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.......................................................................................................ii Statement of Jurisdiction............................................................................................ xii Statement of Facts.......................................................................................................xiv Summary of Pleadings.................................................................................................xx Pleadings......................................................................................................................... 1 I. RIGALIAS PREDATOR DRONE STRIKES IN RIGALIA AND IN ARDENIA VIOLATE INTERNATIONAL LAW AND THE COURT SHOULD ORDER THEIR IMMEDIATE CESSATION............................................................................1 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 III. RIGALIAS BAN OF THE MAVAZI FOR THE ZETIAN WOMEN AND GIRLS VIOLATES THEIR RIGHTS UNDER INTERNATIONAL LAW............18 IV. ARDENIA DID NOT VIOLATE THE OECD ANTI-BRIBERY CONVENTION (THE CONVENTION) OR THE OECD DECISION ON MNE GUIDELINES (THE DECISION)..........................................................................29 Conclusion.................................................................................................................... 43

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>

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

ii

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

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> 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 iii

(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). S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sep. 28, 2001) S.C. Res. 1701, U.N. Doc. S/RES/1701 (Aug. 8, 2006). [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> 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> <15> <15> <15>

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

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 Hber andAnzilotti). <34>

Arbitration Rainbow Warrior, 20 R.I.A.A. 215 (Apr. 30, 1990).

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HRC Althammer and ors v Austria, CCPR/C/78/D/998/2001 (2003). Cecilia Derksen v. Netherlands, CCPR/C/80/D/976/2001 (2004). HRC HRC Case Case No. 998/2001, <23> No. 976/2001, <24> UN U.N. Doc Doc.

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 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 ahin v. Turk., App. No. 44774/98, 11 Eur. Ct. H.R. 175 (2005) (dissenting

opinion of Judge Tulkens).

<21, 25> <21, 27>

Leyla ahin v. Turk., App. No. 44774/98, 11 Eur. Ct. H.R. 175 (2005)

ICTY Prosecutor v. Duko Tadi, 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] Dcision n 2010-613 DC du 7 octobre 2010 (Loi interdisant la dissimulation du visage dans lespace public) (Le Conseil Constitutionnel, 2010), available at http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank/download/cc2010613dc.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> 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 vi

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> Jordans 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, 53 rd 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 DETAT , ETUDE RRELATIVE AUX POSSIBILITSJURIDIQUES D'INTERDICTION DU PORT DU VOILE INTEGRAL 21 (2010) available at http://www.lacroix.com/illustrations/Multimedia/Actu/2010/3/30/etudevoile.pdf <25> 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>

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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 (2005). HANSARD, HOUSE (1977).
OF ON

TERROR

AND THE

FRAMEWORK <4>

OF INTERNATIONAL

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LORDS OFFICIAL REPORT, 5TH SERIES,VOL.387, <5>

COL.2224-2225

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.ilanq.org/en/committes/index.cfm/cid/1022 (last visited 24 Nov., 2010). <5> INTERNATIONAL TRADE CORRUPTION MONITOR, PART F TRAVAUX PRPARATOIRES OF THE OECD CONVENTION COMBATING BRIBERY OF FOREIGN OFFICIALS, F-1033 (1999). <31, 35> J. CRAWFORD, THE INTERNATIONAL LAW COMMISSIONS ARTICLES ON STATE RESPONSIBILITY INTRODUCTION, TEXT AND COMMENTARIES (2002). <1, 44> J. PICTET, GENEVA CONVENTION RELATIVE WAR: COMMENTARY VOL.3 (1960).
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TREATMENT <8>

OF

PRISONERS

OF

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> M. NOWAK, U.N. COVENANT (2nd ed., 2005). M. VILLIGER, COMMENTARY TREATIES (2009).
ON

CIVIL

AND

POLITICAL RIGHTS CCPR COMMENTARY <24, 26>

ON THE

ON THE

1969 VIENNA CONVENTION <16>

OF

LAW

OF

N. JAYAWICKRAMA, THE JUDICIAL APPLICATION <22>

HUMAN RIGHTS LAW (2005).

