Documente Academic
Documente Profesional
Documente Cultură
2015
On Submission to the International Court of Justice
The Peace Palace, The Hague, The Netherlands
TABLE OF CONTENTS
Table of Contents. i
Index of Authorities. iii
Questions Presented vi
Statement of Facts................ vii
Summary of Pleadings................ ix
Pleadings 1
I. THE ILLICITLY-OBTAINED DOCUMENTS PUBLISHED IN THE WEBSITE OF
THE AMES POST ARE INADMISSIBLE BEFORE THE COURT AND DO NOT
EVIDENCE ANY BREACH BY RIESLAND OF INTERNATIONAL OBLIGATION
OWED TO AMESTONIA........ 1
1. The evidences presented by the State of Amestonia were illegally obtained and
inadmissible to the ICJ, therefore Riesland does not have an international obligation owed
to Amestonia and does not violate any provisions in the international
law................................................................................................................................... 1
A. Riesland did not violate any international obligation because there is no law
governing surveillance activities 1
B. The evidence presented to the court should not be admitted 2
II. THE EXPROPRIATION OF VoRs PROPERTIES AND THE ARREST OF ITS
EMPLOYEE
VIOLATE
THE
BROADCASTING
TREATY
AND
THE
INTERNATIONAL LAW 4
A. Amestonia has no legal basis to terminate the Broadcasting Treaty. Therefore, the
expropriation of VoRs properties and the arrest of its employees violated the
international law............... 4
1. Amestonia unilaterally terminated the Broadcasting Treaty based on reasons
other than the provision of the Treaty... 4
2. Both the person of the employees and VoRs property is inviolable 5
3. Amestonia did not follow the international procedure in for ascertaining the
invalidity or termination of the treaty 7
III. REISLANDS DETENTION OF JOSEPH KAFKER UNDER THE TERRORISM ACT
IS CONSISTENT WITH ITS OBLIGATION UNDER INTERNATIONAL LAW 8
A. Kafker committed an act in violation of the Terrorism Act which is in accordance with
the International Law 8
1. The Terrorism Act is in accordance with the International Law 8
2. Joseph Kafker committed an act in violation of Terrorism Act.. 9
3. The detention of Joseph Kafker is lawful... 9
4. The release of Kafker, as demanded by Amestonia, cannot be
given away..
10
ii
INDEX OF AUTHORITIES
Corfu Channel Case, supra, fn. 51, Merits, ICJ Reports (1949), pp. 4-34..
INTERNATIONAL AGREEMENTS
Convention against Terrorist Bombings, Article 13 (1) (1997)..
10
7, 9
10
6, 7
iii
11
15
15
11
12
14
OTHER REFERENCES
ANTHONY AUST, HANDBOOK OF INTERNATIONAL LAW, pp 238-39
(explained the concept of material breach in Vienna Convention 60/3b (2007).....
13
13
iv
Kristin M. Finklea, The Interplay of Borders, Turf, Cyberspace, and Jurisdiction: Issues
Confronting U.S. Law Enforcement, (2013).
13
12
Mary Ellen OConnell, International Law: Meeting Summary - Cyber Security and
International Law, (2012)13, 14
COMPROMIS
Compromis Annex, (excerpts from preamble) (2015)..
Compromis 12 (2015)
Compromis 22 (2015)
16
Compromis 36 (2015) 8, 9
Compromis Annex 1, Art. 36 (2015)
QUESTIONS PRESENTED
I.
II.
Whether the expropriation of the VoR property and arrest of its employees are
consistent with international law.
III.
Whether the detention of Joseph Kafker under the terrorism act is consistent with
its obligation under international law.
IV.
Whether the cyberattacks on The Ames Post and Chester & Walsingham are
attributable to Riesland and constitute internationally wrongful act.
vi
STATEMENT OF FACTS
INTRODUCTION
Neighboring states, Amestonia and Riesland, established good relations with
each other and cooperated in different areas. Riesland produced chemicals for boosting
seeds yield named NEONICS which was used in Amestonia.
