VITSOL Moot Court Competition Winning Memo - Respondent.

TEAM CODE: TH
THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE,
THE HAGUE, THE NETHERLANDS
1st VITSOL MOOT COURT COMPETION ON INTERNATIONAL LAW
THE CASE CONCERNING ARMED ACTIVITIES AND THE TREATMENT OF

CITIZENS OF THE DEMOCRATIC REPUBLIC OF ORANGIA
DEMOCRATIC REPUBLIC OF ORANGIA

(Applicant State)
v.
STATE OF LEMANIA
(Respondent State)
JOINTLY NOTIFIED TO THE COURT ON 20 OCTOBER 2015
MEMORIAL FOR RESPONDENT
WRITTEN SUBMISSION ON BEHALF OF LEMANIA
TABLE OF CONTENTS
INDEX OF AUTHORITIES- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -iv-ix

STATEMENT OF JURISDICTION- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
STATEMENT OF FACTS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - xi-xii
STATEMENT OF ISSUES- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - xiii
SUMMARY OF ARGUMENTS- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - xiv
ARGUMENTS ADVANCED- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 1-15
Issue 1: Orangias failure to prevent MUF activities against Lemania is in violation of its
obligations towards Lemania and therefore drone attacks by its national intelligence
agency and subsequent use of force by Lemania were in the exercise of right of self-defense
in accordance with the UN charter and other relevant international law. 1-6
1.1 Orangias failure to prevent MUF activities against Lemania is in violation of its
obligations towards Lemania 1-2
1.2 Drone attacks and subsequent use of force by Lemania was in the exercise of right of
self-defense in accordance with the UN charter and other relevant international law. 2-6
i. Attacks of MUF constituted an armed attack against Lemania
2-3
ii. The attack by MUF can be attributed to Orangia
3-4
iii. Lemanias attack on Orangia was a lawful act of self-defence under the U.N.Charter
and customary international law
4-5
iv. Lemanias use of drones is in anticipatory self-defense of further acts of terror 5-6
ii
Issue 2 - Lemanias actions on the territory of Orangia were in accordance with its
obligations permitted under the international humanitarian law applicable to situations
of occupation and other relevant international law and Lemania cannot be held
accountable for international human rights obligations beyond its territory and
jurisdiction. 6-15
2.1 Lemanias actions on the territory of Orangia were in accordance with its obligations
permitted under the IHL applicable to situations of occupation and other relevant
international law - 6-9
A. Lemanias attack was not indiscriminate 6-7
B. The attack was on valid Military objective 7-8
C. The object of the attack was a military objective and not civilian population - 8
D. Lemanias actions are in accordance to its obligations as an occupying power 8-9
2.2 LEMANIA CANNOT BE HELD ACCOUNTABLE FOR IHR OBLIGATIONS BEYOND ITS
TERRITORY AND JURISDICTION 9-15
A. IHR treaties dont apply extra-territorially in cases of armed conflict and military
occupation 9-15
i.
The Ordinary Meaning of the Instruments 9-13
ii.
The Preparatory Work 13-14
iii.
Subsequent State Practice 14-15
PRAYER- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - xv
iii
INDEX OF AUTHORITIES
CASES, ADVISORY OPNIONS AND ARBITRAL RULINGS
INTERNATIONAL COURT OF JUSTICE
1.
Case Concerning the Military and Paramilitary Activities in and against

Nicaragua (Nicaragua v.United States of America), Merits, [1986], ICJ
Reports, 14
2.
Case concerning United states diplomatic and consular staff in Tehran (Iran v.
United States of America), [1980] I.C.J Rep 3
3.
Corfu Channel (U.K v. Alb.), 1949 I.C.J 4
4.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory, ICJ Advisory Opinion, 9 July 2004
5.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996]

I.C.J Rep 226
6.
See Case Concerning Armed Activities On The Territory Of Congo (Congo V.

Uganda) (2006), 45 I.L.M. 271
INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

1.
Prosecutor v Tadi (Decision on the Defence Motion for Interlocutory Appeal)

(ICTY, IT-94-1-AR72, 2 October 1995)
2.
Prosecutor v Bokoski (ICTY, IT-04-82-T, 10 July 2008)

OTHER INTERNATIONAL JUDGEMENTS AND ARBITRAL AWARD
1.
Al-Skeini v. Sec. of State for Defence [2007] UKHL 26, [2007] 3 All E.R. 865
2.
Bankovi v. Belgium, 2001XII Eur. Ct. H.R. 333 (GC)

TREATIES, CONVENTIONA AND DECLARATIONS
1.
Annual Report of the Inter-American Commission on Human Rights: 1997,

