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1A

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE


THE HAGUE, NETHERLANDS
A CASE CONCERNING THE DIFFERENCE BETWEEN THE TWO STATES
CONCERNING THE FROST FILES

THE STATE OF AMESTONIA


APPLICANT
VS.
THE FEDERAL REPUBLIC OF RIESLAND
RESPONDENT

A MEMORIAL FOR THE APPLICANT


FEBRUARY 2015

TABLE OF CONTENTS
TABLE OF CONTENTS...i
INDEX OFAUTHORITIES........................................................................................................iii
STATEMENT OF JURISDICTION............v
QUESTIONS PRESENTED....vi
STATEMENT OF FACTS.................................vii
SUMMARY OF PLEADINGS............................ix
MAIN PLEADINGS......1
I The

Federal

Republic

of

Luka

violated

its

international

obligations....

...1
a. The ASSEN Agreement is binding Upon Ratificatiom..1
b. Luka Acted in Clear Bad Faith by not to enacting an enabling law..2
c. Luka Violated the ASSEN Convention on Transboundary Haze Pollution by Facilitating,
allowing and failure to prevent the 2013 Haze Crisis..5
d. Luka allowed the haze crisis by failing to take precautionary measures in order to stop
or mitigate transboundary haze.6
e. Luka failed to undertake measures to prevent and control activities related to land
and/or forest fires, thereby failing to prevent the haze crisis.7
II.Luka violated Customary law on preventing Transboundary harms by failure to exercise
due diligence.............................................................................................................8
III.

The Federal Republic Of Luka Is Responsible for the 2013 Haze Crisis that caused
severe economic and Health Problems for the People of the Republic of Megat and
must correspondingly pay compensation for the damages Caused. ...............................12

a. The Failure Of The Federal Republic Of Luka To Prevent The Use Of Fire By Private
Persons In Clearing The Moltres Forest Which Resulted In The 2013 Haze Crisis
Constitutes An Internationally Wrongful Act Making Them Liable To Pay Compensation
For The Damages Caused To The People Of The Republic Of Megat.13
b. The incident is not merely an accident due to force majeure...........................................14
CONCLUSION AND PRAYER.................................................................................................17

INDEX OF AUTHORITIES
Treaty/Convention
Declaration of the United Nations Conference on the Human Environment (Stockholm 1972)
1969 Vienna Convention on the Law of Treaties
Cases
A case of first impression on the right of a belligerent to seize neutral shipping by way of
necessity, (1925) 1KB271,295.
Armed Activities (New Application: 2002) case.
Case concerning the Barcelona Traction, Light and Power Company, Limited, Second Phase,
Judgment of 5 February 1970, ICJ Reports (1970), p. 3, at p. 32.
CASE CONCERNING UNITED STATES DIPLOMATIC AND CONSULAR STAFF IN
TEHRAN, US Vs. Iran (May 25, 1980)
Corfu Channel Case, UK Vs. Albania(1948)
Pulp Mills Case, Argentina Vs. Uraguay (2010)
Trail Smelter Arbitration(1941)
Text
David Harris. LL.M, PH.D,C.M.G. Cases and Materials on International law (2010)
Ian Brownlie, CBE, QC, FBA; PrinciplesofPublic International Law (1998)
McNair, Law Of Treaties (1905)
Online Sources
Ives, Mike. The Air Pollution thats Choking Asia. Retrieved from:
http://edition.cnn.com/2015/01/27/asia/asia-air-pollution-haze/.

Kaczorowska, Alina, (eds) 2015. Public International Law 5th Edition. p.24. Available from:
http://www.books.google.com.ph. [September 29, 2015]
Kurukulasuriya, Laland Robinson, Nicholas A.Training Manual on International
Environmental Law. Retrieved from:
http://www.unep.org/environmentalgovernance/Portals/8/documents/training_Manual.pdf
Navia, Rafael Nieto. International Peremptory Norms (Jus Cogens) and International
Humanitarian Law. Retrieved from:
http://www.iccnow.org/documents/WritingColombiaEng.pdf.
Yearbook of the International Commission 1978, vol.II, (1);
http://www.un.org/law/ilc/index.htm
Articles/Journals:
"Force majeure" and "Fortuitous event" as circumstances precluding wrongfulness: Survey of
State practice, international judicial decisions and doctrine - study prepared by the
Secretariat. Extract from the Yearbook of the International Law Commission:-1978
Document:-vol. II(1).
I.L.C Draft Articles on Transboundary Harm, supra note 21 at 392.
I.L.M. 818 [Hereinafter CBD]; Principle11, World Charter for Nature, , UNGA Res. 37/7, 37
U.N. GAOR, Suppl. (No. 51), at 17, U.N.Doc. A/37/51(Oct. 28, 1982); principle 15, Rio
Declaration supra note 21; Art. 10, Cartagena Protocol on Biosafety to theConvention on
Biological Diversity, Jan. 29, 2000, 39 I.L.M 1027; See also David Freestone and Ellen Hey.
U.N Convention on Biological Diversity, Preamble, June 5, 1992

https://ecpr.eu/Filestore/PaperProposal/f1874dac-6e16-4d9c-b936-723754fcc869.pdf
https://archive.org/stream/TallinnManual/TallinnManual_djvu.txt
http://www.sans.edu/research/security-laboratory/article/traffic-analysis
https://ccdcoe.org/sites/default/files/multimedia/pdf/Shackelford%20-%20State
%20Responsibility%20for%20Cyber%20Attacks%20Competing%20Standards%20for%20a
%20Growing%20Problem.pdf
http://www.lawctopus.com/academike/the-corfu-channel-case/
http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1500&context=cjil
http://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf
https://www.ilsa.org/jessup/jessup16/Batch%201/UNCharterICJStatute.pdf
https://www.ilsa.org/jessup/jessup16/Batch%202/SchmittDueDiligence.pdf
https://archive.org/stream/TallinnManual/TallinnManual_djvu.txt
http://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf

STATEMENT OF JURISDICTION

On 01 September 2015, the State of Amestonia and the Federal Republic of Riesland, in
accordance with Article 40(1) of the Statute of the International Court of Justice, submit the
recent dispute to the court. See Special Agreement Submitted to the International Court of Justice
by the State of Amestonia and the Federal Republic of Riesland on the Differences between them
Concerning the Frost Files, signed in The Hague, The Netherlands.

QUESTIONS PRESENTED

I.

WHETHER THE DOCUMENTS PUBLISHED ON THE WEBSITE OF THE


AMES POST ARE ADMISSIBLE AS EVIDENCE BEFORE THE COURT;
RIESLANDS
AGAINST

MASS

ELECTRONIC

AMESTONIAN

PUBLIC

SURVEILLANCE

PROGRAMS

FIGURES

NATIONALS

AND

REVEALED IN THOSE DOCUMENTS VIOLATES INTERNATIONAL LAW;


AND

AMESTONIA

IS

THEREFORE

ENTITLED

TO

AN

ORDER

DIRECTING THE IMMEDIATE CESSATION OF THOSE PROGRAMS


WITH ASSURANCES OF NON-REPITION.

II.

WHETHER THE SEIZURE AND FORFEITURE OF THE VOR STATION


AND ITS EQUIPMENT, AND THE ARREST OF MARGARET MAYER AND
THE OTHER TWO VOR EMPLOYEES, DID NOT VIOLATE THE
BROADCASTING TREATY, AND WERE IN ACCORDANCE WITH
AMESTONIAS OTHER INTERNATIONAL LAW OBLIGATIONS.

III.

WHETHER THE DETENTION OF JOSEPH KAFKER UNDER THE


TERRORISM ACT VIOLATED INTERNATIONAL LAW, AND AMESTONIA
IS THEREFORE ENTITLED TO HIS IMMEDIATE RELEASE, THE
DISCLOSURE OF ALL INFORMATION WHICH FORMED THE BASIS OF

HIS APPREHENSION, AND THE PAYMENT OF COMPENSATION FOR HIS


DETENTION.

