8Respondent

QUESTIONS RELATING TO THE SECESSION OF RACEL FROM BELLONA AND

SUBSEQUENT ECONOMIC MEASURES IMPOSED BY RACEL ON ANLUSAN

Federation of Anlusan, Applicant

versus

Republic of Racel, Respondent

Memorial for the Teehankee Center for the Rule of Law

Moot Court Competition
2017
 TABLE OF CONTENTS

INDEX OF AUTHORITIES.......................................................................................................... iii

STATEMENT OF JURISDICTION.............................................................................................. vi
QUESTIONS PRESENTED ......................................................................................................... vii
STATEMENT OF FACTS .......................................................................................................... viii
SUMMARY OF PLEADINGS...................................................................................................... xi
MAIN PLEADING ......................................................................................................................... 1

I. The ICJ has no jurisdiction over the case……………………………………………….........…1

A. The sanctions questioned by Anlusan are governed by GATS and GATT……............1
B. Disputes over obligations under GATT, GATS and the WTO Agreement should have
been settled under the Dispute Settlement Body……………………………………..…...3
C. Anlusan should have assailed the right to self-determination issue at the CESCR and
the Human Rights Committee……………………………………………………….....…4
II. Even if the ICJ has jurisdiction, Anlusan can be held responsible for committing an
internationally wrongful act for its intervention and interference in the elections…………….…6
A. Anlusan is responsible for committing internationally wrongful acts…………….......6
1. Anlusan’s deployment of naval patrol boats along Lake Cherno is an
internationally wrongful act……………………………………………………....7
2. Cyber interference through government computers is an internationally
wrongful act……………………………………………………………………....9
a.Anlusan’s cyber attacks thru information campaign at Chirper violated
Racel’s right to self-determination under the ICCPR, ICESCR and the UN
Charter……………………………………………………………….......10
b. The Anlusan Chirps violated the principle of non-intervention under
Article 2(4) of the UN Charter……………………………………….….12
c. Anlusan violated Racel's right to "genuine periodic elections"…….…13
d. Even if Anlusan government computers were hacked, it should have
exercised due diligence………………………………………..……..….14
III. Satellite, Feznote, Chirper, and the international media companies can be held responsible
under international law for the spread of the videos and hostile messages before the election....15
A. Satellite and the international media can be held responsible for its broadcast prior to
the election…………………………………………………………………………….…15
B. Feznote, Chirper, and the international media companies can be held responsible…..17
1. Anlusan did not exercise due diligence……………………………………….17
2. Anlusan is not totally immune from legal responsibility……………….……..19
3. Individual right to free speech online is not absolute and always limited…….20
IV. The sanctions imposed by Racel are justified under international law………………….…..22
A. Racel disallowing foreign ownership of media and telling all mining and oil……….22
corporations of Anlusan origin to leave Racel are justified under international law
B. Racel validly cut off all shipments of nickel and oil to Anlusan……………………..24
C. Racel put up firewall against any internet content originating from Anlusan…....…..25

CONCLUSION AND/OR PRAYER FOR RELIEF .................................................................... 27

ii
 INDEX OF AUTHORITIES

Bibliographical Information Page Number

INTERNATIONAL TREATIES AND CONVENTIONS
General Agreement on Tariffs and Trade, Apr. 15, 1994, Marrakesh
Agreement Establishing the World Trade Organization, Annex 1A, 1867 1, 2, 3
U.N.T.S. 190
General Agreement on Trade in Services, Apr. 15, 1994, Marrakesh 2
Agreement Establishing the World Trade Organization, Annex 1B, 1869
U.N.T.S. 183, 33 I.L.M. 1167 (1994).
3, 4, 5, 6, 8, 10,
International Covenant for Civil and Political Rights (ICCPR)
11, 13, 15, 20, 21
International Covenant on Economic, Social and Cultural Rights 1, 4, 5, 11, 22, 23,
(ICESCR) 24
Optional Protocol to the International Covenant on Economic, Social and 4, 5
Cultural Rights (OP-ICESCR).

