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PHILIP C. JESSUP INTERNATIONAL LAW MOOT COURT 2016–2017 APPLICATION

About Jessup Application Instructions

Written Application Materials

Welcome to Columbia Law School! We are thrilled that you are considering applying to the Columbia Jessup team and look forward to reading your applications. Enclosed you will find more information about the team, instructions on completing your written submission, a compromis (or application problem), and materials for you to use in crafting your argument. Please pay particular attention to the submission rules and deadlines.

This year, the team is seeking three new members. We have no class preferences in our selection process. We understand that 1Ls may have relatively limited exposure to legal writing and argumentation; this will not be held against 1L applicants. We merely seek interested and motivated new members with strong writing and speaking skills. No prior competitive public speaking experience or knowledge of international law is necessary.

Please read the entirety of this packet before beginning your application, and email columbia.jessup@gmail.com with any questions about these instructions, the application process, the time commitment, or anything else related to law school. We look forward to reading your submissions.

Good luck!

Katherine Ebright ‘18 & Eve Levin ‘18

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ABOUT COLUMBIA JESSUP The Jessup Competition The Philip C. Jessup International Law Moot Court Competition is the world’s largest moot court competition, with participants from more than 550 law schools across over 90 nations. The competition simulates a dispute between two countries before the International Court of Justice (ICJ), the judicial arm of the United Nations. The International Rounds, which are held in Washington, D.C., are judged by the world’s top international law practitioners and scholars. The final round is regularly judged by actual, sitting ICJ judges. This year’s “compromis,” or competition problem, concerns a number of highly topical issues, including: environmental degradation and the use of shared resources like water; states’ responsibility for the care of migrants and refugees; and repatriation of cultural artifacts. If you are interested in competing, we strongly encourage you to read the problem on the ILSA website (www.ilsa.org/jessup) and see if the subjects engage and excite you.

Columbia’s Team Participation on the Columbia team is a tremendously rewarding experience that gives students access to exceptional coaching in legal writing and oral advocacy, a forum for intellectually stimulating discussions on issues of international law, and an opportunity to meet law students and practitioners from around the world. It also provides an opportunity to connect with Columbia’s world-class international law faculty. Last year, the team worked with professors Professors Sarah Cleveland and Matthew Waxman; Visiting Professors Claus Kreß and Mila Versteeg; Visiting Fellow Amal Clooney; and Lecturer-in-law Delyan Dimitrov '08 to prepare for the competition. Alumni play an especially important role on the Columbia Jessup Team and collaborate closely with current members over the course of the year.Participants will therefore have access to a superb network of former participants, including alumni in numerous law firms, international organizations, nonprofits, and the federal government. The structure of the Columbia team differs in three important respects from most other Columbia moot court teams. First, the five-person team collaborates on every written submission. As a new member, you will have principal responsibility for writing a portion of one of the two memorials, and you will share responsibility with the other members of the team for editing the remainder of the written submissions. Second, every member of the five-person team can expect to argue in the oral competition, both at the regional and international levels. Finally, Jessup is a two-year commitment.1 In the recent past, several eligible team members have opted to stay on for a third year, though that is by no means mandatory. 1Ls who join the team are excused from the ordinary 1L spring moot court competition and will be placed in a specialized Legal Practice Workshop. 2Ls may also receive academic credit and satisfy their minor writing requirement.

1 The two-year requirement does not apply to 3Ls, LLMs, and 2Ls in joint JD-LLM programs.

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2016–2017 SCHEDULE Jessup participation is a significant time commitment. It also is incredibly rewarding. Many, if not most, Jessup alumni describe participation as the highlight of their Columbia Law School experience. Participation will afford you a unique opportunity to engage with dynamic issues of public international law and public policy while honing your legal writing and oral argument skills.

Once selected, the team will immediately begin researching. Research will continue until mid-November. No work is done for the entire month of December until after finals and the holidays. Written submissions are due during the winter vacation period, and the team will reconvene in early January, before the start of classes. During the spring semester, the team will practice oral argument skills at regular meetings and will attend a weekend-long retreat. All team members will participate in oral arguments at the Regional Rounds. If the team succeeds at the regional level, the team will advance to the International Rounds. Travel and accommodation will be funded by Columbia Law School.

The following is a tentative schedule for the 2016–2017 Jessup season. Please note that the Northeast Regional qualifying round has not yet been scheduled but will fall on a weekend (probably in February). Because the Columbia team is so small and relies on the involvement of every member, we cannot accept applications from anyone who cannot return to campus in early January or attend the entire duration of the Regional and International Rounds. If you have questions or concerns about this schedule, please let us know. 3October2016 ANTICIPATEDRELEASEofFirstBatchofBasicMaterials.TheBasic

Materialsareacollectionofresearchmaterials,designedtoensurethatallteams,regardlessofbudgetandaccesstoinformation,startfromthesameposition.AllBasicMaterialswillbepostedtotheILSA’swebsite.

12 December2016 ANTICIPATEDRELEASEofSecondBatchofBasicMaterials.The

SecondBatchofMaterialsisbaseduponrequestsfromteamsandusuallyincludesavarietyoftreaties,caselaw,andsecondarysources.

5January2017 MEMORIALWRITING.Teammembersmustbebackoncampus,withdraftsof

theirwrittensubmissions.Draftswillbeeditedcollectively.