IV.

WHETHER THE CYBER ATTACKS AGAINST THE COMPUTER SYSTEMS


OF

THE

AMES

ATTRIBUTABLE

POST

AND

CHESTER

TO

RIESLAND,

&

AND

WALSINGHAM

ARE

CONSTITUTE

AN

INTERNATIONALLY WRONGFUL ACT FOR WHICH AMESTONIA IS


ENTITLED TO COMPENSATION.

STATEMENT OF FACTS

SUMMARY OF PLEADINGS

MAIN PLEADING
I.

The documents published on the website of The Ames Post are admissible as
evidence before the court; Rieslands mass electronic surveillance programs against
Amestonian public figures and nationals revealed in those documents violates
international law; and Amestonia is therefore entitled to an order directing the
immediate cessation of those programs with assurances of non-repetition.
A. The Documents published on the website of The Ames Post are admissible as
evidence before the court.
i.
Generally Accepted Principles of International Law
a. Ex Turpi Causa Non Oritur Actio
The Principle that a right cannot stem from a wrong is inapplicable in
leaked information because, to invoke this principle, the right, property or

advantage must be obtained by the wrongdoer himself. (Jerusalem concessions). If


the information was leaked by any other person, it could still be used by a third
party, such as a state, for proving the law. (Factory Chorzow).
Also, the violation contemplated is considered to be at the level of serious
violations of the law, e.g., grave breaches or violations of international
humanitarian law, human rights law, or the prohibition on the use of
force(Kosovo). It also supplemented by ex factis jus oritur, when the violations
are not of a serious gravity. (Kosovo2). Lastly, all these seriously unlawful acts
pertain only to acts of the state, and not acts by private actors. (Gerald
Fitzmaurice). Therefore, in the case at bar, the Frost files may be admitted as
evidence even if Frost will be charged of a grave offense under the laws of
Riesland, as his acts do not constitute an act of state by Amestonia. Domestic law
prohibiting leaks is irrelevant without a rule of international law, since a state
cannot cite internal laws in defense against international obligations. (VCLT)
The prohibitive principles cited directly apply in situations where an entity
relies on the act of leaking for the direct creation of the right of action. However,
in the case at bar, Amestonia relying on leaked information for proof of a legal
norm is not relying on the act of leaking for a right or benefit, but rather in the
content of the leak, and therefore is not relying on the unlawful act itself for any
claim or right. A legal claim relies on the legal rule, which is evidenced (not
created) by the leaked document. Thus there is no reliance on the act of leaking
for a legal right or benefit. (Effect of leaked information).
b. Fruit of the Poisonous Tree

If the Ex Turpi rule prohibits a benefit or right stemming from a wrong


itself, the Fruit of the Poisonous Tree prohibits the introduction of evidence
against a party where it was gained unlawfully, and the evidence becomes
inadmissible.
It is unclear if the Fruit of the Poisonous Tree exists as a rule in
international law. (commentators) None of the major international treaties
mandate an exclusionary rule in inter-state dispute settlement for evidences
obtained in the course of violating the law except for torture (torture).
International human rights conventions have provided that states must respect
individuals human rights and provide a right to an effective remedyright to an
impartial tribunal and right to a fair hearingfor violations, though not
necessarily a remedy of exclusion of evidence. (UDHR) The court may exclude
evidence from trial where the risk of prejudice outweighs the probative value of
the evidence sufficient to undermine the right to a fair trial. (Rome) Evidence may
be excluded where there was a violation of the Rome Statute or International
Human Rights Law, and that violation raises substantial doubt on the reliability
of the evidence or the admission of the evidence would be antithetical to and
would seriously damage the integrity of the proceedings. (Rome2) The laws of the
local jurisdiction where the evidence was gathered is not determinative on the
assessment by the ICC (rome3). Generally, the state is free to address the remedy
for wrongfully gained evidence within its particular legal system, where it can
exclude information (ICCPR)
ii.

Under the Vienna Convention on Diplomatic Relations

Article 27 of the Convention on Diplomatic Relations stipulates that


communications of diplomatic missions are protected while paragraph 2 states
that official correspondences are inviolable (1). These rules are meant to prevent
parties from improperly procuring evidence (2).Applying such rules to the case at
bar, we find that the evidence leaked are not communications of diplomatic
missions, nor are they official correspondences.
Firstly, Diplomatic missions consist of:
(a) Representing the sending State in the receiving State;
(b) Protecting in the receiving State the interests of the sending State and
of its nationals, within the limits permitted by international law;
(c) Negotiating with the Government of the receiving State;
(d) Ascertaining by all lawful means conditions and developments in the
receiving State, and reporting thereon to the Government of the sending
State;
(e) Promoting friendly relations between the sending State and the
receiving State, and developing their economic, cultural and scientific
relations.
(3)The files obtained are not in the nature of diplomatic relations, nor were
they taken from a diplomatic office e.g. an embassy, and they are not official
correspondences within the meaning of the VCDR as the evidence obtained are
not correspondences relating to any diplomatic mission or function (4) but are
purely proof of Rieslands illegal surveillance of Amestonia. the act of
surveillance does not even relate to any group of people from one state nor an

international governmental organization present in another state to represent the


sending state in the receiving state(tom nierop).
Secondly, The VCDR provisions were applied in the Iranian Hostages case
because Iran clearly violated multiple provisions of the VCDR when not only did
the militants capture evidence in a diplomatic facility, i.e. the embassy, but also
held hostage the people working therein. The court cannot in anyway justify the
act of intrusion by admitting the evidence obtained in such a manner. In Contrast,
the Frost files werent gathered by Amestonia, but were leaked by a private
individual, Frost, in a private news agency, The Ames Post (compromis) and the
files submitted for admission do not pertain to any diplomatic mission, nor did the
process of taking the files violate any provisions of the VCDR in its entirety.
iii.

Corfu Channel Case


The case at bar is akin to the Corfu Channel Case where, the United
Kingdom provided as evidence, their illegal minesweeping of the Albanian waters
to prove Albanian liability, UK was not sanctioned, and the unlawfully procured
evidence against Albania was admitted.

B. Reislands mass electronic surveillance programs against Amestonian public figures and
nationals revealed in those documents violate international law; and Amestonia is
therefore entitled to an order directing immediate cessation of those programs with
assurance of non-repitition.
i.
International Law Status of the Right to Privacy
The International Covenant on Civil and Political Rights (ICCPR), Universal
Declaration of Human Rights (UDHR), and International Legal Framework are

relevant in the determination of the international law status of the right to Privacy. It
must be recalled that both Reisland and Amestonia are signatories to the foregoing
covenant, declaration and instrument.
Article 17 of the ICCPR provides, No one shall be subjected to arbitrary
or unlawful interference with his privacy, family, home or correspondence, nor to
unlawful attacks on his honor and reputation. Everyone has the right to the protection
of the law against such interference or attacks.
Likewise, Article 12 of the UDHR has the exact provision on the right to
privacy.
Currently, an international legal framework on the right to privacy is
embodied in the UN General Assembly resolution 68/167 which was promulgated in
December 2013. The resolution provides the universal framework against which any
interference in individual privacy rights must be assessed. It states that the right to
privacy under international human rights law is not absolute. However, any
instance of interference must be subject to careful and critical assessment of its
necessity, legitimacy, and proportionality. A follow-up resolution on November 25,
2014 calls for the states to respect and protect the right to privacy in the digital age.
The same resolution reiterated the observance of the principles of necessity,
legitimacy, and proportionality.
From the ICCPR, the UDHR and the UN General Assembly Resolution, it is
clear that the right to privacy has international status.
ii.

