Team 1823

1st UNIVERSITY OF CEBU- KONRAD ADENAUER STIFTUNG

INTERNATIONAL ENVIRONMENTAL LAW MOOT COURT COMPETITION

FEDERAL STATE OF ABRAVANEL

APPLICANT

REPUBLIC OF RATHANKA
RESPONDENT

COUNSEL FOR APPLICANT

TOTAL WORD COUNT: 5,491

 TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................ I

INDEX OF AUTHORITIES ...........................................................................................................4
STATEMENT OF JURISDICTION................................................................................................7
QUESTIONS PRESENTED ............................................................................................................8
STATEMENT OF FACTS ....................................................................................................................9
Background .................................................................................................................9
The Peaceful Relations of the Rathankans and the Abreans ......................................9
The Joint Exploration and Recovery ..........................................................................9
Establishment of Coal Mine and Processing Refinery .............................................10
The Protest ................................................................................................................10
The Attack of the Abrean Liberation Movement Against MMC .............................11
Confinement of Abravan Citizens ............................................................................11
Application to the Court ...........................................................................................12
SUMMARY OF PLEADINGS......................................................................................................13
First Pleading ............................................................................................................13
Second Pleading .......................................................................................................13
PLEADINGS .................................................................................................................................15
I- The Federal States of Abravanel did not violate the TARA, the Rio Declaration or the
Stockholm Declaration…………………………………………………………………………15

A. A. The Federal States of Abravanel did not violate Sec. 8 (a) and (b) of the Territorial
Agreement between Rathanka and Abravanel by acting to the best of its ability to take
all appropriate measures to prevent significant transboundary harm…… ……………..16

B. STOCKHOLM DECLARATION IN 1972 AND THE RIO DECLARATION IN 1992 AS “SOFT

LAWS”. ................................................................................................................................. 20

II. The Republic of Rathanka violated The Geneva Conventions

A. THE ABREANS COMMITTED A WAR CRIME........................................................................ 22

2
 B. The Rathankan Government has effective control as to the acts of the Abrea …23

III. RATHANKA VIOLATED ICCPR’S RIGHT TO LIFE, LIBERTY, MOVEMENT AND

EQUALITY .................................................................................................................................. 26
THE ACT DONE BY THE RATHANKANS INVOLVED ILLEGAL DETENTION ........................... 26

PRAYER FOR RELIEF ...................................................................................................................28

3
 INDEX OF AUTHORITIES

ARTICLES
AHMED, ARIF AND MUSTOFA, MD. JAHID. RULE OF SOFT LAW IN ENVIRONMENTAL PROTECTION:
AN OVERVIEW. GLOBAL JOURNAL OF POLITICS AND LAW RESEARCH VOL. 4, NO. 2, P. 7. 2016 ..18
Armed Conflict 1989–2000’, Journal Of Peace Research 38(5): 629–644 ..................................21
Beci, S. Environmental Protection In The Framework Of International Law: Development And
Cruz, Isagani A. International Law, 169. 10th Ed., 2003 ..............................................................21
Dupuy, Pierre. “Due Diligence In The International Law Of Liability” In Legal Aspects Of
Human Rights Watch – On The Issue Of War Crimes In Gaza ....................................................17
Dupuy, Pierre. “Due diligence in the International Law of Liability” in Legal
Aspects of Transfrontier Pollution, par. 3, OECD. 1977…………………………17
Palmer, Geoffrey. The Earth Summit: What Went Wrong At Rio?, 70 Wash. U.L.Q. 1005, P.
1016. 1992......................................................................................................................................21
Perspectives, European Scientific Journal, P. 31-42 .....................................................................21
What Is International Environmental Law? Global Change Instruction Program. ........................21

INTERNATIONAL DECISIONS AND ARBITRAL AWARDS

Bosnia And Herzegovina V Serbia And Montenegro) Para 400.. ...........................................23, 24

Cf Nicaragua (N 22) Para 115; Bosnian Genocide (N 5) Para 399 ...............................................24
Nicaragua V. United States Para 112; (Bosnia And Herzegovina V Serbia And Montenegro)
Paras 241, 388, 394. .......................................................................................................................23