OEA/Ser.L/II.28/Doc.7 271
2.
CHR, Report of the Working Group on a Draft Convention Against Torture,

UN Doc. E/CN.4/1984/72 (Mar. 9, 1984).
3.
Declaration on Principles of International Law concerning Friendly Relations

and Co-operation among States in accordance with the Charter of the United
Nations of 1970, UN A/RES/25/2625
iv
4.
Hague Convention IV concerning the Laws and Customs of War on

Land, 18 October 1907
5.
International Covent on Civil and Political Rights, 16 Dec. 1966, GA Res

2200A (XXI)
6.
International Law Commissions Draft Articles on State Responsibility of

States for Internationally Wrongful Acts, 26 Jul. 2001, art. 1, U.N. Doc
A/CN.4/L.602/Rev.1 (2001)
7.
SC Res; 1368 (2001). UN SCOR. 2001, UN Doc. S/INF/57, 71.
8.
Protocol Additional to the Geneva Conventions of 12 August 1949 and relating

to the Protection of victims of International Armed Conflicts, 8 June 1977, 1125
U.N.T.S 609
9.
S/RES/1269 (1999)
10.
S/RES/1368 (2001)
11.
UN Doc. CCPR/C/79/Add.93 (1998)
12.
UN Doc. CCPR/CO/78/ISR (Aug. 21, 2003)
13.
UN Doc. E/CN.4/365, at 14 (1950).
14.
Vienna Convention on the Law of Treaties, opened for signature May 23, 1969,
arts. 31-32, 1155 U.N.T.S. 331
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ALEXANDER ORAKHELASHVILI, PEREMPTORY NORMS IN

INTERNATIONAL LAW,OXFORD UNIVERSITY PRESS ( 2006)
B. SIMMA, THE CHARTER OF THE UNITED NATIONS (2nd ed.) (2002)
BOWETT, SELF DEFENCE, AND IAN BROWNLIE, PRINCIPLES OF
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BY STATES (2004)
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UNIVERSITY PRESS 1994) REPRINT. (11th ed. 2013)
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RIGHTS, CCPR COMMENTARY 762 (2005).
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INTERNATIONAL LAW, OXFORD UNIVERSITY PRESS (2015)
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MICHAEL N. SCHMITT, RESPONDING TO TRANSNATIONAL
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AND ARMED CONFLICT: EXPLORING THE FAULTLINES 175 (2007);
MICHELLE FARRELL, THE PROHIBITION OF TORTURE IN
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EXCEPTIONAL CIRCUMSTANCES, CAMBRIDGE UNIVERSITY PRESS

(1st ed., 2013)
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INTERNATIONAL LAW OF WAR: TRANSNATIONAL COERCION AND

WORLD PUBLIC ORDER (1994)
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NIGEL D. WHITE AND CHRISTIAN HENDERSON, RESEARCH

HANDBOOK ON INTERNATIONAL CONFLICT AND SECURITY LAW: JUS
AD BELLUM, JUS IN BELLO AND JUS POST BELLU, EDWARD ELGAR
PUBLISHING LIMITED (2013)
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HUMANITARIAN LAW AND HUMAN RIGHTS LAW, MARTINUS
NIJHOFF PUBLISHERS (2008)
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91 (2nd ed. 2004).
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THE JUDGES OF THE INTERNATIONAL COURT OF JUSTICE, HART
PUBLISHING (2007)
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(2007)
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HUMAN RIGHTS PROTECTION, OXFORD UNIVERSITY PRESS (2012)
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CONVENTION OF 12 AUGUST 1949 (1987)
vii
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YORK: CAMBRIDGE UNIVERSITY PRESS (3rd ed, 2000)
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LAW OF INTERNATIONAL ARMED CONFLICT (2nd ed. 2004)
RESEARCH PUBLICATIONS
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U.N Charter [2002] 43 Harv Int L.J 41
2.
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Hague, 1996;)
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4.
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Review, 1984
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International Law, 81 H AGUE R ECUEIL
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Nordic Journal of international law
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colloquium: legal and ethical lessons of Natos Kosovo Campaign Aug. 8-10,
2001
9.
W.J Fenrick, The law applicable to targeting and proportionality after

operation allied force: a view from outside [2002] 3 YIHL 53
10.
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11.
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Political RightsStocktaking After the First Eleven Sessions of the UN-Human
Rights Committee, 1 HUM. RTS. L.J.
12.
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Dixit From the ICJ? (2005) 99 A.J.I.L., 62
13.
Brownlie, The Use Of Force In Self Defence, 37 B.Y.I.L., 183 (1961)
viii
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Ruth Wedgwood, Responding to Terrorism: The Strikes against bin Laden