13 January2017 DEADLINEforSubmissionofMemorials.Jan–Mar2017 QUALIFYINGROUNDS.DatesforQualifyingCompetitionswillbeposted

ontheJessupWebsiteastheybecomeavailable.9–15April2017 WHITE&CASEINTERNATIONALROUNDS

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APPLICATION INSTRUCTIONS Please keep in mind the following application rules. Failure to adhere to these policies will result in disqualification of your application and in particularly egregious cases, referral to the Dean for further disciplinary action. 1. Submissions must be the product of your own original and independent work. Please refrain

from discussing your submission with others. 2. The written application is a “closed universe” problem. You may not reference any law, facts,

or publications not included in the enclosed materials. This prohibition includes past Jessup/ILSA materials, memorials, or publications.

3. Please note that the written application materials have been edited and may deviate from their

original sources and actual law. Submission and Formatting Instructions 1. Review the attached materials and prepare a written submission of no more four pages,

double-spaced, in 12-point Times New Roman font, left-aligned, with 1 inch margins all around, and page numbers.

2. Convert your written submission into a PDF document and name this document according to the following naming convention: [1L/2L/3L/LLM]_[last name].pdf. For example, if a 1L named Jane Smith were applying, her submission would be named: 1L_Smith.pdf.

3. Prepare a one-page PDF resume without your name or contact information. Please name

this document according to the following convention: [1L/2L/3L/LLM]_Jessup_Resume.pdf. 4. Send an email with your name, class year, email, and phone number in the body of the email,

and attach your resume and written submission, to columbia.jessup@gmail.com with the subject heading “1L Application,” “2L Application,” “3L Application,” or “LLM Application,” as appropriate.

5. In order to preserve the anonymity of the application process, we will be assigning each

applicant a competition number upon receipt of your materials. You do not have a competition number yet, so please do not worry about including it with your materials. With the exception the email and the file name of your written submission, your name or other identifying information should not appear anywhere in your application.

All submissions are due by Thursday, September 22 at 11:59 PM (Eastern Time). Extensions to this deadline will not be granted except in extraordinary circumstances. Submissions must be emailed to columbia.jessup@gmail.com.

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Written Application Instructions Please write an argument that Riesland’s cyber-attack on Amestonian companies either did or did not violate Riesland’s obligations under international law. Keep in mind that, if invited back for the oral argument portion of the tryout, you will be asked to argue the opposite position from that which you chose to argue in the written portion.

The following information is adapted from the compromis of the 2015–2016 Jessup competition. For the purposes of your argument, please regard the information as full and complete. Do not make factual assertions that are unsupported by the information in the compromis. You may, however, draw clearly-supported inferences. If you find any factual inconsistencies or omissions, the resolution of which is crucial to your argument, please email columbia.jessup@gmail.com for clarification.

You do not need to acknowledge strong arguments on the opposing side. Instead, advocate your side of the issue – the most convincing arguments, not necessarily the most balanced, will be most successful. Include only your argument, without other traditional brief sections (i.e., no ‘statement of fact,’ ‘questions presented,’ etc.) You also do not need to write an extensive introduction or conclusion. Either clear headers or a one- or two-sentence roadmap at the outset will suffice. You should focus on developing the substance of your argument.

Strong applications are well organized, draw effectively on the materials provided, identify the most persuasive arguments in support of their positions, and are free of grammar and spelling errors. Clear, concise writing is preferred to flowery, academic styles. Clarity of citation to materials in the packet is more important than any particular form. Cite the sources in conformity with the Table of Authorities, listed below, with an article or paragraph number, if provided. While you may use any source within this packet, do not feel compelled to use everything. You are free to demonstrate your ability to distinguish between relevant and irrelevant information.

Special Instructions for 2L, 3L and LLM candidates: For the 2016–2017 Jessup Application, 2L, 3L, and LLM candidates may submit an independently written and edited brief or portion of a brief, including a prior moot court brief or the writing component from journal applications. Please note, however, that the submitted sample must be entirely your own work; thus, if you received feedback or edits from anyone else during the drafting of a brief, only an initial, unedited draft may be submitted. Please submit samples in conformity with the submission instructions above. Candidates should ensure that no identifying information appears anywhere in the writing sample.

Note: we cannot accept applications from anyone currently licensed to practice law in any jurisdiction.

TABLE OF CONTENTS

Authority Cite As Page

Compromis Compromis 1

Pleadings Pleadings 3

Statute of the International Court of Justice ICJ Statute 4

“The Sources of International Law,” from Brownlie’s Principles of Public International Law Brownlie’s 5

Charter of the United Nations UN Charter 7

The Corfu Channel Case Corfu 8

The Bosnian Genocide Case Genocide 9

Nicaragua v. United States Nicaragua 10

The Armed Activities Case Armed Activities 11

Articles on the Responsibility of States for Internationally Wrongful Acts ARSIWA 12

Declaration on Friendly Relations Friendly Relations

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Tallinn Manual Tallinn 14

Report on Developments in the Field of Information and Telecommunications UN Tech Report 15

“The Effective Control and Overall Control Tests Revisited,” Antonio Cassese Cassese 16

“Self-Defense Against Terrorists: The Meaning of Armed Attack,” Steven Ratner Ratner 17