INTERNATIONAL LAW COMMISSION REPORTS

Art 8 ILC Articles On State Responsibility ...................................................................................24

Chapter II 2001 ILC Articles.. .......................................................................................................24

4
 TREATIES AND CONVENTIONS
Article 2(1) Of The Vienna Convention Of The Law Of Treaties. ...............................................15
Article 9, ICCPR ............................................................................................................................26
Article 12, ICCPR ..........................................................................................................................26
Draft Articles On Responsibility Of States For Internationally Wrongful Acts, With
Commentaries, Pp.40 .....................................................................................................................25
Par. 2 Art. 8 Of The ICC Statute ....................................................................................................22
Vienna Convention On The Law Of Treaties. Art. (26). 1969 ......................................................17

TREATISES AND BOOKS

Birnie, Patricia, And Boyle, Alan. International Law And The Environment, 2nd Ed., Oxford
University Press Inc., P. 112. 2002. ...............................................................................................17
Dupuy, Pierre. Soft Law And The International Law Of The Environment; 12 Mich. J. Int’l L.
420. (1991). ....................................................................................................................................21
Richard, M. The External Affairs Power And Environmental Protection In Australia, Federal
Law Review 71, P. 77-78. 1996 .....................................................................................................21
Talmon, Stefan, The Various Control Tests In The Law Of State Responsibility And The
Responsibility Of Outside Powers For Acts Of Secessionist, Pp.09 .............................................23
Thurer, D. Soft Law, In Encyclopedia Of Public International Law 4, (Edited By Bernhardt, R.),
Pp. 452-460. 2000. ...................................................................................................................20, 22

U.N. RESOLUTIONS AND OTHER DOCUMENTS

Pp. 8 Unhcr Legal And Protection Policy Research Series; Back To Basics: The Right To Liberty
And Security Of Person ‘Alternatives To Detention’ Of Refugees, Asylum-Seekers, Stateless
Persons And Other Migrants Asylum-Seekers, Stateless Persons And Other Migrants . ............26

UNEP. Declaration Of The United Nations Conference On The Human Environment, Available
at: www.unep.org/. 1972 ................................................................................................................21

5
 MISCELLANEOUS
Compromis.................................................................................................17, 18, 19, 20, 21, 22, 23

6
 STATEMENT OF JURISDICTION

Pursuant to the Compromis concluded on 5 June 2018, between the Federal State of

Abravanel and the Republic of Rathanka [“the Parties”], and in accordance with Article 40 (1) of

the Statute of the International Court of Justice, the Parties hereby submit to this Court their

dispute concerning questions relating to the protection of Shared resourced and war crimes.

In accordance with Article 3 of the Special Agreement, the International Court of Justice

is hereby requested to adjudge the dispute in accordance with the rules and principles of

international law, including any applicable treaties. The Parties have agreed to respect the

decision of this Court and shall execute it in its entirety and in good faith.

7
 QUESTIONS PRESENTED

I.

WHETHER THE FEDERAL STATE OF ABRAVANEL VIOLATED THE TARA, THE

RIO DECLARATION OR THE STOCKHOLM DECLARATION

II.

WHETHER THE REPUBLIC OF RATHANKA VIOLATED THE GENEVE

CONVENTION AND THE ICCPR

8
 STATEMENT OF FACTS

BACKGROUND

Abravanel is located on the eastern side of the continent while Rathanka is on the western

side. Separating the two states is the Appala Mountain Range and Mishka Forest.

Abravanel is a developing country whose economy is largely based on agriculture and

ecotourism. Rathanka is a developed state whose sources of income are industrial manufacturing

and energy production.

The Greater Appala Area is home to different animals and to a minority group called the

Abreans who sustain themselves through farming and husbandry. They are culturally and

ethnically related to Rathankans but they do not acknowledge the governments of either state or

the borders set by TARA.

THE PEACEUL RELATIONS OF THE RATHANKANS AND THE ABREANS

Rathankan Parliament granted Abreans political autonomy over areas of the Appala that

belong to Rathanka and has embarked projects to help the Abreans govern themselves including

Security Forces to provide Abreans with military aid. Rathankan military has provided Abreans

with weapons and training.