Mass Surveillance is a Violation of the Right to Privacy

Mass surveillance is defined as the subjection of a population or significant


component of a group to indiscriminate monitoring. It involves a systematic
interference with people's right to privacy. Any system that generates and collects
data on individuals without attempting to limit the dataset to well-defined targeted
individuals is a form of mass surveillance (Privacy International).
Under the methods that mass surveillance is now capable of being conducted,
governments can capture virtually all aspects of peoples lives. Today it increasingly
involves the generation, collection, and processing of information about large
numbers of people, often without any regard to whether they are legally suspected of
wrongdoing.
Electronic surveillance which is defined by the SSBA is among the modern
means of mass surveillance.
We now point to the violation of mass surveillance on the right to privacy.
The UN General Assembly resolutions enjoin states to observe the principles
of necessity, legitimacy, and proportionality when it interferes with the right to
privacy. At present, there is no uniformity among states on what standards these
principles may be observed. The United States, for example, believes that states may
engage in surveillance that is in accordance with transparent laws and that furthers a
legitimate aim. The European Court of Human Rights, on the other hand, provides for
a higher standard. It requires that the interference must be necessary in the
circumstance of the case and proportional to the end sought, and the surveillance must
be conducted under specific and clearly defined laws.

Notwithstanding the lack of uniformity in the standard for interference on


surveillance, we submit that general principles fill in the gap between the relations of
the States on the matter. Professor of law Ian Brownlie, states that
General principles may refer to rules accepted in the domestic
law of all civilized States, or alternatively, to the general principles of
private law used within all or most States. in so far as those principles
are applicable to relations of States. General principles, then, full in the
gaps in international law that have not already been filled by treaty or
custom.
What general principle of surveillance among states is applicable in the
relation of states so as to approach the status of international law? The recent
legal developments in the United States to America and the United Kingdom
point that for surveillance to be a valid interference to the right to privacy, the
necessity and proportionality principles must be observed.
Thus, in the American Civil Liberties Union v. Clapper case, the US Court of
Appeals reversed the ruling of the District Court that the mass surveillance by the
government through the programs PRISM and TEMPORA did not violate the right to
privacy of the appellants.
The existence of TEMPORA has been disclosed by Edward Snowden in 2013. It
secretly conducts mass surveillance by tapping fibre optic cables, giving the Government
access to huge amount of data on both innocent citizens and targeted suspects. PRISM,
on the other hand, allowed NSA to gain access to the data and content handled by some

of the worlds largest Internet companies, including Microsoft, Yahoo, Google Facebook,
PalTalk, AOL, Skype, YouTube and Apple.
In the aforementioned case, the Court of Appeals ruled for the appellant on the
ground that the government failed to meet the relevance standard which it said is a simple
and well established standard of law. It is a standard for obtaining every kind of
subpoena, including administrative subpoenas, grand jury subpoenas, and civil discovery
orders. What the relevance standard means, according to the court, is that there has to be
an authorized investigation and the surveillance of a specific subject (i.e. information,
individual, entity, etc.) must be relevant to such investigation. Thus, while the
government claimed that it is for purposes of countering terrorism as provided for the
Patriot Act, the court held that what the law allowed was surveillance relevant to an
investigation not just an assessment. The surveillance conducted was therefore a violation
of the right to privacy because it went beyond the scope of what the law allowed.
From this case, we submit that when surveillance must be relevant to an
authorized investigation for it to be a valid interference on the right to privacy, the
standard actually requires that the surveillance is necessary for the object of the
investigation and the extent of the surveillance must be confined within the object of that
investigation. In other words, it is akin to the principles of necessity and proportionality
set forth by the international instrument.
The principles of necessity and proportionality find the same application in the
case against Government Communications Headquarters (GCHQ), a British intelligence
agency. The Investigatory Powers Tribunal (IPT), an independent judicial body in UK
which hears complaints on surveillance by public bodies, ruled that GCHQ acted

unlawfully in accessing millions of peoples personal communications collected by the


NSA and that the UK government concede that the regime governing interception,
obtaining and use of legally privileged material violated the Human Rights Act. The
Tribunal stated: The regime governing the soliciting, receiving, storing and transmitting
by UK authorities of private communications of individuals located in the UK, which
have been obtained by US authoritiescontravened Articles 8 or 10 of the European
convention on human rights. Further, the UK Government admitted that its mass
surveillance programme using PRISM and TEMPORA contravened the European
Convention on Human Rights. The European Court of Human Rights case laws
established the standard for a valid interference on the right to privacy: the interference
must be necessary in the circumstances of the case and proportional to the end sought,
and the surveillance must be conducted under specific and clearly defined laws.
Under the ECHR, any interference in private life must be in accordance with the
law, justified by one of the legitimate aims (i.e. national security) listed and necessary in
a democratic society.
Thus, in Kennedy v. the United Kingdom, the Court held that for the interference
to be in accordance with the law, three requisites must be present: the impugned measure
must have some basis in domestic law and, with regard to the quality of the law at issue,
it must be accessible to the person concerned and have foreseeable consequences. This
doctrine was applied in a later case, Malone v. the United Kingdom. The case concerns
the power of ministers to authorize telephone tapping without truly granting it, and the
administrative arrangements for such practices were vaguely defined. The Court held that
law should be sufficiently clear in its terms to give citizens an adequate indication as to

the circumstances in which and the conditions on which public authorities were
empowered to resort to this secret and potentially dangerous interference with the right to
respect for private life and correspondence. On the necessity of the interference in a
democratic society, the Court held in Kennedy v. the United Kingdom, there has to be
adequate and effective guarantees against abuse. Further, the interest of the respondent
State in protecting its national security must be balanced against the seriousness of the
interference with the applicants right to respect for his private life.
Clearly, the principles of necessity and proportionality are established by these caselaws.
I.
II. The seizure and forfeiture of the VoR station and its equipment, and the arrest of Margaret
Mayer and the other two VoR employees, did not violate the Broadcasting Treaty, and
were in accordance with Amestonias other international law obligations.
A. Amestonia did not violate the Broadcasting Treaty
i.
Amestonia had the right to enter the VoR station in cases where there is serious threat
to public safety or order.
The Broadcasting Treaty states in Article 14(1);
The premises referenced in article 1(2) of the present Treaty shall be
inviolable, and agents of the host state may not enter those premises without the
consent of the head of the station. Such consent may be assumed only in cases of fire
or other similar disaster posing or threatening serious immediate danger to public
safety or order.
Knowing from the facts stated in Paragraphs 25 and 26 of the compromis
that the VoR station was the hub of unauthorized surveillance of Amestonian

activities that threatened the its national security, Amestonian police authorities
properly obtained a warrant to search the premises and seize all the assets and
property to determine the extent of the danger.

ii.

Margaret and the other two VoR employees lost their rights to immunity at the
moment they abandoned their duties at the VoR station.
Article 36 of the Broadcasting Treaty states:
All privileges and immunities provided for in this Treaty, save for those in
Article 15(1)(c) above, shall cease to have effect upon the cessation of the stations
functions as envisaged in the present Treaty.

Article 15(1) (c) states:


In respect of acts performed by an employee of the station in the exercise of
its functions, the immunities and privileges shall continue to subsist after the
employees functions at the station have come to an end.

However, unauthorized surveillance and collection of intelligence on


Amestonian public and private figures and collection are clearly not functions
envisaged in the Broadcasting Treaty. Such actions are in no manner the intention of
the two countries desire to fortify the friendship. Article 2 of the Broadcasting Treaty
explicity states a function of the treaty, to wit:

Each station shall produce and air programs and content including news
stories, interviews, documentaries, and movies produced either in or by the operating
country, with local viewers and listeners in the host country as the target audiences.
Hence, Margaret Mayer and the other two VoR employees by acting as
collaborators in the surreptitious collection of intelligence of Amestonias highraking officials1, they have been stripped off their immunities and privileges
safeguarded by the Broadcasting Treaty. They can be considered as security theats as
which properly gives Amestonia the right to arrest them.
B. Assuming arguendo that Amestonia did violate the Broadcasting Treaty
i.
The Broadcasting Treaty is deemed to be terminated or suspended because of
Reislands substantial breach of the said treaty.
Reisland committed a material breach of the stipulations in the Broadcasting
Treaty, specifically on Art 23 (1) and (2), to wit:

Article 23.
1. Without prejudice to their privileges and immunities, it is the duty of all
persons employed by each station to respect the laws and regulations of the
host state. Those who are nationals of the operating state have an additional
duty not to interfere in the internal affairs of the host state.