“Computer Network Attack and the Use of Force in International Law,” Michael Schmitt Schmitt 18

“Political and Economic Coercion in Contemporary International Law,” Tom Farer Farer 19

“Non-Intervention and Non-Interference in International Law,” Lori Damrosch Damrosch 20

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COMPROMIS

INTERNATIONAL COURT OF JUSTICE

THE STATE OF AMESTONIA v. THE FEDERAL REPUBLIC OF RIESLAND

THE CASE CONCERNING THE FROST FILES 1. Riesland is a developed democratic state and boasts one of the fastest growing free-market economies

in the world. Its rapidly expanding information technology and communications sector is world renowned. Amestonia is a developing country bordering Riesland to the south, with a population of approximately 20 million. Since the 1970s, the two nations have enjoyed healthy cross-border economic, cultural, and security ties.

2. Environmentalists began to express concerns in the early 1990s about the long term sustainability of

Amestonian farmers’ reliance on a class of neuro-active insecticides known as neonicotinoids, or “neonics,” produced solely by Rieslandic companies, to boost yields. Over the ensuing decades, they grew increasingly concerned with the correlation between the massive decline in the region’s honeybee population and the use of neonics.

3. On 2 July 2013, a new website, www.longlivethehive.com, was launched. Conversations on its

anonymous online forums often focused on lobbying activities in support of draft legislation. However, some members also promoted violent actions, including sabotage and arson. The website quickly gained attention in Amestonia and Riesland.

4. On the night of 2 February 2014, seven Amestonian warehouses storing neonics were simultaneously

set on fire. In total, five people, including two Rieslandic nationals, died from smoke inhalation, and many others were injured. An anonymous post on longlivethehive by user @buzzkiller24601 posted that evening, which quickly went viral, read: “You’ve been warned. The threat is real. It must be addressed. Next time you’ll taste your own poison. #banneonics #savethebees.”

5. The President of Amestonia, Boris Hale, and the Prime Minister of Riesland, Alice Silk, discussed the

arson incident in a telephone conversation the following day. Prime Minister Silk offered Riesland’s continued cooperation, including coordination and sharing of intelligence information, in combatting what she called “acts of eco-terrorism.” Following the call, the Prime Minister announced that she had ordered Riesland’s security and intelligence services to direct their operations against “what appears to be a new, growing, and dangerous threat to the well-being of both of our countries.”

6. The Rieslandic Secret Surveillance Bureau (“the Bureau”) engages, inter alia, in covert operations and

collects intelligence outside of Riesland. On 16 October 2014, the Bureau’s Director met with the Amestonian Minister of Internal Affairs. He informed the Minister that the Bureau had succeeded in identifying a ring of Amestonian environmental activists who had been plotting another attack. He provided the Minister with the names and locations of the ring members. Based on that intelligence, Amestonian police broke into a garage located in Amestonia’s capital and apprehended three Amestonian college students. They admitted to planning an attack and to being part of a group of environmentalists, which they called “The Hive.”

7. Frederico Frost, a national of Riesland, is a former Bureau intelligence analyst who had been part of

the Bureau’s eco-terrorism working group, established in early 2014. On the morning of 16 December 2014, Frost drove from the Bureau’s facilities to Amestonia, where he contacted Chester &

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Walsingham, a law firm notorious for representing high-profile whistle-blowers. Frost handed lawyers from the firm a USB drive containing nearly 100,000 documents labeled “Top Secret” that he said he had directly downloaded from Bureau computers. The firm agreed to represent Frost in relation to any disclosure or dissemination of the materials.

8. On 18 December 2014, accompanied by his lawyers, Frost met with two reporters from The Ames Post,

Amestonia’s most widely-circulated newspaper. He gave the reporters a copy of the USB drive, requesting that the newspaper publish the contents on its website. In a written statement, Frost explained that “I have come to realize how surveillance programs, like the ones I was engaged in, threaten individual liberties and sovereign equality.”

9. In January and February 2015, thousands of documents marked “top secret” were gradually published,

unedited and unredacted, on the website of The Ames Post. The documents revealed that for over two decades, Riesland had engaged in highly invasive mass surveillance of Amestonian citizens. For example, under one program, the Bureau indiscriminately collected and stored 1.2 million gigabytes of data daily from Amestonia’s primary backbone of international telephone and internet traffic.

10. On 2 February 2015, Riesland’s Minister of Foreign Affairs sent a diplomatic note to his counterpart

in Amestonia requesting that Amestonia recover the information Frost had downloaded, believed to be held by either Chester & Walsingham or The Ames Post, and return it to Riesland for use in the ongoing criminal investigation against Frost. It emphasized that “any further publication of these materials will have a long-term, damaging impact on cooperation between our two nations in our joint campaign against terrorism.” The Amestonian Minister indicated that the request would be considered, but noted the Amestonian Government’s “surprise at the reported scope and reach of Riesland’s surveillance programs.”

11. President Hale held a press conference on the morning of 17 February 2015. Before taking questions,

he read a prepared statement:

“I am deeply troubled by reports that Riesland has, for decades, engaged in a concerted surveillance campaign targeting our citizens and violating our territorial integrity and political independence. Any claims that such programs are necessary to combat terrorism simply ring hollow. No matter how severe any perceived threat to Riesland’s national security, there is absolutely no justification for the systematic infringement of our citizens’ privacy.”