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N. LUBELL, EXTRATERRITORIAL USE OF FORCE AGAINST NON-STATE ACTORS (2010). <8, 16> N. MELZER, INTERPRETIVE GUIDANCE ON THE NOTION OF DIRECT PARTICIPATION HOSTILITIES UNDER INTERNATIONAL HUMANITARIAN LAW (2009). <9, 10> N. MELZER, TARGETED KILLING IN INTERNATIONAL LAW (2008). <3, 7>
IN

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/ASSEMBLE 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 Womens Rights, 28 COLUM. J. TRANSNATL L. 473 (1990). <22> A. Randelzhofer, Article 2(4), in THE CHARTER COMMENTARY 112 (B. SIMMA ET AL EDS., 2002).
OF THE

UNITED NATIONS: A <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). <30, 31, 32, 33> K. Watkin, Controling the use of force: A Role for Human Rights Norms in Contemporary Armed Conflict, 98 AM. J. INTL 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 BRIBERY A COMMENTARY 445 (M. PIETH ET AL. EDS., 2007). <37>
ON

ix

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. DArgent, Conclusion gnrales: Le droit la vie en tant que jus cogens donnant naissance 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. Fernndez-Snchez ed., 2009). <4, 5> [Miscellaneous] Maa 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 http://www.publications.parliament.uk/pa/ld200607/ldhansrd/text/702010007.htm#07020137000264 <34> at

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

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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.

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Questions Presented 1. Whether Rigalias 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 Rigalias 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 Ardenias dropping the investigation into MDIs alleged bribery violated Article 5 of OECD Anti-Bribery Convention, whether Ardenia, which has not responded to Rigalias 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.

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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 Rigalias laws, Ardeniahas made large effort in respecting such traditions.

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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.

Rigaliasinflexible 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 armys 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.

Ardeniaseffort to console the separatist movement Contrary to the stubborn attitude of Rigalia, Ardenia has made maximized efforts for xv

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 womens 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 nave 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 Ardenias 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.

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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.

Ardenias 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 employees 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 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

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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 Ardenias 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 Ardenias 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 United Nations Charter UN Charter Vienna Convention on the Law of Treaties

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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

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SUMMARY OF PLEADINGS Declaration 1 Rigalias 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, Rigalias 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 Rigalias 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. Moreover, the attack cannot be justified by the right of self-defense for 2 reasons.

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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. Declaration 4

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Ardenias dropping the investigation into MDIs 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 Rigalias 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 Ardenias 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 MDIs alleged bribery.

xxii

PLEADINGS

I. RIGALIAS 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 rigalias 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 Rigalias 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. Rigalias 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

J. CRAWFORD, THE INTERNATIONAL LAW COMMISSIONS ARTICLES RESPONSIBILITY INTRODUCTION, TEXT AND COMMENTARIES 257 (2002).
2

ON

STATE

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 Rigalias 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

Compromis, 17.

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. DArgent, Conclusion gnrales: Le droit la vie en tant que jus cogens donnant naissance des obligations erga omnes?, THE RIGHT TO LIFE 405, 411-412(C. Tomuschat et al. eds., 2010). 2

established under the common Article 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 killing10 of the Predator Drone has violated international human rights law and international humanitarian law. 1.Rigalias 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

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 Rigalias 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 Rigalias 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, 289290(P.Fernndez-Snchez ed. 2009).
14

K. Watkin, Controling the use of force: A Role for Human Rights Norms in Contemporary Armed Conflict, 98 AM. J. INTL L., 1, 34(2004).
15

Prosecutor v. Duko Tadi, Case No. IT-94-1-T, Opinion and Judgment of 7 May 1997, 70[hereinafter Tadi case]; Prosecutor v. Ramush Haradinaj et al, Case No.IT04-84-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.ilanq.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). Tadi Case, supra note 15 at 562; Pfanner, supra note 13, at 288. Pfanner, supra note 13, at 290.

18

19

20

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

21

Compromis, 18. Wall Case, supra note 9, 2004 I.C.J. at 178-79 136. 5

22

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

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. MELZER, supra note 10, at 101. 6

26

the target, capturing is the appropriate measure consistent to purpose of ICCPR rather than direct use of lethal force to definitively deprive ones 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, Rigalias 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.

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 13.113.3(1982).
28

Ibid. 7

C. Rigalias targeted killing breached international humanitarian law. 1. Even if non-international armed dispute exists between Rigalias government and Zetian separatists in territory of both countries, the armed conflict is noninternational. 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 Rigalias territory, it is still considered to be non-international armed conflict, because of each partys 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. Rigalias 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, Bermals 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. Ibid, at 17. Ibid, at 46. 9

34

35

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. Rigalias 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. Ibid. Ibid. at 63. Legality of Nuclear, supra note 9, I.C.J. 1996, at 257 78. 10

37

38

39

must be proportionate to the damage to civilian.40 Rigalias 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. This Court should order the immediate cessation of Rigalias 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 Rigalias 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 States 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 operators mistake happened accompanied with Rigalias 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

43

Ibid. CRAWFORD, supra note 1, 103-04. ILC Articles, supra note 42, at 162. Ibid. 12

44

45

46

obligation to investigate.47 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 States territory. 49 Rigalias 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. U.N. CHARTER art.2, 4.