(1994) 24 Yale J. Intl L. 559 at 564-65.
15.
Bothe, Terrorism and the Legality of Pre-Emptive Force, 14 EJIL 227 (2003)
16.
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the Appropriate Response of the UN to the Attacks on the USA available at
http://www.ejil.org/forum WTC/messages/ 17.html, last visited 13 Feb, 2016.
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analysis of the gulf war [1994] 35 Harv. ILJ 2, 11
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occupying powers, European Journal of International Law, Vol. 16, No. 4,
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foreign Territory, International Committee of the Red Cross(ICRC) 2012
20.
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Law of Treaties, Art. 19, Comment, 29 AM. J. INTL. SUPP.(1935)
21.
Michal j. Dennis Non- Application of Civil and Political Rights Treatise

extraterritorially during times of international armed conflicts Vol. 99 of Am.
J. Intl L.
22.
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armed conflict and military occupation, 99 AM. J. INTL L. 119, 122-127
(2005)
23.
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5, UN Doc. E/CN.4/1984/72 (Mar. 9, 1984)
24.
M. Nowak, The effectiveness of the International Covenant on Civil and

Political Rights: stocktaking after the first eleven sessions of the UN Human
Rights Committee, 1 HUMAN RIGHTS L.J. 136, 156 (1980).
25.
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International Terrorism, 27 FLCHR FORM of WORLD AFRS 35, 46 (2003)
ix
STATEMENT OF JURISDICTION
The Democratic Republic of Orangia (Orangia) and the State of Lemania (Lemania) have
entered into a special agreement on 10th October 2015 and agreed to submit this dispute
concerning armed activities and the treatment of citizens of the Democratic Republic of
Orangia to the International Court of Justice in pursuant to Article 40, paragraph 1 of the Statute
of this Court. It is agreed in the special agreement that Orangia would act as Applicant and
Lemania as Respondent. The States jointly notified to the ICJ on 20th October 2015. In
accordance with Article 36, paragraph 1 of the Statute, the Court has jurisdiction to decide all
matters referred to it for decision. Also, both parties shall accept the Courts decision as final and
binding and execute it in good faith.
STATEMENT OF FACTS
DESCRIPTION OF STATE PARTIES

