PHILIP C. JESSUP

INTERNATIONAL LAW MOOT COURT COMPETITION

2011

At the Peace Palace,

THE INTERNATIONAL COURT OF JUSTICE

The Hague, the Netherland

The Case concerning

“The Zetian Provinces”

The State of Ardenia

(Applicant)

v.

The State of Rigalia

(Respondent)

Memorial for Applicant

1

TABLE OF CONTENTS

Table of Contents ............................................................................................................ i

Index of Authorities ..................................................................................................... vii

Statement of Jurisdiction .......................................................................................... xvii

Questions Presented ................................................................................................. xviii

Statement of Facts ....................................................................................................... xix

Summary of Pleadings ............................................................................................... xxv

Pleadings ......................................................................................................................... 1

I. RIGALIA’S PREDATOR DRONE STRIKES IN RIGALIA AND IN ARDENIA VIOLATE INTERNATIONAL LAW AND THE COURT SHOULD ORDER THEIR IMMEDIATE CESSATION. ........................................................................... 1

A. Ardenia has jus standi to invoke rigalia’s responsibility.........................................1

1. Ardenia is “an injured State”................................................................................1

2. Rigalia violates obligation erga omnes.................................................................2

B. The targeted killing of the Predator Drone has violated international human rights law and international humanitarian law...........................................................3

1.Rigalia’s targeted killing breached international human rights law..................3

a. In Ardenia an armed conflict did not exist.............................................................3

b. In Rigalia non-international armed conflict does not exist between Rigalia’s government and Zetian separatists............................................................................4

i

2. Regalia has obligation to ensure the rights protected under ICCPR in territory of Ardenia....................................................................................................5

3. Rigalia’s targeted killing violated article 6(1) of the ICCPR.............................6

a. Sufficient legal basis..............................................................................................6

b. Necessary...............................................................................................................7

c. Proportionality.......................................................................................................7

d. Precaution..............................................................................................................7

C. Rigalia’s targeted killing breached international humanitarian law.....................8

1. Even if non-international armed dispute exists between Rigalia’s government and Zetian separatists in territory of both countries, the armed conflict is non-international...............................................................................................................8

2. Rigalia’s targeted killing violated the principle of Direct Participation in Hostility (“DPH”).......................................................................................................9

a. The suspected Zetian separatists and the families of Bermal are categorized as “civilian”...................................................................................................................9

b. The suspected Zetian separatists and the families of Bermal do not fulfill the requirement of DPH...................................................................................................9

3. Rigalia’s targeted killing using the Predator Drone is not consistent with the principle of international humanitarian law.........................................................10

D. This Court should order the immediate cessation of Rigalia’s wrongful acts.....11

II. THE ATTACK ON THE BAKCHAR VALLEY HOSPITAL IS ATTRIBUTABLE TO RIGALIA, RIGALIA HAS AN OBLIGATION TO INVESTIGATE THE ATTACK AND COMPENSATE ARDENIA THEREFORE AND, MOREOVER, THE ATTACK WAS A DISPROPORTIONATE AND UNLAWFUL ACT OF AGGRESSION AGAINST THE PEOPLE OF ARDENIA. ........................................................................................................................................ 11

ii

A. The attack on the Bakchar Valley hospital is attributable to Rigalia...................11

1. Conduct of organs placed at the disposal of a state by another state..............11

2. Excess of authority or contravention of instructions........................................12

B. Rigalia has an obligation to investigate the attack and compensate Ardenia......12

C. Rigalia has violated the principle of the prohibition of the use of force..............13

1. The attack constitutes the threat or use of force...............................................13

2. The strikes are not a valid exercise of the right to self-defense.......................13

a. No “armed attack” exists as a requirement of exercising the right of self-defence.....................................................................................................................14

i. Only the act by States can be “armed attack” under Article 51 of UN Charter.. 14

ii. In addition, Rigalia cannot exercise the right to self-defence because Ardenia does not provide capital assistance or acquiesce to the acts of Zetian separatists. 14

iii. Moreover, no such right has evolved in 2006 Lebanon War............................15

b. Alternatively, the strikes of Predator Drones did not fulfill the requirements of valid self-defense......................................................................................................16

i. Necessity.............................................................................................................16

ii. Proportionality...................................................................................................16

D. The attack was a disproportionate and unlawful act of aggression.....................17

III. RIGALIA’S BAN OF THE MAVAZI FOR THE ZETIAN WOMEN AND GIRLS VIOLATES THEIR RIGHTS UNDER INTERNATIONAL LAW. ........... 18

A. ARDENIA HAS JUS STANDI TO INVOKE RIGALIA’S RESPONSIBILITY..18

iii

1. Ardenia is “an injured State”..............................................................................18

2. Rigalia violates obligation erga omnes...............................................................18

B. RIGALIA’S BAN OF THE MAVAZI VIOLTATES HUMAN RIGHTS OF THE ZETIAN WOMEN AND GIRLS................................................................................19

1. Freedom to manifest their religion in the Northern Provinces........................20

a. The ban restricts the freedom to manifest their religion......................................20

b. The ban is not legitimate restriction to protect and preserve freedom from religious coercion.....................................................................................................20

i. Imposition of the Mavazi does not prejudice freedom to manifest religion.......20

ii. The ban is not proportionate..............................................................................21

2. Freedom from discrimination in the Northern Provinces................................23

a. The Zetian women and girls are prima facie discriminated indirectly................23

b The ban is not reasonable as affirmative action...................................................24

3. Freedom to manifest their religion in the central areas...................................25

a. The aim to protect the right of non-Mavazi is not legitimate...............................25

b. Alternatively, the ban is disproportionate to the aim...........................................26

4. The ban is inappropriate and disproportionate to the aim of protecting “public security”......................................................................................................27

IV. ARDENIA DID NOT VIOLATE THE OECD ANTI-BRIBERY CONVENTION (“THE CONVENTION”) OR THE OECD DECISION ON MNE GUIDELINES (“THE DECISION”). ......................................................................... 29

iv

A. Ardenia’s failure to investigate and prosecute the alleged bribery and to provide mutual legal assistance (MLA) to rigalia do not constitute breaches of article 5 and 9 of the Convention respectively.................................................................................29

1. MDI’s cash payments cannot constitute “bribery of foreign public officials (FPO-bribery)”.........................................................................................................29

a. Cash payments to the tribal council members.....................................................30

i. The council members are not “public officials”.................................................30

ii. Alternatively, the cash payments constitutes “small facilitation payments”.....31

b. Cash payments to ZDP through ZRF...................................................................32

i. ZDP members are not “foreign public officials”................................................32

ii. Alternatively, Cash payments from ZRF to ZDP is not MDI’s “indirect bribery”..................................................................................................................32

c. Cash payments to Clyde Zangara and ZRF..........................................................32

2. In any event, Ardenia’s failure to investigate and prosecute the alleged bribery was necessary for protecting national security and the rights of people.....................................................................................................................................33

a. Prosecutor is not prohibited from taking into account “national security”........33

b. Consideration of “national economic interest” did not influence the decision of Prosecutor................................................................................................................35

3. Ardenia, having not yet provided MLA to Rigalia, does not constitute breach of Article 9 of The Convention................................................................................35

a. Correspondence between ZRF and the tribal council leaders falls out of scope of Article 9....................................................................................................................35

b. Ardenia is consistent with Article 9.....................................................................36

v

i. Ardenia did not refuse the request on the ground of bank secrecy.....................36

ii. In any event, MLA would impose serious injury to “essential interest” of Ardenia...................................................................................................................37

B. ArdenianNCP’s failure to respond to the CRBC’s complaint does not constitute breach of I.-1. the Decision........................................................................................38

1. The MNE Guidelines is not applied to RRI.......................................................39

2. The complaint should be dealt with by the NCP of Rigalia where the alleged misconduct occurred................................................................................................39

3. In any event, Ardenian NCP is not required to deal with the complaint due to the investigations launched by Ardenia and Rigalia over the allegations...........41

Conclusion ..................................................................................................................... 43

vi

INDEX OF AUTHORITIES

[Treaties and International Agreements]

Charter, Covenant, Treaties and Conventions

Human Rights Laws

International Covenant on Economic, Social and Cultural Rights, Dec.16, 1966, 993 U.N.T.S. 4 <19>

International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171

<6, 19, 20, 23, 26>

African Charter on Human and Peoples’ Rights, June 27, 1981, 1520 U.N.T.S. 218, <19>

American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 144 <19>

Convention on the Elimination of All Forms of Discrimination against Women, Dec. 1979, 1249, U.N.T.S. 13 <19, 23>

Convention on the Rights of the Child, Nov. 22 1989, 1577 U.N.T.S. 44 <19, 23>

Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222 <19>

International Humanitarian Laws

Geneva Convention for Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, Aug. 12, 1949, 75 U.N.T.S. 32

<1, 3, 4, 11>

Protocol Additional to the Geneva Convention of 12 Aug. 1949, and relating to the protection of victims of international armed conflicts, Jun 8, 1977, 1125 U.N.T.S.3

<1, 11>

Other UN Treaties

U.N. CHARTER. <13>

vii

Vienna Cconvention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331.

<16, 34, 35>

International Convention for the Suppression of Terrorist Bombings, Mar. 1, 1992 1678 U.N.T.S. 221. <28>

Anti-Bribery Treaties

Convention on the Organization <38>

Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Nov. 21, 1997, 37 I.L.M. 4 <29, 30, 31, 32, 35, 38>

Commentaries on the Convention on Combating Bribery of Foreign Public Officials in International Business Transaction, Nov. 21, 1997, 37 I.L.M., 4. <31, 32, 33>

The OECD Guidelines for Multinational Enterprises, June 27, 2000, 40 I.L.M. 237 (2000) <39, 40>

Decision of the OECD Council on the OECD Guidelines for Multinational Enterprises, June, 2000, I-1, available at http://www.oecd.org/dataoecd/56/36/1922428.pdf

<38, 39, 41>

Procedural Guidance attached to Decision of the OECD Council on the OECD Guidelines for Multinational Enterprises, June 27, 2000, available at http://www.oecd.org/dataoecd/56/36/1922428.pdf <40>

Commentary on the Implementation Procedures of MNE Procedures of MNE Guidelines, available at http://www.oecd.org/dataoecd/56/36/1922428.pdf

<40, 41>

U.N. Resolution

Universal Declaration on Human Rights, G.A. Res.217(III), U.N. Doc. A/RES/217(III)D (Dec. 10, 1948). <19>

Principles of International Law concerning FriendlyRelations and Cooperation among States with the Charter of the United NationsGA, Res. 2625, U.N. GAOR, 25th Sess., Supp. No.18, U.N. Doc.A/8082. <14>

Combating Defamation of Religions, G.A. Res. 62/154, U.N. Doc. A/RES/62/154 (Mar. 6, 2008). <22, 28>

viii

Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, G.A. Res. 62/157, U.N. Doc. A/RES/62/157 (Mar. 11, 2008). <22, 23>

Definition of Aggression, G.A. Res. 3314(XXIX), Annex, U.N. Doc. A/RES/29/3314 (Dec. 14, 1974). <17>

Draft Articles on Responsibility of States for Internationally Wrongful Acts International Law Commission, U.N. GAOR, 56th Sess., Supp. No. 10, U.N. Doc. A/56/10 (2001). <2>

ILC Articles on State Responsibility for Internationally Wrongful Acts UNGA Res 56/83, UN GAOR 56th Sess., Annex, Agenda Item 162, UN U.N. Doc. A/RES/56/83

<11,12,13>

Measures to Eliminate International Terrorism, G.A. Res. 64/118, U.N. Doc. A/RES/64/118 (Jan. 15, 2005). <27>

S.C. Res. 1368, U.N. Doc. S/RES/1368 (Sep. 12, 2001). <15>

S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sep. 28, 2001) <15>

S.C. Res. 1701, U.N. Doc. S/RES/1701 (Aug. 8, 2006). <15>

[International Decisions]

ICJ

Armed Activities on the Territory of the Congo (D.R.C. v. Uganda), 2005 I.C.J. 168 (Dec. 19) (separate opinion of Judge Elaraby). <17>

Armed Activities on the Territory of the Congo (D.R.C. v. Uganda), 2005 I.C.J. 168 (Dec. 19) (separate opinion of Judge Simma). <17>Asylum (Colombia v. Peru) 1950 I.C.J. 266 (Nov. 27). <16>

Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain) 1970 I.C.J. 3 (Second Phase, Feb. 5). <2>

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 I.C.J. 136 (Jul. 9). <3, 6, 14>

ix

Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), (Merits, Judgment), 1986 I.C.J. 14 (Jun. 27). <3, 14>

Nuclear Tests (N.Z. v. Fr.), 1974 I.C.J. 457 (Dec. 20). <35>

The Legality of the Threat or Use of Nuclear Weapons (Advisory opinion), 1996 I.C.J. 226 (Jul. 8). <3, 10>

PCIJ

Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7).