12. On 19 February 2015, Prime Minister Silk rejected President Hale’s characterization of Riesland’s

activities in a televised interview. She ended her statement by saying:

“Our two nations have enjoyed decades of fruitful bilateral cooperation, which is now being severely compromised. We make no apology for our efforts to keep ourselves and our friends safe from acts of terrorism. Meanwhile, the Amestonian administration is hardly reciprocating our acts of friendship. It is providing sanctuary to Frederico Frost, who is accused of very serious crimes in Riesland, and has failed to attempt the recovery of Riesland’s stolen documents from Chester & Walsingham or The Ames Post.”

13. On 14 March 2015, President Hale ordered that Riesland’s request for the documents held by The Ames

Post be denied. Attorney General Deloponte of Riesland responded to these developments in a statement:

“The Government of Riesland has repeatedly made clear that it will not tolerate the

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publication of leaked confidential information, and that it will do whatever is in its power to disrupt any further threats to our national security. With or without foreign government support, we will stop the damage that will result from any dissemination of Riesland’s top secret documents.”

14. On 22 March 2015, the computer networks and communication switches at both The Ames Post and

Chester & Walsingham were hacked and disabled. Investigators found that the hackers had used a malicious program to disrupt the operation of the computer systems and to corrupt master boot records, to the extent that nearly 90% of the information was “non-recoverable.”

15. Based on traffic analysis, cyber security experts from the Amestonian Institute of Technology

concluded: “The malware used in the hacking of the computers has been traced to IP addresses within Riesland’s territory that are associated with Riesland’s computer infrastructures. Significant segments of code in the malware are exact replicas of those used in known Bureau hacking programs. These code segments are not otherwise known to be in use or available to the general public.” Both Chester & Walsingham and The Ames Post contracted external appraisers, who have estimated the combined damages related to infrastructure and to unrecoverable data at €45-50 million. A significant number of proceedings before Amestonian courts were delayed for months as a result of Chester & Walsingham’s inability to access its files. The Ames Post had to shut down its operations entirely; it resumed publication only in June 2015.

16. On 1 April 2015, President Hale issued a statement denouncing the cyberattacks, stating that “all of the

evidence points back to the Bureau and to Riesland.” He described them as “not only undermining freedom of expression and attorney-client privilege – essential values in and of themselves,” but as an “assault upon the very principles that stand at the core of our society.” In an interview with local news held on 5 April 2015, Attorney General Deloponte refused to respond to allegations that Riesland was involved in the attacks.

17. Amestonia and Riesland are both members of the United Nations and are parties to the Statute of the

International Court of Justice.

PLEADINGS AMESTONIA asks the Court to adjudge that the cyber-attacks against the computer systems of The Ames Post and Chester & Walsingham are attributable to Riesland, and constitute an internationally wrongful act for which Amestonia is entitled to compensation. RIESLAND asks the Court to adjudge that the cyber-attacks against the computer systems of The Ames Post and Chester & Walsingham cannot be attributed to Riesland, and in any event did not constitute an internationally wrongful act.

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AUTHORITIES

Statute of the International Court of Justice Article 38(1) The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Article 59 The decision of the Court has no binding force except between the parties and in respect of that particular case.

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The Sources of International Law adapted from Brownlie’s Principles of Public International Law, 8th ed., by James Crawford

The formally recognized sources of international law are reflected in Article 38 of the Statute of the International Court of Justice, and are as follows: I. INTERNATIONAL CUSTOM Article 38 refers to ‘international custom, as evidence of a general practice accepted as law.’ The sources that can evidence custom are manifold and include: diplomatic correspondence, policy statements, press releases, the actions of governments, international and national judicial decisions, recitals in international instruments, an extensive pattern of treaties in the same terms, the practice of international organs, and resolutions relating to legal questions in UN organs, notably the General Assembly. The value of these sources varies and will depend on the circumstances. Complete uniformity of practice is not required, but substantial uniformity is. Provided the consistency and generality of a practice are established, the formation of a customary rule requires no particular duration. A long practice is not necessary, an immemorial one even less so. In North Sea Continental Shelf the Court said:

Although the passage of only a short period of time is not necessarily a bar to the formation of a new rule of customary international law, an indispensable requirement would be that within the period in question, State practice should have been both extensive and uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.

The Statute of the International Court specifically refers to “a general practice accepted as law.” [The requirement that the practice be “accepted as law” implies that it need not only be widespread, but also be supported by the belief that it reflects a legal obligation to constitute customary law.] II. TREATIES

Treaties are the most important source of obligation in international law. So-called ‘law-making’ treaties create general norms to govern the conduct of the parties. The Declaration of Paris of 1856 (on neutrality in maritime warfare), the Hague Conventions of 1899 and of 1907 (on the law of war and neutrality), the Geneva Protocol of 1925 (on prohibited weapons), the General Treaty for the Renunciation of War of 1928, the Genocide Convention of 1948, and the four Geneva Conventions of 1949 (on the protection of civilians and other groups in time of war) are examples of this type. When norms of treaty origin crystallize into new principles or rules of customary law, the customary norms retain a separate identity even where the two norms may be identical in content. III. GENERAL PRINCIPLES OF LAW

