GLC MEMORIAL

1. RATANKA AND CUP HAVE NOT BREACHED INTERNATIONAL LAW

A. RATANKA HAS NOT BREACHED INTERNATIONAL LAW AS SURVEILLANCE

CONDUCTED

BY

FIA

DOES

NOT

VIOLATE

THE

PRINCIPLES

OF

INTERNATIONAL LAW.
A.1. Applicability of Lotus principle as there is a situation of non liquet

The Lotus case in the Permanent Court of International Justice famously stands for the
proposition that, in the absence of a positive rule, states are free to act. 1 The Court stated that
international law leaves up to states a wide measure of discretion which is only limited in
certain cases by prohibitive rules and that in the absence of such rules every State remains
free to adopt the principles which it regards as best and most suitable. The Lotus principle
thus becomes relevant when there is a gap or lacuna in the law a situation of non liquet.
i.e. nothing in international law forbids states from spying on each other; states therefore may
spy on each other and each others nationals without restriction. Spying is therefore
unregulated in international law and Ratanka has not breached any rules as they are not in
existence in contemporary international law.
A.2. International Law permits spying
A.2.1 Spying is an aid to self defense
Spying is a precursor to and an integral part of a states right to act in self-defense.2 In order to
ensure that the right to self-defense retains substantive meaning, international law must permit
1

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

Christopher D. Baker, Tolerance of International Espionage:A Functional Approach available at

http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1176&context=auilr

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states to predict armed attack. Therefore, for states to enjoy the positively-codified right to selfdefense,3 they should retain the right to acquire information that would indicate whether they
face imminent armed attack.4 That is, for a state to be able to accurately anticipate and prepare
for an armed attack before it occurs, it must be lawful for that state to gather intelligence on
foreign military and governmental decision-making. To deem spying unlawful in international
law would be to vitiate a states critical and well-established right of self-defense, which no state
would tolerate.5
Therefore, Ratankas act of gathering information including details of military and defense
acquisitions and the development of space programs of various countries amounts to an act of
self defense which is a critical right well established in International law.6
A.2.2 Agreements entered into by countries to limit spying signifies it is permissible
The fact that certain states have entered into arrangements with other states to limit such spying
is additional evidence that international law either permits or does not prohibit spying. 7If
international law prohibited such spying, these agreements would be unnecessary and void. At
the very least, the existence of these arrangements proves that international law is unclear about
whether it regulates espionage.
A.2.3 Spying has now been recognized as a custom
Although no international agreement affirmatively endorses espionage, states do not reject it as a
violation of international law.8 As a result of its historical acceptance, espionage's legal validity
may be grounded in the recognition that "custom" serves as an authoritative source of

UN Charter, Article 51

Tolerance of International Espionage: A Functional Approach Christopher D. Baker

U.N. Charter, Article 5

1
6

Compromis 4
US AGREEMENTS WITH 4 COUNTRIES

Tolerance of International Espionage: A Functional Approach, Christopher D. Baker available at

http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1176&context=auilr

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international law.9Therefore, international espionage is legal because states have spied and
eavesdropped on each other throughout history. Ratankas act is therefore legal and not in
violation of international law.

A.3. Anghore has no jus standi to object the surveillance activity of Ratanka
Unfriendly acts can be committed without being in breach of any binding norm of international
law. Espionage as an example of unfriendly act, thereby holding that espionage is strictly
speaking legal as it does not violate international law.10 Such acts are liable to upset the state the
targeted state, but as long as no breach of international law is committed the targeted state has no
jus standi, i.e., legal standing, for objecting to the unfriendly conduct.
A.4. Arguendo, even if ICCPR indirectly prohibits spying, it doesnt apply to extraterritorial
acts.
A.4.1 Article 2(1) of ICCPR read with VCLT
Text of Article 2(1) of the ICCPR does not support imposing extraterritorial application of the
treatys duties.11 Article 2(1) binds each state party to respect and to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized in the present Covenant.12
The principles of treaty construction in the Vienna Convention on the Law of Treaties13 (VCLT)
require reading a treaty in accordance with the ordinary meaning of its terms. The ordinary
meaning of two conditions connected by the conjunctive, and, is that an obligation arises only
upon satisfaction of both conditions. In other words, a state incurs obligations under the ICCPR