Wimbledon (U.K., Fr., Italy, Japan v. Ger.), 1923 P.C.I.J. (ser. A) No. 1, 37 (Aug. 23) (dissenting opinion of Judge Hüber andAnzilotti). <34>

ArbitrationRainbow Warrior, 20 R.I.A.A. 215 (Apr. 30, 1990). <11>

HRC

Althammer and ors v Austria, HRC Case No. 998/2001, UN Doc CCPR/C/78/D/998/2001 (2003). <23>

Cecilia Derksen v. Netherlands, HRC Case No. 976/2001, U.N. Doc. CCPR/C/80/D/976/2001 (2004). <24>

Husband of Maria Fanny Suarez de Guerrero v. Colombia, HRC Case No. R.11/45, U.N. Doc. Supp. No. 40(A/37/40) (1982). <7>

Karnel Singh Bhinder v. Canada, HRC Case No. 208/1986, ¶ 6.2, U.N. Doc. CCPR/C/37/D/208/1986 (1989). <20>

Sergio Euben Lopez Burgos v. Uruguay, HRC Case No. R.12/52, U.N. Doc. Supp. No. 40(A/36/40) (1981). <6>

Shirin Aumeeruddy-Cziffra and 19 other Mauritian Women v. Mauritius, HRC Case No. 35/1978, U.N. Doc. CCPR/C/OP/1 (1984). <23>

EctHR

x

Ahmet Arslan c. Turquie, App. No. 41135/98, (2010, French only, translated) available at http://cmiskp.echr.coe.int/tkp197/portal.asp?sessionId=62549022&skin=hudoc-en&action=request <26>

Dahlab v. Switss, App. No. 42393/98, 2001-V Eur. Ct. H.R. (2001). <27>

Leyla Şahin v. Turk., App. No. 44774/98, 11 Eur. Ct. H.R. 175 (2005) (dissenting opinion of Judge Tulkens). <21, 25>

Leyla Şahin v. Turk., App. No. 44774/98, 11 Eur. Ct. H.R. 175 (2005) <21, 27>

ICTY

Prosecutor v. Duśko Tadić, Case No. IT-94-1-T, Opinion and Judgment of 7 May 1997

<4, 5>

Prosecutor v. Ramush Haradinaj et al, Case No.IT-04-84-T, Judgment of 3 Apr. 2008.

<4>

[Municipal Decisions]

Décision n° 2010-613 DC du 7 octobre 2010 (“Loi interdisant la dissimulation du visage dans l’espace public”) (Le Conseil Constitutionnel, 2010), available at http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank/download/cc-2010613dc.pdf <25>

Hamdan v. Rumsfeld, 548 U.S. (U.S., 2006). <8>

Gresea & Transparency International Germany vs Ratiopharm (2008), available at http://oecdwatch.org/cases/Case_130 <40>

[Documents]

Annex III: Business enterprises considered by the Panel to be in violation of the OECD Guidelines for Multinational Enterprises in Final report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo, U.N. Doc. S/2002/1146 (2002). <39>

Annotations on the text of the draft International Covenants on Human Rights , General Assembly, 10th Sess., Agenda Item 28 (part II), U.N. Doc. A/2929 (1955). <19>

xi

Combating Defamation of Religions Report of the Secretary-General, 65 th Sess. Agenda Item 69 (b), U.N. Doc. A/65/263 (2010). <22>

Complication Of General Comments And General Recommendations Adopted By Human Rights Treaty, U.N. International Human Rights Instruments, 206, U.N. Doc. HRI/GEN/1/Rev.9 (Vol. I) (2008). <2, 6, 18, 21, 22, 24>

Directorate for Financial, Fiscal and Enterprise Affairs, Committee on International Investment and Multinational Enterprises, DAFFE/IME(98)17 (1998). <37>

Final report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo, U.N. Doc. S/2002/1146 (2002). <39>

Jordan’s 3rd Periodic Report to the ICCPR in 1994: UN Doc. A/49/40 (1994). <21>

PREVENTION OF DISCRIMINATION The concept and practice of affirmative action Final report submitted by Mr. Marc Bossuyt, Special Rapporteur, in accordance with Sub-Commission resolution 1998/5, Commission on Human Rights Sub-Commission on the Promotion and Protection of Human Rights, 53rd Sess., U.N. Doc. E/CN.4/Sub.2/2002/21 (2002). <22>

Report of the Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States, U.N.G.A.O.R., 20th Sess., Agenda Item 90 and 94, U.N. Doc. A/5746 (1964). <15>

Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston: addendum, A/HRC/4/20/Add.1 (2007). <11>

The concept and practice of affirmative action Final report submitted by Mr. Marc Bossuyt, Special Rapporteur, in accordance with Sub-Commission resolution 1998/5, Commission on Human Rights Sub-Commission on the Promotion and Protection of Human Rights, 43rd Sess., U.N. Doc. E/CN.4/Sub.2/2002/21 (2002). <22, 24>

U.N.S.C., Sess. 61st, 5489th mtg. U.N.Doc.A/8776 (Jul.14 2006). <16>

[Books and Digests]

CONSEIL D’ETAT , ETUDE RRELATIVE AUX POSSIBILITÉSJURIDIQUES D'INTERDICTION DU PORT DU VOILE INTEGRAL 21 (2010) available at http://www.la-croix.com/illustrations/Multimedia/Actu/2010/3/30/etudevoile.pdf <25>

xii

DIRECTORATE FOR FINANCIAL, FISCAL AND ENTERPRISE AND ENTERPRISE AFFAIRE, OECD GUIDELINES FOR MULTINATIONAL ENTERPRISES: 2003 ANNUAL MEETING OF THE NATIONAL CONTACT POINTS REPORT BY THE CHAIR (2003). <41>

DIRECTORATE FOR FINANCIAL, FISCAL AND ENTERPRISE AND ENTERPRISE AFFAIRE, OECD GUIDELINES FOR MULTINATIONAL ENTERPRISES: 2004 ANNUAL MEETING OF THE NATIONAL CONTACT POINTS REPORT BY THE CHAIR (2004). <41>

DIRECTORATE FOR FINANCIAL, FISCAL AND ENTERPRISE AND ENTERPRISE AFFAIRE, OECD GUIDELINES FOR MULTINATIONAL ENTERPRISES: 2006 ANNUAL MEETING OF THE NATIONAL CONTACT POINTS REPORT BY THE CHAIR (2006). <41>

H.DUFFY, THE ‘WAR ON TERROR’ AND THE FRAMEWORK OF INTERNATIONAL LAW (2005). <4>

HANSARD, HOUSE OF LORDS OFFICIAL REPORT, 5TH SERIES,VOL.387, COL.2224-2225 (1977). <5>

I. BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES (1963). <13>

International Law Association, Final Report on the Meaning of Armed Conflict in International Law, at30 (2010) available at www.ila-nq.org/en/committes/index.cfm/cid/1022 (last visited 24 Nov., 2010). <5>

INTERNATIONAL TRADE CORRUPTION MONITOR, PART F TRAVAUX PRÉPARATOIRES OF THE OECD CONVENTION COMBATING BRIBERY OF FOREIGN OFFICIALS, F-1033 (1999).

<31, 35>

J. CRAWFORD, THE INTERNATIONAL LAW COMMISSION’S ARTICLES ON STATE RESPONSIBILITY INTRODUCTION, TEXT AND COMMENTARIES (2002). <1, 44>

J. PICTET, GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR: COMMENTARY VOL.3 (1960). <8>

L. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT (2nd ed. 2000). <5>

L. OPPENHEIM, INTERNATIONAL LAW (R. Jennings & A. Watts eds., 9th ed. 1992)

<16, 34>

xiii

M. NOWAK, U.N. COVENANT ON CIVIL AND POLITICAL RIGHTS CCPR COMMENTARY (2nd ed., 2005). <24, 26>

M. VILLIGER, COMMENTARY ON THE 1969 VIENNA CONVENTION ON THE LAW OF TREATIES (2009). <16>

N. JAYAWICKRAMA, THE JUDICIAL APPLICATION OF HUMAN RIGHTS LAW (2005). <22>

N. LUBELL, EXTRATERRITORIAL USE OF FORCE AGAINST NON-STATE ACTORS (2010).

<8, 16>

N. MELZER, INTERPRETIVE GUIDANCE ON THE NOTION OF DIRECT PARTICIPATION IN HOSTILITIES UNDER INTERNATIONAL HUMANITARIAN LAW (2009). <9, 10>

N. MELZER, TARGETED KILLING IN INTERNATIONAL LAW (2008). <3, 7>

OECD, OECD GUIDELINES FOR MULTINATIONAL ENTERPRISES: SPECIFIC INSTANCES CONSIDERED BY NATIONAL CONTACT POINTS (2009) available at http://www.oecd.org/dataoecd/15/43/33914891.pdf <40>

PARLIAMENTARY ASSEMBLY/ASSEMBLÉE PARLEMENTAIRE, ISLAM, ISLAMISM AND ISLAMOPHOBIA IN EUROPE, (2010) available at http://assembly.coe.int/Documents/WorkingDocs/Doc10/EDOC12266.pdf <21>

Y. DINSTEIN, WAR, AGGRESSION AND SELF-DEFENSE FORTH EDITION (2005). <16>

[Articles]

A. Rahman, Religious Rights versus Women’s Rights, 28 COLUM. J. TRANSNAT’L L. 473 (1990). <22>

A. Randelzhofer, Article 2(4), in THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 112 (B. SIMMA ET AL EDS., 2002). <13>

I. Zerbers, Article 1. The Offence of Bribery of Foreign Public Officials, in THE OECD CONVENTION ON BRIBERY A COMMENTARY, 45 (M. PIETH ET AL. EDS., 2007).

xiv

<30, 31, 32, 33>

K. Watkin, Controling the use of force: A Role for Human Rights Norms in Contemporary Armed Conflict, 98 AM. J. INT’L L., 1 (2004). <4>

M. Pieth, Article 4. Jurisdiction, in THE OECD CONVENTION ON BRIBERY A COMMENTARY 267(M. PIETH ET AL. EDS., 2007). <38>

N. Bonucci, Article 12. Monitoring and Follow-up, in THE OECD CONVENTION ON BRIBERY A COMMENTARY 445 (M. PIETH ET AL. EDS., 2007). <37>

P. Cullen, Article 5. Enforcement, in THE OECD CONVENTION ON BRIBERY A COMMENTARY 289 (M. PIETH ET AL. EDS., 2007). <33, 34>

P. Cumper, 11 Freedom of Thought, Conscience, and Religion in THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS AND THE UNITED KINGDOM LAW 355 (D. Harris & S. Joseph eds. 1995). <26>

P. D’Argent, Conclusion générales: « Le droit à la vie en tant que jus cogens donnant naissance à des obligations erga omnes?», THE RIGHT TO LIFE 405 (C. Tomuschat et al. eds., 2010). <2>

S. Joseph, Obligations of Non-Discrimination, in THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS AND UNITED KINGDOM LAW (D. Harris & S. Joseph eds., 1995). <22, 23, 25, 27>

S. Prechal, Combatting Indirect Discrimination in Community Law Context, 1993/1 LEG. I. EUR. INTEGRATION, 81 (1993). <27>

T. Buerggenthal, To Respect and Ensure: State Obligations and Permissible Derogations, in THE INTERNATIONAL BILL OF RIGHTS THE COVENANT ON CIVIL AND POLITICAL RIGHTS 72 (L. HENKIN ED., 2ND ED. 2005). <19>

T. Pfanner, Scope of Application, Perpetrators of Terror, and International Humanitarian Law, in INTERNATIONAL LEGAL DIMENSION OF TERRORISM 275 (P. Fernández-Sánchez ed., 2009). <4, 5>

[Miscellaneous]

Maïa de la Baume, New Bin Laden Tape Threatens France, N.Y. TIMES, Oct. 27, 2010.