Orangia- Orangia is a state situated in the continent of Rania. After achieving independence, it
adopted the multiparty system with periodic elections. Orangia is a multiethnic and multilingual
society, with 42% of the people belonging to Newami ethnicity and 33% from Jaimun ethnicity.
Lemania- Lemania is a State located west of Orangia and both share a huge common border.
Lemania wields a considerable economic power in the region due to its rich oil resources.
Lemania exports its oil extracts to countries on its east through the pipelines laid through the
territory of Orangia.
AGREEMENT
An agreement was entered into between Orangia and Lemania in 1985 that governs the oil
pipeline through Orangia to eastern countries. It contained the various provisions, including to
payment of transit tariff to Orangia for facilitating the pipeline.
POLITICAL SITUATION IN ORANGIA
After independence, ODA has been in long periods of political power with intermittent ruling by
PEP. Both PEP and ODA are accused of representing only the interests of Newami and Jaimun
ethnic groups, respectively. The political skepticism among the other ethnic minorities, led to the
establishment of MUF, an Independent Party, to safeguard the interest of these minorities. MUF
were in favor of radical restructuring of the political and economic systems in Orangia.
MUF AND ORANGIAS INTERNAL TURMOIL
Immediately after its establishment, MUF gave a call for rallies and protests. Since 2010, several
violent incidents took place in Orangia. Most disturbed part of Orangia was the province of
Westoria. Those arrested confessed to belong to MUF, but was MUF denied any association to
the event. In January 2011, four tourists from Lemania were abducted in Naturia. The abductors
did not reveal their political affiliation, however, they claimed to be against Lemanias policies
vis--vis Orangia and were critical of its support to Orangian government led by ODA.
COMMENCEMENT OF INTERSTATE TENSION
In 2012, PEP formed the government and adopted anti-Lemanian policies and demanded 50
percent increase in transit. Also, the Visa restrictions that were imposed on Lemania citizens,
xi
Clashes took place between Orangia and Lemania. Further, Two bomb explosions in February
2013 took place, individuals from the MUF leadership were arrested.
DRONE ATTACKS AND ATTACKS IN LEMANIA
In April 2013, Lemania carried out three separate drone attacks, in the province of Westoria.
Lemania claimed that those killed were terrorist belonging to MUF. But an enquiry commission
constituted by Orangia reported that those killed in the attacks were having dinner in civilian
clothes, and could not conclusively establish they were members of MUF. The Diamond
Harbour in Lemania was attacked by a truck loaded with explosives leading to the death of 159
civilians and causing damage to port property. A similar attack was attempted on LTC.
AIR SRTIKES BY LEMANIA AND SUBSEQUENT OCCUPATION
On August 2013, two air strikes hit the city of Siminalu, targeting the military bases of Orangia.
Orangian forces resorted to counter attacks and destroyed two military aircrafts of Lemania.
Orangias air strike capacity collapsed. Subsequently, Orangia was occupied. On September
2013 UNSC passed a resolution, recognizing that Orangia was under the occupation of Lemania
led forces. Lemania established IA and IA passed two orders dealing with detention of suspected
MUF citizens for 30 days without trial and introducing adversarial law system.
FORMATION OF NEW GOVERNMENT
Elections were held under the supervision of UN Officials. A newly emerged political alliance,
OUF formed the government. There was political pressure to enquire into the illegal activities
committed by Lemanian forces during war and occupation, with allegation that citizens were
subjected to illegal detention and torture within Orangia and in other undisclosed locations.
ENQUIRY AND FINDINGS OF HRO
HRO conducted a finding enquiry and interviewed 128 citizens who were allegedly tortured and
detained. Some claimed that they were subjected to sleep deprivation by way of playing high
decibel music in a brightly lit room for days together, while others claimed that they were flown
blindfolded to different places and tortured.
EPILOGUE
Diplomatic discussions did not lead to any conclusions. Both States decided to refer the matter to
the ICJ by way of a special agreement, in accordance with Article 40(1) of the Statute of the
Court.
xii
STATEMENT OF ISSUES
The parties have placed before this Honble Court, the following Questions for its consideration:
1. ORANGIAS FAILURE TO PREVENT MUF ACTIVITIES AGAINST LEMANIA
IS IN VIOLATION OF ITS OBLIGATIONS TOWARDS LEMANIA AND
THEREFORE DRONE ATTACKS BY ITS NATIONAL INTELLIGENCE
AGENCY AND SUBSEQUENT USE OF FORCE BY LEMANIA WERE IN THE
EXERCISE OF RIGHT OF SELFDEFENSE IN ACCORDANCE WITH THE UN
CHARTER AND OTHER RELEVANT INTERNATIONAL LAW.
obligations towards Lemania.
1.2 Drone attacks and subsequent use of force by Lemania was in the exercise of right
of self-defense in accordance with the UN charter and other relevant international
law.
2. LEMANIAS ACTIONS ON THE TERRITORY OF ORANGIA WERE IN
ACCORDANCE WITH ITS OBLIGATIONS PERMITTED UNDER THE
INTENTIONAL HUMANITARIAN LAW APPLICABLE TO SITUATIONS OF
OCCUPATION AND OTHER RELEVANT INTERNATIONAL LAW AND
LEMANIA CANNOT BE HELD ACCOUNTABLE FOR INTERNATIONAL
HUMAN
RIGHTS
OBLIGATIONS
BEYOND
ITS
TERRITORY
AND
JURISDICTION.
2.1Lemanias actions on the territory of Orangia were in accordance with its
obligations permitted under the intentional humanitarian law applicable to
situations of occupation and other relevant international law.
2.2Lemania cannot be held accountable for IHR obligations beyond its territory and
jurisdiction.
xiii
SUMMARY OF ARGUMENTS
Issue 1: Orangias failure to prevent MUF activities against Lemania is in violation of its
obligations towards Lemania and therefore drone attacks by its national intelligence
agency and subsequent use of force by Lemania were in the exercise of right of self-defense
in accordance with the UN charter and other relevant international law.
The destruction to property and loss of life caused by the activities of MUF has been
recognized as constituting an armed attack. Orangia has an obligation to take necessary
steps to ensure that such terrorist activities do not violate the integrity and sovereignty of
Lemania. The breach of such obligation, vests in Lemania, an inherent right to use force in
self-defense. Lemania has the right to self-defence against an armed attack and the use of
force in this regard is legitimate. Lemanias drone attacks and subsequent resort to force in
anticipatory self-defence, in responding to hostile terrorist groups (MUF) that operates
across border.
obligations permitted under the international humanitarian law applicable to situations of
occupation and other relevant international law and Lemania cannot be held accountable
for international human rights obligations beyond its territory and jurisdiction.
Lemanias attacks were not indiscriminate. They were directed on valid military objective and
not civilian population. Lemanias actions are in accordance to its obligations as an occupying
power, under Article 43 of Hague Convention and Article 64 of Geneva convention.IHR treaties
dont apply extra-territorially in cases of armed conflict and military occupation, in light of its
object and purpose, its preparatory work, and state practice thereunder. Arguendo, IHL applies as
lex specialis in cases of armed conflict and Occupation.
xiv
ARGUMENTS ADVANCED
ISSUE I - ORANGIAS FAILURE TO PREVENT MUF ACTIVITIES AGAINST