Article 38(l)(c) of the Statute of the International Court refers to ‘the general principles of law recognized by civilized nations.’ The Court has used Article 38(l)(c) sparingly. However, the Court has on occasion referred to general notions of responsibility. [For example,] the Court has relied on occasion on the principle of estoppel or acquiescence. At other times references to abuse of rights and to good faith may occur. But

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the most frequent and successful use of domestic law analogies has been in the field of evidence, procedure, and jurisdiction. IV. SUBSIDIARY SOURCES OF LAW

The Statute of the International Court includes, among the “subsidiary means for the determination of rules of law” the “teachings of the most highly qualified publicists.” The opinions of publicists enjoy wide use, [and] there are many references to writers in pleadings before the Court. Judicial decisions are not strictly a formal source of law, but in many instances they are regarded as evidence of the law. It is true that the Court does not observe a doctrine of precedent, except perhaps on matters of procedure. But it strives to maintain judicial consistency.

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Charter of the United Nations Article 2(4) All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. Article 51 Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

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The Corfu Channel Case International Court of Justice, 1949

Finally, the United Kingdom Government put forward the argument that, whoever the authors of the minelaying were, it could not have been done without the Albanian Government's knowledge. It is clear that knowledge of the minelaying cannot be imputed to the Albanian Government by reason merely of the fact that a minefield discovered in Albanian territorial waters caused the explosions of which the British warships were the victims. It is true, as international practice shows, that a State on whose territory or in whose waters an act contrary to international law has occurred, may be called upon to give an explanation. It is also true that that State cannot evade such a request by limiting itself to a reply that it is ignorant of the circumstances of the act and of its authors. The State may, up to a certain point, be bound to supply particulars of the use made by it of the means of information and inquiry at its disposal. But it cannot be concluded from the mere fact of the control exercised by a State over its territory and waters that that State necessarily knew, or ought to have known, of any unlawful act perpetrated therein, nor yet that it necessarily knew, or should have known, the authors. This fact, by itself and apart from other circumstances, neither involves prima facie responsibility nor shifts the burden of proof. On the other hand, the fact of this exclusive territorial control exercised by a State within its frontiers has a bearing upon the methods of proof available to establish the knowledge of that State as to such events. By reason of this exclusive control, the other State, the. victim of a breach of international law, is often unable to furnish direct proof of facts giving rise to responsibility. Such a State should be dowed a more liberal recourse to inferences of fact and circumstantial evidence. This indirect evidence is admitted in al1 systems of law, and its use is recognized by international decisions. It must be regarded as of special weight when it is based on a series of facts linked together and leading logically to a single conclusion. The Court must examine therefore whether it has ken established by means of indirect evidence that Albania has knowledge of minelaying in her territorial waters independently of any connivance on her part in this operation. The proof may be drawn from inferences of fact, provided that they leave no room for reasonable doubt. The elements of fact on which these inferences can be based may differ from those which are relevant to the question of connivance.

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The Bosnian Genocide Case International Court of Justice, 2007

On this subject the applicable rule, which is one of customary law of international responsibility, is laid down in Article 8 of the ILC Articles on State Responsibility as follows:

“Article 8 Conduct directed or controlled by a State The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.”

This provision must be understood in the light of the Court’s jurisprudence on the subject, particularly that of the 1986 Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). In that Judgment the Court, after having rejected the argument that the Contras were to be equated with organs of the United States because they were “completely dependent” on it, added that the responsibility of the United States could still arise if it were proved that it had itself “directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State”; this led to the following significant conclusion: “For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.” The test thus formulated differs in two respects from the overall control test to determine whether a person or entity may be equated with a State organ even if not having that status under internal law. First, in this context it is not necessary to show that the persons who performed the acts alleged to have violated international law were in general in a relationship of “complete dependence” on the respondent State; it has to be proved that they acted in accordance with that State’s instructions or under its “effective control”. It must however be shown that this “effective control” was exercised, or that the State’s instructions were given, in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by the persons or groups of persons having committed the violations. . . . Genocide will be considered as attributable to a State if and to the extent that the physical acts constitutive of genocide that have been committed by organs or persons other than the State’s own agents were carried out, wholly or in part, on the instructions or directions of the State, or under its effective control. This is the state of customary international law, as reflected in the ILC Articles on State Responsibility.

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Nicaragua v. United States

International Court of Justice, 1986 Notwithstanding the multiplicity of declarations by States accepting the principle of non-intervention, there remain two questions: first, what is the exact content of the principle so accepted, and secondly, is the practice sufficiently in conformity with it for this to be a rule of customary international law? As regards the first problem - that of the content of the principle of non-intervention - the Court will define only those aspects of the principle which appear to be relevant to the resolution of the dispute. In this respect it notes that, in view of the generally accepted formulations, the principle forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States. A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State. As noted above, the Declaration on Friendly Relations equates assistance of this kind with the use of force by the assisting State when the acts committed in another State "involve a threat or use of force". These forms of action are therefore wrongful in the light of both the principle of non-use of force, and that of non-intervention. In view of the nature of Nicaragua's complaints against the United States, and those expressed by the United States in regard to Nicaragua's conduct towards El Salvador, it is primarily acts of intervention of this kind with which the Court is concerned in the present case. . . . The Court therefore finds that the support given by the United States, up to the end of September 1984, to the military and paramilitary activities of the contras in Nicaragua, by financial support, training, supply of weapons, intelligence and logistic support, constitutes a clear breach of the principle of non-intervention. The Court has however taken note that, with effect from the beginning of the United States governmental financial year 1985, namely 1 October, 1984, the United States Congress has restricted the use of the funds appropriated for assistance to the Contras to "humanitarian assistance”. There can be no doubt that the provision of strictly humanitarian aid to persons or forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law.