<28>

Lord Goldsmith (Feb. 1, 2007), Hansard, Col.378, available at http://www.publications.parliament.uk/pa/ld200607/ldhansrd/text/70201-0007.htm#07020137000264 <34>

xv

Yves Bordenave, «Menace terroriste majeure » contre la France, selon la DCRI, LE MONDE, Sept. 19, 2010 (translated). <28>

xvi

Statement of Jurisdiction

On behalf of the State of Ardenia (“the Applicant”) and the State of Rigalia(“the

Respondent”), in accordance with Article 40 (1) of the Statute of the International

Court of Justice, we have the honor to transmit to you an original of the Compromis

for submission to the International Court of Justice of Difference between the

Applicant and the Respondent concerning the Zetian Provinces, signed in The Hague,

The Netherlands, on the seventeenth day of September in 2010.

xvii

Questions Presented

1. Whether Rigalia’s Drone strikes in Rigalia and in Ardenia constitute violations of

international human rights law and international humanitarian law.

2. Whether the attack on the Bakchar Valley hospital is attributable to Rigalia and

Rigalia has an obligation to investigate and compensate therefore.

3. Whether the attack on the hospital is an act of aggression.

4. Whether Rigalia’s ban of Mavazi violates human rights of the Zetian women and

girls, that is, the freedom to manifest their religion and the freedom from indirect

discrimination.

5. Whether Ardenia’s dropping the investigation into MDI’s alleged bribery violated

Article 5 of OECD Anti-Bribery Convention, whether Ardenia, which has not

responded to Rigalia’s MLA request, violated Article 9 of OECD Anti-Bribery

Convention, and whether Ardenian NCP violated the OECD Council Decision by

refusing to examine the complaint by CRBC about the alleged bribery.

xviii

STATEMENT OF FACTS

Zetians in Ardenia and Rigalia

Ardenia, a developed nation, adopts a decentralized governmental system, and its

Southern Provinces are mostly populated and governed by ethnic Zetians. In its

neighboring country, Rigalia, a developing nation, the Northern Provinces are

exclusively inhabited and ruled by Zetians though Rigalia is a highly centralized state.

Those Zetian areas in both countries are economically underdeveloped and

mountainous. Although Zetians have been granted full citizenship by both states since

1924, by now they live in settled communities of either country. The Northern

Provinces of Rigalia are the situs of coltan, a precious natural resource. Coltan is used

mainly for military manufacturing by Morgania, a developed and industrialized nation

that has maintained good relations with Rigalia.

Zetians and Masinto-Religion.

Zetian communities are governed based on Masinto-Religion. Women over the age of

14 are obliged to wear “Mavazi”, often worn with loose robes. Mavazi covers the

entire head and face, and makes it difficult for wearers to work outside. In the Northern

provinces of Rigalia, punishments, such as flogging are imposed on women when they

failed to comply with the rule. While Rigalia has occasionally tried to enforce Rigalia’s

laws, Ardeniahas made large effort in respecting such traditions.

xix

Zetian Separatist movements

ZDP (Zetian Democratic Party), which represents more than 75 percent of the Zetian

inhabitants in Rigalia, has supported separatist movements. The goal of ZDP is to unite

the Zetian provinces of both Rigalia and Ardenia into one nation. In May 2008 Joint

Tribal Council Meeting for both Ardenian and Rigalian Zetians, held by the ZDP,

issued the May 5th Manifesto, calling for increased independence, a larger portion of

the revenues from the coltan mining operations and respect for their traditions.

Rigalia ’ sinflexible Attitude towards the separatist movements

President Khutai of Rigalia, having disparaged Zetian cultures and “backwards

mentality,” unwisely declared that Rigalia would aim to abolish barbaric tribal

customs. This remark caused sporadic fighting by Zetians, such as demonstration

march by some ten-thousands in both Ardenia and Rigalia, and the desire for

independence and ethnic solidarity grew large to impose threat to the unification of

Ardenia. Rigalian army’s failure to quell the disturbance led to harsher fighting,

including several terrorist attacks from December 2008 to February 2009.Then he

introduced a bill into Parliament prohibiting all Rigalians from wearing Mavazi in

public or when receiving public service, arguing to enforce human rights of women

and to make the terrorist detection easier. In March 2009, this bill was adopted.

Ardenia ’ seffort to console the separatist movement

xx

Contrary to the stubborn attitude of Rigalia, Ardenia has made maximized efforts for

respect and appreciation for Zetian cultures. It reacted to the May 5 th Manifesto with

financial support to Zetian society, and enlightenment campaigns, encouraging women

to voluntarily put off Mavazi in a specially made “women’s gardens.”In response to

the report of ILSA (International Loan Syndicate Association) and Rigalian

intelligence that stated Zetian meetings were held in Ardenia, the government stated

“even if the information is true, there is nothing illegal about these meetings as Zetians

all hold Ardenian citizenship.” President Arwen and Rigalian and Ardenian Zetians had

met for an arrangement of mutual respect. Ardenia has been quite naïve and sensitive

about its relationship with the Zetians, for the separatist movement could have easily

spread to Ardenia too.

Introduction of Predator Drones

President Khutai was so frustrated by the situation of the Zetians and Ardenia’s attitude

that he sought military assistance from Morgania without having asked Ardenia for

cooperation. Rigalia, having Morgania agreedon the use of Predator Drone in

combating Zetian terrorism, carried out more than 50 strikes. In March 2010, when the

Predator Drone invaded Ardenia to kill the top Commander Adar Bermal and his

family, it stroke Bakchar Valley Hospital, a 300-bed public hospital that had a red cross

on top, to cause many deaths. Rigalia only stated it was a regretful consequence and

made no compensation for the incident. President Arwen of Ardenia noted there was no

armed conflict permitting use of force against suspected terrorists, and the series of

attacks by the predator drones was an act of aggression.

xxi

Alleged Bribery

In 2002, it was reported by the media that RRI (Regalian Refining Inc.) secured its

coltan deal with MDI (Mineral Dynamics Inc.) through support to ZRF (Zetian

Refugees Fund) and cash payment to Clyde Zangara, a nephew of Leo Bikra, who is

the President of RRI. It was also suspected that tribal councils in the Northen Rigalia

demanded to MDI to pay mandatory undocumented fees to ensure the smooth

operation.

Ardenia ’ s reaction to alleged bribery

President Khutai asked the Rigalian Minister of Justice to investigate the allegations of

bribery by MDI. The preliminary police report that incorporated a former MDI

employee’s statement substantiated the media allegations of corruption. In April 2009,

Rigalia sent a request for mutual legal assistance (MLA) to Ardenia, demanding the

bank record of MDI and the correspondence between Clyde Zangara or other ZRF high

level officers and Leo Bikra or the President of MDI, and that of between ZRF and

members of the tribal council. Although Ardenia commenced investigation on the

issue, as stated in 2010meeting during phase 2 examination on the Working Group on

Bribery in International Business Transactions, it could not give mutual assistance

immediately due to the obstacle within its legislation on bank records. Also, Ardenia

argued the correspondence between ZRF officers and tribal councils are not the subject

of MLA. In June 2009, the investigation came to halt due to “wider public interest in

xxii

security,” as explained by Prosecutor Sam Strong, in fear of unnecessarily exciting the

separatist movement in Ardenia, because MDI has been supportive of the Zetians and

investigation and prosecution of MDI might cause negative impact on the situations

around the Zetians. President Arwen also hinted that the decision was made partially in

order to avoid loss jobs and millions of dollars for Ardenian industry. In July 2009,

CRBC (the Committee for Responsible Business Conduct), a Rigalian non-government

organization filed a complaint about MDI and RRI to National Contact Point (NCP)

established by Ardenia in accordance with the decision of the OECD Council on the

OECD guidelines for Multinational Enterprises, to which Ardenia’s NCP concluded

further examination was not necessary for three legitimate reasons.

Preliminary Objection

Rigalia filed preliminary objections pursuant to Article 79 of the Rules of Court

arguing that Ardenia’s Application was inadmissible. However, the Court rejected it,

determining that Morgania was not a necessary third party.

Relevant Laws

Both are members of the United Nations.

Ardenia is a member of the OECD (Rigalia is not).

Both adhere to

xxiii

United Nations Charter “UN Charter”

Vienna Convention on the Law of Treaties

International Covenant on Civil and Political Rights “ICCPR”

International Covenant on Economics, Social and Cultural Rights

Four Geneva Conventions of 1949 and additional Protocol I and II

Convention on the Elimination of all Forms of Discrimination against Women

“CEDAW”

Convention on the Rights of the Child

OECD Convention on Combating Bribery of Foreign Public Officials International

Business Transactions “The (OECD) Convention”

OECD Decision on MNE Guidelines “the Decision”

xxiv

SUMMARY OF PLEADINGS

Declaration 1

Rigalia’s Predator Drones strikes violated international human rights law and

international humanitarian law for 2 reasons.

First, when no armed conflicts exist, use of Predators Drone for targeted killing by

Rigalia is an arbitrarily deprivation of life contrary to article 6(1) of the ICCPR. This is

because it does not satisfy the following criteria: sufficient legal basis, necessity,

proportionality, and precaution.

Second, even if armed conflicts exist, they are non-international armed conflicts. Then,

Rigalia’s targeted killing violated the principle of Direct Participation in Hostility. In

addition, the strikes are not consistent with the principle of international humanitarian

law.

Therefore, the court should order to the immediate cessation of Rigalia’s predator

drone strikes.

Declaration 2

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

because the conduct of organs placed at the disposal of Morgania attributes to Rigalia.

Therefore, the court should order to investigate and compensate for the victims of the

Bakchar Valley hospital incident and their families.

xxv

Moreover, the attack cannot be justified by the right of self-defense for 2 reasons.

First, no “armed attack” exists as a requirement of exercising the right of self-defense.

Second, even if Rigalia could exercise the right to self-defense, the strikes of predator

drones did not fulfill the requirements of valid self-defense.

Therefore, the attack is a disproportionate and unlawful act of aggression.

Declaration 3

Rigalia violated the human rights of the Zetian women and girls by prohibiting Mavazi

in public place; they are deprived of the freedom to manifest their religion through

Mavazi, and in the Northern Provinces, they are discriminated against men because

they cannot go outside as they face to a dilemma between the tribal rules coercing

them to wear it and the Rigalian law prohibiting it, so that their life became excessively

impaired. The restriction on the right of religious manifestation cannot be legitimate

for the purpose of protecting “fundamental rights and freedoms” of the women

themselves to be free from the religious coercion in the Northern Provinces because it

is not proportionate measure. The discrimination in the Northern Provinces is also not

legitimate because Rigalia had less restrictive alternative way to achieve their de facto

equality in the society.In the rest part of Rigalia, it cannot prohibit Mavazi lawfully for

protecting non-Mavazi wearers from its social pressure since it is not legitimate aim

under ICCPR. Alternatively, it is not necessary to ban Mavazi in open public space.