LEMANIA IS IN VIOLATION OF ITS OBLIGATIONS TOWARDS LEMANIA AND
THEREFORE DRONE ATTACKS BY ITS NATIONAL INTELLIGENCE AGENCY
AND SUBSEQUENT USE OF FORCE BY LEMANIA WERE IN THE EXERCISE OF
RIGHT OF SELF-DEFENSE IN ACCORDANCE WITH THE UN CHARTER AND
OTHER RELEVANT INTERNATIONAL LAW.
obligations towards Lemania
It is humbly submitted that Orangia had an obligation to prohibition of use of force under art.
2(4) of the U.N. Charter. 1 Further the 1970 Declaration on Principles of International
Law2clearly prohibits: first, states to indulge in wars of aggression which constitute a crime
against peace for which there is responsibility under international law. Secondly, states must not
threaten or use force to violate existing international frontiers (including demarcation or
armistice lines) or to solve international disputes. Thirdly, states are under a duty to refrain from
acts of reprisal involving the use of force. And fifthly, states must refrain from organizing,
instigating, assisting or participating in acts of civil strife or terrorist acts in another state and
must not encourage the formation of armed bands for incursion into another states territory.3
Orangia also had obligations under ICCPR and CAT against Lemania, since both the states are
parties to these covenants.
Further Orangia had certain anti-terror obligations under various SC resolutions inter-alia
Security Council resolutions 1269 (1999)4 and 1368 (2001)5 and UNSC resolution S/RES/1373
U.N Charter art. 2(4)