THE JOINT EXPLORATION AND RECOVERY

In 2007, private researchers discovered large deposits of recoverable coal reserves in the

Abravanel side of Appala. Lacking the financial and technical capability to carry out the

9
exploration and recovery on its own, the government of Abravanel initiated negotiations with the

government of Rathanka regarding the possibility of joint exploration and recovery of the coal

reserves in the Abravanel side of Appala. Amendments to the TARA called the Agreement

Governing Coal Exploration and Recovery in the Greater Appala Area or the “Coal Protocol”

were set.

Rathanka agreed to provide Abravanel with technological and administrative help to

carry out the exploration and recovery operations of the coal reserves in Appala including

technology and facilities to ensure environmental and health safety. Segregated waste disposal

system for the mining refinery was also constructed.

ESTABLISHMENT OF COAL MINE AND PROCESSING REFINERY

In 2005, Abravanel established Meightois Mining Co. (MMC) in the northern area of the

Appala Mountain Range a few kilometers east of the Mishka Forest. Subsequently, forest rangers

working for the Abravanel government erected wire fences delineating the areas of the Mishka

Forest and Appala mountains which belong to Abravanel. Guards were posted to ensure that no

MMC worker mistakenly crosses into Rathankan territory.

THE PROTEST

Abravanel Green Movement (AGM), a non-government organization of lawyers,

scientists and academics, protested against the MMC by producing a documentary on the

operations of MMC and its harmful effects on the environment and the health of residents in

nearby communities. Following the broadcast of the documentary, the UNEP published a report

10
affirming the findings of AGM. The report also showed that the deforestation affected a 300-sq.

km. area on the eastern side of Mishka Forest within Abravanel territory.

The Government of Abravanel held a response and promised to immediately enact the

necessary laws and initiatives to ensure that any further health and environmental concerns are

mitigated. Moreover, the government has already sought the help of the United States for the

purpose of gaining access to technology for reforestation and environmental clean-up. However,

Abravanel respectfully denies the request for the cessation of MMC’s operations. MMC is

essential to our economic survival as a developing state.

THE ATTACK OF ABREAN LIBERATION MOVEMENT AGAINST MMC

Meanwhile, the Abreans in Appala who were most affected by the destruction caused by

the mining operation began arming themselves. After receiving confirmation from the Rathankan

government that they would not intervene, Estenzic, the war leader ordered an attack against

MMC.

On September 11, 2017, three hundred Abrean fighters descended on MMC and begin

firing unguided artillery at the MMC mine and refinery. One of the artillery shells hit a fuel

storage tank causing a massive explosion that razed the refinery. Fifty-five Abravan workers died

and at least two hundred were injured.

CONFINEMENT OF ABRAVAN CITIZENS

During the fighting, some Abravan citizens residing in Rathanka were asked to remain in

their homes under tight guard by Rathankan police. The Rathankan government claimed that the
11
confinement was essential for the security of the state and for the safety of the Abravans

themselves.

APPLICATION TO THE COURT

The Federal State of Abrvanel argues that it did not violate the TARA the Rio

Declaration or the Stockholm Declaration, they added that Rathanka must be held responsible

under the principles of command responsibility and attributability which the acts committed by

Estenzic and his men.

Finally, Abravanel strongly denounce the Government of Rathanka’s act of confining

Abravan citizens residing in Rathanka. The act constitutes a violation of Articles 9 and 12 of

ICCPR. Negotiations between the two States were had but with both states unable to settle their

differences, the Federatal State of Abravanel and the Republic of Rathanka agreed to submit the

case to the Court.

12
 SUMMARY OF PLEADINGS

FIRST PLEADING

The Federal States of Abravanel did not violate Sec. 8 (a) and (b) of the Territorial
Agreement between Rathanka and Abravanel by acting to the best of its ability to take all
appropriate measures to prevent significant transboundary harm. Due diligence was applied
further through the joint project of both states to construct a segregated waste disposal system for
the mining refinery. Non-violation by Abravanal is also evident that no previous intentional
wrongful act was done by Abravanel since it faithfully complied with the agreement of the
TARA’s Coal Protocol.