Even the need to prevent terrorism does not justify the ban since it is inappropriate way

of counter-terrorism since it only irritates the Zetian terrorists and increases the risk of

terrorism.

xxvi

Declaration 4

Ardenia’s dropping the investigation into MDI’s alleged bribery does not breach

Article 5 of the OECD Anti-Bribery Convention since it was necessary to avoid the

danger to Ardenian national security. In adiition Ardenia did not violate Article 9

although it has not provided MLA to Rigalia so far because it did not “refuse”

Rigalia’s request on the basis of its bank secrecy and in any case the prosecution of

MDI by Rigalia would irritate the Zetians and impose serious damage to Ardenia’s

territorial integrity and life of people. Moreover, Ardenia is consistent with the OECD

Council Decision since Ardenian NCP does not have obligation of examining the

complaints made by Rigalian NGO; the complaint shall be dealt with by Rigalian NCP,

the MNE Guidelines are not applied to RRI and Ardenian NCP could not interfere with

Ardenian and Rigalian criminal procedures over MDI’s alleged bribery.

xxvii

PLEADINGS

I. RIGALIA’S PREDATOR DRONE STRIKES IN RIGALIA AND IN ARDENIA VIOLATE INTERNATIONAL LAW AND THE COURT SHOULD ORDER THEIR IMMEDIATE CESSATION.

A. Ardenia has jus standi to invoke rigalia’s responsibility

1. Ardenia is “an injured State”

Under customary international law (“CIL”), a State is entitled as “an injured State” to

invoke responsibility of another State if the obligation breached is owed to a group of

States including the claiming State and if the breach of the obligation specially affects

that State.1

Ardenia is an injured State by Rigalia’s violation of Geneva Conventions,2 since a

State party owes these obligations collectively to other State parties, and it specially

affects Ardenia in such a way as distinguishes it from the majority of other State

parties,3 i.e. Rigalia’s illegal and unwarranted use of Predator Drones terrified

Ardenian people living at the border and may increase ethnicism rhetoric among the

Zetians in both States. As a result, it intensifies the secessionist movement in the

Southern Provinces of Ardenia, which Ardenia is trying to prevent by adoption the

1 J. CRAWFORD, THE INTERNATIONAL LAW COMMISSION’S ARTICLES ON STATE RESPONSIBILITY INTRODUCTION, TEXT AND COMMENTARIES 257 (2002).

2 Protocol Additional to the Geneva Convention of 12 Aug. 1949, and relating to the protection of victims of international armed conflicts, June 8, 1977, preamble, 1125 U.N.T.S.3, 6 [hereinafter API].

3 CRAWFORD, supra note 1, at 259, 119.1

policy of appeasement with them.4

2. Rigalia violates obligation erga omnes

Even without a status as an injured State, Ardenia is entitled to invoke Rigalia’s

responsibility for the breach of violation of right to life because it is an obligation erga

omnes5 i.e. owed toward the whole international community.6

In the Barcelona Traction case, this Court stated all States have a legal interest in the

protection of an obligation erga omnes for its very importance. It derives from “the

principle and rules concerning the basic rights of the human person” expressed in

“international instruments of a universal or quasi-universal character”.7

The prohibition of arbitrary deprivation of life and also the right to life itself is

universally recognized as the cardinal right to preserve and guarantee any other

fundamental rights by international law in general and by enormous number of

international instruments.8 Also, the basic standard of international humanitarian law

4 Compromis, ¶17.

5 Complication Of General Comments And General Recommendations Adopted By Human Rights Treaty, U.N. International Human Rights Instruments, 243 ¶3, U.N.Doc.HRI/GEN/1/Rev.9 (Vol. I)(2008)[hereinafter G.C.&R.].

6 Draft Articles on Responsibility of States for Internationally Wrongful Acts art. 48(1)(b), International Law Commission, U.N.GAOR, 56th Sess., Supp.No.10, U.N.Doc.A/56/10(2001).

7 Barcelona Traction, Light and Power Company, Limited(Belg. v. Spain) 1970 I.C.J. 3, 32 ¶33-4(Second Phase, Feb.5).

8 P. D’Argent, Conclusion générales: « Le droit à la vie en tant que jus cogens donnant naissance à des obligations erga omnes?», THE RIGHT TO LIFE 405, 411-412(C. Tomuschat et al. eds., 2010).

2

established under the common A rticle 3 of Geneva Conventions is recognized by ICJ

as an obligation erga omnes “to be observed by all States whether or not they have

ratified the conventions.”9

B . The targeted killing 10 of the P redator D rone has violated international human rights law and international humanitarian law.

1.Rigalia’s targeted killing breached international human rights law.

ICCPR is applicable both in Rigalia and in Ardenia because there exists no armed

conflict.

a. In Ardenia an armed conflict did not exist.

International armed conflict assumes the disputes between States.11 On the other hand,

non-international armed conflict assumes existing in the territory of one State.12 In

other words, the extraterritorial use of force against non-state actors is neither

9 Military and Paramilitary Activities in and against Nicaragua(Nicar. v. U.S.), (Merits, Judgment), 1986 I.C.J. 14, 113-14 at ¶218(June 27)[hereinafter Nicaragua]; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 I.C.J. 136, 199 at ¶157(July 9)[hereinafter Wall Case]; The Legality of the Threat or Use of Nuclear Weapons(Advisory opinion), 1996 I.C.J. 226, 257 ¶79(July 8)[hereinafter Legality of Nuclear].

10 N.MELZER, TARGETED KILLING IN INTERNATIONAL LAW, 5(2008)(defining that “Targeted killing denotes the use of lethal force attributable to a subject of international law with the intent, premeditation and deliberation to kill individually selected persons who are not in the physical custody of those targeting them”).

11 Geneva Convention for Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, Aug. 12, 1949, art.2 75 U.N.T.S. 32, 32.

12 Ibid art.3 75 U.N.T.S. at 32.

3

categorized as international armed conflict nor non-international armed conflict. Even

it can amount to a warlike situation, extending scope of application the international

humanitarian law may lead to wrong directives and possibly lowering the standards of

civilian protection.13 Thus, the terrorist acts being perpetrated outside the situations of

armed conflict are criminal acts that shall be examined under international human

rights law.14

In Ardenia, therefore, no armed conflict exists under the situation of Rigalia’s

extraterritorial use of force against non-state actors, Zetian separatists, and the

international human rights law shall be applied.

b. In Rigalia non-international armed conflict does not exist between Rigalia’s government and Zetian separatists.

Armed conflict exists when the violence has protracted and produced intensity.15

Sporadic terrorist acts by private groups,16 as well as banditry or unorganized short-

13 H.DUFFY, THE ‘WAR ON TERROR’ AND THE FRAMEWORK OF INTERNATIONAL LAW 271 (2005); T.Pfanner, Scope of Application, Perpetrators of Terror, and International Humanitarian Law, in INTERNATIONAL LEGAL DIMENSION OF TERRORISM 275, 289-290(P.Fernández-Sánchez ed. 2009).

14 K. Watkin, Controling the use of force: A Role for Human Rights Norms in Contemporary Armed Conflict, 98 AM. J. INT’L L., 1, 34(2004).

15 Prosecutor v. Duśko Tadić, Case No. IT-94-1-T, Opinion and Judgment of 7 May 1997, ¶70[hereinafter Tadić case]; Prosecutor v. Ramush Haradinaj et al, Case No.IT-04-84-T, Judgment of 3 Apr. 2008, ¶36.

16 International Law Association, Final Report on the Meaning of Armed Conflict in International Law, at 30(2010) available at www.ila-nq.org/en/committes/index.cfm/cid/1022

4

lived insurrections,17 “are not subject to IHL”,18 but shall be dealt with by domestic and

international human rights law.19 A series of campaign by U.K. against IRA is not

considered to constitute an armed conflict even though there were several violent acts

per month at the peak of the conflict for 40 years.20 Since May 2008, anti-Rigalia

sentiment among Zetian separatists has increased and Zetian secessionist movement

has intensified, however, sporadic acts of violence have not occurred more than once in

a month21 even at the peak of the tension.

2. Regalia has obligation to ensure the rights protected under ICCPR in territory of Ardenia.

In the Wall case, this Court clearly stated that:

“while the jurisdiction of States is primarily territorial, it may sometimes be exercised outside the national territory. Considering the object and purpose of the International Covenant on Civil and Political Rights, it would seem natural that, even when such is the case, States parties to the Covenant should be bound to comply with its provisions.”22

In addition, the activities by the armed forces over which the state has “effective

17 L. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 56(2nd ed. 2000).

18 Tadić Case, supra note 15 at ¶562; Pfanner, supra note 13, at 288.

19 Pfanner, supra note 13, at 290.

20 HANSARD, HOUSE OF LORDS OFFICIAL REPORT, 5TH SERIES,VOL.387, COL.2224-2225 (1977).

21 Compromis, ¶18.

22 Wall Case, supra note 9, 2004 I.C.J. at 178-79 ¶136.

5

control” are under the jurisdiction of the State.23 Rigalia could decide all attacks and

kill people. Thus, the act of Rigalia shall be governed by ICCPR.

3. Rigalia’s targeted killing violated article 6(1) of the ICCPR.

Use of Predator Drones for targeted killing by Rigalia is an arbitrarily deprivation of

life contrary to Article 6(1) of ICCPR,24 because it does not satisfy the following

criteria:

a. Sufficient legal basis

Lethal force shall not be used without legal basis, or based on a law which does not

strictly control and limit the circumstances in which a person may be deprived of his

life by the authorities of a State.25 Rigalia’s Predator Drone strikes were not based on

any sufficient legal basis.

b. Necessary

Lethal force shall be used only when it is strictly unavoidable to protect any person

from imminent death or serious injury, or to achieve a legitimate purpose, or to use

23 Sergio Euben Lopez Burgos v. Uruguay, HRC Case No.R.12/52, U.N.Doc.Supp. No. 40(A/36/40) at 176 ¶12.1(1981); G.C.&R., supra note 5, at 245 ¶10.

24 International Covenant on Civil and Political Rights, Dec. 19, 1966, art. 6 999 U.N.T.S. 171, 174[hereinafter ICCPR].

25 G.C.&R., supra note 5, at 177 ¶3.

6

against a person who presents a threat.26 Especially, in case that it is possible to specify

the target, capturing is the appropriate measure consistent to purpose of ICCPR rather

than direct use of lethal force to definitively deprive one’s life.

In this case, Rigalia should have captured the suspected Zetian separatists before

taking more restrictive measure such as Predator Drone strikes which require

specifying the target as well.

c. Proportionality

Deprivation of life cannot be justified when no actual threat exists or the threat is of

merely political nature.27 In the present case, Rigalia’s Predator Drone strikes were

disproportionate because there existed only threat of merely political nature.

d. Precaution.

State shall not deprive life if it could be avoided by taking precautionary measures, and

lethal force shall not be used based on the mere suspicion that the concerned

individuals may be involved in a crime or may constitute a threat.28 Rigalia targeted

and killed the suspected Zetian separatists without warning.

26 MELZER, supra note 10, at 101.

27 Husband of Maria Fanny Suarez de Guerrero v. Colombia, HRC Case No.R.11/45, U.N.Doc.Supp.No.40(A/37/40) at 137 ¶13.1–13.3(1982).

28 Ibid.

7

C . Rigalia’s targeted killing breached international humanitarian law.

1. Even if non-international armed dispute exists between Rigalia’s government and Zetian separatists in territory of both countries, the armed conflict is non-international.

In the case of armed dispute between a State and extraterritorial non-state actors, it

might be categorized as international judging from extraterritorial character of

conflict,29 however, in the view of Geneva Conventions aiming to protect individuals,

it should rather be considered from each State Parties’ character and categorized as

non-international.30 Moreover, under non-international armed conflict, common Article

3 of Geneva Conventions is applicable.31

Even if armed conflict existed between Zetian separatists in Rigalia and Rigalian

Government, it is non-international because it existed in one territory. Also, the conflict

between Zetian separatists in Ardenia and Rigalian Government, even though it spread

out of Rigalia’s territory, it is still considered to be non-international armed conflict,

because of each party’s symmetry.

