economic, Social and Cultural Rights............................................. 21

B. Rigalias Mavazi ban does not violate customary or conventionalinternational law on non-discrimination.................................................................. 21

C. Rigalias Mavazi ban does not violate international law on religious rights


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and freedoms.............................................................................................................. 23

i. TheMavazi ban justifiably limits a cultural tradition ........................................... 23

ii. In the alternative, if wearing aMavazi is a religious practice, conventionalinternational law justifies the ban.......................................................................... 24

D. The Mavazi ban does not violate the rights of minorities under conventionalinternational law........................................................................................................ 26

E. In the alternative, the Mavazi ban is justified by the state of emergencyin Rigalia. ................................................................................................................... 27

IV. Ardenia has violated the OECD Anti-Bribery Convention and the

OECD Decision on the MNE Guidelines ....................................................................... 29

A. Ardenia has a duty to investigate the alleged criminal acts of RRI and MDI,and to provide mutual legal assistance under the OECD Convention .................... 29

i. The alleged criminal acts of RRI and MDI violate Ardenias domestic laws ....... 29

ii. The alleged criminal acts of RRI and MDI do not fall under a smallfacilitation payments exception30

B. Ardenias failure to investigate and prosecute the alleged corruptionviolates the Convention.............................................................................................. 31

i. Ardenia violated Article 5 of the OECD Convention ........................................... 31

ii. Ardenia cannot justify its violation of Article 5 of the OECD Conventionon the ground of national security ......................................................................... 31

iii. In the alternative, the issue should be resolved in favour of Rigalia .................... 33

C. Ardenias failure to provide mutual legal assistance to Rigaliaviolates Article 9(1) of the OECD Convention, and is not justifiable...................... 33

D. Ardenia has breached the Decision of the Council on the OECD Guidelinesfor Multinational Enterprises.................................................................................... 34

i. TheDecision and the Procedural Guidance are legally binding .......................... 34

ii. Ardenias NCP breached theDecision by failing to respond to the CRBC .......... 35iii. Ardenias NCP breached theDecision by failing to respond to the

CRBCs second request. ........................................................................................ 37

E. Ardenia cannot justify violating the Convention under customaryinternational law........................................................................................................ 37

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


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INDEX OF AUTHORITIES

TREATIES

Convention on Combating Bribery of Foreign Public Officials inInternational Business Transactions, 17 December 1997, 337I.L.M 8, 112 Stat. 3302.

Convention on the Elimination of All Forms of Discrimination

Against Women, 18 December 1979, 1249 U.N.T.S. 13.

Convention for the Protection of Human Rights and Fundamental

Freedoms, 4 November 1950, 213 U.N.T.S. 221.

Convention on the Rights of the Child, 20 November 1989, 1577

U.N.T.S. 3.

Geneva Conventions of 12 August 1949, 12 August 1949, [1950]U.N.T.S. 32.

International Convention Against the Taking of Hostages, 17December 1979, 1316 U.N.T.S. 205.

International Convention for the Suppression of the Financing of

Terrorism,10 January 2000, 2178 U.N.T.S. 197.

International Convention for the Suppression of Terrorist Bombings,15 December 1997, 2149 U.N.T.S. 256.

International Covenant on Civil and Political Rights, 19 December1966, 999 U.N.T.S. 171.

International Covenant on Economic, Social and Cultural Rights, 16December 1966, 993 U.N.T.S. 3.

Protocol Additional to the Geneva Conventions of 12 August 1949,

and relating to the Protection of Victims of International Armed

Conflicts (Protocol I), 8 June 1977, 1125 U.N.T.S. 3.

Protocol Additional to the Geneva Conventions of 12 August 1949,

and relating to the Protection of Victims of Non-International

Armed Conflicts (Protocol II), 8 June 1977, 1125 U.N.T.S. 609.

14, 29, 32, 33, 34

4, 21

25

4, 24

6, 8

14

14

14

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

2, 4, 21

2

6, 8


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JURISPRUDENCE

Juan Carlos Abella v. Argentina (1997), Inter-Am. Comm. H.R. No.55/97,Annual Report of the Inter-American Commission on

Human Rights:1997, OEA/Ser.L/V/II.95 Doc. 7 rev. 271.

Case Concerning Oil Platforms (Islamic Republic of Iran v. United

States of America), [2003] I.C.J. Rep. 161.

Case Relating to Certain Aspects of the Laws on the use of

Languages in Education in Belgium (1968) 1 E.H.R.R. 252.

Dahlab v. Switzerland, no. 42393/98, [2001] V E.C.H.R. 462.

Dogru v. France, no. 27058/05, [2008], E.C.H.R.

Legal Consequences of the Construction of a Wall in the Occupied

Palestinian Territory, Advisory Opinion, [2004]I.C.J. Rep. 136.


Palestinian Territory, Declaration of Judge Buergenthal, [2004]I.C.J. Rep. 240.


Palestinian Territory, SeparateOpinion of Judge Kooijmans,[2004] I.C.J. Rep. 219.

Legality of the Threat or Use of Nuclear Weapons, AdvisoryOpinion, [1996] I.C.J. Rep. 226.

Merg Case, Italian-United States Conciliation Commission DecisionNo.55, IV Collection of Documents 236, 10 June 1955.

Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Trial Judgment (2September 1998) (International Criminal Tribunal for Rwanda).

Prosecutor v. Boskoski and Tarculovski, IT-04-82-T, Trial Judgment(10 July 2008) (International Criminal Tribunal for the formerYugoslavia).

Prosecutor v. Haradinaj et al., IT-04-84-T, Trial Judgment (3 April2008) (International Criminal Tribunal for the formerYugoslavia).

6

10, 11, 12

23

26

25

28

10

10

7, 11

1

5

5, 7

6


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Prosecutor v. Dusko Tadi aka "Dule, IT-94-1, Decision on theDefence Motion for Interlocutory Appeal on Jurisdiction (2October 1995) (International Criminal Tribunal for the formerYugoslavia).

Reference Re Qubec Secession, [1998] 2 SCR 217, (Supreme Courtof Canada), 20 August 1998.

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

Leyla Sahin v. Turkey, no. 44774/98, [2005] 44 E.H.R.R. 5.

U.S. v. Von Leeb et al., (1948) 11 N.M.T. 462 (Nuremberg MilitaryTribunal).

UNITED NATIONS DOCUMENTS

Ago, Roberto (UN Special Rapporteur on State Responsibility), TheInternationally Wrongful Act of the State, Source ofInternational Responsibility. U.N. Doc A/CN.4/318/Add.5-7,(1971).

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

Economic and Social Council, General Comment 16, UN ESCOR,34th Sess., UN Doc. E/C.12/2005/3, (2005).

General Assembly,Declaration of Principles of International LawConcerning Friendly Relations and Co-operation Among States

in Accordance with the Charter of the United Nations, GA Res.2625 (XXV), 24 October 1970.

General Assembly,Declaration on the Occasion of the FiftiethAnniversary of the United Nations, GA Res. 50/6, 9 November1995.

General Assembly,Basic Principles and Guidelines on the Right to aRemedy and Reparation for Victims of Gross Violations of

International Human Rights Law and Serious Violations of

International Humanitarian Law, GA Res. 60/147, 16 December2005.

General Assembly,Definition of Aggression, GA Res. 3314 (XXIX),14 December 1974.

5, 8

4

32

23, 25, 26

16

12

2, 4, 9, 15, 16

21

2

4

19

17


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Human Rights Committee, Communication No. 208/1986, U.N. Doc.CCPR/C/37/D/208/1986, (1986).

Human Rights Committee, General Comment No. 18, U.N. Doc.

HRI/GEN/1/Rev.1, (1994).

Human Rights Committee, General Comment No. 22, U.N. Doc.HRI/GEN/1/Rev.1, (1994).

Human Rights Committee, General Comment No. 28, U.N. Doc.CCPR/C/21/Rev.1/Add.10, (2000).

Human Rights Committee, General Comment No. 29, U.N. DocCCPR/C/21/Rev.1/Add.11, (2001).

International Law Commission,Draft Articles on DiplomaticProtection, U.N. Doc. A/61/10, (2006).

International Law Commission,Draft Articles on Responsibility ofStates for Internationally Wrongful Acts, U.N. Doc. A/56/10,(2001).

Jahangir, Asma (UN Special Rapporteur on Freedom of Religion orBelief), Civil and Political Rights, Including the Question ofReligious Intolerance. U.N. Doc.E/CN.4/2006/5, (2006).