2. The premises of the station must not be used in any manner incompatible
with the stations functions as envisaged in the present Treaty, in other rules

1 Paragraph 25,compromis

of general international law, or in any other agreements in force between the


Parties hereto.

Reisland failed to observe a general principle of international law,


pactasuntservanda in the observance of bilateral or multilateral treaties. Article 26 of
the Vienna Convention on the Law of Treaties states, Every treaty in force is
binding upon the parties to it and must be performed by them in good faith.
In addition, Article 60 (1) of the Vienna Convention on the Law of Treaties
provides:
Article 60: Termination or suspension of the operation of a treaty as a
consequence of its breach
1. A material breach of a bilateral treaty by one of the parties entitles the
other to invoke the breach as a ground for terminating the treaty or
suspending its operation in whole or in part.

A material breach of the bilateral treaty by one of the parties entitles the other
to invoke the breach as a ground for terminating the treaty or suspending its
operation in whole or in part, and par. 3 of the same article provides that A material
breach of a treaty, for the purposes of the present article, consists in:
(a) A repudiation of the treaty not sanctioned by the present articles; or
(b) The violation of a provision essential to the accomplishment of the object or
purpose of the treaty.

As a consequence of the Reislands first infraction of the Broadcasting Treaty,


the parties are released from any obligation further to perform the treaty.2Therefore, it
is as if there is no more treaty to speak of. The rights and privileges granted by the
Broadcasting Treaty are deemed revoked.

C. Amestonia acted in defense of its territorial sovereignty.


Under generally accepted principles of international law, it is but natural for a
State to perform all the actions necessary to preserve and defend its sovereignty and
security from any party that threatens it. Amestonia has considered VoRs broadcasting
equipment as effects of a crime 3which led to its seizure and forfeiture. Considering the
surrounding circumstances and exigencies at the time, Amestonias actions are justified.
Support for the principle of self-defense as a remedy against the crimes committed
by diplomats can also be found in the commentary 4of the International Law Commission
(ILC) on the article on personal inviolability. It states that being inviolable, the diplomatic
agent is exempted from certain measures that would amount to direct coercion, but this,
however, does not exclude self-defense. The ILC considered self-defense as a measure of
immediate reaction and not as a ground for trial and punishment (the latter has actually
never left the realm of the doctrine). The International Court of Justice (ICJ), referring to
the principles of personal inviolability and diplomatic immunity from jurisdiction, also

2 Article 70, Vienna Convention on the Law of Treaties


3 Paragraph 30, compromis; Amestonian President Hales statement
4Yearbook of the International Law Commission 1957; p138, vol. II, p. 97

said that naturally it does not mean that a diplomatic agent caught in the act of
committing an assault or other offence may not, on occasion, be briefly arrested by the
police of the receiving state in order to prevent the committing of the particular crime.
Diplomatic immunity cannot be more important than the security of the receiving
state. It was clear that Amestonias security had been threatened and its extent unknown.
Therefore, for the safety of our nation and the safety of the suspect diplomats, it was
prudent that the correct course of action for Amestonia was to detain Margaret and her
companion VoR employees, and to secure the effects found within the station until an
investigation and the extent of the crime could be determined.
(in 1948 the Japanese ambassador to Belgium, General Oshima, was sentenced by
a military tribunal for his war crimes durng the Second World War despite his diplomatic
status)

ii.

Margaret Mayers arrest was of the nature of preventive detention, therefore


lawful.
The arrest can be justified under two causes:

First, they were unable to present pertinent travel documents on their exit
from Amestonia upon apprehension by the Border Patrol.5 It is standard protocol to
ask entering or leaving non-citizens of a State to for identification. Because they
were unable to do so, they were rightfully put under custody.

5 Paragraph 28, compromis

Second, Amestonian police officers were in possession of a warrant with the


Carmen program as probable cause.
Both countries, which are signatories to the International Covenant on Civil
and Political Rights (ICCPR), affirmed that preventive detention is not explicitly
prohibited.6The purpose of preventive detention is to safeguard national security or
public order. A person is put under preventive detention for the reason that the
individual is considered a potential threat to state security and not detained, not for
punishment for a proven transgression of the criminal law.7
Likewise, ECHR Article 5(1) only permits detention when it is reasonably
necessary to prevent further offenses or flight. Drawing from Article5(1), the Council
of Europe has said that a person may only be remanded in custody if: there are
substantial reasons for believing that, if released, he would either: (i) abscond, or (ii)
commit aserious offence, or (iii) interfere with the course of justice, or (iv) pose a
serious threat to public order.

The United Nations Commission on Human Rights Sub-Commission on


Prevention of Discrimination and Protection of Minorities Special Rapporteur, Mr.
Louis Joinet, stated in his explanatory paper regarding preventive (administrative)
detention:8
Administrative detention was common practice in more than 30
countries, where housands of persons were said to be held in detention
6https://www.ilsa.org/jessup/jessup16/Batch%202/MackenDEtention.pdf
7In R v Halliday(1917) AC 216

without charge or trial, merely by executive decision, either because they


were viewed as a potential threat to national security or public order.
Joinet further commented:
contrary to what one might suppose, administrative detention is not
banned on principle under international rules.12

In Union of India v Paul Nanickan and Anr 9, the Supreme Court of India
stated: the object of preventive detention is not to punish a man for having done
something but to intercept him, before he does it, and to prevent him from doing it.
Applying the abovementioned, even if no criminal charge has been filed
against Mayer and the VoR employees prior to the arrest, detaining them is
considered lawful for Amestonias security and public order. A warrant of arrest was
then subsequently served to Mayer and her companions.

iii.

Diplomatic immunity and inviolability guaranteed by the Vienna Convention on


Diplomatic Relations is not for the purpose of transgression of another States
security.
Art 41 (3) of the Vienna Convention on Diplomatic Relations state:

8United Nations Economic and Social Council, Commission on Human Rights,


SubCommission on Prevention of Discrimination and Protection of Minorities,
Reporton the Practice of Administrative Detention, submitted by Mr Louis
Joinet,E/CN.4/Sub.2/1989/27 (6 July 1989),
9 Union of India v Paul Nanickan and Anr, Appeal (Crl) 21 of 2002, (13 October
2003)

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 receiving State.
The diplomatic immunity and inviolability of the premises of the mission
should be understood to lie on the premise that it would not be used in contravention
to the purpose of the present Convention. Certainly, the promulgation of the Vienna
Convention on Diplomatic Relations cannot have been for the purpose on
threatening the security of another State. The intention of the Convention should
prevail over its letter. The Preamble of the present Convention provides:
xxx
Having in mind the purposes and principles of the Charter of the United
Nations concerning the sovereign equality of States, the maintenance of international
peace and security, and the promotion of friendly relations among nations,
Believing that an international convention on diplomatic intercourse,
privileges and immunities would contribute to the development of friendly relations
among nations, irrespective of their differing constitutional and social systems
Realizing that the purpose of such privileges and immunities is not to
benefit individuals but to ensure the efficient performance of the functions of
diplomatic missions as representing States.
III.