29 J. PICTET, GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR: COMMENTARY VOL.3 32(1960).

30 N. LUBELL, EXTRATERRITORIAL USE OF FORCE AGAINST NON-STATE ACTORS 99 (2010).

31 Hamdan v. Rumsfeld, 548 U.S. 557(U.S., 2006).

8

2. Rigalia’s targeted killing violated the principle of Direct Participation in Hostility (“DPH”).

a. The suspected Zetian separatists and the families of Bermal are categorized as “civilian”.

In non-international armed conflict, “civilian” is a person not having continuous

combat function.32 “Continuous combatant function” belongs to organized armed

groups taking DPH.33 In case of any doubt, the person shall be presumed to be

protected against direct attack.34

Rigalia attacked the suspected Zetian separatists. Thus the Zetians who were the victim

of the attack were “civilian”. Moreover, Bermal’s families are presumed as “civilian”

because there was a doubt whether or not they were DPH.

b. The suspected Zetian separatists and the families of Bermal do not fulfill the requirement of DPH.

The requirement of DPH follows:

Threshold of harm: “the act must be likely to adversely affect the military operations

or military capacity of a party to an armed conflict or, alternatively, to inflict death,

injury, or destruction on persons or objects protected against direct attack” ;35

32 N. MELZER, INTERPRETIVE GUIDANCE ON THE NOTION OF DIRECT PARTICIPATION IN HOSTILITIES UNDER INTERNATIONAL HUMANITARIAN LAW 16(2009).

33 Ibid.

34 Ibid, at 17.

35 Ibid, at 46.

9

Direct causation: “there must be a direct causal link between the act and the harm

likely to result either from that act, or from a coordinated military operation of which

that act constitutes an integral part” ;36

Belligerent nexus: “the act must be specifically designed to directly cause the required

threshold of harm in support of a party to the conflict and to the detriment of

another”.37 However, it is therefore important to distinguish DPH from violent forms of

civil unrest, the primary purpose of which is to express dissatisfaction with the

territorial or detaining authorities.38

In the present case, when the suspected Zetian separatists and the families of Bermal

had not participated in the Zetian separate movement, “threshold harm” and “direct

causation” does not exist between the acts of terrorism and them. In addition, their

participation in the movement did not constitute “belligerent nexus” because the acts

are civil unrest.

3. Rigalia’s targeted killing using the Predator Drone is not consistent with the principle of international humanitarian law.

Under international humanitarian law, the use of method or means incapable of

distinction between military objects and civilians is prohibited.39 The military interest

36 Ibid.

37 Ibid.

38 Ibid. at 63.

39 Legality of Nuclear, supra note 9, I.C.J. 1996, at 257 ¶78.

10

must be proportionate to the damage to civilian.40 Rigalia’s Predator Drone carried out

more than 50 strikes against suspected Zetian separatists and killed 230 Zetian civilians

in Rigalia. Also in Ardenia, the strikes against Bermal involved 150 persons who are

not military objects. These kind of using Drones are considered to be

disproportionate.41

D . Th is C ourt should order the immediate cessation of Rigalia’s wrongful acts.

The requirement of cessation of the international wrongful acts is the probability of

continuity of the acts.42 Therefore, this Court should order to the immediate cessation

of Rigalia’s Predator Drone strikes.

II. THE ATTACK ON THE BAKCHAR VALLEY HOSPITAL IS ATTRIBUTABLE TO RIGALIA, RIGALIA HAS AN OBLIGATION TO INVESTIGATE THE ATTACK AND COMPENSATE ARDENIA THEREFORE AND, MOREOVER, THE ATTACK WAS A DISPROPORTIONATE AND UNLAWFUL ACT OF AGGRESSION AGAINST THE PEOPLE OF ARDENIA.

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

1. Conduct of organs placed at the disposal of a state by another state

The conduct of organs placed at the disposal of a State attributes to another receiving

40 API, supra note 2, art.51(5) 1125 U.N.T.S. 26.

41 Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston: addendum, 244-246, A/HRC/4/20/Add.1(2007).

42 ILC Articles on State Responsibility for Internationally Wrongful Acts UNGA Res 56/83, UN GAOR 56th Sess., Annex, Agenda Item 162, UN U.N.Doc.A/RES/56/83; Rainbow Warrior, 20 R.I.A.A. 215, 217 ¶113(Apr.30, 1990)[hereinafter ILC Articles].

11

State, when the following requirements are fulfilled.43 The consent between the

sending State and the receiving State exists, and the organs exercise the receiving

State’s function under exclusive control by the receiving States.44 Morgania agreed to

cooperate with the Rigalia in combating Zetian terrorism. The strikes against suspected

Zetian separatists were carried out under the exclusive decision by President Khutai.

As a result, Bakchar Valley hospital attack occurred incidentally.

2. Excess of authority or contravention of instructions.

The conducts, with the probability of happening accompanied with operation by the

State, attribute to that State.45 In the present case, the operator’s mistake happened

accompanied with Rigalia’s operation of the predator drone strikes. Thus, it is

contributable to Rigalia.

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

The State responsible for international wrongful act has obligation to compensate for

the damage when the restitution is impossible or substantially disproportionate to

compensation.46 In addition, as to the assessment of the compensation, the State has an

obligation to investigate.47

43 Ibid.

44 CRAWFORD, supra note 1, 103-04.

45 ILC Articles, supra note 42, at 162.

46 Ibid.

12

The Bakchar Valley hospital attack caused the damages of death of people impossible

to restitution. Therefore, this Court should order Rigalia to investigate and compensate

for the victims of the Bakchar Valley hospital incident and their families.

C . Rigalia has violated the principle of the prohibition of the use of force.

1. The attack constitutes the threat or use of force.

Article 2(4) of the UN charter prohibits States from “the threat or use of force against

the territorial integrity or political independence of any state”.48 “Threat or use of

force” includes a series of the strikes and invasion against another State’s territory.49

Rigalia’s Predator Drones invaded Ardenia and struck against Bermal, his families, and

the Bakchar Valley hospital. This is a series of strikes leading to the invasion of

Ardenian territory. Therefore, the strikes constitute a threat or use of force.

2. The strikes are not a valid exercise of the right to self-defense.

Since there exists no Security Council resolution 50 in the present case, the only issue to

examine is justification by the right of self-defense under Article 51 of UN Charter.

47 Ibid.

48 U.N. CHARTER art.2, ¶4.

49 I. BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 366(1963); A. Randelzhofer, Article 2(4), in THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 112, 123(B. SIMMA ET AL EDS., 2002).

50 U.N. CHARTER art.42.

13

a. No “armed attack” exists as a requirement of exercising the right of self-defence.

i. Only the act by States can be “armed attack” under Article 51 of UN Charter.

Article 51 of UN Charter recognizes the victim State’s right of self-defense only when

there exists “armed attack” by the offense State or by the non-State actors whose acts

attribute to States.51 According to Nicaragua case, such an act of non-State actors is

attributable to a State when the State has “effective control” over their acts.52 This

Court stated that “the financing, organizing, training, supplying and equipping of the

contras, the selection of its military or paramilitary targets, and the planning of the

whole of its operation, is still insufficient in itself [because] … [s]uch acts could well

be committed by members of the contras without the control of the United States.”53 In

the present case, there is no fact that indicates such Ardenia’s control over Zetian

separatists.

ii. In addition, Rigalia cannot exercise the right to self-defence because Ardenia does not provide capital assistance or acquiesce to the acts of Zetian separatists.

It is confirmed under General Assembly Resolution 2625,54 and Security Council

Resolution 136855 and 137356 that even if the acts are not attributable to the States, the

51 Wall Case, supra note 9, I.C.J. 2004 at 194 ¶139(holding that Article 51 of the Charter thus recognizes the existence of an inherent right of self-defense in the case of armed attack by one State against another State.)

52 Nicaragua, supra note 9, I.C.J. 1986, 64-65 ¶115.

53 Ibid.

54 GA.Res.2625, U.N.GAOR, 25th Sess., U.N.Doc.A/8082.

14

right of self-defense is recognized when territorial states provide capital assistance or

acquiesce to the acts of non-State actors. The acquiescence of State is primarily

established on 3 factors; knowledge, legal authority and willfulness.57

However, Ardenia did not provide any capital assistance to Zetian separatists.

Moreover, even if Ardenia might have recognized the acts of terrorism by Zetian

separatists, it has already taken peaceful measures under its legal authority to prevent

them from using violence.58 Allowing the Zetians keeping Ardenian citizenship to hold

meeting inside its territory does not mean that Ardenia willfully acquiesced to the act

of terrorism.

Therefore, Rigalia’s right of self-defense is not justified since Ardenia did not provide

any capital assistance or acquiesce.

iii. Moreover, no such right has evolved in 2006 Lebanon War.

In the 2006 Lebanon War, an important issue arose concerning the validity of Israel’s

exercising the right of self-defense against a non-State actor, Hezbolla.59 Whereas some

European countries recognized the right, a number of States including China, Congo

55 S.C.Res.1368, U.N.Doc.S/RES/1368(Sep.12, 2001).

56 S.C.Res.1373, U.N.Doc.S/RES/1373(Sep.28, 2001)

57 Report of the Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States, U.N.G.A.O.R., 20th Sess., Agenda Item 90 and 94, 103 ¶117, U.N.Doc.A/5746(1964).

58 Compromis, ¶17.

59 S.C.Res.1701, U.N.Doc.S/RES/1701(Aug.8, 2006).

15

and Qatar denied such right.60 Therefore, there exists no agreement by any subsequent

States practice61 regarding interpretation of the right of self-defense under article 51 of

UN charter so far.

b. Alternatively , the strikes of P redator D rones did not fulfill the requirements of valid self-defen s e.

Rigalia did not fulfill the following requirements for exercising the right of self-

defense:

i. Necessity

Self-defense can be invoked only when it is sole way to settle the dispute between

States.62 Rigalia should have requested Ardenia’s cooperation to control Zetian

provinces before resorting to use of force.

ii. Proportionality

The harm of “armed attack” must be proportionate to the damage of defend activities.63

The damage Rigalia has suffered is ones against infrastructures, kidnapped citizens and

60 UNSC, Sess. 61st, 5489th mtg. U.N.Doc.A/8776(July 14 2006).

61 Asylum(Colombia v. Peru)1950 I.C.J. 266, 276(Nov.27); Vienna Cconvention on the Law of Treaties, May 23, 1969, art.31(3)(b), 1155 U.N.T.S. 331, 338[hereinafter VCLT].

62 L. OPPENHEIM, INTERNATIONAL LAW VOL.1 421(R. Jennings & A. Watts eds., 9th ed, 1992); N. LUBELL, EXTRATERRITORIAL USE OF FORCE AGAINST NON-STATE ACTORS 46(2010).

63 Y. DINSTEIN, WAR, AGGRESSION AND SELF-DEFENSE FORTH EDITION 206(2005).

16

a series of suicide bombings taken place at two Government buildings. On the other

hand, Rigalia’s Predator Drone strikes deprived life of many peaceful and innocent

citizens other than Zetian separatists, terrifying the Zetian people in Ardenia and

Rigalia, which is disproportionate to Rigalia’s damage.

D . The attack was a disproportionate and unlawful act of aggression.

The act of aggression is an illegal act64 including “[b]ombardment by the armed forces

of a State against the territory of another State or the use of any weapons by a State

against the territory of another State”.65 The Rigalia’s attack on the Bakchar Valley

hospital in the course of striking terrorists and civilians using Predator Drones, is

clearly an act of aggression.

III. RIGALIA ’ S BAN OF THE MAVAZI FOR THE ZETIAN WOMEN AND

GIRLS VIOLATES THEIR RIGHTS UNDER INTERNATIONAL LAW.

A. ARDENIA HAS JUS STANDI TO INVOKE RIGALIA ’ S RESPONSIBILITY.

1. Ardenia is “an injured State”.

Ardenia is an “injured State”66 entitled to invoke responsibility of Rigalia for violation

64 Armed Activities on the Territory of the Congo(D.R.C. v. Uganda), 2005 I.C.J. 168, 329 ¶11(Dec.19)(separate opinion of Judge Elaraby); Ibid, 334-35 ¶2-3(separate opinion of Judge Simma).