States signed the treaty which allowed each state to establish the broadcasting
facilities on the others territory. In accordance with the treaty, Riesland established a
division of its television corporation, The Voice of Riesland (VoR) in Amestonia. One
of VoRs most popular shows was Tea Time with Margaret, featuring interviews with
leading Amestonian politicians and business leaders.
PROBLEM
Eventually it has been discovered that NEONICS cause harmful effect on bees that
might lead to catastrophic consequences for the environment. A number of ecological
activists have joined forces in order to attract public attention to this issue. One of the
groups, THE HIVE, has been claimed to practice violent actions. Supposedly, this group
committed firing of warehouses with barrels with the chemical and in other means
blackmailed government to make them stop the production and utilization of NEONICS.
In return, Riesland started anti-terrorist operations, including gathering information
about such activists. In particular, Riesland detained the former Amestonian politician,
Joseph Kafker and alleged that he was one of the key figures in THE HIVE.
vii
viii
SUMMARY OF PLEADINGS
I. ADMISSIBILITY OF SURVEILLANCE INFORMATION AS EVIDENCE
Rieslands surveillance acts do not violate any international law. Surveillance and
espionage are practiced throughout history by any sovereignty, therefore supporting the
legitimacy of spying and surveillance activities as part of the international customary
law, a set of unwritten international common law principles.
Evidences gathered by Amestonia are stolen surveillance information allegedly
originating from Rieslands Surveillance Bureau. Such evidence should not be admitted
in a court of justice because it raises doubt as to the integrity and validity of the evidence,
especially since its highly-confidential information.
ix
PLEADINGS
I. THE ILLICITLY-OBTAINED DOCUMENTS PUBLISHED IN THE WEBSITE
OF THE AMES POST ARE INADMISSIBLE BEFORE THE COURT AND DO
NOT EVIDENCE ANY BREACH BY RIESLAND OF INTERNATIONAL
OBLIGATION OWED TO AMESTONIA.
1. The evidences presented by the State of Amestonia were illegally
obtained and inadmissible to the ICJ, therefore Riesland does not have
an international obligation owed to Amestonia and does not violate any
provisions in the international law.
A. Riesland did not violate any international obligation because there is no law
governing surveillance activities.
There is a lacuna in the international law regarding espionage. There is no
law prohibiting the act of acquiring foreign intelligence in the international law.
Lacuna is an empty space in the law with no regulations applicable or an absent
part in a law or another written document such as contract. In other words it
denotes an instance when there is no controlling law or contractual provisions.
Espionage or spying is as old as the governments.
It is submitted to before this honorable court that the Secret Surveillance
Program of the respondent state is subject to several limitations provided on
Section 32 of the SSBA. Considering the differences which has arisen between
the two states concerning the legality of certain alleged acts of espionage, the
reasonable limitations can be put in the interests of the sovereignty and integrity
of Riesland, the security of the state, friendly relation with foreign states, public
order, decency and morality or in relation to contempt of court, defamation or
incitement to an offense.
Espionage is often part of an institutional effort by a government or
commercial concern. However, the term is generally associated with state spying
on potential or actual enemies primarily for military purposes.
1
The Arbitral Tribunal shall, at the request of the Party or on its own
motion, exclude from evidence or production any Document, statement, oral
testimony or inspection for any of
relevance to the case or materiality to its outcome; any need to protect the
confidentiality of a Document created or statement or oral communication made
in connection with and for the purpose of settlement negotiations; the
expectations of the Parties and their advisors at the time the legal impediment or
privilege is said to have arisen; any possible waiver of any applicable legal
impediment or privilege by virtue of consent, earlier disclosure, affirmative use
of the Document, statement, oral communication or advice contained therein, or
otherwise; and the need to maintain fairness and equality as between the Parties,
particularly if they are subject to different legal or ethical rules.1
Article 38 par. 1 of the ICJ Statute recognized privileges of inadmissibility
of evidence such business secrets or privileges of certain professionals, such as
lawyers, priests or physicians. Furthermore, the ICTY has recognized certain
privileges concerning was correspondents and the ICRC. Another instance is
evidence inadmissible for reasons being illegally obtained.