Responsibility of States for Internationally Wrongful Acts. 6, 7, 18

Tallinn Manual on the International Law Applicable to Cyber Warfare, 14
Rule 5, p. 26, (2013)
United Nations Convention on the Law of the Sea (UNCLOS). (1982). 8
WTO Agreement: Marrakesh Agreement Establishing the World Trade 1, 3
Organization. (1994).
BOOKS
H. Steinberger, ‘Sovereignty’, In Max Planck Institute For Comparative 22
Public Law And International Law, Encyclopedia for Public International
Law, Vol 10. p. 414 (1987).
International Covenant on Economic Social and Cultural Rights: A 4
Handbook, Programme on Women’s Economic, Social and Cultural
Rights, (2015).
J. Kulesza, Due Diligence In Cyberspace. In I. Management Association 18
(Ed.), Cross-Cultural Interaction: Concepts, Methodologies, Tools, And
Applications (pp. 326-345). Hershey, PA: IGI Global. (2014).
J. Kulesza, Rethinking Cyberlaw: A New Vision For Internet Law. Law, 20
Innovation and Technology, 8(1), pp. 141-147. (2016).
J. Kulesza, Social Media Censorship Vs. State Responsibility For Human 21
Rights Violations. In: Pătruţ B., Pătruţ M. (eds) Social Media in Politics,
Public Administration and Information Technology, vol 13, pp. 259-280.
Springer International Publishing AG, Cham. (2014).
J. Kulesza, State Responsibility For Cyberattacks On International Peace 19
And Security. Yearbook of International Peace and Security, pp 139-152.
(2009).
R. Deibert (Ed.). Access Denied: The Practice And Policy Of Global 21
Internet Filtering. Massachusetts: MIT Press. (2008).

iii
R. M. Bratspies, & R. A. Miller. (Eds.), Transboundary Harm In 18
International Law: Lessons From The Trail Smelter Arbitration.
Cambridge: Cambridge University Press. (2006).
S. J. Shackelford, Human Rights And Cybersecurity Due Diligence: A 19
Comparative Study. University of Michigan Journal of Law Reform,
50(4). (2017).
ESSAYS, ARTICLES, AND JOURNALS
A. Batalla, The Right of self-determination – ICCPR and the 11
Jurisprudence of the Human Rights Committee, Symposium on “The
Right to Self-Determination in International Law”, The Hague,
Netherlands, (2006).
B. J. Egan, Legal Adviser, U.S. Department of State, Remarks at Berkeley 12
Law School on International Law and Stability in Cyberspace,
(November 10, 2016).
F. Francioni, Peacetime Use of Force, Military Activities, and the New 9
Law of the Sea, Cornell International Law Journal, Vol. 18, p. 212 (1985)
M. Kinacioglu. The Principle of Non-Intervention at the United Nations: 12
The Charter Framework and the Legal Debate, Perceptions, SAM Center
for Strategic Research, p. 17, (2005)
D. T. Shedd, B. J. Murrill and J. M. Smith. Dispute Settlement in the 3
World Trade Organization (WTO): An Overview. Congressional
Research Service Report for Congress, P. 4 (November 26, 2012)
E. Baylis, General Comment 24: Confronting the Problem of 5
Reservations to Human Rights Treaties, Berkeley Journal of International
Law, Vol. 17: Isssue 2, 278-279 (1999).
International Law Commission, Draft Articles, (2001). 19
Committee Against Racial Discrimination General Recommendation No.
21: Right to Self-Determination, Para. 4, (August 23, 1996)
International Law Commission. Draft articles on responsibility of states 18
for internationally wrongful acts, with commentaries. U.N. Doc A/56/10.
(2001).
J. Van de Velde, The Law of Cyber Interference in Elections, (2017). 11
J. D. Ohlin, Did Russian Cyber Interference in the 2016 Election Violate 6
International Law?, Texas Law Review, p. 19, (2017)
Michael Brzoska, International sanctions before and beyond UN 21
sanctions. International Afffairs. Volume 91, Number 6. (2015).
M. N. Schmitt, In Defense of Due Diligence in Cyberspace, The Yale 14
Law Journal, Vol. 125, (2015).
Ruiwei Bu. The Great Firewall of China. CSC 540. Ruiwei Bu. The 25
Great Firewall of China. CSC 540.
Simurgh Aryan, Homa Aryan, & J. Alex Halderman, Internet Censorship 26
in Iran. A First Look. File retrieved 30th October, 2017 from <
https://www.usenix.org/system/files/conference/foci13/foci13-aryan.pdf>.

iv
 CASES
Summaries of Judgments, Advisory Opinions and Orders of the 22
International Court of Justice. Case Concerning the Barcelona Traction,
Light, and Power Company Ltd. (Second Phase). Judgement of 5th
February 1970.
The Republic of Nicaragua v. The United States of America. International 23
Court of Justice Contentious Case: Case Concerning the Military and
Paramilitary Activities In and Against Nicaragua. (1986).
United Kingdom of Great Britain and Northern Ireland v. Albania, 19
(1949).
UNITED NATIONS OFFICIAL REPORTS
UN General Assembly, 50th Session, Agenda item 112 (b), Respect for the 23
principles of national sovereignty and non-interference in the internal
affairs of States in their electoral process”
UN Human Rights Committee (HRC), CCPR General Comment No. 25: 13
Article 25 (Participation in Public Affairs and the Right to Vote), The
Right to Participate in Public Affairs, Voting Rights and the Right of
Equal Access to Public Service, CCPR/C/21/Rev.1/Add.7, (July 12, 1996)
UN Special Rapporteur Report, Frank La Rue, Promotion and protection 21
of the right to freedom of opinion and expression, A/66/290 (August 10,
2011).
UN Special Rapporteur Report, Understanding the Right of Freedom of 20
Expression; Frank La Rue, Promotion and protection of the right to
freedom of opinion and expression, A/66/290, University of Toronto
Faculty of Law, (August 10, 2011).
UN Charter (1945) 7, 8, 10, 12
EXPERT OPINION
Allan Buchanan's opinion quoted in Steiner and Alston, 1287 as cited in 11
The Right to Self Determination in International Law Towards the 40th
Anniversary of the Adoption of ICCPR and ICESCR, 130-131