65 Definition of Aggression, G.A.Res.3314(XXIX), Annex ¶1, U.N.Doc. A/RES/29/3314(Dec.14, 1974).

17

of human rights since obligations of human rights treaties are collectively owed to their

State parties67 and it intensifies the separatist movement in Ardenia, specially tied with

the Rigalian Zetians by the citizenship enabling them to enter Ardenia freely under the

agreement with Rigalia and whose Zetians are sympathetic with them.

2. Rigalia violates obligation erga omnes.

Even without a status as an injured State, Ardenia is entitled to invoke Rigalia’s

responsibility for the breach of obligation of non-discrimination because it is an

obligation erga omnes.68 The right of non-discrimination is universally recognized as

one of “the basic rights of human person” by enormous number of international

instruments of universal69 and quasi-universal70 nature, since recognition of “the equal

and inalienable rights of all members of the human family is the foundation of

66 Supra Memorial I.-A.-1.

67 G.C.&R., supra note 5, at 243 at ¶2.

68 Ibid, at ¶3.

69 Universal Declaration on Human Rights, G.A.Res.217(III), ¶1, U.N.Doc.A/RES/217(III)D(Dec.10, 1948)[hereinafter UDHR]; International Covenant on Economic, Social and Cultural Rights, Dec.16, 1966, art.3, 993 U.N.T.S. 4, 5 [hereinafter ICESCR]; ICCPR, supra note 24, art. 3 999 U.N.T.S. at 172; Convention on the Elimination of All Forms of Discrimination against Women, Dec. 1979, Preamble, 1249, U.N.T.S. 13, 14[hereinafter CEADAW]; Convention on the Rights of the Child, Nov. 22 1989, art. 2, 1577 U.N.T.S. 44, 46[hereinafter CRC].

70 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 14 213 U.N.T.S. 222, 232; American Convention on Human Rights, Nov. 22, 1969, art. 24 1144 U.N.T.S. 144, 151; African Charter on Human and Peoples’ Rights, June 27, 1981, art. 2 1520 U.N.T.S. 218, 246.

18

freedom, justice and peace in the world.”71

B. RIGALIA ’ S BAN OF THE MAVAZI VIOLTATES HUMAN RIGHTS OF

THE ZETIAN WOMEN AND GIRLS.

In the Northern Provinces, the Zetian women and girls are in the dilemma between the

tribal rule coercing them to wear Mavazi, and the secular Rigalian law prohibiting

them from wearing it. In addition to violation of religious rights, it brings about

“indirect discrimination” in conjunction with rights of movement,72 education,73

health74 or public participation,75 as it becomes impossible for them to go outside

without Mavazi.

In contrast, in the central areas of Rigalia, the only issue is violation of freedom to

manifest their religion through Mavazi since no external imposition of Mavazi exists.

Accordingly, Ardenia submits Rigalia’s violation in the Northern and central areas

separately.

71 UDHR, supra note 69, Preamble ¶1.

72 ICCPR, supra note 24, art.6 999 U.N.T.S. 174.

73 ICESCR, supra note 69, art.13, 993 U.N.T.S. 8; CRC, supra note 69, art. 28, 1577 U.N.T.S. 53.

74 ICESCR, supra note 69, art.12, 993 U.N.T.S. 8.

75 ICCPR, supra note 24, art.25 999 U.N.T.S. 177.

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1. Freedom to manifest their religion in the Northern Provinces.

a. The ban restricts the freedom to manifest their religion.

Aricle 18(1) of ICCPR protects the right to manifest religion of his/her choice through

“worship,”76 including wearing religious clothing such as Mavazi. 77

b. The ban is not legitimate restriction to protect and preserve freedom from

religious coercion.

i. Imposition of the Mavazi does not prejudice freedom to manifest religion.

Rigalia might argue that the ban does not violate or restrict the “freedom” to manifest

their religion in light of existence of the coercion and closeness of the Provinces.78

However, since the significance of religious clothing varies according to individuals79

and States have no competence to judge their free will in choosing and manifesting

their religion, States are required to be neutral and impartial to religions without

76 ICCPR, supra note 24, art.18(1) 999 U.N.T.S. 175.

77 Karnel Singh Bhinder v. Canada, HRC Case No.208/1986, ¶6.2, U.N.Doc. CCPR/C/37/D/208/1986 (1989).

78 Cf. Jordan’s 3rd Periodic Report to the ICCPR in 1994: UN Doc.A/49/40(1994).

79 Leyla Şahin v. Turk., App.No.44774/98, 11 Eur.Ct.H.R. 175, ¶11(2005)[hereinafter Leyla Case](dissenting opinion of Judge Tulkens); Parliamentary Assembly/Assemblée Parlementaire, Islam, Islamism and Islamophobia in Europe, ¶11(2010) available at http://assembly.coe.int/Documents/WorkingDocs/Doc10/EDOC12266.pdf;

20

judging what is the legitimate way of religious manifestation. 80 Accordingly, even in a

closed religious autonomy, like the Northern Provinces where inhabitants are under

severe coercion to obey religious dress-code, it is to be recognized that some Mavazi

wearer of the society manifest their religion in accordance with their will.

ii. The ban is not proportionate.

Under Article 18(3), restriction on freedom to manifest religion is lawful if it is

provided by law and necessary for protection of the fundamental rights and freedom of

others.81 It might be legitimate aim to relieve the freedom of some women and girls

from the imposition of Mavazi.82

“Necessary” is very strict requirement due to the importance of the right of religious

manifestation.83 Ban of Mavazi in the present case is not the least restrictive measure84

and therefore unnecessary, as it deprives the freedom to wear Mavazi of those who

want to and makes their life extremely inconvenient. In addition, ban of Mavazi

80 Leyla Case, supra note 79, at ¶107.

81 ICCPR, supra note 24, , art.18(3) 999 U.N.T.S. 175.

82 G.C.&R., supra note 5, at 206.

83 Ibid, at 205; S. Joseph, Obligations of Non-Discrimination, in THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS AND UNITED KINGDOM LAW, 373(D. Harris & S. Joseph eds., 1995).

84 G.C.&R., supra note 5, 206; PREVENTION OF DISCRIMINATION The concept and practice of affirmative action Final report submitted by Mr. Marc Bossuyt, Special Rapporteur, in accordance with Sub-Commission resolution 1998/5, Commission on Human Rights Sub-Commission on the Promotion and Protection of Human Rights, 53rd

Sess., at 23 ¶106, U.N.Doc.E/CN.4/Sub.2/2002/21(2002); N. JAYAWICKRAMA, THE JUDICIAL APPLICATION OF HUMAN RIGHTS LAW 185(2005).

21

impairs, contradictorily to the aim, the equal access to education of girls,85 which is so

important to cultivate the religious intolerance86 in order to abolish the discriminatory

tradition rooted in the society through intra-religious dialogue efficiently.87

Therefore, in order to remove the coercion with leaving room for the women and girls

to choose whether to wear, instead of banning Mavazi, Rigalia should adopt less

harmful and more effective measures, e.g. banning the very direct way of coercion

such as lashing or confinement sanction, enlightenment policy through education or

public relation or one like “women’s garden” policy of Ardenia, which has similar

social situation comprised of the Zetians and the ethnic majority. Such measures are

more desirable and realistic in promoting tolerance and respecting diversity.88

2. Freedom from discrimination in the Northern Provinces.

a. The Zetian women and girls are prima facie discriminated indirectly.

Discrimination against women is prohibited under Article 26 of ICCPR, 89 Article 2(d)

85 Combating Defamation of Religions Report of the Secretary-General, 65th Sess. Agenda Item 69(b), at 14 ¶69, U.N.Doc.A/65/263(2010).

86 Combating Defamation of Religions, Preamble ¶13., General Assembly, G.A.Res.62/154, U.N.Doc.A/RES/62/154(Mar.6, 2008)[hereinafter Defamation].

87 Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, G.A.Res.62/157, Preamble ¶9, U.N.Doc.A/RES/62/157(Mar.11, 2008)[hereinafter Intolerance]; A. Rahman, Religious Rights versus Women’s Rights, 28 COLUM. J. TRANSNAT’L L. 473,497(1990).

88 Intolerance, supra note 87, Preamble ¶4.

89 ICCPR, supra note 24, art.26 999 U.N.T.S. 176.

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of CEADAW90 and Article 2(1) of CRC. 91

The intention is not necessarily required for discrimination to occur.92 Even if a law is

neutral at its face, just because its actual effect implemented is detriment on a

particular section of a society, it may constitute “indirect discrimination.”93 Here, the

adverse effect on a group is not required to be as big as violation of some other rights

under ICCPR.94 Although the law on ban of Mavazi might lack intention of

discrimination, it was predictable95 for Rigalian Government that the law, combined

with the situation of the Northern Provinces, would detrimentally affect only women

and girls in enjoying many rights and freedoms in their life.96

b The ban is not reasonable as affirmative action.

Differentiation of treatment based on objective and reasonable criteria does not amount

90 CEADAW, supra note 69, art.2(d) 1249 U.N.T.S. 16.

91 CRC, supra note 69, art.2, 1577 U.N.T.S. 46.

92 CEADAW, supra note 69, art.2(d) 1249, U.N.T.S. 16.

93 Althammer and ors v Austria, HRC Case No.998/2001, U.N.Doc. CCPR/C/78/D/998/2001, ¶10.2(2003).

94 Shirin Aumeeruddy-Cziffra and 19 other Mauritian Women v. Mauritius, HRC Case No.35/1978, U.N.Doc.CCPR/C/OP/1, ¶9.2(b)2(i)8(1984); M.NOWAK, U.N. COVENANT ON CIVIL AND POLITICAL RIGHTS CCPR COMMENTARY 79 (2ND ED., 2002); S. Joseph, supra note 83, at 570.

95 Cecilia Derksen v. Netherlands, HRC Case No.976/2001, U.N.Doc. CCPR/C/80/D/976/2001, ¶9.3(2004).

96 Supra Memorial III.-B.

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to discrimination.97 It is reasonable to take an affirmative action designed to establish

positively de facto equality of a disadvantaged section of people in a society unless it

makes too much harm than needed on other sections. Affirmative action must be

carefully designed not to be extreme measure.98

In the present case, the Zetian women and girls have two aspects; they belong to the

intersection99 of “women” section and “the Masinto believers” one. Indeed ban of

Mavazi is one of affirmative action for de facto equality of “the women” who have

been disadvantaged in the Provinces, however, it imposes excessive burden on women

and girls as “the Masinto believers” and simple ban of Mavazi rather binds them in

their house without education or working, so that promotion does not achieve equal

social status of women and girls. Moreover, as Mavazi does not necessarily relate to

discrimination,100 Rigalia had more effective and less restrictive alternative ways such

as ban of direct cause of oppression.

97 G.C.&R., supra note 5, at 198 ¶13.

98 The concept and practice of affirmative action Final report submitted by Mr. Marc Bossuyt, Special Rapporteur, in accordance with Sub-Commission resolution 1998/5, Commission on Human Rights Sub-Commission on the Promotion and Protection of Human Rights, 43rd Sess., U.N.Doc.E/CN.4/Sub.2/2002/21, at 19 ¶83(2002).

99 G.C.&R., supra note 5, at 114 ¶5(stating that “Many women experience distinct forms of discrimination due to the intersection of sex with such factors as race, colour, language, religion … resulting in compounded disadvantage.”).

100 CONSEIL D’ETAT , ETUDE RRELATIVE AUX POSSIBILITÉSJURIDIQUES D'INTERDICTION DU PORT DU VOILE INTEGRAL 21(2010) available at http://www.la-croix.com/illustrations/Multimedia/Actu/2010/3/30/etudevoile.pdf; Leyla Case, supra note 84, at 175,¶11(dissenting opinion of Judge Tulkens).