Rome Statute of the International Criminal Court, 17 July 1998,2187 U.N.T.S. 3.

Security Council, Threats to International Peace and SecurityCaused by Terrorist Acts, SC Res. 1368, 12 September 2001.

Security Council, Threats to International Peace and SecurityCaused by Terrorist Acts, SC Res. 1373, 28 September 2001.

OECD DOCUMENTS

OECD, Convention on Combating Bribery of Foreign PublicOfficials in International Business Transactions and Related

Documents, (Paris: OECD, 2010), online: OECD.

OECD, OECDGuidelines for

Multinational

Enterprises,(Paris: OECD,

2008), online:OECD.

22, 24

22

24

20, 27

27

1

17, 18, 37

22, 25

16

10, 14

10, 14, 15


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30, 31, 32

34, 35, 36, 37


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OECD, Legal Affairs Division,Legal Instruments, online:.

OECD, Public Affairs Division, Policy Brief: Fighting Bribery in

International Business Deals, September 2008.

BOOKS AND ARTICLES

Currie, John H.. Public International Law, 2nded. (Toronto: IrwinLaw, 2008).

Dinstein, Yoram. War, Aggression and Self-Defence, 3rded.(Cambridge: Cambridge University Press, 2001).

Howard, David & Elisa Wiygul, FCPA Compliance: The VanishingFacilitating Payments Exception?, online: < http://www.dechert.com/library/4-7-10-WCSL-Howard_and_Wiygul-FCPA_Compliance-The_Vanishing_Facilitating_Payments_Exception.pdf> (June 2010).

Hunter, Thomas. Targeted Killing: Self-Defence, Preemption and theWar on Terrorism (Charleston: Booksurge, 2009).

Jinks, Derek. September 11 and the Laws of War (2003) 28 Yale J.Intl L. 1.

Lubell, Noam.Extraterritorial Use of Force Against Non-StateActors (Oxford: Oxford University Press, 2010).

McInerney, Thomas F., The Regulation of Bribery in the UnitedStates (2002) 73 Int Review of Penal Law 81.

Melzer, Nils. Targeted Killing in International Law (Oxford: OxfordUniversity Press, 2008).

Provost, Ren.International Human Rights and Humanitarian Law(Cambridge: Cambridge University Press, 2002).

Rose-Ackerman, Susan & Billa, Benjamin, Treaties and NationalSecurity (2008) 40 International Law and Politics 437.

34

29

33

16

30

13

8

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

31

11, 12, 13

28

31, 32, 33


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Sassli, Marco. Transnational Armed Groups and InternationalHumanitarian Law (2006) Harvard University Program onHumanitarian Policy and Conflict Research, Occasional PaperSeries Number 6.

Shaw, Malcolm.International Law, 6th ed. (Cambridge: CambridgeUniversity Press, 2008).

Shirazi, Faegheh & Mishra, Smeeta, Young Muslim Women on theFace Veil (2010) 13(1) ICS 43.

MISCELLANEOUS

Council of Europe, P.A., 23st Sess.,Islam, Islamism and

Islamophobia in Europe, Resolution 1743 (2010).

International Committee of the Red Cross (ICRC), CustomaryInternational Humanitarian Law database, Rule 1: The Principleof Distinction between Civilians and Combatants. Online:http://www.icrc.org/customary-ihl/eng/print/v1_rul_rule1.

International Committee of the Red Cross (ICRC), CustomaryInternational Humanitarian Law database, Rule 14:Proportionality in Attack. online: http://www.icrc.org/customary-ihl/eng/print/v1_rul_rule14.

International Committee of the Red Cross (ICRC), InterpretiveGuidance on the Notion of Direct Participation in Hostilitiesunder International Humanitarian Law 90:872 Intl Rev. R.C.,December 2008.

Koh, Harold H., Speech: The Obama Administration andInternational Law online: , 25 March 2010.

8

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

21, 23

24

12

12

13

9


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STATEMENT OF JURISDICTION

The State of Rigalia (Respondent) and the State of Ardenia (Applicant) have submitted

their differences concerning the Zetian Provinces to the International Court of Justice pursuant to

the Special Agreement (Compromis) jointly notified to the court on 5 May 2010, as amended in

December 2010. The Courts jurisdiction is invoked under Article 36(2) read with Article 40(1)

of the Statute of the International Court of Justice, 1950. The Parties shall accept any Judgment

of the Court as final and binding upon them and shall execute it in its entirety and in good faith.


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QUESTIONS PRESENTED

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

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

III.Whether Rigalias limited ban on the wearing of theMavazi is consistent withinternational law; and

IV.Whether Ardenias failure to fully investigate alleged corruption involving RigalianRefining Incorporated and Mineral Dynamics Incorporated, its failure to provide

prompt and effective legal assistance to Rigalia in conducting its own investigation,

and the failure of its National Contact Point to respond to a complaint by the

Committee for Responsible Business Conduct, constitute breaches of its international

obligations under the OECDAnti-Bribery Convention andDecision on MNE

Guidelines.


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STATEMENT OF FACTS

The parties to this dispute are the adjacent States of Rigalia and Ardenia. Rigalia is a

developing country which, outside of its cities, is mountainous and economically

underdeveloped. Its population is 65% ethnic Rigalians and 35% ethnic Zetians, although

Zetians make up nearly 100% of the populace of Rigalias Northern Provinces. The Northern

Provinces comprise approximately one-third of Rigalias land mass, and are home to the

countrys most important natural resource, columbite-tantalite (coltan).

Situation in the Northern Provinces

The Northern Provinces have historically been governed by Zetian tribal councils whose

members adhere to the orthodoxMasinto religion. Under tribal council rules, Zetian women and

girls over the age of 14 are obliged to wear a Mavazi, a traditional head covering made from the

hide of the Zorax. TheMavazi covers the entire head and face, making identification of the

wearer difficult, and heats up quickly in the sun, making it difficult for the wearer to work

outdoors. Women who refuse to wear aMavazi are expelled from the Northern Provinces and, if

they remain, are arbitrarily detained in their own homes or publicly flogged. Furthermore, tribal

council rules prohibit women from driving or holding paid employment, and girls are often

married off as young as 8 or 9 years of age. These practices violate both Rigalian domestic law

and international human rights conventions. Although the Government has at times attempted to

enforce national laws in the Northern Provinces, it has preferred to avoid a direct confrontation

with tribal leaders.

For many years, the Zetian Democratic Party (ZDP) has sponsored a secession

movement in Rigalia with the aim of establishing an independent state comprising the Northern


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Provinces of Rigalia and the Southern Provinces of Ardenia, which are also largely populated by

Zetians.

In May 2008, the collective tribal councils of the Northern Provinces met together for the

first time in 20 years and, as a Joint Tribal Council, issued a ZDP-influenced Manifesto

demanding increased autonomy with an eventual goal of independence, a larger portion of

revenues from coltan mining operations, and respect for their traditional way of life. Realizing

that direct confrontation over the inalienable human rights of Zetian women could no longer be

avoided, President Khutai responded to the Manifesto by announcing his intention to enforce

existing law and modernize the Northern Provinces.

This announcement angered Zetians who preferred the status quo, and fighting broke out

in the Northern Provinces, with Rigalian soldiers attempting to keep the peace. Large protest

marches were held by supporters of the Zetian Refugees Fund (ZRF), which became violent

when protesters rebelled and resisted arrest. In an attempt to quell the increasing violence,

President Khutai invoked the emergency powers clause of the Rigalian constitution and imposed

a ban on groups organizing and assembling in public places. However, the ban had minimal

effect.

Certain Zetian tribal leaders and their supporters began mounting a terror campaign to

achieve independence by attacking infrastructure and kidnapping Rigalian citizens. In December

2008 a bridge was blown up in Rigaliaville, and in early 2009 a school and a hospital were

bombed. These attacks killed at least 155 civilians and wounded 112 more. The attack on the

school was conducted by a man wearing aMavazi.

Meanwhile, President Arwen of Ardenia met with tribal leaders from both sides of the

border and allegedly offered her support both for the continued enforcement of theMavazi rule,


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and for a future Zetian State located on Rigalian territory. Left with few choices, President

Khutai declared his government to be at war with the Zetian secessionist movement and its

supporters in both Rigalia and Ardenia. He also successfully urged the Rigalian Parliament to

pass legislation banning the wearing of aMavazi in public places, both as a way to protect

womens rights and as a measure to defend against disguised suicide bombers. Lastly, he

appealed to the President of Morgania for military assistance in pursuing Zetian terrorists in the

mountainous terrain of the Northern and Southern Provinces (collectively the Zetian

Provinces).