The detention of Joseph Kafker under the Terrorism Act violated international law,
and Amestonia is therefore entitled to his immediate release, the disclosure of all

information which formed the basis of his apprehension, and the payment of
compensation for his detention.
A. The detention of Joseph Kafker falls under the purview of arbitrary detention
which violates the international law
i.
The prohibition of arbitrary deprivation of liberty in international law
The prohibition of arbitrary deprivation of liberty is recognized in all major
international and regional instruments for the promotion and protection of human rights.
These include articles 9 of the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights, article 6 of the African Charter of
Human and Peoples Rights (African Charter), article 7, paragraph 1, of the American
Convention on Human Rights (American Convention), article 14 of the Arab Charter on
Human Rights (Arab Charter), and article 5, paragraph 1, of the European Convention for
the Protection of Human Rights and Fundamental Freedoms.10
ii.

As customary international principle


Currently, 167 States have ratified the International Covenant on Civil and

Political Rights, and the prohibition of arbitrary deprivation of liberty is widely enshrined
in national constitutions and legislation and follows closely the international norms and
standards on the subject. This widespread ratification of international treaty law on
arbitrary deprivation of liberty, as well as the widespread translation of the prohibition
into national laws, constitute a near universal State practice evidencing the customary
nature of the arbitrary deprivation of liberty prohibition. Moreover, many United Nations
resolutions confirm the opinioiuris supporting the customary nature of these rules: first,
10Deliberations of the Working Group on Arbitrary Detention,
http://www.ohchr.org/Documents/Issues/Detention/CompilationWGADDeliberation.pd
f

resolutions speaking of the arbitrary detention prohibition with regard to a specific State
that at the time was not bound by any treaty prohibition of arbitrary detention; second,
resolutions of a very general nature on the rules relating to arbitrary detention for all
States, without distinction according to treaty obligations. Such resolutions demonstrate
the consensus that the prohibition of arbitrary deprivation of liberty is of a universally
binding nature under customary international law.11
iii.

Universal Declaration of Human Rights


Article 9 of Universal Declaration of Human Rights states: No one shall be

subjected to arbitrary arrest, detention or exile.12


iv.

International Covenant on Civil and Political Rights (ICCPR), relevant


provisions
a. The detention of Joseph Kafker is unjustified, in violation of Article 9 of
the Covenant
Article 9 of the ICCPR stipulates:
1. Everyone has the right to liberty and security of person. No one shall be
subjected to arbitrary arrest or detention. No one shall be deprived of his liberty
except on such grounds and in accordance with such procedure as are established
by law.

11Supra
12 Universal Declaration of Human Rights

2. Anyone who is arrested shall be informed, at the time of arrest, of the


reasons for his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought
promptly before a judge or other officer authorized by law to exercise judicial
power and shall be entitled to trial within a reasonable time or to release. It shall
not be the general rule that persons awaiting trial shall be detained in custody,
but release may be subject to guarantees to appear for trial, at any other stage of
the judicial proceedings, and, should occasion arise, for execution of the
judgment.
4. Anyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings before a court, in order that that court may decide
without delay on the lawfulness of his detention and order his release if the
detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall
have an enforceable right to compensation.13
In the case at bar, Joseph Kafker, upon his arrest, was not informed of the
reasons and any charges against him, in violation of paragraph 2 of the Article 9
above. Moreover, he remains detained without charge in a maximum-security,
which is undeniably oppressive, unjustified, and in blatant disregard of the due
process of law. His detention has been unreasonably extended by the Tribunal
13 International Covenant on Civil and Political Rights, Article 9

every 21 days. The Human Rights Committee has stated that in order to avoid a
characterization of arbitrariness, detention should not continue beyond the period
for which the State party can provide appropriate justification.14
b. The National Security Tribunal is not a competent, independent and
impartial tribunal to hear the case of Kafker, thus violating his right to fair
and public hearing
Article 14 of the same Covenant further provides:
1. All persons shall be equal before the courts and tribunals. In the
determination of any criminal charge against him, or of his rights and obligations
in a suit at law, everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law. The press
and the public may be excluded from all or part of a trial for reasons of morals,
public order (order public) or national security in a democratic society, or when
the interest of the private lives of the parties so requires, or to the extent strictly
necessary in the opinion of the court in special circumstances where publicity
would prejudice the interests of justice; but any judgment rendered in a criminal
case or in a suit at law shall be made public except where the interest of juvenile
persons otherwise requires or the proceedings concern matrimonial disputes or the
guardianship of children.

14Human Rights Committee, Madani v. Algeria, communication No. 1172/2003,


Views adopted on 28 March 2007, para. 8.4.

The Secret Surveillance Bureau Act (SSBA) of 1967 of Reisland


establishes a five-judge National Security Tribunal (the Tribunal) which must
review all electronic surveillance conducted under the SSBA every 6 months.
Proceedings before the Tribunal are closed to the public, but the Tribunal is
authorized to call on technical experts, academics and NGOs to participate as
amici curiae. The Terrorism Act of 2003 grants the Tribunal the power to hold
proceedings under the said statute and to decide whether continued detention of
an individual is required for reasons of national security or public safety. In
substance, it acts as the Court to hear Kafkers case allegedly in violation of the
Terrorism Act, however the Tribunal is not a competent, independent and
impartial tribunal under the contemplation of the international law, as it is closely
connected with the Reisland, thus whatever decisions it may render is clouded
with doubt of bias in favor of the state creating it.
c. The circumstances surrounding Kafkers detention violate the Article 14 of
the Covenant
Paragraph 3, Article 14 of the ICCPR further provides:
xxx
3. In the determination of any criminal charge against him, everyone shall
be entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he


understands of the nature and cause of the charge against him;
(b) To have adequate time and facilities for the preparation of his defence
and to communicate with counsel of his own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in person or through
legal assistance of his own choosing; to be informed, if he does not have
legal assistance, of this right; and to have legal assistance assigned to him,
in any case where the interests of justice so require, and without payment
by him in any such case if he does not have sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him and to obtain
the attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him;
(f) To have the free assistance of an interpreter if he cannot understand or
speak the language used in court;
(g) Not to be compelled to testify against himself or to confess guilt.15
In the instant case, the circumstances surrounding Kafkers detention is in
violation of the Article 14 of the Covenant. He was never informed of the nature and

15 International Convention on Civil and Political Rights, Article 14

cause of the charge against him; he was not given the discretion to communicate with
counsel of his own choosing, as his lawyer was selected from a list of approved special
advocates of the State of Reisland; he was not permitted either to consult with his client
or to share with him any of the secret information said to substantiate the allegations
against him, depriving him of any facility for the preparation of his defence; the bureau
officers who served as witnesses testifying via video conferencing, with their faces and
voices obscured regarding the need to detain Kafker is in contravention of his right to
examine, or have examined, the witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as witnesses against
him.
v.

Elements of preventive detention, assuming Kafker is guilty of the allegations


against him, is not satisfied
The United Nations Human Rights Committee, the body responsible for

monitoring compliance by States to the ICCPR, in its General Comment No. 8


concerning Article 9, lays down the elements that must be tested in determining the
legality of preventive detention: If so-called preventive detention is used, i.e. it must not
be arbitrary, and must be based on grounds and procedures established by law (para. 1),
information of the reasons must be given (para. 2) and court control of the detention
must be available (para. 4) as well as compensation in the case of a breach (para. 5).
And if, in addition, criminal charges are brought in such cases, the full protection of
Article 9(2) and (3), as well as Article 14, must be granted.16
16 United Nations Human Rights Committee, General Comment No. 8

Applying the foregoing elements, Joseph Kafkers detention does not meet all of
the elements to deem his detention legal. His apprehension and detention is based on
evidence which is not disclosed by the State of Reisland as the same is considered
closed material which, according to the Terrorism Act, shall not be made available to
the detainee, his or her counsel, or third parties, without the Tribunals authorization.
Amestonias Prime Minister contacted his counterpart in Riesland and demanded access
to the said secret evidence, but the same was rejected as it would allegedly endanger the
integrity of particular intelligence sources and therefore the national security of Riesland.
Thus, it ultimately fails to meet the second element, wherein information of the reasons
for the detention must be given, in order to satisfy the customary principle of affording
due process to the accused.
vi.