Beth M. Polebaum, National Self-Defense in International Law:An Emerging Standard for a Nuclear Age, 59
N.Y.U. L. REv. 187, 194 (1984)
10

Y Dinstein, Computer Network Attacks and Self-Defense (2002) 76 Intl L Stud. Ser. US Naval War College 99,
101
11

From http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4980&context=flr

12

ICCPR, Article 2(1)

13

VCLT, Article 31(1)

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only to individuals who are both within its territory and subject to its jurisdiction.14
Therefore, the law does not apply to Ratankas acts of surveillance on people outside their
territory and not subject to its jurisdiction.

B. THE SEIGE OF EMBASSY BY CUP WAS LAWFUL AND DOES NOT VIOLATE
INTERNATIONAL LAW

B.1 Embassy can be seiged if acts incompatible to the functions laid down in VCDR are
carried out.
B.1.1 Granting asylum to Bobert Tires impairs friendly relations among CUP, Anghore
and Ratanka
Article 3(e) of VCDR, mentions promotion of friendly relations among States as one of the
functions of diplomatic mission.15 Granting diplomatic asylum to Bobert Tires lead to
impairment of relations among CUP, Anghore and Ratanka, evident from the fact that Ratanka
and CUP had imposed sanctions against Anghore,16 which is against the functions of the mission
as laid down in Article 3(e).
B.1.2 The act of providing Bobert Tires with illegal asylum is incompatible with the
functions of diplomatic mission
The premises of the mission must not be used in any manner incompatible with the functions of
the mission as laid down in the present Convention or by other rules of general international law
or by any special agreements in force between the sending and the receiving State.17 Diplomatic

14

Brian J. Bill, Human Rights: Time for Greater Judge Advocate Understanding, ARMY LAW., June 2010, at 54,
58; Robert J. Delahunty & John C. Yoo, What Is the Role of International Human Rights Law in the War on
Terror?, 59 DEPAUL L. REV. 803, 835 (2010)
15

Vienna Convention On Diplomatic Relations, Article 3(e)

16

Compromis, para 24

17

Vienna Convention On Diplomatic Relations, article 41(3)

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premises of Anghore may not be used as an asylum for person(s), Bobert Tires in this case,
prosecuted or convicted by the local authorities.18
B.1.3 Anghore has breached its duty of not to interfere in the internal affairs of Ratanka

The duties set out in Article 41 of the Vienna convention which reads: Without prejudice to
their privileges and immunities, it is the duty of all persons enjoying such privileges and
immunities to respect the laws and regulations of the receiving State.19 They also have a duty
not to interfere in the internal affairs of that State. Anghore has commited a breach of its duty
by granting Bobert Tires political asylum irrespective of the fact that he was on bail at that time.

B.2 Termination or suspension of the operation of a treaty as a consequence of its breach

B.2.1 Application of article 60 of Vienna Convention On Law Of Treaties

Article 6o(2) of Vienna Convention states that:

A material breach of a multilateral treaty by one of the parties entitles:
(a) The other parties by unanimous agreement to suspend the operation of the treaty in whole or
in part or to terminate it either:
(i) In the relations between themselves and the defaulting State, or
(ii) As between all the parties;
(b) A party specially affected by the breach to invoke it as a ground for suspending the operation
of the treaty in whole or in part in the relations between itself and the defaulting State;

18

Yearbook of the International Law Commission, Vol. II, pg 124 para 3 available at
http://legal.un.org/ilc/texts/instruments/english/commentaries/9_2_1961.pdf
19

Vienna Convention On Diplomatic Relations, Article 41; See also, Vienna Convention On Consular Relations,
Article 55,