48

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 States 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 Ardenias 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

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. Ibid. GA.Res.2625, U.N.GAOR, 25th Sess., U.N.Doc.A/8082. 14

53

54

Resolution 136855 and 137356 that even if the acts are not attributable to the States, the 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, Rigalias 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 Israels exercising the right of self-defense against a non-State actor, Hezbolla. 59 Whereas some

55

S.C.Res.1368, U.N.Doc.S/RES/1368(Sep.12, 2001). S.C.Res.1373, U.N.Doc.S/RES/1373(Sep.28, 2001)

56

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

59

European countries recognized the right, a number of States including China, Congo 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 Predator Drones did not fulfill the requirements of valid self-defense. Rigalia did not fulfill the following requirements for exercising the right of selfdefense:

i. Necessity Self-defense can be invoked only when it is sole way to settle the dispute between States.62 Rigalia should have requested Ardenias 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

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

The damage Rigalia has suffered is ones against infrastructures, kidnapped citizens and a series of suicide bombings taken place at two Government buildings. On the other hand, Rigalias 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 Rigalias 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 Rigalias attack on the Bakchar Valley hospital in the course of striking terrorists and civilians using Predator Drones, is clearly an act of aggression.

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

III. RIGALIAS BAN OF THE MAVAZI FOR THE ZETIAN WOMEN AND GIRLS VIOLATES THEIR RIGHTS UNDER INTERNATIONAL LAW.

A. ARDENIA HAS JUS STANDI TO INVOKE RIGALIAS RESPONSIBILITY.

1. Ardenia is an injured State.

Ardenia is an injured State66 entitled to invoke responsibility of Rigalia for violation 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 Rigalias 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

66

Supra Memorial I.-A.-1. G.C.&R., supra note 5, at 243 at 2. Ibid, at 3. 18

67

68

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 freedom, justice and peace in the world.71

B. RIGALIAS 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

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.
71

UDHR, supra note 69, Preamble 1. ICCPR, supra note 24, art.6 999 U.N.T.S. 174.

72

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. 19

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 Rigalias violation in the Northern and central areas separately.

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

74

ICESCR, supra note 69, art.12, 993 U.N.T.S. 8. ICCPR, supra note 24, art.25 999 U.N.T.S. 177. ICCPR, supra note 24, art.18(1) 999 U.N.T.S. 175.

75

76

77

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

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 individuals 79 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 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

78

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

79

Leyla ahin v. Turk., App.No.44774/98, 11 Eur.Ct.H.R. 175, 11(2005)[hereinafter Leyla Case](dissenting opinion of Judge Tulkens); Parliamentary Assembly/Assemble Parlementaire, Islam, Islamism and Islamophobia in Europe, 11(2010) available at http://assembly.coe.int/Documents/WorkingDocs/Doc10/EDOC12266.pdf;
80

Leyla Case, supra note 79, at 107. 21

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 measure 84 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 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

81

ICCPR, supra note 24, , art.18(3) 999 U.N.T.S. 175. G.C.&R., supra note 5, at 206.

82

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).
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 Womens Rights, 28 COLUM. J. TRANSNATL L. 473,497(1990). 22

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 womens 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) 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

88

Intolerance, supra note 87, Preamble 4. ICCPR, supra note 24, art.26 999 U.N.T.S. 176. CEADAW, supra note 69, art.2(d) 1249 U.N.T.S. 16. CRC, supra note 69, art.2, 1577 U.N.T.S. 46. CEADAW, supra note 69, art.2(d) 1249, U.N.T.S. 16.

89

90

91

92

93

Althammer and ors v Austria, HRC Case No.998/2001, U.N.Doc. CCPR/C/78/D/998/2001, 10.2(2003). 23

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 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

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 97 98

Supra Memorial III.-B. G.C.&R., supra note 5, at 198 13.

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). 24

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.

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

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 DETAT , ETUDE RRELATIVE AUX POSSIBILITSJURIDIQUES D'INTERDICTION DU PORT DU VOILE INTEGRAL 21(2010) available at http://www.lacroix.com/illustrations/Multimedia/Actu/2010/3/30/etudevoile.pdf; Leyla Case, supra note 84, at 175,11(dissenting opinion of Judge Tulkens).
101

Supra Memorial III.-B.-1.-a. 25

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 prparatoires.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. 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

102

Dcision n 2010-613 DC du 7 octobre 2010(Loi interdisant la dissimulation du visage dans lespace public)(Le Conseil Constitutionnel, 2010), 4 available at http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank/download/cc2010613dc.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.). 26

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.

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.

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. Dahlab v. Switss, App.No.42393/98, 2001-V Eur.Ct.H.R. 449(2001). Leyla Case, supra note 79, at 175 107. 27

107

108

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 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

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 Defamation, supra note 86, 9. Compromis, 15.