Declaration on Principles of International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations of 1970, UN A/RES/25/2625
3
MALCOLM N.SHAW, INTERNATIONAL LAW, CAMBRIDGE UNIVERSITY PRESS, (6th
ed., 2008) p. 1123
4
S/RES/1269 (1999)
5
S/RES/1368 (2001)
2
(2001) 6 . These resolutions clearly mandate all states to Refrain from providing any form of
support, active or passive, to entities or persons involved in terrorist acts, take the necessary steps
to prevent the commission of terrorist acts, deny safe haven to those who finance, plan, support,
or commit terrorist acts and many other obligations which were violated by Orangia when it
failed to prevent MUF activities against Lemania.
1.2 Drone attacks and subsequent use of force by Lemania was in the exercise of right of
self-defense in accordance with the UN charter and other relevant international law.
The U.N Charter recognizes the inherent right of self-defence enjoyed by all states.7 A
state must satisfy two criteria in order to engage in the acts of self-defense on the territory of
another state. First, there must be an act or series of acts of sufficient gravity that they may be
characterized as an armed attack.8 Second, the armed attack must have a sufficient nexus to the
state upon which the act of self-defence will be carried out.9
v. Attacks of MUF constituted an armed attack against Lemania
Destruction to property and loss of life has been recognized as constituting an armed attack at
international law.10 The effects of an act of violence, including the reaction of the victim state
and the international community are relevant in determining whether an armed attack has
occurred.11 Conversely, the type of weapon or mode of attack is irrelevant in establishing a right
S/RES/1373 (2001)
U.N. Charter art. 51; Case Concerning the Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v.United States of America), Merits, [1986], ICJ Reports, 14 195 [Herein
after reffered as Nicaragua case; Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, [1996] I.C.J Rep 226 38 [Hereinafter the Nuclear Weapons Case].
8
Case concerning United states diplomatic and consular staff in Tehran (Iran v. United States
of America), [1980] I.C.J Rep 3 57 [Hostages]; YORAM DINESTEIN, WAR, AGGRESSION
AND SELF DEFENSE,NEW YORK: CAMBRIDGE UNIVERSITY PRESS (3rd ed, 2000) at
176.
9
Case Concerning Armed Activities On The Territory Of Congo (Congo V. Uganda) (2006), 45
I.L.M. 271 146 [Hereinafter referred as DRC v Uganda]; BRUNO SIMMA, ED. THE
CHARTER OF THE UNITED NATIONS: A COMMENTARY, NEW YORK: CAMBRIDGE
UNIVERSITY PRESS (2nded, 2002) 82.
10
Annual Report of the Inter-American Commission on Human Rights: 1997,
OEA/Ser.L/II.28/Doc.7 271.
11
D Murphy, Terrorism and the concept of Armed Attack in article 51 of the U.N Charter
[2002] 43 Harv Int L.J 41 at 47-51
7
of self-defence.12 Any carefully planned, coordinated and executed attack against a quintessential
objective notwithstanding the small number of attackers involved and the short time frame of
fighting qualify to be armed conflict. Viewed in this light, the attacks perpetrated by MUF are
not sporadic instances of violence but an organized and sustained campaign on forcible
measures. States regard such operations as armed attacks.13
On 23 January, four tourists from Lemania were alleged to have been abducted by members of
MUF, from the province of Westoria (in Orangia), and also threatened the state of Lemania.
Subsequently, two bomb explosions took place in the city of Niroba in Lemania.14 It is submitted
that MUFs threat to disrupt oil pipelines of Lemania also amounts to threat to use of force. MUF
is believed to perpetrate numerous acts of Terror in the territory of Lemania.15 In the present
instance, the requirement of a protracted armed violence16 is evidenced by the seriousness and
escalation of MUFs attacks against Lemania17, by which it assumes the dimension of an armed
attack.
vi. The attack by MUF can be attributed to Orangia
Article 51 of the UN Charter does not require that an armed attack be perpetrated by a State in
order to justify an act of self-defence on the territory of another State.18 State actors have an
inherent right to use force in self-defense against non-State actors.19 This is logical, given the
serious threat posed by non-state actors.20 It is clear that where another Stateprovides bases
12
Nuclear Weapons Case; SC Res; 1368 (2001). UN SCOR. 2001, UN Doc. S/INF/57, 71.
MICHAEL N. SCHMITT, RESPONDING TO TRANSNATIONAL TERRORISM UNDER
THE JUS AD BELLUM, in INTERNATIONAL LAW AND ARMED CONFLICT:
EXPLORING THE FAULTLINES 175 (2007); The Right to Self-Defense, Article 51 (1/2) of
the UN Charter, and International Terrorism, 27 FLCHR FORM of WORLD AFRS 35, 46
(2003);
14
Fact Sheet 10
15
Fact Sheet 13, 14, 18.
16
Prosecutor v Tadi (Decision on the Defence Motion for Interlocutory Appeal) (ICTY, IT-941-AR72, 2 October 1995) 70
17
Fact sheet, 6,7 and 10; Prosecutor v Bokoski (ICTY, IT-04-82-T, 10 July 2008) [177]
18
DRC v Congo, at 358 28 (Kooijmans .J separate opinion)
19
Bothe, Terrorism and the Legality of Pre-Emptive Force, 14 EJIL 227 (2003);
20
,Nicaragua Case 29-31; Sean D Murphy, Self-Defence and the Israeli Wall Advisory
Opinion: An Ipse Dixit From the ICJ? (2005) 99 A.J.I.L., 62; Ruth Wedgwood, Responding to
Terrorism: The Strikes against bin Laden (1994) 24 Yale J. Intl L. 559 at 564-65.
13
or refuge for the attackers, the State under attack, or threat of attack, may use armed force against
that other State in exercise of right of self-defence.21
It is further submitted, every state is liable under international law for the terrorists attacks
carried on in their states that are contrary to the rights of another state.22 When the State does not
take the necessary steps to ensure that such terrorist activities do not violate the integrity and
sovereignty of another State, it amounts to a breach of international obligation.23
In this regard it is submitted that the inaction of Orangia in taking adequate measures to curtail
the disruptive activities of MUF, amounts to breach of its international obligations. Thus the
inability of Orangia to prevent MUF activities, establishes the necessary nexus to justify
Lemanias act of self-defence on Orangias Territory.
vii. Lemanias attack on Orangia was a lawful act of self-defence under the U.N.Charter
and customary international law
Article 2(4) of the UN Charter24 imposes upon every State an obligation to refrain from the use
of force against any other State25 and the only exception to the same is Article 51 of the UN
21
Position Paper of Australian Section of International Commission of Jurists on the Appropriate