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The Armed Activities Case (DRC v. Uganda)

International Court of Justice, 2005 Uganda nonetheless insisted to the Court that after 11 September, 1998 the UPDF was acting in self-defence in response to attacks that had occurred. The Court has already found that the military operations of August in Beni, Bunia and Watsa, and of 1 September at Kisangani, cannot be classified as coming within the consent of the DRC, and their legality, too, must stand or fall by reference to self-defence as stated in Article 51 of the Charter. The Court would first observe that in August and early September 1998 Uganda did not report to the Security Council events that it had regarded as requiring it to act in self-defence. It is further to be noted that, while Uganda claimed to have acted in self-defence, it did not ever claim that it had been subjected to an armed attack by the armed forces of the DRC. The “armed attacks” to which reference was made came rather from the ADF. The Court has found above that there is no satisfactory proof of the involvement in these attacks, direct or indirect, of the Government of the DRC. The attacks did not emanate from armed bands or irregulars sent by the DRC or on behalf of the DRC. The Court is of the view that, on the evidence before it, even if this series of deplorable attacks could be regarded as cumulative in character, they still remained non-attributable to the DRC. For all these reasons, the Court finds that the legal and factual circumstances for the exercise of a right of self-defence by Uganda against the DRC were not present. Accordingly, the Court has no need to respond to the contentions of the Parties as to whether and under what conditions contemporary international law provides for a right of self-defence against large-scale attacks by irregular forces. Equally, since the preconditions for the exercise of self-defence do not exist in the circumstances of the present case, the Court has no need to enquire whether such an entitlement to self-defence was in fact exercised in circumstances of necessity and in a manner that was proportionate. The Court cannot fail to observe, however, that the taking of airports and towns many hundreds of kilometres from Uganda’s border would not seem proportionate to the series of transborder attacks it claimed had given rise to the right of self-defence, nor to be necessary to that end.

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Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA)

Article 8. Conduct directed or controlled by a State The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct. Commentary: As a general principle, the conduct of private persons or entities is not attributable to the State under international law. Circumstances may arise, however, where such conduct is nevertheless attributable to the State because there exists a specific factual relationship between the person or entity engaging in the conduct and the State. Article 8 deals with two such circumstances. The first involves private persons acting on the instructions of the State in carrying out the wrongful conduct. The second deals with a more general situation where private persons act under the State’s direction or control. Bearing in mind the important role played by the principle of effectiveness in international law, it is necessary to take into account in both cases the existence of a real link between the person or group performing the act and the State machinery. . . . More complex issues arise in determining whether conduct was carried out “under the direction or control” of a State. Such conduct will be attributable to the State only if it directed or controlled the specific operation and the conduct complained of was an integral part of that operation. The principle does not extend to conduct which was only incidentally or peripherally associated with an operation and which escaped from the State’s direction or control. Article 21. Self-defence The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations. Commentary: Article 21 reflects the generally accepted position that self-defence precludes the wrongfulness of the conduct taken within the limits laid down by international law. The reference is to action “taken in conformity with the Charter of the United Nations”. In addition, the term “lawful” implies that the action taken respects those obligations of total restraint applicable in international armed conflict, as well as compliance with the requirements of proportionality and of necessity inherent in the notion of self-defence. Article 22. Countermeasures in respect of an internationally wrongful act The wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State. Commentary: In certain circumstances, the commission by one State of an internationally wrongful act may justify anoth- er State injured by that act in taking non-forcible countermeasures in order to procure its cessation and to achieve reparation for the injury. Article 22 deals with this situation from the perspective of circumstances precluding wrongfulness.

13

Declaration on Friendly Relations

The principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State or in any other manner inconsistent with the purposes of the United Nations . . .

Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force. The territory of a State shall not be the object of military occupation resulting from the use of force in contravention of the provisions of the Charter. The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal.

. . . The principle concerning the duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter

No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law.

No State may use or encourage the use of economic political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind. Also, no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State.

The use of force to deprive peoples of their national identity constitutes a violation of their inalienable rights and of the principle of non-intervention.

Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State.

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Tallinn Manual Rule 5 — Control of cyber infrastructure A State shall not knowingly allow the cyber infrastructure located in its territory or under its exclusive governmental control to be used for acts that adversely and unlawfully affect other States. Rule 6 — Legal responsibilities of States A State bears international legal responsibility for a cyber operation attributable to it and which constitutes a breach of an international obligation. Rule 7 — Cyber operations launched from governmental cyber infrastructure The mere fact that a cyber operation has been launched or otherwise originates from governmental cyber infrastructure is not sufficient evidence for attributing the operation to that State, but is an indication that the State in question is associated with the operation. . . . Rule 9 — Countermeasures A State injured by an internationally wrongful act may resort to proportionate countermeasures, including cyber countermeasures against the responsible State. Rule 10 — Prohibition of threat or use of force A cyber operation that constitutes a threat or use of force against the territorial integrity or political independence of any State, or that is in any other manner inconsistent with the purposes of the United Nations, is unlawful. Rule 11 — Definition of use of force A cyber operation constitutes a use of force when its scale and effects are comparable to non-cyber operations rising to the level of a use of force.