v
 STATEMENT OF JURISDICTION

The Federation of Anlusan and Republic of Racel present the following case to the

International Court of Justice. The International Court of Justice, hereinafter “the Court”, has

contentious jurisdiction over this case based on the Special Agreement of the parties dated 01 July

2017 and in accordance with Article 40, paragraph 1, of the Statute of the International Court of

Justice. Herein provided is the Special Agreement Between The Federation Of Anlusan And

Republic Of Racel For The Submission To The International Court Of Justice On The Differences

Between Them Concerning The Secession Of Racel From Bellona And Subsequent Economic

Measures Imposed By Racel On Anlusan. Article 40 paragraph 1 of the Statute of International

Court of Justice provides that “cases are brought before the Court, as the case may be, either by

the notification of the special agreement or by a written application addressed to the Registrar. In

either case the subject of the dispute and the parties shall be indicated”. Furthermore, the Charter

of the United Nations, to which both States are parties, deems all member-states to be parties to

the Court’s Statute and thus subject to its jurisdiction.

vi
 QUESTIONS PRESENTED

1. Whether or not the ICJ has jurisdiction over the case

2. Whether or not Anlusan can be held responsible for committing an internationally wrongful

act for the supposed intervention in the elections

3. Whether or not Satellite, Feznote, Chirper, and the international media companies can be

held responsible under international law for the spread of the videos and hostile messages

before the election

4. Whether or not the sanctions imposed by Racel are justified under international law

vii
 STATEMENT OF FACTS

Anlusan, herein Applicant, is the northernmost country in the continent of Exelsia and has

a land area of 12 million square kilometers, stretching from the Taiga Sea to the Placido Ocean.

Anlusan has full control and ownership of its Satellite Corporation which used to broadcast news

to different media outlets. However, Satellite is accused of being too sympathetic to the state.

The respondent Racel is a region of Bellona located near Lake Cherno, becomes a good

source of nickel, platinum and oil deposits. It is rich in nickel, platinum and oil deposits and also

produces the most steel in the whole Exelsia. The mineral resources of Bellona is the reason why

Anlusan, to supply its growing needs, maintains good relationships with it. Racel, however, has

been restive because of its people’s discontent in the profit sharing scheme in the extraction of

resources by the National Government.

Anlusan and Bellona’s economic relationship has resulted in the harassment and

exploitation of the indigenous Racelians, who staged strikes and attempted to secede from Bellona

due to discrimination against them and violations of their right to peaceably assemble and strike.

The Racelians demanded a change in the profit-sharing scheme because the extracting corporations

receive 50% of all the revenues from extraction and sale of minerals, the national government

receives 30% of the revenues, and Racel only receives 20%.

Eline Myragi, a protest leader wrote to community leaders in Racel and criticized Bellonese

mineral and oil extraction policy through public speeches, streamed on Feznote and Chirper. This

heightened the people’s desire to secede from Bellona to stop the exploitation of Racel. In

response, Parliament of Bellona called for a referendum on the secession of Racel from Bellona.

Feznote is a social media site where one can create an online profile and post photos, videos

and documents. It has 900 million users. Chirper is a micro-blogging site where one can post

viii
“Chirps,” or messages of less than 200 characters. The site has 500 million users. Both networks,

with confidence in the integration of the Exelsian states and in the competitiveness of the applicant,

set up their Exelsia headquarters in its city. International and regional news outlets such as CMN,

BSC, and Jal-El also have offices in Anlusan.

Several social media users of Chirper and Feznote in Bellona, especially in Racel,

complained that they were bombarded with messages saying that Racel would be in danger should

they secede from Bellona. Moreover, videos featuring masked assailants threatening armed attacks

against the people of Racel interrupted the regular programming of Satellite broadcasts. Due to

these threats to Racelians, the President of Bellona ordered a media blackout to protect the integrity

of the referendum however, social media was not covered by the blackout because of the existing

Open Data Agreement that Bellona is a signatory. Thus the online broadcast of hostile messages

and videos continued to spread.