Arbitrary detention can still exist even if provided by law


The notion of arbitrary detention latosensu can arise from the law itself or from

the particular conduct of Government officials. A detention, even if it is authorized by


law, may still be considered arbitrary if it is premised upon an arbitrary piece of
legislation or is inherently unjust, relying for instance on discriminatory grounds. 17 Thus,
even if the detention of Kafker is provided for by the Terrorism Act of 2003 under the
state of Reisland, arbitrariness in his confinement exists when the said statute allowed the
deprivation of his liberty based on a closed material, the disclosure of which is
prohibited to the detainee, his or her counsel, or third parties, and when it provided that

17See category V of the arbitrary detention categories referred to by the Working


Group when considering cases submitted to it.

no court shall review the detention of any person, but every detainee shall be brought
before the Tribunal within three days of his or her detention.18
Counter-terrorism legislation, such as the Terrorism Act of 2003 of Reisland, that
permits administrative detention often allows secret evidence as the basis for indefinite
detention. As this would be inconsistent with the prohibition of arbitrary deprivation of
liberty, no person should be deprived of liberty or kept in detention on the sole basis of
evidence to which the detainee does not have the ability to respond, including in
cases of immigration, terrorism-related and other subcategories of administrative
detention. The Working Group has held that, even if lawyers of the detainee have access
to such evidence but are not allowed to share or discuss it with their client, this does not
sufficiently protect the detainees right to liberty.19
The Working Group also reiterates that the use of administrative detention
under public security legislation [or] migration laws resulting in a deprivation of
liberty for unlimited time or for very long periods without effective judicial oversight, as
a means to detain persons suspected of involvement in terrorism or other crimes, is not
compatible with international human rights law.20
vii.

The basis of Kafkers arrest and detention is also in violation of his freedom
of expression and opinion and his right to privacy

18 Terrorism Act of 2003, State of Reisland


19Working Group, opinions Nos. 5/2010 (Israel) and 26/2007 (Israel).
20Report of the Working Group, E/CN.4/2005/6, para. 77.

Article 19 of the Universal Declaration of Human Rights provides: Everyone


has the right to freedom of opinion and expression; this right includes freedom to hold
opinions without interference and to seek, receive and impart information and ideas
through any media and regardless of frontiers.21The exercise of such right may be
subject to certain restrictions, only when provided by law and are necessary, for the
respect of the rights or reputation of others, and for the protection of national security or
of public order, or of public health and morals.22
The established practice of the Working Group is that restrictions placed on the
freedom of expression by way of deprivation of liberty can only be justified when it is
shown that the deprivation of liberty has a legal basis in domestic law, is not at variance
with international law and is necessary to ensure the respect of the rights or reputation of
others, or for the protection of national security, public order, public health or morals, and
is proportionate to the pursued legitimate aims. A vague and general reference to the
interests of national security or public order, without being properly explained and
documented, is not enough to convince the Working Group that the restrictions on the
freedom of expression by way of deprivation of liberty was necessary. More generally,
the Working Group cannot accept the interference of the public authorities with the
individuals privacy - including the freedom to communicate among themselves via the
Internet - under the unsubstantiated pretext that the intrusion was necessary to protect
public order or the community.23

21 Universal Declaration of Human Rights, Article 19


22 Ibid

Paragraph 9 of the General Comment No. 34 of the Human Rights Committee on


Article 19 of ICCPR states:
Paragraph 1 of article 19 requires protection of the right to hold opinions without
interference. This is a right to which the Covenant permits no exception or
restriction. Freedom of opinion extends to the right to change an opinion
whenever and for whatever reason a person so freely chooses. No person may be
subject to the impairment of any rights under the Covenant on the basis of his or
her actual, perceived or supposed opinions. All forms of opinion are protected,
including opinions of a political, scientific, historic, moral or religious nature. It
is incompatible with paragraph 1 to criminalize the holding of an opinion. The
harassment, intimidation or stigmatization of a person, including arrest,
detention, trial or imprisonment for reasons of the opinions they may hold,
constitutes a violation of article 19, paragraph 1.24
The mere voicing of his opinion regarding his opposition against the use of
neonics in agricultural production and his eventual apprehension and detention
abhorrently violated his freedom of expression and opinion. It cannot also be said that his
deprivation of liberty for the expression of his views is for the protection of Rieslands
national security, because in the first place, it was Kafkers country Amestonias economy
is at stake resulting from the continuous use of neonics; his actions were carried out in a
non-violent manner, by promoting legislation on banning them and giving keynote
23 Deliberations of the Working Group on Arbitrary Detention, Paragraph 43,
http://www.ohchr.org/Documents/Issues/Detention/CompilationWGADDeliberation.pd
f
24 General Comment No. 34, Human Rights Committee, 102 nd Session

address at an international environmental law conference, a proper venue for airing his
grievances regarding the environmental issue at hand.
Furthermore, Article 12 of the Universal Declaration of Human Rights grants:
No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the right to
the protection of the law against such interference or attacks.25 Likewise, Article 17 of
the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference
with his privacy, family, home or correspondence, nor to unlawful attacks on his honour
and reputation and everyone has the right to the protection of the law against such
interference or attacks.
The United Nations General Assembly adopted Resolution 68/167 in December
2013, where it emphasizes that unlawful and arbitrary surveillance and/or interception of
communications, as well as unlawful or arbitrary collection of personal data, as highly
intrusive acts, violate the rights to privacy and freedom of expression and may contradict
the tenets of democratic society, and that States must ensure full compliance with their
obligations under international human rights law.26 Hence, the continuous surveillance of
Kafker, following the bugging of his devices is in gross transgression of his right to
privacy and expression.

25 Universal Declaration of Human Rights, Article 12


26 Resolution 68/167 of Human Rights General Assembly 68 th Session: The Right of
Privacy in Digital Age. http://www.un.org/ga/search/view_doc.asp?
symbol=A/RES/68/167

viii.

Terrorism Act of 2003 of the State of Reisland is not in accord with

international law
B. Kafker, as a victim of arbitrary detention, is entitled to his release and the disclosure
of all information which formed the basis of his apprehension, and the payment of
compensation for his detention.
Having exhausted all local remedies but to no avail,
Article 9 of the ICCPR provides that Anyone who has been the victim of
unlawful arrest or detention shall have an enforceable right to compensation
IV.

The cyber attacks against the computer systems of The Ames Post and Chester
&Walsingham are attributable to Riesland, and constitute an internationally
wrongful act for which Amestonia is entitled to compensation.
A. The cyber attacks against the computer systems of The Ames Post and Chester
&Walsingham are attributable to Riesland.
i.
The tracing of the IP address based on traffic analysis and conclusion that the cyber
attacks were from Rieslandic infrastructure was done by AIT, a world renowned
research-intensive academic institution with a focus on engineering and computer
science.27
The current issue lies with the tracing the IP address and pinpointing the
origin of the cyber attacks on computer networks of The Ames Post and Chester
&Walsingham. A matter which requires the capabilities of individuals or institutions
which have the sufficient technical knowledge and expertise in such area. Cyber
attacks are known to be sophisticated and are difficult to trace, especially when done
by knowledgeable hackers but such task is NOT impossible. There are established

27 Paragraph 38, Compromis

techniques which may be employed in order to accomplish this. Such, as employed


by AIT, which is traffic analysis. Traffic analysis is the process of intercepting and
examining messages in order to deduce information from patterns in communication.
Another which was also employed in this case is the tracing back of IP packets. By
using these techniques and analyzing the segments of code in the malware which was
used in the cyber attack which turned out be exact replicas of Rieslands Blaster
program, the comparison made possible due to AIT having been given access to the
equipment used by VOR, as a result of its investigation AIT was able to pinpoint that
these attacks originated from Rieslandic Governmental infrastructures. Especially
owing to the fact that these code segments of the said Blaster program is NOT
known to the general public.28
B. The Tallinn Manual is a document created by several independent International
Group of Experts to govern cyber warfare. Its purpose was to determine the extent
to which the current legal norms are applicable to attacks made through
cyberspace. There are rules stated for the attributability of a cyber attack and Rule
7 of which provides:
RULE 7 - Cyber Operations Launched from Governmental Cyber Infrastructure
The mere fact that a cyber operation has been launched or otherwise originates
from governmental cyber infrastructure is not sufficient evidence for attributing the
operation to that State but is an indication that the State in question is associated
with the operation.