24

3. Freedom to manifest their religion in the central areas.

In the central areas, the right to wear Mavazi under Article 18(1) is clearly restricted.101

a. The aim to protect the right of non-Mavazi is not legitimate.

Rigalia might argue that it was necessary to protect those who do not want to wear

Mavazi from its social pressure to protect “public order” in the areas.102 However,

“public order” within the meaning of Article 18(3) has very narrow sense of

“prevention of disorder and crime”,103 confirmed from the term of other Articles and

also confirmed from travaux préparatoires.104

b. Alternatively, the ban is disproportionate to the aim.

Ban of Mavazi is not “necessary” even if the aim to protect non-Mavazi wearer from

social pressure of Mavazi is legitimate to protect “public order”.

101 Supra Memorial III.-B.-1.-a.

102 Décision n° 2010-613 DC du 7 octobre 2010(“Loi interdisant la dissimulation du visage dans l’espace public”)(Le Conseil Constitutionnel, 2010), ¶4 available at http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank/download/cc-2010613dc.pdf

103 NOWAK, supra note 94, at 428; P. Cumper, supra note 88, 355, 374; Cf. NOWAK, supra note 94, at 464.

104 See e.g. ICCPR, supra note 24, , art.19 999 U.N.T.S. 177; NOWAK, supra note 94, at 428(holding that French words “ordre public” parenthesized which extends its meaning to fundamental value of the society.).

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In Ahmet Arslan et al. v. Turkey case, the European Court of Human Rights (“ECtHR”)

did not recognize the necessity to prohibit wearing religious dress outside of religious

places to protect the passengers from its pressure or proselytizing effect observing that

“no elements in the situation show that the plaintiffs tried to make abusive pressure on

the passengers in the road and public place with desire to promote their religious

conviction.”105 This case is different from antecedent ECtHR cases which recognized

the necesssity to ban Islamic headscarves in national universities or elementary

schools such as Leyla Sahin v. Turkey case106 or Dahlab v. Swiss case.107 The ECtHR

decided it is impermissible to ban simple citizens from wearing religious clothing in an

open public space only for protecting others from its pressure, because States shall

ensure that the competing groups tolerate each other but not remove the tension by

eliminating pluralism or minority.108

Hence, in the central areas, it is unnecessary to ban Mavazi to protect public order.

105 Ahmet Arslan c. Turquie, App.No.41135/98, ¶51(2010, French only, translated) available at http://cmiskp.echr.coe.int/tkp197/portal.asp?sessionId=62549022&skin=hudoc-en&action=request (It was claimed that criminal punishment on 127 plaintiffs who were walking together around in a town wearing black religious dress with sticks after a religious assembly violated their freedom to manifest their religion protected under Article 9 of the ECHR. The punishment was imposed by the law No.2596 providing that “Every people shall be prohibited from wearing religious clothing outside of religious spaces or ceremonies.”)

106 Leyla Case, supra note 79, at 175.

107 Dahlab v. Switss, App.No.42393/98, 2001-V Eur.Ct.H.R. 449(2001).

108 Leyla Case, supra note 79, at 175 ¶107.

26

4. The ban is inappropriate and disproportionate to the aim of protecting “public

security”.

One of the purposes of the ban is to protect “public security” by countering terrorism

operated with Mavazi. This is indeed legitimate aim under Article 18(3) and 26 of

ICCPR.

However, ban of Mavazi is clearly inappropriate and cannot be legitimate.109 Ban of

Mavazi would irritate the Zetians and increase the risk of terrorism by other common

means such as explosive or other lethal device110 because, firstly, Mavazi is not the

only form of terrorism111 and, secondly, the terrorism was originally brought about and

aggravated by the defamation112 by the President Khutai against the Zetian society.113

In fact in France, after passing the law prohibiting wearing full-face veils in open

public space in 2010, the leader of a Muslim terrorists group threatened that they

would kidnap and kill French nationals for revenge.114 In addition, soon after the

109 S. Prechal, Combatting Indirect Discrimination in Community Law Context, 1993/1 LEG. I. EUR. INTEGRATION, 81, 89(1993).

110 Measures to Eliminate International Terrorism, ¶3, General Assembly, G.A.Res.64/118, U.N.Doc.A/RES/64/118(Jan.15, 2005); International Convention for the Suppression of Terrorist Bombings, Preamble ¶3, 6, 8, art.3.

111 Compromis, ¶18

112 Defamation, supra note 86, ¶9.

113 Compromis, ¶15.

114 Maïa de la Baume, New Bin Laden Tape Threatens France, N.Y. TIMES, Oct.27, 2010.

27

adoption, Bernard Squarcini, the chief of the French intelligence, also affirmed that

“France is in risk of the major menace of terrorists”.115

Therefore, rather than banning Mavazi, Rigalia shall take other peaceful measures such

as correcting the President’s statement and promoting mutual understanding and

toleration in addition to operating limited security checks at the most vulnerable

places.

Hence, ban of Mavazi is not proportionate, and necessary.

IV. ARDENIA DID NOT VIOLATE THE OECD ANTI-BRIBERY

CONVENTION ( “ THE CONVENTION ” ) OR THE OECD DECISION ON MNE

GUIDELINES ( “ THE DECISION ” ).

A. Ardenia’s failure to investigate and prosecute the alleged bribery and to

provide mutual legal assistance (MLA) to rigalia do not constitute breaches of

article 5 and 9 of the C onvention respectively.

In the present case, it is alleged that there were three types of reception of “bribe” from

MDI; directly the tribal council leaders in the Northern Provinces of Rigalia; an

Ardenian charity incorporated ZRF and its founder Clyde Zangara; and indirectly

through ZRF, the members of ZDP.

115 Yves Bordenave, «Menace terroriste majeure » contre la France, selon la DCRI, LE MONDE, Sept.19, 2010(translated).

28

1. MDI’s cash payments cannot constitute “bribery of foreign public officials

(FPO-bribery)”.

Article 1(1) of the Convention defines the offence of FPO-bribery as (i) offering,

promising or giving (ii) any undue pecuniary or other advantage (iii) intentionally, (iv)

whether directly or through intermediaries, (v) to a foreign public official, (vi) for that

official or for a third party, (vii) in order that the official act or refrain from acting (viii)

in relation to the performance of official duties, (ix) in order to obtain or retain

business or other improper advantage in the conduct of international business.116

It is stipulated that the bribery shall be “of a foreign public official” under Article 5117

and that the criminal proceedings brought by a Party for which MLA is provided shall

concern “offences within the scope of this Convention” under Article 9. 118

Thus, Ardenia has no obligations to investigate and prosecute it or to provide Rigalia

with MLA, if, as submitted below, MDI’s cash payments cannot constitute FPO-

bribery.

116 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Nov.21, 1997, art.1(1), 37 I.L.M. 4, 4[hereinafter Anti-Bribery-Convention].

117 Ibid, art.5(1), 37 I.L.M. 5.

118 Ibid, art.9(1), 37 I.L.M. 6.

29

a. Cash payments to the tribal council members.

i. The council members are not “public officials”.

The tribal council leaders are not “public officials” since they have no substantive

influence on the decision over the contract between MDI and RRI. Although “public

officials” as the beneficiary of FPO-bribery may be de facto authority of organized

areas such as Falkland Islands,119 however, it is required that the recipients have

authoritative influence on the decision concerning the international business,120 since

the purpose of the Convention is keeping level competitive field121 by preventing

companies from taking advantage from higher legal power of a public body.122

ii. Alternatively, the cash payments constitutes “small facilitation payments”.

Even if tribal leaders are “public officials”, MDI’s cash payments to them, although

undocumented,123 are “small facilitation payments” to induce them to provide non-

discretionary routine governmental action such as police protection, and are not for

119 I. Zerbers, Article 1. The Offence of Bribery of Foreign Public Officials, in THE OECD CONVENTION ON BRIBERY A COMMENTARY, 45, 72, 74(M. PIETH ET AL. EDS., 2007).

120 Ibid, at 70.

121 Anti-Bribery-Convention, supra note 116, Preamble ¶2, 37 I.L.M. 4.

122 Zerbers, supra note 119, at 58.

123 Zerbers, supra note 119, at 148.

30

obtaining or retaining “improper advantage.”124 Given such necessary payments125 are

prohibited, international business is not rather flown promptly contrary to the purpose

of The Convention.126

b. Cash payments to ZDP through ZRF.

i. ZDP members are not “foreign public officials”.

ZDP members are not “foreign public officials” since they do not establish a stable de

facto regime or partial autonomy themselves. Mere rebel or terrorist groups are not

“public officials”.127

ii. Alternatively, Cash payments from ZRF to ZDP is not MDI’s “indirect

bribery”.

Even if ZDP members are foreign public officials, cash payments to them are not

identified as MDI’s “indirect FPO-bribery”, since MDI has no legal obligation to

124 INTERNATIONAL TRADE CORRUPTION MONITOR, PART F TRAVAUX PRÉPARATOIRES OF THE OECD CONVENTION COMBATING BRIBERY OF FOREIGN OFFICIALS, F-1015(1999); Commentaries on the Convention on Combating Bribery of Foreign Public Officials in International Business Transaction, ¶8, 37 I.L.M., 4, 8[hereinafter Official Commentary].

125 Zerbers, supra note 119, at 53.

126 Anti-Bribery-Convention, supra note 116, Preamble ¶2, 37 I.L.M. 4.

127 I. Zerbers, supra note 119, at 74.

31

control ZRF on the use of its voluntary financial support.128

c. Cash payments to Clyde Zangara and ZRF.

Clyde Zangara and ZRF, engaged in educational and humanitarian support for the

Zetians, are Ardenian and not Rigalian public officials exercising public function

delegated by Rigalian Government.129 Mere charity activities, even desirable from the

point of view of public interests of a foreign country, are not public service.130

Thus, the allegation remains that, given Clyde Zangara is a nephew of Leo Bikra, the

representative of RRI, MDI’s cash payments to him might constitute “indirect FPO-

bribery” to Leo Bikra. However, in any case Ardenia submits that it does not violate

Article 5 on the basis of “national security reasons”.

2. In any event, Ardenia’s failure to investigate and prosecute the alleged bribery

was necessary for protecting national security and the rights of people.

a. Prosecutor is not prohibited from taking into account “ national security ” .

In deciding whether or not to prosecute alleged FPO-bribery, prosecutors are not

128 Ibid, at 121.

129 Anti-Bribery-Convention, supra note 116, art.1(4)(a), 37 I.L.M. 4; Official Commentary, supra note 124, at ¶12.

130 Zerbers, supra note 119, at 60.

32

prohibited from taking into account public interests such as national security or the life

of general population. The investigation can be dropped if they consider that the

prosecution would impose serious damage on such fundamentally important interests.

Providing that “investigation and prosecution shall be subject to the applicable rules

and principles of each Party”, Article 5 respects fundamental nature of prosecutorial

discretion131 of States adopting the system,132 including Ardenia.

In interpreting the Article in good faith according to the ordinary meaning of terms in

its context and in light of its object and purpose,133 exceptions of the principle are

limited to prohibition of taking into account three taboo factors provided in the second

sentence, namely “(1) national economic interest, (2) the potential effect upon relations

with another State or (3) the natural or legal persons involved”, excluding “national

security.”134 The well established principle in dubio mitius (“restrictions upon the

independence of States … cannot be presumed” from an ambiguous stipulation135)

applies also to this Article.136

In fact, the Lords Goldsmith, the former Attorney General of U.K., which is a Party to

131 Official Commentary, supra note 124, at ¶27; P. Cullen, supra note 119, 289, 292.

132 Compromis, ¶25

133 VCLT, supra note 61, art.31, 1155 U.N.T.S. at 338.

134 Cullen, supra note 119, at 289, 313.

135 Lotus(Fr. v. Turk.), 1927 P.C.I.J.(ser. A) No.10, at 18 (Sept.7); Wimbledon(U.K., Fr., Italy, Japan v. Ger.), 1923 P.C.I.J.(ser. A) No.1, 37 (Aug.23)(dissenting opinion of Judge Hüber andAnzilotti); Nuclear Tests(N.Z. v. Fr.), 1974 I.C.J. 457, 473(Dec.20); L. OPPENHEIM, INTERNATIONAL LAW 1278-79(R. Jennings & A. Watts eds., 9th ed. 1992).