112

113

114

Maa de la Baume, New Bin Laden Tape Threatens France, N.Y. TIMES, Oct.27, 2010.
115

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

as correcting the Presidents 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. Ardenias 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.

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.

1. MDIs 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)

29

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 5 117 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, MDIs cash payments cannot constitute FPObribery.

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

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-BriberyConvention].
117

Ibid, art.5(1), 37 I.L.M. 5. Ibid, art.9(1), 37 I.L.M. 6. 30

118

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, MDIs cash payments to them, although undocumented,123 are small facilitation payments to induce them to provide nondiscretionary routine governmental action such as police protection, and are not for obtaining or retaining improper advantage.124 Given such necessary payments125 are prohibited, international business is not rather flown promptly contrary to the purpose

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. Anti-Bribery-Convention, supra note 116, Preamble 2, 37 I.L.M. 4. Zerbers, supra note 119, at 58. Zerbers, supra note 119, at 148.

121

122

123

124

INTERNATIONAL TRADE CORRUPTION MONITOR, PART F TRAVAUX PRPARATOIRES OF THE OECD CONVENTION COMBATING BRIBERY OF FOREIGN OFFICIALS, F1015(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. 31

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 MDIs indirect bribery.

Even if ZDP members are foreign public officials, cash payments to them are not identified as MDIs indirect FPO-bribery, since MDI has no legal obligation to 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

126

Anti-Bribery-Convention, supra note 116, Preamble 2, 37 I.L.M. 4. I. Zerbers, supra note 119, at 74. Ibid, at 121. 32

127

128

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, MDIs cash payments to him might constitute indirect FPObribery 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, Ardenias 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 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

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. 33

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 stipulation 135) applies also to this Article.136 In fact, the Lords Goldsmith, the former Attorney General of U.K., which is a Party to 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
131 132 133

Official Commentary, supra note 124, at 27; P. Cullen, supra note 119, 289, 292. Compromis, 25 VCLT, supra note 61, art.31, 1155 U.N.T.S. at 338. Cullen, supra note 119, at 289, 313.

134

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 Hber 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.

137

Lord Goldsmith (Feb.1, 2007), Hansard, Col.378, available at http://www.publications.parliament.uk/pa/ld200607/ldhansrd/text/7020134

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 5 th 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 Ardenias 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 into prosecutorial discretion.138

0007.htm#07020137000264
138

INTERNATIONAL TRADE CORRUPTION MONITOR, supra note 124, at F-1033; Cullen, supra note 119, at 289, 291. 35

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, Rigalias 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) 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

139

Anti-Bribery-Convention, supra note 116, art.9(1) 37 I.L.M. 6. Ibid. Ibid, art.9(3) 36

140

141

provide MLA to Rigalia but is trying to find a way to satisfy Rigalias 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 deficiencies could be followed up during the Phase 2.146

142

Compromis, 24 VCLT, supra note 61, art.31, 1155 U.N.T.S. 338; M. VILLIGER, COMMENTARY ON 1969 VIENNA CONVENTION ON THE LAW OF TREATIES 427(2009). Anti-Bribery-Convention, supra note 116, art.12, 37 I.L.M. 7.

143

THE
144

145

Directorate for Financial, Fiscal and Enterprise Affairs, Committee on International Investment and Multinational Enterprises, DAFFE/IME(98)17 at 4(1998).
146

N. Bonucci, supra note 119, at 445, 456. 37

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.

B. ArdenianNCPs failure to respond to the CRBCs complaint does not constitute breach of I.-1. the Decision.

Ardenian NCP (A-NCP), did not violate the Decision legally binding on all OECD

147

Anti-Bribery-Convention, supra note 116, art.9(1) 37 I.L.M. 6. M. Pieth, supra note 119, at 267, 277. Supra Memorial IV.-A.-2. 38

148

149

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 examine CRBCs complaint about RRI.

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). 39

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 countries 155 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 companys 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]
156

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

This is because it is Governments adhering to the Guidelines [that] encourage the enterprises operating on their territories to observe the Guidelines157 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 MDIs 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

157

MNE-Guidelines, supra note 152, I.-2., 40 I.L.M. 239(2000). Decision, supra note 150, I.-2.; Instances, supra note 161. Comm.-I.P.MNE, supra note 154, at 14. 41

158

159

procedure such as criminal procedure160 in the host country in parallel 161, 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). 42

CONCLUSION

For the aforementioned reasons, Ardenia respectfully requests the Honorable Court to: Applicant, Ardenia, asks the Court to adjudge and declare that: (1) Rigaliss 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) Rigalias 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.

43