Response of the UN to the Attacks on the USA available at http://www.ejil.org/forum
WTC/messages/ 17.html, last visited 30 Jan, 2016.
22
International Law Commissions Draft Articles on State Responsibility of States for
Internationally Wrongful Acts, 26 Jul. 2001, art. 1, U.N. Doc A/CN.4/L.602/Rev.1 (2001)
[Hereinafter referred as Draft Articles]. Corfu Channel (U.K v. Alb.), 1949 I.C.J 4; Nicaragua
Case
23
GC art. 2.
24
U.N. Charter, art 2(4); J.P. COT & A PELLET, LA CHARTE DES NATIONS UNIES (2nd
ed.)(1991); B. SIMMA, THE CHARTER OF THE UNITED NATIONS (2nd ed.) (2002);
RUSSEL AND MUTHER, A HISTORY OF THE UNITED NATIONS CHARTER (1958);
GARDAM, NECESSITY, PROPORTIONALITY AND THE USE OF FORCE BY STATES
(2004); STRUCHLER, THE THREAT OF FORCE IN INTERNATIONAL LAW (2007) as
cited in IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, (7th ed.)
(2008).
25
Id., Skubiszewski, Use of Force, 745, and L. HENKIN, R.C. PUGH, O SCHNATER & H.
SMIT, INTERNATIONAL LAW CASES AND MATERIALS, 893 (3rd ed.) (1993) as cited in
MALCOLM N.SHAW, INTERNATIONAL LAW, CAMBRIDGE UNIVERSITY PRESS, (6th
ed., 2008)
4
Charter.26 Under this Article, every State has the right to self-defence against an armed attack
and the use of force in this regard is legitimate.27
It is submitted that the actions taken in self-defence must meet the customary legal requirements
of necessity and proportionality. 28 The necessity requirement often runs on the existence of
alternative means of meeting the threat posed by an armed attack 29 and the period of time
between the armed attack and the act of self-defence.30 To be considered proportional, a response
must be limited to what is sufficient to secure the defenders rights and ensure its security,
including the restoration of security in the wake of armed attacks. 31 An evaluation of
proportionality analyses the reasonableness of an act of self-defence.32
Lemanias act of self-defence meets the requirement of necessity and proportionality. Before
resorting to force, Lemania issued several warnings to Orangia, directing them to prevent the
disruptive activities of MUF. Therefore, Lemania was faced with an ongoing and imminent
threat, and a recalcitrant neighbour flouting its international obligations, compelled Lemania to
take the necessary steps to neutralize the threat posed by MUF by resorting to the alleged use of
force.
viii.
Lemanias use of drones is in anticipatory self-defense of further acts of terror
The pre-emptive military action describes military action that is taken against a threat which has
not yet materialized and which is uncertain and remote in time. A state may anticipate self26
U.N. Charter art. 51.