15

Report of the Group of Governmental Experts on Developments in the Field of Information and Telecommunications, U.N.Doc.A/68/98 (2013)

Information and communications technologies (ICTs) are woven into the fabric of daily life. While all nations appreciate the enormous benefits of ICTs, there is also broad recognition that misuse poses risks to international peace and security. The present report contains recommendations developed by a group of governmental experts from fifteen States to address existing and potential threats from States, their proxies or non-State actors through the use of ICTs. It builds on the 2010 recommendations of a previous group of experts which included the need for further work on norms, ways to increase confidence and capacity-building measures. I appreciate the report’s focus on the centrality of the Charter of the United Nations and international law as well as the importance of States exercising responsibility. The recommendations point the way forward for anchoring ICT security in the existing framework of international law and understandings that govern State relations and provide the foundation for international peace and security. . . . III. Recommendations on norms, rules and principles of responsible behaviour by States . . . States must meet their international obligations regarding internationally wrongful acts attributable to them. States must not use proxies to commit internationally wrongful acts. States should seek to ensure that their territories are not used by non-State actors for unlawful use of ICTs.

16

The Effective Control and Overall Control Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia

Antonio Cassese The I.C.J.’s basic assumption in the Bosnian Genocide case--that Article 8 of the ILC Articles reflects customary law on attribution, is undemonstrated, being simply predicated on the authority of the Court itself (the Nicaragua precedent), as well as the authority of the ILC. The logical sequences of propositions in which the Court’s holding is grounded could perhaps be set out as follows: (1) The Court in Nicaragua enunciated the test; (2) the ILC upheld the same test (based only on Nicaragua); (3) hence the test is valid and reflects customary international law. . . . As we will see, international practice uses another test, that of “overall control”, for the attribution to states of acts of organized armed groups acting on behalf of such states. . . . The overall control test, based on a careful investigation of judicial and state practice, applies to the actions of organized and hierarchically structured groups, such as military or paramilitary units. Specific instructions are not required for each individual operation. Such “overall control” resides not only in equipping, financing or training and providing operational support to a group, but also in coordinating or helping in the general planning of its military or paramilitary activity.

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Self-Defense Against Terrorists: The Meaning of Armed Attack in Counter-terrorism Strategies in a Fragmented International Legal Order

Steven Ratner For terrorist action attributable to states under generally accepted notions of state responsibility, the current position, which lacks a threshold requirement, should be maintained. The issue is more difficult with respect to action that lacks such attribution. On the one hand, a strong argument remains that Article 51 should be interpreted to lack a requirement of scale for an armed attack by any terrorists, regardless of state involvement. Such a requirement is impossible to devise, and it is unreasonable to expect state compliance with it. The term large-scale is very vague and subject to manipulation. Is a suicide bomb in London that kills 10 people large-scale? What if it kills 1 person? What if it only destroys a building? The same inadequacies of the concept in the case of state-sponsored terrorism apply here. As for the argument that the absence of a scale requirement will trigger abuse and hasty recourses to armed force abroad, these possibilities for abuse can be addressed through self-interested restraint (states will not use military resources against de minimus attacks) and the concepts of necessity and proportionality. . . . Any computer attack that causes damage akin to that caused by a military attack should be regarded as an armed attack. Immediate destruction of life is not a prerequisite. . . . In situations where the activities of the terrorist group cannot be attributed to the state, the Leiden Recommendations end up relying upon the notions of necessity and proportionality inherent in Article 51 to determine the scope of the self-defensive response. Utilization of these principles to identify the acceptable targets of the self-defense action fits well into accepted doctrine. However, because these principles are somewhat vague in theory and hard to enforce in practice, it is still useful to consider how the notions of necessity and proportionality should play out with respect to the two key targets identified earlier, i.e., the group itself and the state on which it operates.

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Computer Network Attack and the Use of Force in International Law Michael Schmitt