28Paragraph 38, Compromis, Clarifications.

The cyber attacks were traced back to infrastructures located in Riesland and were
Rieslandic Governmental computer Infrastructures as confirmed by AIT. Though
according to the rule is not determinative evidence for attributing such attack to that
State, as such government infrastructure may have been overrun by elements other than
legitimate actors of such state. But such rule also states that it is a very good
indication that the State in question is associated with the operation.
C. General Principle of law wherein if direct evidence is unavailable proof may be
administered by means of circumstantial evidence.
1. The Corfu Channel Case (UK v. Albania)
A portion of the dissenting opinion of Judge Azevedo in the Corfu Channel case
in agreement with the majority in accepting circumstantial evidence in international
courts:
Indirect evidence is admitted in all systems of law, and its use is recognized by
international decisions. It must be regarded as of special weight when it is based
on a series of facts linked together and leading logically to a single conclusion . . .
The proof may be drawn from inferences of fact (presomptions de fait), provided
that they leave no room for reasonable doubt.
In the UK v. Albania, more popularly referred to as the Corfu Channel Case, two
British destroyers struck mines in Albanian waters and suffered damage. The UK asked
for compensation from Albania, who in turn denied knowledge of such mines. And thus
deterred any allegation of owing compensation to the UK.
Such being the case, it was argued by the UK and as accepted by the court that
due to the fact that a State exercises exclusive control within its territory it may be

impossible to provide direct proof of facts. Wherein the victim should be given a more
liberal recourse to inferences of fact and circumstantial evidence. That such evidence
must be treated with great weight if it is based on a series of facts which when linked
together, logically leads to a single conclusion.
In this cited case, two things which corroborated each other were considered. The
first series of facts constituted of Albanias attitude before and after the incident. Which
included how the mines which were located in Albanian waters were placed, as to who
placed them, and its duty to warn passing vessels of such. Which of course it did not do.
This was stressed as the channel was already sweeped in advance and it came out clean.
The second series of facts related to Albanias capability to observe the mines. This was
considered as the North Corfu Channel was at a spot which could have been easily
monitored even with just a lookout. These two series of facts were considered and thus
lead to the conclusion that Albania had ordered the placing of such mine, had knowledge
such fact, or had acquiesced thereto.

2. The Military and Paramilitary Activities Case (Nicaragua v. US)


Nicaragua in this case is imputing upon the US the responsibility for laying mines
in Nicaraguan ports, for operations against oil installations, naval bases, etc owned by
Nicaragua and for infringement of its airspace. As well as being responsible for the
activities of contra forces which conducted military operations against Nicaragua?
And in order to support its contention, Nicaragua presented various kinds of
documentary material such as press articles and various books. Even though the court did
not treat them as those capable of establishing facts, they were nonetheless accepted as

material that could contribute to corroborating the existence of a fact. In other words,
they were treated as circumstantial evidence and were thus considered by the court in
deciding this case.
Though in this case judgment was rendered against Nicaragua for the fact that the
evidence they presented were insufficient and there was no evidence which clearly show
that the US exercised control over such contras, nonetheless it can be shown that
international tribunals accept circumstantial evidence.
3. The PulauLigitan and PulauSipadan Islands Case (Indonesia v. Malaysia)
Indonesia and Malaysia had been in dispute over which of them had sovereignty
over the islands of Ligitan and Sipadan. During arbitration Malaysia presented maps as
circumstantial evidence, to which Indonesia objected.
The courts declared these maps as failing to establish territorial title as they were
not annexed to an official text of which they form an integral part. As such, they were
merely extrinsic evidence.
Though, in its judgment the court determined that the islands under controversy
belonged to Malaysia. And a separate opinion by Judge Franck who was sitting as an ad
hoc judge in this case is a positive view on the acceptance of circumstantial evidence. He
stated that even though circumstantial evidence was inconclusive, it still allowed the
invocation of a rebuttable presumption.
Application to the case:
In the present case, there exists a series of facts and events which show that
Riesland had a positive reason for instigating the cyberattack against the computer
systems of The Ames Post and Chester &Walsingham.

A statement of such facts and events are as follows:


FredericoFrost who had been a former Bureau Intelligence analyst and had full
access to sensitive information relating to Rieslands intelligence operations against
Amestonia, downloaded 100,000 documents labeled as top secret from Bureau computers
of Riesland.29
Carrying such downloaded documents saved in a USB drivedrove to Amestonia
wherein he met with the law firm Chester &Walsingham asking them to aid him, wherein
after giving them the USB drive agreed to represent him.
Later on he met with reporters from The Ames Post wherein he requested that the
documents be posted by it on its website. For this purpose, he gave them a copy of the
USB drive, and according to his wishes, the documents were uploaded to The Ames
Posts website unedited and unredacted.30
Due to this, Rieslands Minister of Foreign Affairs sent a diplomatic note to his
Amestonian counterpart requesting two things. First, the extradition of Frederico Frost
and second, the recovery of the information downloaded by Frost which were believed to
be held either by Chester &Walsingham or The Ames Post and its return to Riesland.31
This request was however denied. And in response to this, Attorney General
Deloponte of Riesland, responded in a statement that: The Government of Riesland has
repeatedly made clear that it will not tolerate the publication of leaked confidential

29 Paragraph 20, Compromis


30 Paragraph 21, Compromis
31 Paragraph 24, Compromis

information, and that it will do whatever is in its power to disrupt any further threats to
our national security.32

A few days after this statement was made, the computer systems of both Chester
&Walsingham and The Ames Post were hacked and disabled rendering 90% of the data
as unrecoverable.33
It can thus be seen that when all these facts and events when taken into
consideration as a whole, shows that Riesland is responsible for the cyber attacks on
Chester &Walsingham and The Ames Post.
B. Such cyber attacks constitute an internationally wrongful act for which Amestonia is
entitled to compensation.
i.
Draft Articles on State Responsibility/ UN Charter
1. The draft articles on State responsibility provides for what constitutes an
internationally wrongful act of a state. In the current international law, in order for a state
to be made liable for its act against another state, such act must meet the required
elements as provided.
Article 2. Elements of an internationally wrongful act of a State
There is an internationally wrongful act of a State when conduct
consisting of an action or omission:
(a) is attributable to the State under international law; and
(b) Constitutes a breach of an international obligation of the State.
32 Paragraph 35, Compromis
33 Paragraph 37, Compromis

Article 12. Existence of a breach of an international obligation


There is a breach of an international obligation by a State when an act of
that State is not in conformity with what is required of it by that obligation,
regardless of its origin or character.
ii.

Both the states of Riesland and Amestonia are members of the United Nations and
parties to the UN Charter and in such charter its member states have a duty of a
state not to interfere with another states sovereignty under Article 2(4) of the UN
Charter, herein cited:
Art. 2 (4). All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political independence of
any state, or in any other manner inconsistent with the Purposes of the United
Nations.
Both The Ames Post and Chester &Walsingham were located at
Amestonia, well within its territory. The prior being its most widely read
newspaper and the latter being one of its law firms. Riesland having used means
to disrupt the computer networks and with the use of its Blaster program
destroyed the computer infrastructures of The Ames Post and Chester
&Walsingham in order to destroy that information therein. Hereby encroaching
upon the sovereign rights of Amestonia over them.
It is well accepted that for a sovereign state, infrastructures located within
a states territory is within its control. Riesland, by destroying such computer
infrastructures within Amestonias territory violated this duty which it owed as
provided in the above cited article.