In the CORFU CHANNEL CASE,2 the Court was also confronted with the
question whether illegally obtained evidence was admissible. The United
Kingdom had carried out minesweeping operations in Albanian waters of the
Strait of Corfu although Albania has protested against such actions. The United
1
2
Case Concerning the United States Diplomatic and Consular Staff in Tehran (US vs. Iran), 1980, ICJ REP. 1
(Judgment of May 24)
Diplomatic Relations. Even if the government of Iran had proved to the Court
through the evidences obtained as the result of such action had proven that the
US Embassy and its members had violated one or more obligations under
Vienna Convention, there would be no ground for finding that such violations
excuses Iran from legal obligations.
In this case the ICJ, highlighted the importance ascribed to the
international diplomatic function and to the immunity without which it cannot
be effectively performed. The admissibility of any evidence gained unlawfully
by a violation of diplomatic premises is certain to jeopardize existing
international orders. At least for embassies if not for many areas, any illegally
obtained evidence should be deemed inadmissible.
Therefore following the precedent of the said cases the agents for the
respondent contend that since the evidence presented by the applicant illegally
acquired the respondent does not have an international obligation owed to the
applicant.
II. THE EXPROPRIATION OF VoRs PROPERTIES AND THE ARREST OF ITS
EMPLOYEE
VIOLATE
THE
BROADCASTING
TREATY
AND
THE
INTERNATIONAL LAW.
A. Amestonia has no legal basis to terminate the Broadcasting Treaty, the
expropriation therefore of VoRs properties and the arrest of its employees
violated the international law.
1. Amestonia unilaterally terminated the Broadcasting Treaty based on reasons other
than the provision of the Treaty.
Based on the documents published in The Ames Post, President Hale, declared
that cessation of VoRs operation as a station and unilaterally declares the
termination of the Broadcasting Treaty.4 The documents and information obtained
by Amestonia from Frost is without prejudice. Frost had a clear intention in
committing treason against his own country. This will clearly violate the Treason
Act of Riesland. Citing the Logan Act 1799 of the US Government, the law was
created to forbid unauthorized citizens from negotiating with foreign governments
having a dispute with the U.S. It was intended to prevent the undermining of the
government's position. This directly violated the Broadcasting treaty which states
that privileges and immunities shall only cease upon the cessation of the stations
function as envisage in the Treaty.5 The phrase function as envisage is not clearly
defined in the treaty. Therefore, interpretation of that phrase shall be in good faith in
accordance with the ordinary meaning to be given to the terms of the treaty in their
context and in the light of its object and purpose. 6 Hence, such function should
ordinarily mean to offer radio and television channels/shows that will reflect the
two nations dynamic political, cultural and artistic activity.7
Application of the provisions of international law yields the same conclusion.
Republic of Riesland did not commit a material breach of duties to entitle Amestonia
to terminate the Treaty.8 A material breach of a treaty consists in the violation of a
provision essential to the accomplishment of the object or purpose of the treaty. 9 The
alleged surveillance will not limit VoRs ability to produce the same brand of service
and entertainment it has been providing Amestonia for the last 22 years.
2. Both the person of the employees and VoRs property is inviolable. The acts of
Amestonia violates the generally accepted principles of International Law.
The persons of each stations employees shall be inviolable and they shall not
be liable to any form of arrest or detention.10 The State of Amestonia is bound, in
good faith to carry out these aforementioned treaty obligations. The stations
premises shall likewise be inviolable and the agents of the host country may not
enter without the consent of the head of the station.11 The good faith basis of treaties
Compromis Annex 1, Art. 36 (2015)
Vienna Convention on the Law of Treaties between States and International Organizations, Article
31 (1) (1986)
7 Compromis Annex, (excerpts from preamble) (2015)
8 Vienna Convention on the Law of Treaties between States and International Organizations Art. 60 (1)
(1986)
9 ANTHONY AUST, HANDBOOK OF INTERNATIONAL LAW, pp 238-39 (2007)
10 Compromis Annex Art. 15 (a) (2015)
11 Compromis Annex Art. 14 (a) (2015)
5
6
implies that a party to the treaty cannot invoke provisions of its municipal law as
justification for a failure to perform. 12 The arrest therefore of the three (3) VoR
employees due to suspicion of surveillance activity is a violation of both ether treaty
and the international law.