Whether quantitative or qualitative in nature, the extraordinary advances made possible by breakthroughs in computer technology represent dangerous vulnerabilities exploitable by opponents ranging from economic, political, and military competitors, to terrorists and criminals. These threat sources are familiar. However, the unique nature of the cyber threats they pose differs in four interrelated ways from those traditionally faced. First, computer networks comprise a new target category. It is no longer necessary, for example, to physically destroy electrical generation facilities to cut power to a foe's command and control system; instead, the computer network that drives the distribution system can be brought down to accomplish the same result. Second, whereas the means of "attack" in centuries past usually presupposed the use of kinetic force, in the twenty-first century an attack may be nothing more than the transfer of cyber commands from one computer to others. Third, while the result of a cyber attack may be physical destruction, such as the "meltdown" of a nuclear reactor following interference with its control systems, it need not be. The objective may simply be to shut off a particular service or function (e.g., disrupting telecommunications) or to alter or misdirect data (e.g., unauthorized electronic funds transfer or transmittal of false intelligence information). Finally, cyber attacks stretch traditional notions of territorial integrity. In most cases they will not involve the crossing of political borders by any tangible instrument of the attacker, such as military forces, equipment, or projectiles. This article explores the jus ad bellum implications of one such cyber threat - "computer network attack" - in a state-on-state context. Computer network attack consists of "operations to disrupt, deny, degrade, or destroy information resident in computers and computer networks, or the computers and networks themselves." After briefly setting forth the technical and doctrinal framework for CNA, analysis will turn to the issue this new potential technique of international coercion poses: When does a computer network attack conducted by, or on behalf of, a state constitute a wrongful use of force under international law? . . . The foregoing analysis shows that the prohibition of the threat or use of force includes armed, but not economic or political, coercion. However, it does not demonstrate that the borders of "force" precisely coincide with armed force, i.e., physical or kinetic force applied by conventional weaponry. . . . Consider two apposite examples. In the first case, computer network attacks disable a busy air traffic control (ATC) system during horrendous weather. An airliner crashes and deaths result. No kinetic force has been used to destroy the airliner, but the computer network attacks were plainly the proximate cause of the tragedy. This action would be considered a use of force. The severity of the consequences, multiple deaths and physical destruction, rises to a level equal to that of armed coercion. . . Contrast this analysis with that addressing an attack on a university computer network designed to disrupt military related research occurring in campus laboratories. Severity, considered in the context of shared values, falls significantly below that of armed coercion. No physical damage or measurable suffering occurs, at least in the short term. The underlying nature of the consequences resulting from this particular information operation fails to sufficiently resemble that characteristic of uses of armed force.

19

Political and Economic Coercion in Contemporary International Law

Tom Farer I also do not think it can be argued persuasively that state practice over the past four decades has altered this feature of Charter law. Perhaps the single most relevant legislative activity at the United Nations was the effort to define aggression. The text of the 1974 consensus definition lends support, albeit slender, to the proposition that economic coercion cannot justify recourse to force. The UN consensus defined aggression as the use of armed force by a state. The reference to "armed force" surely suggests that aggression cannot be carried out by any other means. To be fair, however, the legislative exercise is a good deal less than decisive on this point, since the text of Article 1 of the consensus definition says: "Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. . . ." That being just a restatement of Article 2(4), arguably the language adds or subtracts nothing; the prior dispute is left untouched. In fact, Julius Stone, in his more recent work on the question of economic aggression, has employed the definitional effort to buttress his position. Article 5 of the consensus definition says no consideration, of whatever nature, whether political, economic, military or otherwise, can serve as a justification for aggression. Is it decisive on the question of whether one state can respond with force to economic coercion by another? No! It says only that economic factors cannot justify "aggression." And thus it does not speak directly to Stone's claim that force may sometimes be a legal-- not an aggressive, but essentially a defensive--response to unjust economic coercion. One finds in the debates about the definition equivocating statements by delegates concerning the proposition that economic coercion can be aggression. Many delegates said, in effect, "It could be, but force is the most important kind of aggression. So in the consensus definition we will emphasize force, and leave the definition of other forms of aggression to another time." Stone finds telling this concession that military force is only one form of aggression. Finally, if I were eager to reinforce Stone's arguments, I would call attention to the Preamble of the consensus definition. It reaffirms the Declaration on Friendly Relations. And the Declaration on Friendly Relations says: "No State may use or encourage the use of economic . . . measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind." So if the definition of aggression has any precedential value, it probably does more to support the loose-constructionist view of Article 2(4) than the more restricted view of the legitimate occasions for force I have traditionally favored. Taking into account the at best inconclusive character of the definitional exercise, the clear language of the Declaration of Friendly Relations, the earlier General Assembly resolution on nonintervention prohibiting "measures of an economic and compelling character to force the will of the State" and taking into account as well the language of the OAS Charter, I conclude that under some conceivable conditions, economic coercion can be a violation of international law even where the means employed do not themselves violate any treaty. However, in light of state practice, I believe that the requisite conditions are so unlikely to occur that a state's use of economic power to influence another state is prima facie legitimate or, even if arguably illegitimate, not the sort of delinquency the target state is entitled to regard as "aggression"; an enormously heavy burden of proof must lie on the state claiming otherwise.

20

Non-Intervention and Non-Interference in International Law

Lori Damrosch The Principle of Non-Intervention, though frequently cited in international disputes, remains one of the more elusive norms in customary international law. States interfere in the domestic affairs of other states so frequently that one vaunted British international lawyer remarked: “the most surprising conclusion about the principle of non-intervention is the scholarly consensus that it exists at all.” Although a military intervention certainly violates the United Nations Charter, it can be difficult to discern the threshold over which non-military actions need pass before they constitute a violation of non-intervention. . . . States frequently provide economic support to political movements within other states. The beneficiaries of this support include groups who maintain the goal of a complete regime change, such as global support of internal democratic revolutions in various Central American nations in the 1980s. Furthermore, states frequently provide political and economic support to independence causes on foreign soil. 33 nations across the globe have allowed the Iberian Peninsular region of Catalonia to establish pseudo-embassies on their soil, most recently the State of Norway. . . . It is clear that some forms of interference must be permitted under international law. This has been acknowledged by international jurists such as Judges Ago and Schwebel in the Nicaragua decision of the International Court of Justice. The full Court failed to address or adopt Judges Ago and Schwebel’s language in its judgement, unfortunately bypassing an opportunity to clarify the principle of non-intervention.