136 Cullen, supra note 119, at 289, 296.

33

the Convention, stated that any countries including U.K. would not have signed up to it

if they had to abandon any ability to consider something as fundamental subject as

national security, in justifying dropping the investigation into the allegation of bribery

from a U.K. arms dealer to the royals of Kingdom of Saudi Arabia.137

In the present case, as Prosecutor has stated that it was necessary to protect “the wider

public interest in security”, the prosecution of MDI, which has returned benefits from

the coltan to the Zetians through ZRF, is likely to aggravate the secessionist movement

and impair the territorial integrity and life of people of Ardenia as they are motivated

by their relative poorness as expressed in “the May 5th Manifesto” claiming “a larger

portion of the revenues from the coltan … to be shared with Zetians.” The situation of

Ardenia is now so sensitive because the Rigalian Zetians can enter Ardenia freely and

the Ardenian Zetian is so sympathetic with them that tens of thousands of them

demonstrated even in Ardenia against the defamation by the President Khutai.

b. Consideration of “ national economic interest ” did not influence the decision of

Prosecutor.

Main reason for Ardenia’s dropping of the investigation is the necessity to protect the

national security and, as the President Arwen implied, economic interest is only partly

considered. Article 5 does not intend to prohibit windfall national economic benefit as

a result of consideration of public interests but rather prohibiting political interference

137 Lord Goldsmith (Feb.1, 2007), Hansard, Col.378, available at http://www.publications.parliament.uk/pa/ld200607/ldhansrd/text/70201-0007.htm#07020137000264

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into prosecutorial discretion.138

3. Ardenia, having not yet provided MLA to Rigalia, does not constitute breach of

Article 9 of The Convention.

a. Correspondence between ZRF and the tribal council leaders falls out of scope of

Article 9.

The correspondence between ZRF and the tribal council leaders are not concerned with

the alleged offence concerning the contract between MLA and RRI, since cash

payments the council leaders received were not FPO-bribery. Therefore, Rigalia’s

request for the information is out of scope of MLA under Article 9(1).139

b. Ardenia is consistent with Article 9.

i. Ardenia did not refuse the request on the ground of bank secrecy.

Under Article 9(1) Ardenia “shall provide, to the fullest extent possible under its laws

and relevant treaties and arrangements, effective and prompt” MLA to another Party

concerning FPO-bribery. 140 At the same time, the exception is provided in Article 9(3)

138 INTERNATIONAL TRADE CORRUPTION MONITOR, supra note 124, at F-1033; Cullen, supra note 119, at 289, 291.

139 Anti-Bribery-Convention, supra note 116, art.9(1) 37 I.L.M. 6.

140 Ibid.

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that a Party shall not decline to render MLA on the ground of bank secrecy.141

Indeed, Ardenian law still keeps bank secrecy. However Ardenia did not refuse to

provide MLA to Rigalia but is “trying to find a way to satisfy Rigalia’s request” given

this condition.142 Hence, Ardenia did not violate Article 9(3), and submits that it

provides MLA as “prompt” as possible “under its laws” as below.

The term “its laws” in Article 9 does not mean laws meeting the standard of the

Convention perfectly but laws existing at the time of the request, construed in

combination with the context143 of Article 12 establishing “programme of systematic

follow-up to monitor and promote the full implementation of this Convention”.144

Hence, it is permissible that Ardenia in the Phase 2 has not yet provided MLA under its

laws still keeping bank secrecy. Although it is usually assessed in the Phase 1 whether

the text of relevant legislations meet standard set by the Convention,145 State Parties

whose legislations are not regarded as designed to meet standard perfectly by

examiners in the Phase 1 can also shift to the Phase 2, and it is sufficient that the

141 Ibid, art.9(3)

142 Compromis, ¶24

143 VCLT, supra note 61, art.31, 1155 U.N.T.S. 338; M. VILLIGER, COMMENTARY ON THE 1969 VIENNA CONVENTION ON THE LAW OF TREATIES 427(2009).

144 Anti-Bribery-Convention, supra note 116, art.12, 37 I.L.M. 7.

145 Directorate for Financial, Fiscal and Enterprise Affairs, Committee on International Investment and Multinational Enterprises, DAFFE/IME(98)17 at 4(1998).

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deficiencies could be followed up during the Phase 2.146

ii. In any event, MLA would impose serious injury to “essential interest” of

Ardenia.

Under Article 9(1), States are only required to provide MLA “to the fullest extent

possible under its laws” and “for the purpose of criminal investigation and proceedings

brought by a Party concerning offences within the scope of this Convention.”147

Therefore, States which adopt the system of discretionary prosecution are entitled to

refuse to provide MLA for an offence which prosecutor decides not to prosecute

because of its risk to national security.

As Rigalia has jurisdiction under Article 4 on MDI due to the effect of alleged bribery

on Rigalia,148 MLA in the present case is provided in order that Rigalia can investigate

and prosecute MDI. However, Ardenia is entitled to refuse to provide the MLA

because providing MLA for the prosecution to Rigalia, which would intensify the

Zetian secessionist movement149, and is contrary to the decision made by Prosecutor

under the Ardenian law on criminal procedures.

146 N. Bonucci, supra note 119, at 445, 456.

147 Anti-Bribery-Convention, supra note 116, art.9(1) 37 I.L.M. 6.

148 M. Pieth, supra note 119, at 267, 277.

149 Supra Memorial IV.-A.-2.

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B. Ardenian NCP ’s failure to respond to the CRBC ’s complaint does not

constitute breach of I .-1. the D ecision.

Ardenian NCP (A-NCP), did not violate the Decision legally binding on all OECD

Parties and adhering countries150 by “undertaking promotional activities, handling

inquiries and for discussions with the parties … taking due account of the attached

procedural guidance” in accordance with the obligation under I.-1. of the Decision. 151

1. The MNE Guidelines is not applied to RRI.

RRI is not multinational enterprise to which the MNE Guidelines applies i.e. enterprise

which has entities such as its factory or office in at least two countries.152 Since NCPs

are required to “contribute to the resolution of issues that arise relating to

implementation of the Guidelines in specific instances”, A-NCP did not violate

paragraph I.-C. of the procedural guidance attached to the Decision by refusing to

150 Convention on the Organisation for Economic Co-operation and Development, Dec.14, 1960, art.5 888 U.N.T.S., 181, 185; Decision of the OECD Council on the OECD Guidelines for Multinational Enterprises, June, 2000, Preamble ¶3, available at http://www.oecd.org/dataoecd/56/36/1922428.pdf[hereinafter Decision].

151 Decision, supra note 150, I.-1.

152 The OECD Guidelines for Multinational Enterprises, June 27, 2000, I.-3., 40 I.L.M. 237, 239(2000)[hereinafter MNE-Guidelines]; Final report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo, ¶33, U.N.Doc.S/2002/1146(2002); Annex III: Business enterprises considered by the Panel to be in violation of the OECD Guidelines for Multinational Enterprises in Final report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo, U.N.Doc.S/2002/1146(2002).

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examine CRBC’s complaint about RRI.

2. The complaint should be dealt with by the NCP of Rigalia where the alleged

misconduct occurred.

In the present case, Rigalian NCP, in which both an alleged briber MDI and the alleged

recipient RRI exist, should deal with the issue raised by CRBC.

Paragraph I.-C. of the procedural guidance provides that in specific instances “the NCP

will offer a forum for discussion and assist” the parties concerned to deal with the

issues raised. 153 As the Commentary on the Implementation Procedures of the MNE

Guidelines154 and specific instances of NCPs in many countries155 show that issues are

dealt with by the NCP in host countries in which both parties concerning bribery work,

unless host country does not have NCP.

In fact, Germany NCP has rejected the complaint about a German pharmaceuticals

company’s unethical marketing practice because “the complaint would have to be dealt

with by the NCPs of the countries where the alleged misbehavior occurred, namely

Belgium, Canada, Estonia, and Spain.”156

153 Procedural Guidance attached to Decision of the OECD Council on the OECD Guidelines for Multinational Enterprises, June 27, 2000, I-C, available at http://www.oecd.org/dataoecd/56/36/1922428.pdf

154 Commentary on the Implementation Procedures of MNE Procedures of MNE Guidelines, ¶13, available at http://www.oecd.org/dataoecd/56/36/1922428.pdf[hereinafter Comm.-I.P.MNE]

155 OECD, OECD GUIDELINES FOR MULTINATIONAL ENTERPRISES: SPECIFIC INSTANCES CONSIDERED BY NATIONAL CONTACT POINTS(2009) available at http://www.oecd.org/dataoecd/15/43/33914891.pdf [hereinafter Instances]

39

This is because it is “Governments adhering to the Guidelines [that] encourage the

enterprises operating on their territories to observe the Guidelines”157 and issues

generally should be dealt with at domestic level, unless a host country does not have its

NCP.158

3. In any event, Ardenian NCP is not required to deal with the complaint due to

the investigations launched by Ardenia and Rigalia over the allegations.

As the allegation of MDI’s bribery to RRI has been investigated as a criminal offence

by both Ardenia and Rigalia, A-NCP is not required to deal with the issue raised by

CRBC.

In accordance with paragraph I.-C.-1. of the procedural guidance, “the NCP will make

an initial assessment of whether the issues raised merit further examination and

respond to the party raising them”. In making an initial assessment, the NCP will take

into account the relevance of applicable law and procedures.159 Hence, the NCP is

entitled to refuse a specific instance if the issue has been treated in a domestic legal

156 Gresea & Transparency International Germany vs Ratiopharm(2008), available at http://oecdwatch.org/cases/Case_130

157 MNE-Guidelines, supra note 152, I.-2., 40 I.L.M. 239(2000).

158 Decision, supra note 150, I.-2.; Instances, supra note 161.

159 Comm.-I.P.MNE, supra note 154, at ¶14.

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procedure such as criminal procedure160 in the host country in parallel161, in order to

avoid interference.162

160 DIRECTORATE FOR FINANCIAL, FISCAL AND ENTERPRISE AND ENTERPRISE AFFAIRE, OECD GUIDELINES FOR MULTINATIONAL ENTERPRISES: 2006 ANNUAL MEETING OF THE NATIONAL CONTACT POINTS REPORT BY THE CHAIR 16(2006).

161 DIRECTORATE FOR FINANCIAL, FISCAL AND ENTERPRISE AND ENTERPRISE AFFAIRE, OECD GUIDELINES FOR MULTINATIONAL ENTERPRISES: 2003 ANNUAL MEETING OF THE NATIONAL CONTACT POINTS REPORT BY THE CHAIR 14(2003).

162 DIRECTORATE FOR FINANCIAL, FISCAL AND ENTERPRISE AND ENTERPRISE AFFAIRE, OECD GUIDELINES FOR MULTINATIONAL ENTERPRISES: 2004 ANNUAL MEETING OF THE NATIONAL CONTACT POINTS REPORT BY THE CHAIR 17(2004).

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CONCLUSION

For the aforementioned reasons, Ardenia respectfully requests the Honorable Court to:

Applicant, Ardenia, asks the Court to adjudge and declare that:

(1) Rigalis’s Predator Drone strikes in Rigalia and in Ardenia violate international law

and the Court should order their immediate cessation;

(2) The attack on the BakcharValley hospital is attributable to Rigalia, Rigalia has an

obligation to investigate the attack and to compensate Ardenia therefore and, moreover,

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

Ardenia;

(3) Rigalia’s ban of the Mavazi for Zetian women and girlsviolates their rights under

international law; and

(4) Ardenia did not violate the OECD Anti-Bribery Convention or the OECD Decision

on MNE Guidelines.

42