Morganian assistance came in the form of Predator drones, unmanned aerial vehicles

armed with Hellfire missiles which can be directed at targets on the ground. Between

September 2009 and March 2010, fifty strikes were conducted against targets in the Zetian

Provinces, including a strike against the terrorist leader Adar Bermal on the night of 15 March,

which coincided with a tragic, accidental attack upon the Bakchar Valley hospital.

Alleged Corruption Involving Mineral Dynamics Incorporated (MDI) and Rigalian

Refining Incorporated (RRI)

Rigalia has mostly positive bilateral economic relations with Ardenia, and the two

countries enjoy healthy cross-border trade and investment. In 1997, the Government of Rigalia

and state-owned RRI awarded a five-year coltan exploration and development contract to MDI, a

major Ardenian state-owned corporation. Under the guise of a community service program,

MDI provides financial support to the ZRF, an Ardenian-registered charity long-suspected of

promoting Zetian autonomy.

After MDIs contract was renewed for an additional 10 years in 2002, it was reported that

the deal had been secured through MDIs offer of continued support for the ZRF and payments


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amounting to $10 million in cash and shares held in trust for Clyde Zangara, founder of the ZRF

and nephew of Leo Bikra, the President of RRI. The Government of Rigalia believes that some

of these monies are being funnelled to the ZDP. It has also been reported that members of Zetian

tribal councils have been paid mandatory undocumented fees to ensure the protection of the

Moira coltan mine and the smooth delivery of raw materials to RRIs processing facility.

As required under domestic and international law, Rigalia opened a criminal investigation

into these corruption allegations, and subsequently suspended Leo Bikra as President of RRI. On

30 April 2009, the Government of Rigalia sent a request for mutual legal assistance (MLA) to

the Government of Ardenia, asking it to provide information regarding MDIs financial

transactions as well as its correspondence with the ZRF, Clyde Zangara and the tribal councils.

Ardenia initiated its own investigation, but has thus far not responded to Rigalias MLA request,

citing domestic law which precludes it from accessing the required bank records, and contending

that the correspondence between ZRF officers and tribal council members is irrelevant to the

corruption investigation.

On 3 June 2009, Ardenias Public Prosecutor Sam Strong dropped his investigation,

citing national security concerns. It is known, however, that MDI engaged in intense lobbying of

members of the Ardenian government and judiciary in an effort to get the inquiry dropped.

Furthermore, President Arwen publicly hinted that the decision to end the inquiry was at least

partly based on economic considerations.

On 1 July 2009, the Committee for Responsible Business Conduct (CRBC), a Rigalian

non-governmental organization, filed a complaint with the Ardenian National Contact Point

(NCP) for violations of theMNE Guidelines by MDI and RRI. The Ardenian NCP refused to

examine the complaint on the grounds that: (1) it should be dealt with by the Rigalian NCP; (2)


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the Guidelines do not apply to RRI; and (3) investigations were ongoing in both countries. The

CRBC subsequently asked the Ardenian NCP to organize a meeting with all parties to discuss

the issues, but this request was never answered.


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SUMMARY OF PLEADINGS

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

contested, strikes against terrorists inside Rigalia are consistent with international law. States are

permitted the use of force to maintain order within their own borders, and the principle of State

sovereignty precludes outside intervention in matters within domestic jurisdiction. The only

exception to this arises where a people are fighting for self-determination, however the Zetians

do not meet this definition.

Strikes conducted inside Ardenia are lawful because Rigalia is engaged in a non-

international armed conflict with Zetian terrorists and, under the applicable international

humanitarian law, has the right to take such extraterritorial actions. Furthermore, the strike was a

legitimate exercise of Rigalias inherent right to self-defence against an ongoing armed attack

under Article 51 of the U.N. Charter. Alternatively, Ardenias tolerance of Zetian terrorists

operating within its borders, failure to cooperate with Rigalias anti-corruption investigation, and

signing of a secret peace agreement make it complicit in the terrorist attacks inside Rigalia. As

such, Ardenia is a legitimate target of Rigalian self-defence. Additionally, Rigalia has a duty to

take action against terrorists who use Ardenia as a safe haven, as Ardenia had a clear obligation

to act underUNSCR 1373 and failed to do so.

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

because it lacked the requisite animus agressionis. This is demonstrated by the fact that the

hospital was never an intended target, and that the missile which hit the hospital was launched in

error. Additionally, the attack cannot constitute an act of aggression because the U.N. Security


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Council has not explicitly declared it to be so, nor does it meet the definition of aggression

adopted by the U.N. General Assembly.

The hospital attack is not attributable to Rigalia since neither the drone nor its operator

were under Rigalian direction and control. Both were under exclusive Morganian command,

meaning that the attack cannot be attributed to Rigalia. In fact, the attack was due toforce

majeure, precluding any internationalwrongfulness. Furthermore, as the attack is not

attributable to Rigalia, no duty to investigate or compensate Ardenia arises.

III. Rigalias limitedMavazi ban is a prerequisite to Rigalia meeting its international

obligations under conventional international law. The ban applies to all Rigalians, and does not

violate customary or conventional international law on non-discrimination, since it is a

reasonable and objective limitation enacted to protect human rights and prevent terrorist

attacks. Furthermore, the ban does not violate religious freedom, since conventional

international law and jurisprudencejustify limits on cultural traditions to secure equality for

women.

If wearing aMavazi is held to be a religious obligation, the ban is nonetheless justifiable

as a limit on the manifestation of religion under conventional international law. Moreover, if the

ban violates the minority rights of ethnic-Zetians, it is justified under conventional international

law to prevent the tribal councils subjugation of women.

In the alternative, the ban has justifiably limited derogable rights due to the state of

emergency in Rigalia.


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IV. Ardenia has violated the OECD Anti-Bribery Conventionby failing to investigate the

alleged criminal acts of RRI and MDI, and by failing to provide prompt and effective MLA to

Rigalia. Ardenias failure to investigate cannot be justified on the ground of national security

because no such exception exists under the Convention, nor was it Ardenias true motive for

dropping the inquiry. Moreover, Ardenias failure to provide prompt and effective MLA cannot

be justified on the grounds of bank secrecy, due to Article 9(3) of the Convention, or irrelevance,

since the requested information is within the scope of Rigalias investigation.

Additionally, Ardenias failure to respond to an issue of merit raised by the CRBC

violated the OECD Decision on MNE Guidelines. Ardenias NCP was obligated to process the

request regarding RRI, which is a MNE under the Guidelines, and the request did not undermine

national investigations. Moreover, Ardenias NCP violated theDecision by failing to respond to

the CRBCs second request for a meeting.

Ardenia is unable to justify these violations under the customary international law

doctrine of necessity, since they seriously impair Rigalias efforts to combat Zetian terrorists.


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PLEADINGS

I. Drone strikes against terrorists in Rigalia and Ardenia are consistent with Rigaliasrights under international law.

A.Ardenia lacks standing to claim diplomatic protection for Zetian terrorists.Although all Zetians hold dual citizenship,1 the principle of dominant and effective

nationality is decisive regarding the admissibility of claims.2 Where an aggrieved individual is a

national of both potential State parties to a dispute, only the State to which they have closer ties

may make a claim on their behalf.3

In this case, criteria such as place of residence, family connections, participation in public

life and gravity of interests all weigh towards Rigalian being the terrorists master nationality.

4

Of the terrorist leaders targeted, only one was residing in Ardenia and he was merely using it as a

safe haven from which to initiate attacks on Rigalia.5

B.In any event, drone strikes conducted inside Rigalia with its consent are notprohibited under international law.

Therefore, only Rigalia may make a claim

for diplomatic protection on behalf of the Zetian terrorists, and Ardenias claim is inadmissible.

i. Rigalia is entitled to use force to maintain order within its borders.It is customary international law that States have the right to use force to maintain

1 Compromis, 8.

2Merg Case, (1955) Italian-U.S. Conciliation Commission Decision No.55, p.236;International Law Commission,Draft Articles on Diplomatic Protection, U.N. Doc.A/61/10,(2006), art.7.