Furthermore, due to the presence of Anlusan’s military forces in Lake Cherno, Bellona’s

neighbors Flovire and Lerunic released a statement that the actions of applicant causes fear among

Racelians which discouraged them from voting in the referendum. These evidently affected the

result of the referendum with a low voter turn-out of 30%.

An independent analysis done by Exelsia security experts traced the Chirps to computers

from Anlusan. One of the IP addresses was similar to the addresses of computers of the Anlusanian

intelligence service. Another IP address indicated the servers of Satellite. However, most of the IP

addresses showed mixed origins in the Exelsia economic area. Politicians in Bellona condemned

and accused Anlusan of spreading misinformation and committing acts of terror through social

media. Deeply angered by the failure of the referendum, some residents of Racel took up arms.

They drove away Bellonese government officials, overran the military camp in the area, and posted

ix
armed men at the borders of Racel. Myragi declared Racel’s independence after Bellonese

President Olandes agreed to pull out all police, military and administrative presence in the region.

The new Racelian Republic sent diplomatic correspondences to other countries within the Exelsia

free trade area. All Exelsian states except Anlusan recognized the new state and sent diplomatic

personnel.

Upon independence, Racel’s Revolutionary Congress quickly formed and passed a law to

impose sanctions on the applicant. It disallowed foreign ownership of media and employed

government experts to put up a firewall against any internet content originating from the applicant.

Racelian President Myragi said, through an interview, that Anlusan violated Racel’s right of self-

determination by harassing them before and on the day of the referendum.

On March 29, 2017, the Revolutionary Congress passed additional sanctions, resolving to

cut off all shipments of nickel and oil to Anlusan. All mining and oil corporations of Anlusanian

origin were told to leave Racel or their facilities be expropriated by the Racelian government.

Moreover, Chirps from those who disapproved of the secession continued to flood the social media

accounts of Racelian citizens. The government of the applicant sent diplomats to talk with Racel’s

President and Revolutionary Congress but did not succeed because of Racel’s accusation that

Anlusan funded the sudden influx of Chirps and military presence.

To settle their differences, the Federation of Anlusan and the Republic of Racel agreed to

submit the case to the International Court of Justice through a special agreement pursuant to Article

40 of the ICJ Statute.

x
 SUMMARY OF PLEADINGS

I. The ICJ has no jurisdiction over the case.

 The sanctions imposed by Racel on Anlusan are covered by the General Agreement

on Trade and Services and the General Agreement on Tariffs and Trade, both

binding and annexed to the World Trade Organization Agreement. As such,

disputes regarding the provisions of these agreements should have been submitted

by Anlusan for resolution to the Dispute Settlement Body with appeals following

the procedure in the Dispute Settlement Understanding.

 Concerns regarding the application of the right to self-determination are governed

by the International Covenant on Economic, Social and Cultural Rights (ICESCR)

and the International Covenant on Civil and Political Rights (ICCPR) which

provide for their own dispute settlement mechanisms through the Committee on

Economic, Social and Cultural Rights and the Human Rights Committee,

respectively.

 Under lex specialis derogat legi generali, Anlusan should have exhausted these

more specific remedies instead of proceeding to the International Court of Justice.

II. Anlusan can be held responsible for committing an internationally wrongful act for its

intervention and interference in the elections.

 By deploying naval patrol boats, Anlusan intervened with the sovereignty and self-

determination of Racel through the use of force which is a clear violation of the

United Nations (UN) Charter’s principle of non-intervention and ICCPR’s

guarantee of a state’s right to self-determination.

xi
  The Anlusan government’s cyber interference through the Chirps during the

elections violated Racel’s right to self-determination, right against intervention,

and right to genuine periodic elections protected by the ICESCR, ICCPR, and the

UN Charter.

 Even if Anlusan claims to have been hacked, it should have exercised due

diligence.

 For these breaches of obligation, Anlusan committed internationally wrongful acts

and must compensate Racel.

III. Satellite, Feznote, Chirper, and the international media companies can be held responsible

under international law for the spread of the videos and hostile messages before the

election.

 Satellite, fully-owned by the government of Anlusan can be held responsible for the

broadcast of hostile messages which interfered in the referendum of Racel. Anlusan

did not exercise due diligence of prior restraint to block internet contents inciting hate

and violence against Racelians since it has the power to regulate media companies

under its territory. As such, Anlusan is not immune from suit for acte de jure gestionis.

IV. The sanctions imposed by Racel are justified under international law

 By virtue of sovereignty and the International Covenant on Economic, Social and

Cultural Rights, the sanctions of Racel are justified in the premise that they have the

right to freely dispose their natural resources and reserves the right to determine

economic guarantees to non-nationals.

xii