The Federal States of Abravanel did not violate its obligations under the Rio Declaration
(1992) and the Stockholm Declaration (1972) to prevent transboundary harm. Both Rio and
Stockholm remain as soft laws for they are not intended to be a convention containing
enforceable treaty obligations. Soft law refers to international norm that are deliberately non-
binding in character.

SECOND PLEADING

A war crime means grave breaches of the Geneva Conventions. The conduct of Abreans
resulted not merely to a common crime of murder but an international armed conflict involving
Rathanka-supported Abreans and Abravanel soldiers.

Henceforth, the Rathankan Government has effective control as to the acts of the
Abreans. ‘Effective control’ test applies in cases where there is evidence of ‘partial dependency’
of the secessionist entity on the outside power. The response of Rathanka of non-intervention
undeniably instigated the subsequent acts of Abreans against MMC. Consequentially such action
becomes an action of Rathanka as a State and qualifies as an international armed conflict. They
are therefore guilty of the Geneva Convention amounting to war crime.

Moreover, since no threat of national security substantiates the reason to justify

13
the act done by the Rathankans as to asking Abravan citizens residing in Rathanka to remain in
their homes with tight guard by Rathankan police, the act involved illegal detention in violation
of ICCPR as to the right to liberty and security of person.

14
 MAIN PLEADINGS
I- The Federal States of Abravanel did not violate the TARA, the Rio Declaration or the
Stockholm Declaration.

The 1969 Convention on the Law of Treaties states the definition of treaty as means of an
international agreement concluded between States in written form and governed by international
law, whether embodied in a single instrument or in two or more related instruments and whatever
its particular designation.1

According to Justice Isagani A. Cruz, there are five (5) requisites of a valid treaty: First,
it must be entered into by parties with the treaty-making capacity. Second, through their
authorized representatives. Third, without the attendance of duress, fraud, mistake, or other vice
of consent. Fourth, on any lawful subject matter. Lastly, in accordance with their respective
constitutional processes.2

It should be noted that between the two parties who created the Coal Protocol vis-à-vis
the Territorial Agreement between Rathanka and Abravanel (TARA for brevity), the Republic of
Rathanka is the developed country in the continent of Karacan. Its economy largely depended on
industrial manufacturing and energy production. Hence, Rathanka became the 9 th largest exporter
of natural gas and 5th largest exporter of coal.3

On the other hand, Abravanel tagged itself as a developing country. Its economy
depended on agriculture and ecotourism.4 Hence, the exploitation of the coal reserves, an energy
resource, was a new industry to be embarked by the said federal country.

1
Article 2(1) of the Vienna Convention of the Law of Treaties - E
2
Cruz, Isagani A. International Law, 169. 10th Ed., 2003. - A
3
Record Annex A (3). 2018. - H
4
Record Annex A (2). 2018 -

15
 It is undisputed that private researchers discovered large deposits of recoverable coal
reserves in the Abravanel side of Appala in 2007.5 In light of the new leader Prime Minister of
Abravanel, Prime Minister Ali Ramadi’s administration embarked on a project to explore and
recover the large coal reserves in Appala. However, lacking the financial and technical capability
to carry out the exploration and recovery on its own, they sought help from the Republic of
Rathanka. Thus, the 2012 Coal Protocol was executed as a set of amendments of the 1949
TARA.6

In view of the stipulated facts, the Coal Protocol in relation to the TARA bound the
Federal State of Abravanel and Republic of Rathanka on the terms and conditions stated therein.
With that said, the federal state of Abravanel contends the following arguments:

A. The Federal States of Abravanel did not violate Sec. 8 (a) and (b) of the Territorial
Agreement between Rathanka and Abravanel by acting to the best of its ability to
take all appropriate measures to prevent significant transboundary harm.

The Federal State of Abravanel complied the Coal Protocol with good faith in
performance of its duties and due diligence under Section 8 therein.

Sec. 8 of the TARA Coal Protocol provides that Abravanel’s obligation is to take all
appropriate measures to prevent significant transboundary harm at any event to minimize the
risk thereof7, to wit:

Section 8. Prevention of Transboundary Harm from hazardous or potentially hazardous

activities.