3 Malcolm Shaw,International Law, 6th ed. (Cambridge: University Press, 2008),p.815 [Shaw].

4 Compromis, 8, 9, 13.

5 Compromis, 9.


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domestic order.6 The prohibition of the use of force found in the Charter of the United Nations

(U.N. Charter)is limited to relations between States, and Article 2(7) thereof codifies the

principle of State sovereignty7 by precluding foreign intervention in matters which are

essentially within the domestic jurisdiction of any State.8

ii. Zetian terrorists are not fighting for self-determination.

As strikes against Zetian terrorists

inside Rigalia are a purely domestic matter, the principle of State sovereignty applies.

A recognized exception to the State sovereignty principle is where a people are fighting

against colonial oppression and alien occupation and against racist regimes in the exercise of

their right to self-determination in accordance with the [U.N.] Charter.9 Such conflicts are

deemed international,10 and States have a duty to refrain from using force against the oppressed

people.11 Rigalia recognizes the right of oppressed peoples to self-determination in accordance

with the principles of the U.N. Charterand other international instruments to which it is a

party,12

6 Shaw, n.3, p.1126.

but submits that the Zetian terrorists are not seeking self-determination in accordance

7 Shaw, n.3, p.1148.

8 Charter of the United Nations,art.2(7) [U.N. Charter].

9 Protocol Additional to the Geneva Conventions of 12 August 1949 (Protocol I), 8 June 1977,1125 U.N.T.S. 3., art.1(4).

10 Shaw, n.3, p.1148.

11 UNGA,Declaration of Principles of International Law Concerning Friendly Relations andCo-operation Among States in Accordance with the Charter of the United Nations,GA.Res.2625(XXV), 24 October 1970, Preamble.

12 U.N. Charter, n.8, arts.15, 73;International Covenant on Economic, Social and CulturalRights, 16 December 1966, 993 U.N.T.S. 3, art.1 [ICESCR];International Covenant on Civiland Political Rights, 19 December 1966, 999 U.N.T.S. 171, art.1 [ICCPR].


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with those principles.

First, the Northern Provinces have been an integral part of Rigalia since the countrys

founding, and their populations have always enjoyed the full benefits of Rigalian citizenship.13

Persons of Zetian ethnicity comprise 35% of the total Rigalian population and almost 100% of

the populace in the Northern Provinces,14 and enjoy the same protections under the law as every

other Rigalian.15

Second, Zetian terrorists are not seeking liberation in accordance with the principles of

the U.N. Charter. Rather, they are themselves oppressors seeking to continue their illegal

subjugation of Zetian women.

These facts show that the Zetians are neither under colonial oppression nor

alien occupation, and that the Government of Rigalia is not a racist regime.

16 Tribal councils require females over the age of 14 to wear a

Mavazi, and punish those who refuse through expulsion, arbitrary detention and public

flogging.17 Additionally, they deny Zetian women the right to drive or have paid employment,

and girls are often forcibly married as young as 8 or 9 years of age.18 These rules and

punishments violate Rigalian domestic law,19

13 Compromis, 8.

the principles of the U.N. Charterwhich

promot[e] and encourage[e] respect for human rights and for fundamental freedoms for all

14 Compromis, 2.

15 Compromis, 14.

16 Compromis, 13.

17 Compromis, 3.

18 Compromis, 4.

19 Compromis,4.


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without distinction,20 as well as important international treaties to which Rigalia is a party.21

Lastly, the sanctity of territorial integrity is a principle of customary international law,

only to be violated in situations of the most extreme and unremitting persecution,

amounting to the denial of a meaningful expression of self-determination.

Rigalia seeks only to enforce existing domestic law and uphold U.N. principles, while the

terrorists seek to defeat those principles and prolong their subjugation of Zetian women.

22

[S]hall not be construed as authorizing or encouraging any action thatwould dismember or impair, totally or in part, the territorial integrity or

political unity of sovereign and independent States conductingthemselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Governmentrepresenting the whole people belonging to the territory withoutdistinction of any kind.

The U.N. General

Assembly has resolved that the right to self-determination:

23

As noted above, the Government of Rigalia treats all of its citizens equally under the law,

regardless of their culture, ethnicity or any other characteristic. Limiting those aspects of Zetian

cultural tradition which are incompatible with domestic and international human rights law does

not alter that, nor does it deny Zetians the right to continued full participation in their

20 U.N. Charter, n.8, Preamble, art.1(3).

21ICESCR, n.12, arts.2(2), 3, 6(1), 7(a);ICCPR, n.12, arts.2(1), 3, 7, 9(1), 18(2), 23(3);Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3, arts.34(a), 36,37(a) [CRC]; Convention on the Elimination of All Forms of Discrimination AgainstWomen, 18 December 1979, 1249 U.N.T.S. 13, Preamble, arts.1, 3 [CEDAW].

22Reference Re Qubec Secession, [1998] 2 SCR 217,134 [Qubec Secession]; Shaw, n.3,p.523.

23 UNGA,Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, GARes.50/6, 9 November 1995, art.1.


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government through the Rigalian political system.24

C.Rigalia is engaged in a non-international armed conflict with Zetian terrorists,in which international humanitarian law applies and extraterritorial operations

are permitted.

i. The hostilities between the Zetian terrorists and the State of Rigaliaconstitute a non-international armed conflict.

According to the International Criminal Tribunal for the former Yugoslavia (ICTY),

an armed conflict exists whenever there is a resort to armed force between States or

protracted armed violence between governmental authorities and organized armed groups

[emphasis added].25 For a situation to meet this definition, it is necessary that a certain threshold

of armed violence be crossed,26 it must be protracted,27 and the organized armed group must

have the necessary characteristics to be a party to an armed conflict.28

Although non-international armed conflicts are governed by Common Article 3 and

Additional Protocol II(APII)of the Geneva Conventions, neither of these indicate the

threshold of violence required other than stipulating thatAPIIdoes not apply to situations of

internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other

24 Compromis, 21.

25Prosecutor v. Dusko Tadi, IT-94-1, Decision on the Defence Motion for InterlocutoryAppeal on Jurisdiction (2 October 1995) (International Criminal Tribunal for the formerYugoslavia), 70 [Tadi].

26 Prosecutor v. Jean-Paul Akayesu, ICTR-96-4-T, Trial Judgment (2 September1998) (International Criminal Tribunal for Rwanda), 619.

27 Tadi, n.25, 70.

28 Prosecutor v. Boskoski and Tarculovski, IT-04-82-T, Trial Judgment (10 July2008) (International Criminal Tribunal for the former Yugoslavia), 194-206 [Boskoski].


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acts of a similar nature.29

With respect to the minimum duration required for an armed conflict to exist, sometimes

very intense incidents are held to be armed conflicts despite being very short. One such incident

was only 30 hours long.

30 This implies that a continuum exists, on which even a very low-

intensity conflict could meet the threshold if it continued over a long period of time. In the

present case fighting has been ongoing for over 2-years,31

International jurisprudence indicates that the intensity of violence should be measured,

among other things, by the extent of casualties and material destruction.

and therefore the minimum

threshold of violence is met even if days or weeks elapse between attacks.

32

Since fighting began

in the Northern Provinces, Zetian terrorists have bombed a bridge, a hospital and a school,33

killing at least 155 civilians and wounding 112 more.34 In response to these atrocities, more than

50 drone strikes have been conducted, resulting in the elimination of 15 important terrorist

leaders and an unconfirmed number of collateral casualties.35

29 Geneva Conventions of 12 August 1949, [1950] U.N.T.S. 32, art.3 [CA3]; Protocol Additional

to the Geneva Conventions of 12 August 1949 (Protocol II), 8 June 1977, 1125 U.N.T.S.609, art.1(2) [APII].

From this, the violence must be

30Juan Carlos Abella v. Argentina (1997), Inter-Am. Comm. H.R. No.55/97,OEA/Ser.L/V/II.95 Doc. 7 rev. p.271; Noam Lubell,Extraterritorial Use of Force AgainstNon-State Actors (Oxford: University Press, 2010), p.105 [Lubell].

31 Compromis, 15, 16, 27.

32 Prosecutor v. Haradinaj et al., IT-04-84-T, Trial Judgment (3 April 2008) (InternationalCriminal Tribunal for the former Yugoslavia).

33 Compromis, 18.

34 Compromis, 18.

35 Compromis, 29.


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characterized as more than a mere internal disturbance, and the necessary threshold is met.

Additionally, Zetian terrorists constitute an organized armed group. In Prosecutor v.