Every treaty in force is binding upon the parties to it and must be performed
by them in good faith. 13 A party which, under the provisions of the present
convention, invokes either a defect in its consent to be bound by a treaty or a ground
for impeaching the validity of a Treaty, terminating it, withdrawing from it or
suspending its operation, must notify the other parties of its claim. The notification
shall indicate the measure proposed to be taken with respect to the treaty and the
reasons therefor.14
In the Chorzow Factory case15, it was ruled that the taking of alien property in
contravention of a treaty was "unlawful" and "illegal."' This ruling by the Court was
a wholly natural one, because the pacta sunt servanda principle obtains generally, in
so far as it pertains to treaties, in the various areas of the law of nations. And the
Court also pointed out, in its Judgment Number 8 in the Chorzow Factory case, that
the violation of a treaty protecting alien property entails the duty to make reparation
for the damage which has been incurred.
It is a principle of international law that the breach of an engagement involves
an obligation to make reparation in an adequate form. Reparation therefore is the
indispensable complement of a failure to apply a convention and there is no
necessity for this to be stated in the convention itself. The pacta sunt servanda rule,
therefore, protects alien property interests, and the violation of that rule, with regard
to alien property, provides the basis for an international claim. And, as shall be
shown directly, international law dictates that reparation, in these circumstances,
must take the form of restitution in kind, if possible.
13
violated the employees inherent right to liberty and security 24 and their inviolable
privileges and immunities under the Broadcasting Treaty and the inherent rights of
Riesland for the protection of its properties.25
III. REISLANDS
DETENTION
OF
JOSEPH
KAFKER
UNDER
THE
Everyone has the right to liberty and security of person. No one shall be
subjected to arbitrary arrest or detention. No one shall be deprived of his liberty
except on such grounds and in accordance with such procedure as are established
by law.34 The Federal Republic of Riesland had established its Terrorism Act of 2003
and has adequately defined its detention powers; it cannot put its national security
at risk by simply following the demands of the State of Amestonia. The Terrorism
Act clearly defines its intent and purpose and is consistent with its obligations under
international law.
Anyone who is deprived of his liberty by arrest or detention shall be entitled
to take proceedings before a court, in order that that court may decide without delay
Compromis 12 (2015)
Compromis 12 (2015)
31 Compromis 36 (2015)
32 (Acts adopted pursuant to Title VI of the Treaty on European Union) COUNCIL FRAMEWORK
DECISION of 13 June 2002 on combating terrorism.
33 European Convention on Human Rights Art. 5 (1c) UN Charter, Chapter VI, Art. 33 (1950)
34
International Covenant on Civil and Political Rights, Article 9 (1966)
29
30
on the lawfulness of his detention and order his release if the detention is not
lawful.35 No court has any authority over Kafkers release because it is only the
Tribunal that has jurisdiction over Kafker. On the 21-day cycle extension of Kafkers
detention, the jurisdiction belongs to the Tribunal and it is up to this competent
court to determine whether his detention is lawful or not. To reiterate, the Republic
is on the defense for its national security. Clearly, the proceedings on Kafker cannot
be disclosed because the National Law of Riesland dictates so. To do otherwise will
be unconstitutional. Article 6 of the European Convention on Human Rights is clear
that judgment shall be pronounced publicly but the press and public may be
excluded from all or part of the trial in the interests of national security or to the
extent strictly necessary in the opinion of the court in special circumstances, here the
national security of Riesland.
In order to meet the requirement of lawfulness, detention must be in
accordance with a procedure prescribed by law. This means that detention must
conform to the substantive and procedural rules of national law or international law
where appropriate.36
4. The release of Kafker, as demanded by Amestonia, cannot be given away.
10
Farmers of Amestonia clearly rely on as it increases their production which helps the
said States economy, them being mainly agrarian.
Riesland cannot be impugned on whatever internal wars Amestonia is having
with regard to its environmentalists. The attacks clearly are against the use of
neonics and its government must act for an alternative. Riesland being the producer
of neonics, cannot be held at fault if it sees itself at risk for terrorist attack since the
attacks on Amestonia revolves around it.