5
Record Annex A (19). 2018.
6
Record Annex A (20). 2018.
7
Record Annex B (Art. 8). 2018.
16
 The present section and subsections apply to activities not prohibited by international
law which involve a risk of causing significant transboundary harm through their physical
consequences.

a.) The State of origin shall take all appropriate measures to prevent significant
transboundary harm or at any event to minimize risk thereof.

b.) The State of origin shall take necessary legislative, administrative or other action
to ensure the prevention of significant transboundary harm or at any event to minimize the risk
thereof.

The principle of Pacta sunt servanda explicitly states that every treaty in force is binding
upon the parties to it and must be performed by them in good faith. 8 Such level of observance is
expected on each signatory in a bilateral treaty as it has the force of law between them.

Due diligence signify the conduct to be expected of good government in order to

effectively protect other States and the global environment.9Flexibility is an essential
characteristic of this standard of conduct as well as the fact that even if a State behaves in a
desired manner it cannot guarantee total prevention of harm.10

Here, the Federal State of Abravanel acted to the best of its ability to take all appropriate
measures to prevent significant transboundary harm or at any event to minimize the risk
thereof.11 Abravanel performed the terms and conditions in the Coal Protocol in good faith from
the inception of the Meightois Mining and Co. (MMC for brevity) up to the operations of the
extraction of the coal reserves through the assistance of the Republic of Abravanel. 12

8
Vienna Convention on the Law of Treaties. Art. (26). 1969. - E
9
Dupuy, Pierre. “Due diligence in the International Law of Liability” in Legal Aspects of Transfrontier Pollution,
par. 3, OECD. 1977. - A
10
Birnie, Patricia, and Boyle, Alan. International Law and The Environment, 2nd ed., Oxford University Press Inc.,
p. 112. 2002. - F
11
Record, supra note 7.
12
Record, supra note 20. 2018
17
 We need to take note that MMC was not an enterprise made out of rash decisions.
Pursuant to the terms of the Coal Protocol, Rathanka agreed to provide Abravanel with
Technological and Administrative Help to Abravanel and this help includes Rathanka
providing technology and facilities to ensure environmental and health safety as to the
exploration of the coal reserves which resulted to the establishment of MMC. 13

This particular provision has been religiously applied to MMC upon its establishment and
considering the premise that Abravanel is but a developing country 14 which needed external
assistance on the extraction of its own resources. The application of these measures provided for
by Rathanka is the only appropriate measure that Abravanel can apply on this matter within its
capability.

Further, it is of significance to note the show of good intentions by the Coal Protocol, in
which both States embarked on a joint project to construct a segregated waste disposal system
for the mining refinery. 15 This significant act showed the purest intentions of Abravanel to
prevent any transboundary harm that the said coal extraction venture may cause to the
environment.

As an explicit statement of the facts of the case, it was the Rathanka Republic who
provided technology and facilities to ensure environmental and health safety. 16Such obligation
was given to the opposing state as they have the capabilities to ensure the same, being the
country with an economy based on energy production.17

Moreover, the communications made by Abravanel shown in paragraphs 29 and 32 of

the Compromis establishes the Applicant’s intention to provide solutions. It had only requested
assistance from States who are capable of assisting Abravanel on to the creation of solutions.

13
Record, Annex A (21). 2018.
14
Record, Annex A (2). 2018
15
Record, supra note 13.
16
Ibid.
17
Record, Annex A (3). 2018
18
 When Rathanka demanded the immediate halt of its MTM operations, such is too big a
price considering that the operations of MMC is a major economic player on the development of
Abravanel.18 It may cause an economic breakdown which may even worsen the status quo.

Furthermore, Rathanka have only fully withdrawn its involvement with MMC on August
24, 2017.19 This only shows that Rathanka still has influence on to MMC’s operation during the
periods wherein allegations on environmental violations happened.20

Had Rathanka intended to call for an answer, they could have strongly influenced the
operations of MMC on applying additional countermeasures to address its concerns. However,
they did not and Abravanel was left to answer a problem which clearly would require time and
was not given enough time to do so. Such solution seemed to materialize upon asking assistance
from the United States for the purpose of gaining access to technology for reforestation and
environmental clean-up.21

Furthermore, Abravanel has given its full capacity and clean intentions to provide
solutions during the course of its discussion on the case of MMC and this shows that he had fully
complied with the obligations set to it by the TARA.