Boskoski and Tarculovski, the ICTY held that for an armed group to be considered organised,

it would need to have some hierarchical structure and its leadership requires the capacity to exert

authority over its members.36 In the present case, the Zetian tribal councils meet those

requirements.37 The proposed Zetian flag,38 a rank structure and a chain of command capable of

exercising authority over the planning and initiation of all military actions within Rigalia39

ii. International humanitarian lawis lex specialis to the armed conflictbetween the Zetian terrorists and Rigalia, and permits extraterritorialoperations.

further support that the terrorists are an organized armed group.

In itsNuclear Weapons opinion,the International Court of Justice (ICJ) held that

international humanitarian law is lex specialis during armed conflicts, and that violations of

human rights could only be decided by reference to the law applicable in armed conflict and

not deduced from international human rights law.40

With regard to non-international armed conflicts, the ICTY in Tadi held that:

International humanitarian law applies from the initiation of such armedconflicts and extends beyond the cessation of hostilities until a generalconclusion of peace is reached; or, in the case of internal conflicts, apeaceful settlement is achieved. Until that moment, international

36Boskoski, n.28, 195, 206.

37 Compromis, 3, 13.

38 Compromis, 15.

39 Compromis, 30.

40Legality of the Threat or Use of Nuclear Weapons, AdvisoryOpinion, [1996] I.C.J. Rep. 226,25 [Nuclear Weapons].


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humanitarian law continues to apply in the whole territory of the warringStates or, in the case of internal conflicts, the whole territory under thecontrol of a party, whether or not actual combat takes place there[emphasis added].41

As noted above, Common Article 3 andAPIIgovern non-international armed conflicts. Both of

these are applicable to armed conflict[s] not of an international character occurring in the

territory of one of the High Contracting Parties.42APIIincludes the additional requirement

that the organized armed group must exercise such control over a part of its territory as to

enable them to carry out sustained and concerted military operations and to implement this

Protocol.43

Eminent theorists argue that, read contextually, Common Article 3,APIIandTadi permit

military operations to be conducted against an organized armed group in the territory of another

State, so long as that State is a party to the Geneva Conventions and so long as the group is

carrying out attacks from the territory.

44

This court should therefore hold that Rigalia is engaged in a non-international armed

conflict with the Zetian terrorists, that international humanitarian law applies as lex specialis, and

that extraterritorial operations against terrorists operating in the Southern Provinces of Ardenia

are lawful.

41 Tadi, n.25, 70.

42 CA3, n.29; APII, n.29, art.1(1).

43APII, n.29, art.1(1).

44 Lubell, n.30, pp.99-104; Derek Jinks, September 11 and the Laws of War 28 Yale J. Intl L.1 (2003), pp.40-41; Marco Sassli, Transnational Armed Groups and InternationalHumanitarian Law (2006) Harvard University Program on Humanitarian Policy andConflict Research, Occasional Paper No.6, p.9.


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D.Drone strikes are a legitimate exercise of Rigalias inherent right to self-defenceagainst an ongoing armed attack.

i. The right to self-defence under Article 51 of the U.N. Charterincludesdefence against armed attacks conducted by non-state actors.

Article 51 of the U.N. Chartercodified thejus cogens rule that States have the inherent

right to defend themselves against armed attacks and does not, explicitly or implicitly, specify

that the attack must be attributable to another State.45 Customary international law has

recognized the right to self-defence as including defence against attacks by non-state actors since

the Caroline case of 1837.46

Evidence of this is found in State practice: Iran and Turkey have both invoked Article 51

to attack Kurdish terrorists in Iraq, as has Israel to strike at Islamic Jihad in Syria and

Hezbollah in Lebanon, as has Ethiopia to intervene against Islamic militias in Somalia.

47 Most

analogous to the present case, however, is the invocation of Article 51 by the United States to

conduct its own drone campaign against al-Qaeda in Pakistan.48

The right has also been explicitly affirmed by the U.N.. In the wake of the 9/11

terrorist attacks in the United States, the Security Council recognized, in the context of threats

to international peace and security caused by terrorist acts, the inherent right of self-defence

Although not uncontroversial,

neither the Security Council nor any State, save Pakistan itself, has objected.

45 U.N. Charter, n.8, art.51; Lubell, n.30, p.31.

46 Lubell, n.30, p.31; Shaw, n.3, p.1131;

47 Lubell, n.30, p.30.

48 Harold H. Koh, Speech: The Obama Administration and International Law online:, 25 March 2010.


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in accordance with the [U.N.] Charter.49 Additionally, two judges of this court have opined that

armed attacks can be perpetrated by non-state actors,50 and as one of them wrote: It would be

unreasonable to deny the attacked State the right to self-defence merely because there is no

attacker State, and the [U.N.] Charter does not so require.51

ii. Terrorist bombings and other attacks constitute an ongoing armed attackagainst Rigalia.

The ICJ has distinguished armed attacks from lesser incidents such as border

skirmishes by holding that an armed attack will involve the most grave forms of the use of

force.52 Such force is epitomized by territorial intrusions, human casualties or considerable

destruction of property.53 Furthermore, if any single incident in a series is deemed insufficient

to meet the threshold for an armed attack, then an accumulation of such incidents will still give

rise to the right of self-defence.54

As noted above, numerous terrorist bombings and other attacks have killed or wounded

49 UNSC, Threats to International Peace and Security Caused by Terrorist Acts, SC Res.1368,12 September 2001, Preamble,[UNSCR 1368]; UNSC, Threats to International Peace andSecurity Caused by Terrorist Acts, SC Res. 1373, 28 September 2001, Preamble [UNSCR1373].

50Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,Declaration of Judge Buergenthal, [2004] I.C.J. Rep. 240, 6;Legal Consequences of theConstruction of a Wall in the Occupied Palestinian Territory, SeparateOpinion of JudgeKooijmans, [2004] I.C.J. Rep. 219, 35 [Wall-Kooijmans]; Lubell, n.30, p.32.

51 Wall-Kooijmans, n.50, 30.

52 Case Concerning Oil Platforms (Iran v. U.S.), [2003] I.C.J. Rep. p.161, 51 [Oil Platforms].

53 Lubell, n.30, p.50.

54 Lubell, n.30, pp.51-53.


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hundreds of people, and destroyed significant public infrastructure.55 Such attacks are ongoing,

and if anything the threat to Rigalia and its allies has intensified.56

iii. Strikes against Zetian terrorists meet the requirements of self-defence.

This court should therefore

hold that Rigalia is under an ongoing armed attack by Zetian terrorists, and that its inherent right

to self-defence under Article 51 of the U.N. Charterhas been engaged.

Actions taken in self-defence against an armed attack must be necessary and

proportionate, and must be conducted against legitimate military targets.57 In the case of an

ongoing armed attack, immediate resort to the use of force is justified in order to stop the

attack.58 Furthermore, where another State is being used for safe haven and is unwilling or

unable to act, the victim State will have no option but to use extraterritorial force, and the

requirements of necessity will have been met.59 In the present case, the ongoing armed attack by

Zetian terrorists, coupled with Ardenias failure to carry out its international obligations, is

sufficient to demonstrate the necessity of the strikes in both Rigalian and Ardenian territory.60

For defensive actions to be proportionate, they should be measured in relation to the

threat that is being faced and the means necessary to end the attack.

61


This does not mean,

56 Compromis, 27.

57 Oil Platforms, n.52, 51;Nuclear Weapons, n.40, 41.

58 Lubell, n.30, p.45.

59 Nils Melzer, Targeted Killing in International Law (Oxford: University Press, 2008),p.288[Melzer]; Lubell, n.30, p.46.

60 Compromis, 30.

61 Lubell, n.30, p.64.


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however, that the defending State cannot use means disproportionate to those used by the

attacker.62 Customary international law, according to the International Committee of the Red

Cross (ICRC), is that [l]aunching an attack which may be expected to cause incidental loss of

civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which

would be excessive in relation to the concrete and direct military advantage anticipated, is

prohibited [emphasis added].63 In the present case the military advantage gained through the

elimination of 15 top terrorist leaders, and particularly Adar Bermal, who was a direct

participant64 in the hostilities by virtue of being a major decision-maker in the planning and

initiation of all military activities within Rigalia,

65

Closely related to this is the requirement that the target be a legitimate military one, open

to attack in the exercise of self-defence.

is significant compared to the expected harm

to civilians and civilian objects. The death of Bermals relatives, while regrettable, is not

excessive considering the number of innocent Rigalians whose deaths have been averted.