POST
AND
CHESTER
&
WALSINGHAM
CANNOT
BE
38
39
11
The law of State responsibility extend only to an act, or failure to act, that
violates international law. In other words an act committed by a States organ, or
otherwise attributable to it can only amount to an internationally wrongful act if it
is contrary to international law.40
B. There are no sufficient evidence to support Amestonias claim that the
cyber-attacks on The Ames Post and Chester & Walsingham were
orchestrated by Riesland.
1. Cyber-attacks can only be attributed to a foreign sovereign State if there is clear
and convincing evidence.
The Federal State of Riesland cannot be made liable to the cyber-attacks on
the The Ames Post and Chester & Walsingham. Under the UN Charter, particularly
the rules on international evidentiary standard, for a case with regard cyber-attacks
to prosper, clear and convincing evidence must be established. Generally, a cases of
cyber-attacks is one of those where convincing evidence is hard to find. Proving a
cyber-attacker takes time as well as States resources. 41 The evidence presented by
Amestonia in the form of experts analysis that the IP used for the cyber-attacks was
traced back to within Rieslands territory does not carry enough weight to convict
Riesland of committing a cybercrime. The internet bears a wide berth, if not limitless,
scope of avenues to explore. In this advanced time, there are a lot of talented hackers
that could route IP addresses to other places just to avoid detection or getting
caught.
Lets take for instance the most celebrated cases of cyber-attacks in history.
First is the three-week wave of massive cyber-attacks on the small Baltic country of
Estonia; the first known incidence of such an assault on a state. It caused alarm
across the western alliance, with NATO urgently examining the offensive and its
implications. While planning to raise the issue with the Russian authorities, EU and
NATO officials have been careful not to accuse the Russians directly. If it were
established that Russia is behind the attacks, it would be the first known case of one
40
41
12
13
In the case of Georgia v. Russia (2008), it was the first known use of the
internet during a conventional armed conflict to interfere with civilian use of the
internet; it occurred in the 2008 conflict in the Georgian enclave of South Ossetia.
Georgia triggered the conflict by attacking Russian soldiers who were part of a
peacekeeping contingent in South Ossetia under the terms of a Georgia- Russia
treaty of 1991. Georgia claimed that Russia initiated distributed denial of service
(DDoS) attacks against a number of Georgian websites, including government sites,
media sites, and commercial sites. The interference last approximately a month. The
physical fighting had lasted about a week.46 Despite Georgias claim, there was no
real case that prospered because of the argument that there was no existing cyberborders between states even today. No state could claim for a breach of cyberterritory if there is no documented international law that defines what cyber-borders
are.
All Members shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of any state, or
in any other manner inconsistent with the Purposes of the United Nations.47 The
question is whether cyber force can be considered a type of force in the sense of
Article 2(4).
The general criteria for the interpretation of treaties are spelt out in the 1969
Vienna Convention on the Law of Treaties (VCLT) which provides that A treaty
shall be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object and
purpose.48 A teleological interpretation of the provision seems to support a narrow
reading of the provision that limits it to armed force.
Mary Ellen OConnell, International Law: Meeting Summary - Cyber Security and International Law,
(2012)
47
United Nations Charter, Article 2 par. 4
48
The Vienna Convention on the Law of Treaties, Article 31 para. 1 (1969)
46
14
Cyber-attacks
that
involve
international
wire
or
radio
frequency
in
its
founding
International
Telecommunication
Convention
and
15
circulating dangerous information that may appear to the security of another State.
In fact, a number of countries have already voiced their concern that the continued
uncertainty as to the legality of Rieslands challenged surveillance programs would
hinder their ability to continue to engage and share intelligence with Riesland
without fear of being complicit in human rights abuses. 51 The latter is a clear
manifestation that the acts of The Ames Post and Chester & Walsingham have
contributed to the dangerous position that the Federal Republic of Riesland is facing
today.
51
Compromis 22 (2015)
16
The documents published in the website of The Ames Post are illicitly
obtained, and are therefore inadmissible before the court and do not evidence any
breach by Riesland of international obligation owed to Amestonia.
2.
The Broadcasting Treaty and the International Law have been violated
attacks against the computer systems of The Ames Post and Chester & Walsingham.
Respectfully submitted,
AGENTS FOR RIESLAND
17