In connection therein, the federal state of Abravanel explicitly contented the invalid
invocation of republic state of Rathanka of Article 20, to suspend its Coal Protocol compliance,
since it did not comply the requisites for validity22, to wit:

Article 20. Adoption of countermeasures.

A state may, as a countermeasure to an internationally wrongful act, suspend its

compliance with the terms of this treaty or any of its Protocols provided the following
requisites concur:

18
Record, Annex A (29). 2018.
19
Record, Annex A (36). 2018.
20
Record, Annex A (26). 2018
21
Record, Annex A (29). 2018.
22
Record, Annex A (37), 2018
19
 a.) The act constituting countermeasure must be taken in response to a
previous intentional wrongful act of the other party and must be directed against that
party.

b.) The injured state must have already called upon the party committing the
wrongful act to discontinue its wrongful conduct or to make reparation, but the request
was refused.

c.) The countermeasure must be commensurate with the injury suffered,

taking into account the rights in question.

d.) The adopted countermeasure must be reversible and its purpose is to

induce the offending party to comply with its obligations under international law.23

Not all of the elements of the countermeasure are present as Abravanel correctly
pointed.24 The first element of the countermeasure states that there should have been a previous
intentional wrongful act of the other party. 25 However, there was no previous intentional
wrongful act done by Abravanel since it faithfully complied with the agreement of the TARA’s
Coal Protocol26. The harmful effects towards the environment 27 was not done directly, actually
and specifically towards Rathanka albeit a consequence of the Coal Protocol 28 that they have
executed together. Since not all of the elements are present for enacting a countermeasure under
Article 20 of the TARA Coal Protocol, the same should be struck down as invalid.

B. Stockholm Declaration in 1972 and the Rio Declaration in 1992 as “soft laws”.

23
Record, Annex B. 2018.
24
Record, supra note 22.
25
Ibid.
26
Record, supra note 23.
27
Record, Annex A (26). 2018.
28
Record supra note 23.
20
 The Soft law refers to international norm that are deliberately non-binding in character
but still have legal relevance in the twilight between law and politics. 29International
environmental law is a part of the regulations of soft law, not mandatory and basically
declarative.30 Though not gives rise to legally enforceable obligations, soft law is generally
regarded as being an important source of international law.31

The impetus for the creation of soft law on the environment began with some vigor in
1972 at the UN Conference on the Human Environment, with the passage of documents such as
the Stockholm Declaration of the UN on the Human Environment.32 The Rio Declaration is also
a soft law agreement as it was not intended to be a convention containing enforceable treaty
obligations.33

Here, High-level representatives from Abravanel and Rathanka attended and fully
participated in the said conventions.34 However being soft law documents, they like to agree to
high-sounding resolutions of principle that do not actually require them to do anything very
specific later.35

In view of the above analysis, the Rathankans erred in imputing in the Government of
Abravanel of violations of the Principle 2 of the Rio Declaration and Principle 21 of the
Stockholm Declaration as they are just considered as soft laws. 36 Soft law serves to articulate
standard widely shared, or aspired to, by nations. 37As oppose to hard international laws, it

29
Thurer, D. Soft Law, in Encyclopedia of Public International Law 4, (edited by Bernhardt, R.), pp. 452-460. 2000.
-F
30
Beci, S. Environmental Protection in the Framework of International Law: Development and Perspectives,
European Scientific Journal, p. 31-42. - A
31
Richard, M. The External Affairs Power and Environmental Protection in Australia, Federal Law Review 71, p.
77-78. 1996. - F
32
UNEP. Declaration of the United Nations Conference on the Human Environment, available at: www.unep.org/.
1972. - G
33
Palmer, Geoffrey. The Earth Summit: What went wrong at Rio?, 70 Wash. U.L.Q. 1005, p. 1016. 1992. - A
34
Record, Annex A (11), 2018.
35
Dupuy, Pierre. Soft Law and the International Law of the Environment; 12 Mich. J. Int’l L. 420. (1991). - F
36
Record, Annex A (31). 2018.
37
What is International Environmental Law? Global Change Instruction Program. - A
21
generally refers to agreement or principles that are directly enforceable by a national or
international body.38

Therefore, 1972 Stockholm declaration and 1992 Rio Declaration, being a soft law 39
between the parties will never create any treaty obligations as to warrant violation if there is a
breach on such declaration to that effect.