66 Under the customary international law principle of

distinction, attacks directed against civilians are prohibited.67

62 Roberto Ago, The Internationally Wrongful Act of the State, Source of International

Responsibility. U.N. Doc A/CN.4/318/Add.5-7, (1971), 121.

The view of the ICRC and leading

63 ICRC Customary International Humanitarian Law database, Rule 14: Proportionality inAttack. online: ; Lubell, n.30,pp.65-66.

64 Melzer, n.59, pp.341-342, 426-427.

65 Compromis, 30.

66 Oil Platforms, n.52, 51.

67 ICRC Customary International Humanitarian Law database, Rule 1: The Principle ofDistinction between Civilians and Combatants. online: http://www.icrc.org/customary-ihl/eng/print/v1_rul_rule1.


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commentators is that under international humanitarian law, ...members of [non-state] organized

armed groups cease to be civilians for as long as they remain members.68 In other words,

civilians who join an organized armed group are considered legitimate military targets at all

times while they remain members. Numerous examples of State practice by Israel, Russia,

Pakistan, the United States and the United Kingdom support this.69

iv. States exercising the inherent right to self-defence may trespass uponneutral territory to respond to an armed attack.

As military leaders of an

organized armed group and direct participants in hostilities, Commander Bermal and the other

terrorists were legitimate targets.

As discussed above, it is lawful for a State engaged in a non-international armed conflict

to conduct military operations in the territory of another State that is being used as a safe haven

by the non-state organized armed group.70 It would, therefore, be absurd to deny the same right

to a State exercising its right to self-defence against an armed attack, particularly if the other

State is unwilling or unable to take action against the non-state organized armed group

themselves.71

v. In the alternative, Ardenia is complicit in the terrorist bombings insideRigalia, and is therefore a legitimate target of Rigalian self-defence.

Ardenias failure to honour its international obligations has made it a legitimate target of

68 ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities underInternational Humanitarian Law 90:872 Intl Rev. R.C., December 2008, p.71; Melzer,n.59, pp.341-342.

69 Thomas Hunter, Targeted Killing: Self-Defence, Preemption and the War on Terrorism(Charleston: Booksurge, 2009), pp.79-81; Melzer, n.59, p.xi.

70 See I.C(ii), above.

71 Lubell, n.30, pp.41-42.


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Rigalian self-defence. In particular, Ardenia has tolerated Zetian terrorists operating within its

borders,72 refused to cooperate with Rigalian corruption investigators,73 and, most significantly,

signed a secret peace agreement offering to support a future Zetian State located on Rigalian

territory.74 These acts and omissions violate international conventions concerning the taking of

hostages,75 the suppression of terrorist bombings,76 the financing of terrorism77 and bribery of

foreign public officials,78 as well as U.N. Security Council Resolutions (UNSCR) 1368and

1373.79 As a result, Ardenia has effectively aligned itself with the Zetian terrorists, justifying

any attack held to have been conducted upon Ardenia. 80

E.Rigalia has a duty to take action against terrorists using Ardenia as a safehaven under UNSCR 1373.

Article 25 of the U.N. Chartermakes decisions of the Security Council legally binding

72 Compromis, 19.

73 Compromis, 22-23.

74 Compromis,20.

75International Convention Against the Taking of Hostages, 17 December 1979, 1316 U.N.T.S.205, art.4.

76International Convention for the Suppression of Terrorist Bombings, 15 December 1997,2149 U.N.T.S. 256, arts.5, 7.

77International Convention for the Suppression of the Financing of Terrorism,10 January 2000,2178 U.N.T.S. 197, arts.8, 9.

78 Convention on Combating Bribery of Foreign Public Officials in International BusinessTransactions, 17 December 1997, 337 I.L.M 8, 112 Stat. 3302, at art.5 [OECD Convention].

79 UNSCR 1368, n.49, art.3; UNSCR 1373, n.49, arts.1, 2.

80 Lubell, n.30, pp.47-48.


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upon all member States.81 In UNSCR 1373 the Security Council [r]eaffirmed the need to

combat by all means threats to international peace and security caused by terrorist acts

[emphasis added],82

Decide[d] that all States shall:

and:

(a) Refrain from providing any form of support, active or passive, toentities or persons involved in terrorist acts, including by suppressingrecruitment of members of terrorist groups and eliminating the supply ofweapons to terrorists;

(b) Take the necessary steps to prevent the commission of terroristacts,;

(c) Deny safe haven to those who finance, plan, support, or committerrorist acts, or provide safe havens;

(d) Prevent those who finance, plan, facilitate or commit terrorist acts

from using their respective territories for those purposes against otherStates or their citizens;83

It went on to express its determination to take all necessary steps in order to ensure the full

implementation of this resolution, in accordance with its responsibilities under the Charter

[emphasis added].84 Given the failure of Ardenia to fulfill its obligations under this resolution,85

Rigalia has a legal duty to conduct strikes upon terrorists operating in Ardenian territory, so as to

carry into effect the legally binding instructions of the Security Council.

81 U.N. Charter, n.8, art.25;Shaw, n.3, p.1208.

82 UNSCR 1373, n.49, Preamble.

83 UNSCR 1373, n.49, arts.2(a)-2(d).

84 UNSCR 1373, n.49, art.8.



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II. The accidental attack on the Bakchar Valley hospital was not an act of aggression andis not attributable to Rigalia, nor does Rigalia have any obligation to investigate the

attack or compensate Ardenia.

A. The attack on the Bakchar Valley hospital was not an act of aggression.i. The attack upon the hospital lacked the requisite animus agressionis to

constitute an act of aggression.

It is customary international law that crimes against peace, including aggression, require

both the actus reus and the appropriate mens rea, oranimus agressionis.86 TheRome Statute of

the International Criminal Courtspecifies that an attack upon a hospital is a war crime, but only

if it was carried out intentionally.87 Although the jurisdiction of the International Criminal Court

covers individual criminal responsibility, the same standards should be applied to States. As the

hospital was not the intended target, and the missile that struck the hospital was launched in

error,88

ii. The U.N. Security Council has not declared the attack to be an act ofaggression.

the mental element required to make the attack an act of aggression is absent.

Article 39 of the U.N. Charterstipulates that the Security Council shall determine the

existence of any threat to the peace, breach of the peace, or act of aggression.89

86 Yoram Dinstein, War, Aggression and Self-Defence, 3rd ed. (Cambridge: University Press,

2001), p.125; U.S. v. Von Leeb et al., (1948) 11 N.M.T. 462 (Nuremberg Military Tribunal),p.486.

That this has

not been determined in the present case indicates that the Security Council accepts the strike

87Rome Statute of the International Criminal Court, 17 July 1998, 2187 U.N.T.S. 3,art.8(2)(b)(ix).

88 Compromis, 30.

89 U.N. Charter, n.8, art.39.


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against Adar Bermal to be part of a non-international armed conflict as well as a valid exercise of

the right to self-defence, and the missile launched at the hospital to be an unfortunate mistake on

the part of the Morganian drone operator.

iii. The attack does not meet the definition of aggression adopted by the U.N..The U.N. General Assembly has defined an act of aggression as the use of armed

force by a State against the sovereignty, territorial integrity or political independence of another

State.90 In order for the strike to constitute an act of aggression it would need to have been

intentionally directed at Ardenia.91

B. The attack is not attributable to Rigalia.

In the present case, Rigalias objectives were to gain a

military advantage over the Zetian terrorists, to defend its citizens from ongoing Zetian attacks,

and to carry out its obligation to act against international terrorism underUNSCR1373. It

would, therefore, constitute an error of law to characterize the attack as an act of aggression.

i. The drone which attacked the hospital was not under the direction andcontrol of Rigalia.

Article 6 of theILC Draft Articles on State Responsibility indicates that for a State to be

responsible for the actions of an organ of another State which has been put at its disposal:

Not only must the organ be appointed to perform functions appertainingto the State at whose disposal it is placed, but in performing the functionsentrusted to it by the beneficiary State, the organ must also act inconjunction with the machinery of that State and under its exclusive

direction and control, rather than on instructions from the sending State.[emphasis added].92

90 UNGA,Definition of Aggression, GA Res.3314 (XXIX), 14 December 1974, art.1.

91 Lubell, n.30, pp.26-27.

92 International Law Commission,Draft Articles on Responsibility of States for InternationallyWrongful Acts, with Commentaries, U.N. Doc.A/56/10, (2001), art.6 commentary 2 [StateResponsibility].