The requirements the act to be considered an internationally wrongful act


have now been met.
There are other cases which the tribunal has decided on cases of States
which committed internationally wrongful acts in the form of breach of an
international obligation it owed to another state:
First, in the Trail Smelter arbitration, an international arbitral tribunal
ruled in 1941 that a state owes at all times a duty to protect other states against
injurious acts by individuals from within their jurisdiction.
As in this case the smoke from the smelter located in one state drifted
across the border towards the territory of another state wherein it caused damage
to the residents of such victim state.
Another would be the Corfu Channel case where it was ruled that it is
every States obligation not to allow knowingly its territory to be used for acts
contrary to the rights of other States.
This owed to the fact that mines were placed in the territorial waters of
one state and these mines caused injury to subjects of another state as the latter
state was not informed of the presence of such mines despite the prior states
knowledge of it.
Under international law. States are obliged to protect the rights and take
appropriate measures to prevent damage or abstain from acts which have the
possibility to inflict harm on persons or objects of another state or such latter
states territorial sovereignty.

iii.

Article 31 of the draft articles on state responsibility provides that a state which is
responsible for an internationally wrongful act has a duty to make reparations to
the victim state.
Article 31. Reparation
1. The responsible State is under an obligation to make full reparation for the
injury caused by the internationally wrongful act.
2. Injury includes any damage, whether material or moral, caused by the

iv.

internationally wrongful act of a State.


Tallinn Manual
As cyberspace is a new area and cyber warfare and cyber attacks being
new forms of warfare, there are currently still no treaty to such effect as to govern
attacks employed in this area. But treaties are not the only sources of international
law. The teachings of highly qualified writers and Publicists or scholarly
writing may also be a basis. The Tallinn Manual was made by several of these
highly qualified writers and experts in their fields in response to several events
involving cyber attacks which have been made by one state against another state.
It was written in order to show how the general principles of law as currently
accepted are to be made applicable in acts by one state against another state made
in cyberspace. This manual made by such experts is in the best interest of States
should be taken into consideration as one of the few guides written on how to the
principles of international law are applied to this new field which is yet to be fully
encompassed by any law, much less the existence of a treaty.

The manual expressly states in Rule 6 thereof that a state responsible for a
cyber operation is liable for it and such act constitutes a breach of an international
obligation.
RULE 6 - Legal Responsibility of States
A. State bears international legal responsibility for a cyber
operation attributable to it and which constitutes a breach of an
international obligation.
It is a principle in international law that a state is liable for an act when:
(1) It is attributable to the state, (2) it constitutes a breach of an international legal
obligation attributable to that state. this breach may be an act or omission.
In cyberspace, such breach may be through the violation of the United
Nations Charter, for example the use of force through cyber means or a violation
of armed conflict obligations like a cyber attack on civilian objects.
Rule 30 of the Tallinn Manual describes a Cyber Attack as a cyber
operation, whether offensive or defensive, that is reasonably expected to cause
injury or death to persons or damage or destruction to objects. And according to
its drafters, should not be understood as limited to activities that release kinetic
force and what is best considered are the effects that are caused. If the
consequences are destructive, the operation is an attack.
As explained by the experts: This current rule should not be limited to
operations against individuals or physical objects but rather it is considered to
include cyber operations against data (which are non-physical entities) from the
ambit of the term attack. Whenever an attack on data results in the injury or death

of individuals or damage or destruction of physical objects, those individuals


or objects constitute the 'object of attack' and the operation therefore
qualifies as an attack.
The current situation can be considered a cyberattack as contemplated by
this manual because it was offensive and damage or destruction of objects was
expected. The damage and destruction of the computer systems and computer
infrastructure of The Ames Post and Chester &Walsingham, including the
resulting loss of 90% of the data stored therein. The experts expressly stated that
cyber operations against data is included in the term attack.
Even more so in this case as the objects of the cyberattacks were Civilian
objects which the manual expressly prohibits in Rule 37.
RULE 37 - Prohibition on Attacking Civilian Objects
Civilian objects shall not be made the object of cyber attacks.
Computers, computer networks, and cyber infrastructure may be made the
object of attack if they are military objectives.
And as expressed by the experts, the mere fact that a cyberattack is
directed against a civilian object, it is already enough to be called a
violation, it does not even matter if such attack was unsuccessful.
A civilian object as defined is all objects which are NOT military
objectives. To distinguish, the experts provided four criterions by which an
object may qualify as a military objective:
(1) Nature, which involves the inherent character of the
object itself, and refers to those things which are made and

designed for military action. Those computers and infrastructure


owned by the military are good examples which qualify under this
criterion.
(2) Location, this normally refers to an area of importance
for military purposes, but as applied here, it is not the actual use
of an area but the fact that due to its location, it may be used to
contribute for any military action.
(3) Use, if an object or facility is used for military
purposes, it becomes a military objective.
(4) Purpose, this refers to the future intended use of the
object, wherein if it is expected to be used for military purposes in
the future, it is considered a military objective.
The current attacks were made against the computer networks and
infrastructures of The Ames Post and Chester &Walsingham, neither of
which qualify as a military objective. The formers server was used to
publish news to its website and the latter for storing information and data
with regards to the cases it handled. And in fact, the attack was successful;
it resulted in actual damage to the computer infrastructures, loss of data,
the cession of operations of The Ames Post and the delay of significant
number of proceedings in Amestionian courts for months due to Chester
&Walsinghams inability to access its files.
Now then with the issue of attributability. Rule 7 of this manual
gives a prima facie case that cyber operations launched from a

governmental cyber infrastructure is a very good indication of the states


involvement.
RULE 7 - Cyber Operations Launched from Governmental
Cyber Infrastructure
The mere fact that a cyber operation has been launched or
otherwise originates from governmental cyber infrastructure is not
sufficient evidence for attributing the operation to that State but is
an indication that the State in question is associated with the
operation.
In this case, it is shown by the investigation made by the
AmestonianInstisute for Technology ( AIT) that based on traffic analysis,
the malware used in the attack were traced to IP Addresses within
Rieslands territory and are associated with Rieslandic Governmental
Infrastructures. And since the AIT was given access to the devices seized
from the VOR, AIT was able to determine that significant segments of
code in the malware are almost exact copies of those in the Bureaus
Blaster program. And these segments of code are NOT made available
to the general public.
Thus, the cyber attacks being attributable to Riesland and being
considered as a breach of an international legal obligation, requires it to
give compensation to Amestonia.

CONCLUSION AND PRAYER


For the foregoing reasons, the State of Amestonia requests that this court:
1. Declare that the documents published on the website of The Ames Post are admissible as
evidence before the court and that Rieslands mass electronic surveillance programs against
Amestonian public figures and nationals violated international law.
2. Declare that the seizure and forfeiture of the VoR station and its equipment, and the arrest of
Margaret Mayer and the other two VoR Employees, did not violate the Broadcasting Treaty,
and were in accordance with Amestonias other international law obligations.
3. Declare that the detention of Joseph Kafker under the Terrorism Act violated international
law, and Amestonia is therefore entitled to is immediate release, the disclosure of all
information which formed the basis of his apprehension, and the payment of compensation
for his detention.
4. Declare that the cyber attacks against the computer systems of The Ames Post and Chester
and Walsingham are attributable to Riesland, and constitute an internationally wrongful act
for which Amestonia is entitled to compensation.
Respectfully Submitted.
Agents for the State of Amestonia