II. THE REPUBLIC OF RATHANKA VIOLATED THE GENEVA CONVENTIONS

A. The Abreans committed a war crime.

A war Crime means grave breaches of the Geneva Conventions of 12 August 1949,
namely, any of the following acts against persons or property protected under the provisions of
the relevant Geneva Convention. This includes:

Extensive destruction and appropriation of property, not justified by military

necessity and carried out unlawfully and wantonly; 40

War crimes include a wide array of offenses, among them deliberate, indiscriminate, and
disproportionate attacks harming civilians, hostage taking, using human shields, and imposing
collective punishments.41

On September 11, 2017, three hundred Abrean fighters descended on MMC and begin
firing unguided artillery at the MMC mine and refinery. One of the artillery shells hit a fuel
storage tank causing a massive explosion that razed the refinery. Fifty-five Abravan workers died
and at least two hundred were injured. 42

38
Ahmed, Arif and Mustofa, Md. Jahid. Rule of Soft Law in Environmental Protection: An Overview. Global
Journal of Politics and Law Research Vol. 4, No. 2, p. 7. 2016. - A
39
Thurer, D. supra note 29.
40
Par. 2 Art. 8 of the ICC Statute - E
41
Human Rights Watch – On the issue of war crimes in Gaza - A
42
Record, Annex A Par. 39 pp. 11
22
 The attack evidently caused a massive injury to Abravan citizens and its government due
to the razing of the refinery of MMC.

Moreover, Estenzic carried out an unprovoked attack against a civilian facility using
indiscriminate means and methods resulting in the deaths of Fifty-five Abravans and causing
injuries to two hundred others. His acts were grave violations of the Geneva Convention and
constitute war crimes for which he must be held liable. 43

The conduct of Abreans resulted not merely to a common crime of murder but an
international armed conflict involving Rathanka-supported Abreans and Abravanel soldiers.

An armed conflict is a contested incompatibility which concerns government and/or

territory where the use of armed force between two parties, of which at least one is the
government of a state, results in at least 25 battle-related deaths. 44

B. The Rathankan Government has effective control as to the acts of the Abreans

The Court applies the ‘effective control’ test in cases where there is evidence of ‘partial
dependency’ of the secessionist entity on the outside power. Such partial dependency may be
inferred, inter alia, from the provision of financial assistance, logistic and military support,
supply of intelligence, and the selection and payment of the leadership of the secessionist entity
by the outside power.45

The object of control is no longer the secessionist entity but the activities or operations
giving rise to the internationally wrongful act. Here the applicable rule, which is one of

43
Record, Annex A Par. 43 pp. 12
44
Armed Conflict 1989–2000’, Journal of Peace Research 38(5): 629–644 - A
45
See Nicaragua v. United States para 112; (Bosnia and Herzegovina v Serbia and Montenegro) paras 241, 388,
394. - B
23
customary law of international responsibility, is laid down in Article 8 of the ILC Articles on
State Responsibility as follows. 46

Although the Abrean Liberation Movement commenced as a non-State Organ, its

subsequent acts definitely evidences its dependence to Rathanka as the Abreans proceeded with
the attack after receiving confirmation from the Rathankan government that they would not
intervene. 47

‘The conduct of a person or group of persons shall be considered an act of a State under
international law if the person or group of persons is in fact acting on the instructions of, or
under the direction or control of, that State in carrying out the conduct.” 48

In the relationship between the outside power and the secessionist entity, the focus shifts
from the question of dependence to the question of control.49 For the internationally wrongful
conduct of the secessionist entity to be attributed to the outside power, it must be shown that
organs of the outside power exercise ‘effective control’ of the particular operation or activity in
the course of which the conduct has been committed.50

In international law the general rule is that conduct attributed to the State at the
international level is that of its organs of government, or of others who have acted under the
direction, instigation, or control of those organs, that is, as agents of the State.51

The response of Rathanka of non-intervention undeniably instigated the subsequent acts

of Abreans against MMC.