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In the present case, although Morganian Predator drones are aiding Rigalian forces in combatting

Zetian terrorism, they are not under Rigalias exclusive direction and control. The drones

themselves are launched by Morganian soldiers from a Morganian Air Force base, and are

operated remotely by members of the Morganian Army in Morganville.93 Command of the

operators is exercised entirely by Morgania,94 with Rigalias sole contribution being to recruit

and pay the informants who submit targeting information to Morganian authorities for action.95

ii. The attack on the hospital was due toforce majeure.

On that basis, this court should hold that the accidental attack on the hospital cannot to be

attributed to Rigalia.

Wrongfulness is precluded in situations offorce majeure because the event was

unavoidable.

A situation offorce majeure arises where three elements are met:(a) the act in question must be brought about by an irresistible force or

an unforeseen event;(b) which is beyond the control of the State concerned; and(c) which makes it materially impossible in the circumstances to

perform the obligation.96

Not exercising direction or control of the drones, Rigalia lacked the means either to foresee or

control the events which transpired in the control centre.97

It was therefore materially impossible


94 Compromis, 30.

95 Compromis, 29.

96 State Responsibility, n.92, art.23 commentary 2.

97 Compromis, 30.


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for Rigalia to prevent the attack upon the hospital, making it a result offorce majeure.

C.Rigalia has no duty to investigate the attack or to compensate Ardenia.Rigalia concedes that States to which a serious violation of international humanitarian

law is attributable have a duty both to investigate the violation98 and to make reparations.99

However, since the attack on the hospital is not attributable to Rigalia, nor to any organ or

individual under its exclusive direction and control, and was in fact due toforce majeure,neither

duty arises here.

98 UNGA,Basic Principles and Guidelines on the Right to a Remedy and Reparation forVictims of Gross Violations of International Human Rights Law and Serious Violations of

International Humanitarian Law, GA Res.60/147, 16 December 2005, art.4 [UNGAR60/147].

99 UNGAR 60/147, n.98, art.15.


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III. Rigalias limited ban on the wearing of theMavazi for Zetian women and girls isconsistent with international law.

A. The Mavazi ban is required for Rigalia to meet its obligations underconventional international law.

i. TheMavazi ban is required for Rigalia to comply with theInternationalCovenant on Civil and Political Rights (ICCPR).

TheICCPR requires States to ensure the equal right of men and women to all rights set

out in the Covenant.100 Positive measures must be adopted to achieve the effective and equal

empowerment of women,101 and these may include measures designed to prevent violations

which arise from specific regulations of clothing to be worn by women in public.102

The ban is required because the tribal councilMavazi rule dictates that all Zetian women

must wear aMavazi or face expulsion, arbitrary detention or public flogging.

103 Such

punishments violate theICCPR, which requires that minorities have continuous access to their

native culture, protects liberty and security, and prohibits inhuman or degrading treatment or

punishment.104

ii. TheMavazi ban is required for Rigalia to comply with the Convention onthe Elimination of All Forms of Discrimination against Women(CEDAW).

100ICCPR, n.12, art.3.

101 UNHRC, General Comment No. 28, U.N. Doc. CCPR/C/21/Rev.1/Add.10, (2000), para.3[GC28].

102 GC28, n.101, 13.

103 Compromis, 3.

104ICCPR, n.12, arts.7, 9, 27; GC28, n.100, 13; Shaw, n.3, p.295.


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Article 2(f) of the CEDAWobliges States to take all appropriate measures, including

legislation, to modify or abolish existing laws, regulations, customs and practices which

constitute discrimination against women.105 The tribal councilMavazi rule constitutes

discrimination against women under Article 1 of the CEDAW, since it is a custom that impairs

the equality rights of Zetian women by restricting their activities and acting as a symbol of

female subjugation.106

iii. TheMavazi ban is required for Rigalia to comply with theInternationalCovenant on Economic, Social and Cultural Rights (ICESCR).

Article 3 of theICESCR includes an obligation to protect, requiring States to take steps

aimed directly towards the elimination of prejudices, customary and all other practices that

perpetuate the notion of inferiority or superiority of either of the sexes.107 This can be done by

adopting legislation to eliminate discrimination and to prevent third parties from interfering

directly or indirectly with the enjoyment of all human rights.108 TheMavazi ban fulfils this

obligation by abrogating the tribal council rule, which perpetuates female oppression by isolating

women in the Northern Provinces.109

B.Rigalias Mavazi ban does not violate customary or conventional internationallaw on non-discrimination.

105 CEDAW, n.21, art.2.

106 CEDAW, n.21, art.1; Compromis, 3,16.

107ICESCR, n.12, art.3; General Comment 16, UNESCOR, 34th Sess., U.N.Doc.E/C.12/2005/3, (2005), 19 [GC16].

108 GC16, n.107, 19.

109 Compromis, para.14; Faegheh Shirazi & Smeeta Mishra, Young Muslim Women on theFace Veil (2010) 13(1) ICS 43, p.52 [Veil].


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First, the principle of non-discrimination is customary international law.110 However,

when a prohibition is worded in a neutral and all-embracing way, it indicates that the limitation

does not violate the principle of non-discrimination.111 TheMavazi ban is not discriminatory as

it applies to all Rigalians.112

Second, Article 26 of theICCPR prohibits discrimination in law or in fact.

113 As

previously discussed, however, Article 3 of theICCPR requires States to take affirmative action

in order toeliminate conditions which cause or help to perpetuate discrimination. 114 When

these actions involve differentiation through legislation, it will not constitute discrimination

under Article 26 so long as the legislation sets out differentiation that is reasonable and

objective, with an aimto achieve a purpose which is legitimate under the Covenant.115 The

U.N. Human Rights Committee (UNHRC) applied these criteria in theBhindercase to

establish that a hard hat requirement, which constitutedde facto discrimination against the

Sikh religion,was nonetheless compatible with Article 26.116

Any differential treatment of Zetian women which arises from theMavazi ban is

110 Shaw, n.3, p.275.

111 Asma Jahangir, Civil and Political Rights, Including the Question of Religious Intolerance,UNESCOR, 2006, UN Doc.E/CN.4/2006/5, 55 [Jahangir].

112 Compromis, 16.

113ICCPR, n.12, art.26; UNHRC, General Comment 18, UN Doc. HRI/GEN/1/REV.1, (1994),para.12 [GC18].

114 See I.A(i), above; GC18, n.113, 2,10.

115 GC18, n.113, 13.

116 UNHRC, Communication No. 208/1986, U.N. Doc. CCPR/C/37/D/208/1986, 6.2[Bhinder].


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reasonable and objective, as it is only a limited restriction, banning the wearing of aMavazi in

public places or when receiving public services.117 Furthermore, any differential treatment

achieves a legitimate aim, as there is proportionality between the legislation and the objective

sought.118 Specifically, the enforcement of human rights and protection of the public from

terrorist attacks is proportionate to the bans limited interference in the lives of Zetian women.119

C.Rigalias Mavazi ban does not violate international law on religious rights andfreedoms.

i. TheMavazi ban justifiably limits a cultural tradition.Wearing aMavazi is a tribal custom rather than an obligation under theMasinto

religion120 and as such, there is no violation of religious rights under Article 18(1) of the

ICCPR.121 The characterization of theMavazi as a cultural tradition is validated in two ways:

First, ornate headscarves, which vary according to country or regime, are commonly cultural

traditions.122 TheMavazi has various colours and designs that are unique to each tribe,

suggesting cultural rather than religious significance.123 Second, theMavazi, which covers the

entire head (including the face), is analogous to a niqab (face veil),124

117 Compromis, 16.

which many Islamic

118 Case Relating to Certain Aspects of the Laws on the use of Languages in Education inBelgium (1968) 1 E.H.R.R. 252, 10.

119 Compromis, 16.

120 Compromis, 14.

121ICCPR, n.12, art.18.

122Leyla Sahin v. Turkey, no. 44774/98, [2005] 44 E.H.R.R. 5, 92 [Sahin].

123 Compromis, 3.

124 Compromis, 3; Veil, n.109, p.44.


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women regard as a cultural tradition rather than a religious obligation.125

Furthermore, international practice and opinion justifies limiting this tribal custom. The

Council of Europe recognizes the necessity of legal restrictions on cultural traditions to offer

women equal opportunities.