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(c) Any party other than the defaulting State to invoke the breach as a ground for suspending the
operation of the treaty in whole or in part with respect to itself if the treaty is of such a character
that a material breach of its provisions by one party radically changes the position of every part.
Anghore, CUP and Ratanka being parties to a multilateral treaty i.e. Vienna Convention On
Diplomatic Relations, have a duty to honor their obligations under the treaty.20 The duties
mentioned in the VCDR are not discharged by Anghore,21 resulting in a material breach of treaty
while it has been established that violations of provisions essential to the accomplishment of the
object and purpose of the treaty constitute material breach thus and entitles CUP to invoke this
breach of duty as a ground for its act of siege of Anghorian embassy. Therefore, siege of
embassy is not against the law as Anghore has a legal justification for the same.
B.2.2 Applicability of exceptio non adimpleti contractus.
The notion of Exceptio non adimpleti contractus is an exception that the injured party can invoke
because of the non-performance of a convention by another contractual party and which allows
in turn ( the other party) not to abide by the conventional agreement in part or as a whole. 22
Another basic principle governing the international relationship, i.e., Inadimplenti non est
adimplendum, is that a party which disowns or does not fulfill its own obligations cannot be
recognized as retaining the rights which it claims to derive from the relationship.23 Thus when
Anghore has refrained from fulfilling its obligations under the treaty/contract, CUP is free to
20

Vienna convention On Law Of Treaties, Article 26- Pacta Sunt Servanda; see also, Gabkovo-Nagymaros
Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p. 7, at 389, paras. 478.; Pulp Mills on the River
Uruguay (Argentina v Uruguay), Judgment, ICJ Reports 2010, p. 14; Dispute Concerning Access to Information
under Article 9 of the OSPAR Convention (Ireland v United Kingdom), (2003) 126 ILR 334, at 364, para. 84.
21

Supra, B.1- siege of embassy

22

the Exceptio is defined as "an exception in an action founded on a contract involving mutual duties or obligations,
to the effect that the plaintiff is not entitled to sue because he has not, performed his own part of the agreement."
Black's Law Dictionary at p. 666 citing MacKeldy, Roman Law, 394.; see also, Gabkovo-Nagymaros Project(
Hungary v. Slovakia) ICJ Rep 1997, 765-7, para 105-110; 65 para 106
23

Advisory Opinion on Namibia, ICJ Reports 1971, p.16, para 91 at p.46; see Case Relating to the Diversion of the
Water From the Meuse( Netherlands v. Belgium) (Series A/B No 70 - Series C No 8I) Judgment of June 28th, 1937;
Amoco International Finance Corporation v Iran (1987II) 15 IranUS CTR 189, at 222; Oil Platforms (Islamic
Republic of Iran v United States of America), Judgment, ICJ Reports 2003, p.161

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deviate from its duty of protecting the premises of the mission and also can take positive
measures, like siege directed towards affecting the decision of defaulting party to reconsider its
action and resume the performance of its obligations in good faith.24

B.2.3 Applicability of the discipline of state responsibility25

The ILCs Articles on the Responsibility of States for Internationally Wrongful Acts, 2001 (ARSIWA)
govern cases of breach of international obligations in Articles 22 and 49 to 53, providing that the
injured state is entitled to take counter-measures, subject to certain conditions, and that those
counter-measures are to be considered lawful, even if they would have otherwise constituted a
wrongful act.26 Therefore, though siege of embassy may be an unlawful act in normal
circumstances, siege of Anghorian embassy by CUP is not contrary to the provisions of law as it
is a counter measure in response to Anghores grant of asylum to Bobert Tires and interference
in the internal affairs of CUP.

24

The suspension by Austria of Article 2 of the Austro- Swiss Treaty Of Establishment of 1875 was intended to
compel Switzerland to resume the fulfillment of its obligations. SIMMA, loc, cit
25

As codified in the ILCs Articles on the Responsibility of States for Internationally Wrongful Acts, 2001/II(2) ILC
Ybk, 31. See in particular Arts. 22, 4953 on countermeasures available at
<http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf>
26

Portuguese Colonies case (Naulilaa incident), UNRIAA, vol. II (Sales No. 1949.V.1), p. 1011, at pp. 10251026
(1928); Also Air Service Agreement; Application of the Interim Accord of 13 September 1995 case,( THE FORMER
Yugoslav Republic of Macedonia v. Greece), Judgement,5 December 2011

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