46
Talmon, Stefan, The Various Control Tests in the Law of State Responsibility and the Responsibility of Outside
Powers for Acts of Secessionist, pp.09 - F
47
Record Annex A par. 38 pp.11
48
Art 8 ILC Articles on State Responsibility - C
49
Bosnia and Herzegovina v Serbia and Montenegro para 400. - B
50
Cf Nicaragua (n 22) para 115; Bosnian Genocide (n 5) para 399 - B
51
Chapter II 2001 ILC Articles - C
24
 With the element of instigation present, the Abrean Liberation Movement effectively
became a state organ of Rathanka.

Article Four of the Responsibility of States for Internationally Wrongful Acts provide:

“ The conduct of any State organ shall be considered an act of that State under
international law, whether the organ exercises legislative, executive, judicial or any other
functions, whatever position it holds in the organization of the State, and whatever its
character as an organ of the central Government or of a territorial unit of the State.” 52

The Rathankan government cannot deny the control it has over the Abreans and their
attribution of the acts done by them (Abreans)

The fact that the Abreans are provided for with military aid and training exercises
involving both combat and non-combat strategies, among others and that they are directly under
the wing of an RSF general, creates a factual relationship of control. Customary military practice
requires authorization before usage of weaponry therefore it is reasonable to conclude that Gen.
Estenzicof had reason to know and is supposed to know of the attack. Consequentially such
action becomes an action of Rathanka as a State and qualifies as an international armed conflict.
They are therefore guilty of the Geneva Convention amounting to war crime.

52
Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, pp.40 - E
25
III. RATHANKA VIOLATED ICCPR’S RIGHT TO LIFE, LIBERTY, MOVEMENT
AND EQUALITY

A. The act done by the Rathankans involved illegal detention.

During the fighting, some Abravan citizens residing in Rathanka were asked to remain in

their homes under tight guard by Rathankan police. 53

The act is a violation of the ICCPR as it states:

Everyone has the right to liberty and security of person. No one shall be subjected to
arbitrary arrest or detention. 54

Also, ICCP provides that:

Everyone lawfully within the territory of a State shall, within that territory, have the right
to liberty of movement and freedom to choose his residence.55

53
Record par. 41 Annex A pp.11
54
Article 9, ICCPR - E
55
Article 12, ICCPR - E
26
 Essentially, detention involves the deprivation of liberty in a confined place, such as a

prison or a purpose-built closed reception or holding centre. It is at the extreme end of the

spectrum of deprivations of liberty, yet this does not mean that measures short of detention do

not implicate guarantees against arbitrary detention. International law is as much concerned with

lesser deprivations and other restrictions on movement as it is with total confinement in a closed

space. 56

All restrictions on liberty – whether full deprivations via confinement in a closed location
or lesser restrictions involving reporting requirements or a designated residence – are subject to
human rights oversight. 57

The detention of Abravans have no legal basis and no substantial reason can justify such
act. Neither threat of national security which may entitle them to adopt measures that have the
effect of restricting the rights and freedoms of individuals58 exist within the territory of Rathanka
nor actual crimes being committed by the said Abravans to legally detain them.

56
pp. 8 UNHCR Legal and Protection Policy Research Series; Back to Basics: The Right to Liberty and Security of
Person ‘Alternatives to Detention’ of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants Asylum-
Seekers, Stateless Persons and Other Migrants - G
57
Ibid. - G
58
Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of
12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (GC IV), Arts 43, 78.. - E
27
 PRAYER FOR RELIEF

The Federal State of Rathanka respectfully requests this Court to adjudge and declare:

I.

The Federal States of Abravanel did not violated the TARA, the Rio Declaration or the
Stockholm Declaration; and

II.

Rathanka violate the Geneva Conventions and the ICCPR.

28