126 Specifically, it allows for limitations when traditions threaten a

womans dignity and freedom.127 The tribal councilMavazi rule threatens a womans freedom

to dress as she chooses and violates her dignity, as she will be expelled, arbitrarily detailed or

publicly flogged should she violate it.128

ii. In the alternative, if wearing aMavazi is a religious practice, conventionalinternational law justifies the ban.

TheMavaziban does not violate Articles 18(1) or 18(2) theICCPR because Article 18

distinguishes between freedom of religion and freedom to manifest religion.129 The latter

includes the right to wear head coverings, such as theMavazi.130 Freedom to manifest religion

may be limited under Article 18(3) of the ICCPR and Article 14(3) of the Convention on the

Rights of the Child(CRC), as demonstrated in theBhindercase.131

The European Court of Human Rights (ECHR) set out a three-part test under Article

125 Council of Europe, P.A., 23st Sess.,Islam, Islamism and Islamophobia in Europe,Resolution 1743 (2010), 15 [Islam].

126Islam, n.125, 17.

127Islam, n.125, 15.

128 Compromis, 3.

129ICCPR, n.12, art.18.

130 UNHRC, General Comment 22, U.N. Doc. HRI/GEN/1/Rev.1, (1994), 3, 4; Compromis,3.

131ICCPR,n.12, art.18(3); CRC, n.21, art.14(3);Bhinder, n.116, 6.2.


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9(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms , the

language of which mirrors the aforementionedICCPR and CRCarticles. To determine if a right

has been lawfully restricted, the limitation must: (1) be prescribed by law; (2) pursue a

legitimate aim; and (3) be necessary.132 Each situation must be evaluated on a case-by-case

basis.133

First, the ban is prescribed by law. This element requires that the impugned measure: (1)

have some basis in domestic law; (2) be accessible to the person concerned; and (3) be

foreseeable as to its effects.

In the present case, all three elements are met.

134 The ban has a definite basis in domestic law since it was

adopted by Rigalias Parliament.

135

The ban is accessible because similar legislation has been

confirmed in case law, which is an accepted method of determining accessibility. 136 It is also

accessible because Zetians have been consistently subject to Rigalian law, and President Khutai

publicized the ban to the country on various occasions.137 Finally, the effects of the ban were

foreseeable, as President Khutai made his goal of modernizing the Northern Provinces known

in May 2008.138

Second, the ban has legitimate aims, which are to eliminate discrimination against

132 Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S.221, art.9(2); Sahin, n.122, 72-155;Dogru v. France, no.27058/05, [2008], E.C.H.R.,49-78 [Dogru].

133 Jahangir, n.111, 51.

134 Sahin, n.122, 74.

135 Compromis, 21.

136 Sahin, n.122, 78;Dogru, n.132, 59.

137 Compromis, 6, 14, 16.

138 Compromis, 14.


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person to violate the right to the equal enjoyment by women of any Covenant rights.145 If

Rigalia has violated the minority rights of ethnic Zetians, the justification of theMavaziban

under Article 3 of theICCPR, discussed above, overrides the violation.146

E.In the alternative, the Mavazi ban is justified by the state of emergency inRigalia.

If Rigalia has violated its obligations under theICCPR with respect to non-

discrimination, religious freedoms or minority rights, the violation is justified under Article 4 of

theICCPR, which allows a State to derogate temporarily from a part of its obligations under

the Covenant, so long as the right is not listed in the Article. 147 Neither Article 26 nor 27,

regarding non-discrimination and minority rights, respectively, are listed as non-derogable in

Article 4(2).148 Article 18, which deals with freedom of religion, is listed as non-derogable,

however Article 18(3) sets out a permissible restriction on the right and thus, the manifestation

of religion may nonetheless be derogated.149 A three-part test determines if States have

lawfully derogated obligations under Article 4: (i) the measure derogating from the provision

must be of an exceptional and temporary nature; (ii) the situation must amount to a public

emergency which threatens the life of the nation; and (iii) the State party must have officially

proclaimed a state of emergency.150

145 GC28, n.101, 32; Shaw, n.3, pp.318-319.

In the present case, the test is met.

146 See s.III.A(i), above.

147 UNHRC, General Comment 29, U.N. Doc CCPR/C/21/Rev.1/Add.11, (2001), 1 [GC29].

148ICCPR, n.12, art.4(2).

149 GC29, n.147, 7.

150 GC29, n.147, 2.


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First, the ban is of an exceptional nature and, while it is not temporary, the ICJ has held

that a quasi-permanent state of emergency due to continuous threats can allow for a specific

derogation to continue for a prolonged period of time.151 The ongoing terrorist attacks on

Rigalia thus make it acceptable that the ban is not temporary in nature.152 Secondly, the armed

conflict with the Zetian terrorists amounts to a public emergency that threatens the life of the

nation, as it has a collective effect on the community and the state.153 Finally, President Khutais

invocation of the emergency powers clause of the Rigalian constitution, coupled with his

declaration of 22 March 2009, constitute a proclamation of the state of emergency.154

151Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,Advisory Opinion, [2004]I.C.J. Rep. 136, 127-136.

152 Compromis, 18.

153 Ren Provost,International Human Rights and Humanitarian Law (Cambridge: UniversityPress, 2002) p.272; Compromis, 16, 18.



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response to solicitations from the tribal councils for preferential treatment also violates Ardenias

legislation.160

ii. The alleged criminal acts of RRI and MDI do not fall under a smallfacilitation payments exception.

According to OECD Commentaries on the Convention (Convention Commentaries),

small facilitation payments are small amounts paid to induce a government official to

expedite fulfilment of a non-discretionary duty and do not constitute bribery under the

Convention.161 In the present case, MDIs support to the ZRF allegedly amounts to $10 million,

which is not a small amount.162 Furthermore, as there is no evidence that the undocumented

fees being paid to the tribal councils are small, they do not fall under this exception either.163

Alternatively, if the alleged acts of MDI do constitute facilitation payments, they should

nonetheless be investigated. Based on comments from the OECD urging parties to combat

facilitation payments in the OECD Recommendations for Further Combating Foreign Bribery

(Anti-Bribery Recommendations), it is arguable that the most stringent domesticbribery

laws applicable in a given case should be applied.

164


Since Rigalian law has no exception for

161 David Howard & Elisa Wiygul, FCPA Compliance: The Vanishing Facilitating PaymentsException?, (2010) online: < http://www.dechert.com/library/4-7-10-WCSL-Howard_and_Wiygul-FCPA_Compliance-The_Vanishing_Facilitating_Payments_Exception.pdf>, p.1. [FCPA]; OECD, Convention on Combating Bribery of Foreign PublicOfficials in International Business Transactions and Related Documents, (Paris: OECD,2010), online: OECD at p.14, 9[Convention Documents].

162 Compromis, 12.

163 Compromis, 12.

164 Convention Documents, n.161, p.21, 6; FCPA, n.161, p.1.


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facilitation payments, it is more stringent and should be applied. Furthermore, significant State

practice suggests that facilitation payments can only be exempt from investigation when they are

lawful under the laws of the recipients country.165 As RRI and the tribal council members in

question are Rigalian, Ardenias exception does not apply. 166

B.Ardenias failure to investigate and prosecute the alleged corruption violates theConvention.

i. Ardenia violated Article 5 of the Convention.TheAnti-Bribery Recommendations state that complaints of briberyshould be

seriously investigated and credible allegations assessed by competent authorities.167 According

to the Convention Commentaries, this recommendation compliments Article 5, and parties to the

Convention have accepted it.168 Ardenias decision to suspend the investigation at a preliminary

stage did not satisfy the obligation to seriously investigate.169

ii. Ardenia cannot justify its violation of Article 5 of the Convention on theground of national security.

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

165 Thomas F. McInerney, The Regulation of Bribery in the United States (2002) 73 Int

Review of Penal Law 81, pp.82-85.

166 Compromis, 38.

167 Convention Documents, n.161, p.28.

168 Convention Documents, n.161, p.16.

169 Compromis, 25.

170 Compromis, 25.


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There is no explicit national security exception under Article 5.171 Additionally, by listing

specific proscriptions in Article 5, treaty-makers did not imply that other factors are within the

discretion of the parties.172 Furthermore, despite some much-criticized national jurisprudence

to the contrary,173 there is no implicit national security exception under customary international

law, and commentators have rejected an open-ended right to national security exceptions to

treat