Id.; BOWETT, SELF DEFENCE, AND IAN BROWNLIE, PRINCIPLES OF PUBLIC
INTERNATIONAL LAW, SEVENTH EDITION, USE OF FORCE, Chapter 13, (2008); I.
Brownlie, The Use Of Force In Self Defence, 37 B.Y.I.L., 183 (1961); Alexandrov, Self-Defence
Against the Use of Force in International Law, The Hague, 1996; S. Schwebel, Aggression,
Intervention and Self-Defence in Modern International Law, 136 HR, 411 (1972); O. Schacter,
The Right of States to Use Armed Force, 82 Michigan Law Review, 1984, p. 1620; Schacter,
Self-Defence and Rule of Law, 83 A.J.I.L, 259 (1989) as cited in MALCOLM N.SHAW,
INTERNATIONAL LAW, CAMBRIDGE UNIVERSITY PRESS, (6th ed., 2008)
28
Nuclear Weapons case
29
YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE, CAMBRIDGE
UNIVERSITY PRESS, (3rd ed., 2000) at 176.
30
Nicaragua case; MYRES M. MCDOUGAL & FLORENTINO P. FELICANO, THE
INTERNATIONAL LAW OF WAR: TRANSNATIONAL COERCION AND WORLD
PUBLIC ORDER (1994) at 222-24.
31
Nicaragua Case
32
YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF
INTERNATIONAL ARMED CONFLICT (2nd ed. 2004)
27
defence in the sense described by Sir Humphrey Waldock: where there is convincing evidence
not merely of threats and potential danger but of an attack actually being mounted, then an
armed attack may be said to have begun to occur, though it has not passed the frontier. 33
International law allows a state to resort to force in anticipatory self-defence, in responding
hostile terrorist groups that operate across state borders.34 The use of anticipatory self-defense
against such actors relies on the presence of a distinct quantifiable threat.35 There are many
instances where states have well used their inherent power to defend themselves on the basis of
anticipation. In this regard, the cases of six day war of 1967 in the Middle East,36 the Osirak
Reactor Case of 1981 which was related to the Israeli bombing of nuclear reactors of Iraq, 37 and
Operation Iraqi Freedom by United States of America in 2003, are worth mentioning.
MUF is alleged to have consistently perpetrate acts of terrorism against Lemania, and therefore
the use of drones to target specific members of MUF in the province of Westoria is justified as
an act of anticipatory self-defence.
obligations permitted under the IHL applicable to situations of occupation and other
relevant international law and Lemania cannot be held accountable for IHR obligations
beyond its territory and jurisdiction.
2.1 Lemanias actions on the territory of Orangia were in accordance with its obligations
permitted under the IHL applicable to situations of occupation and other relevant
international law
E. Lemanias attack was not indiscriminate
33
C.H.M Waldock, The Regulation of the Use of Force by Individual States in International
Law, 81 H AGUE R ECUEIL 451, 498.
34
H. STEINBERGER, SOVEREIGNTY, IN MAX PLANK INSTITUTE OF
COMPARATIVE PUBLIC LAW AND INTERNATIONAL LAW, ENCYCLOPEDIA FOR
PUBLIC INTERNATIONAL LAW, OXFORD UNIVERSITY PRESS, Vol. 10 (NORTH
HOLAND, 1987)
35
Judith Gardam, A role for Proportionality in the war on Terror (2005) 74 Nordic Journal of
international law 3, 11
36
PHILLIP, INTERNATIONAL LAW (1999), at 1241-42.
37
0 ILM 996 (July 1981) (excerpts of Security Council Debate).
6
The principle codified in article 51.5(b) and 57.2 (a) (iii) of Additional Protocol I and undeniably
as aspect of customary international law, prohibits as indiscriminate an attack which may be
expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or
combination therefore, which would be excessive in relation to the concrete and direct military
advantage anticipated. 38 But people and property that constitute military objective may be
attacked and destroyed. 39 It is submitted that, Lemanias drone attacks and use of force are
justified in their exercise of right of self-defense, mandating immediate response to neutralize the
threat posed by MUF and Orangia, and are not excessive to the overall military advantage
anticipated.
F. The attack was on valid Military objective
Military objective as defined in Protocol I40, is part of customary international law for armed
conflict whether on land, at sea or in the air,41 and is also binding on the non-parties to the
Protocol. 42 The legitimate military objective must meet the two stage test: firstly, its nature,
location, purpose or use makes it an effective contribution to military action; and secondly, its
total or partial destruction, capture or neutralization, in the ongoing circumstances, offers a
definite military advantage. 43 It is submitted that the targets of Lemanias air strikes were
38
Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the
Protection of victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S 609 Arts. 51,
57. [Hereinafter referred as AP I]; JEAN MARIE HENCKAERTS AND DOSWALD- BECK,
CUSTOMARY INTERNATIONAL HUMANITARIAN LAW Vol. I (Cambridge, Cambridge
University Press, 2005) at Chap 3 and 20.
39
AP I, art. 52
40
AP I, art 52(1)
41
Y Dinstein, Legitimate military objectives under the current Jus in Bello in colloquium:
legal and ethical lessons of Natos Kosovo Campaign Aug. 8-10, 2001 p 1
42
W.J Fenrick, The law applicable to targeting and proportionality after operation allied force:
a view from outside [2002] 3 YIHL 53; Y Dinstein, Comment on Protocol I [1997] 37 IRRC
515; C. GREENWOOD, CUSTOMARY INTERNATIONAL LAW AND THE FIRST
GENEVA PROTOCOL OF 1997 IN THE GULF CONFLICT, LONDON: SWEET &
MAXWELL. (1993) at 75, 88;
43
Y. SANDOZ, C. SWINARSKI AND B. ZIMMERMANN COMMENTARY ON THE
ADDITIONAL PROTOCOLS OF JUNE 1977 TO THE GENEVA CONVENTION OF 12
AUGUST 1949 (ICRC: Martinus Nijholff. Geneva. 1987) 2018 [ICRC Commentary]
7
predominantly on military bases of Orangia and therefore such attacks were directed against
legitimate military objective.44
G. The object of the attack was a military objective and not civilian population
The prohibition of attacks against civilian population or civilians does not prohibit civilian
casualties absolutely. Civilian death in an attacks aimed at legitimate objectives may cause
collateral civilian damage.45 Moreover the said actions of Lemania were act of self-defense and
not retribution by way of indiscriminate attack. The air strikes and attacks were aimed at military
objectives and not civilians. Any such loss of civilian life is a collateral damage which resulted
in pursuance of legitimate military objective.
H. Lemanias actions are in accordance to its obligations as an occupying power
Article 43 of The Hague Regulations46 and Article 64 of the Fourth Geneva Convention47, are the
key provisions delimiting the rights and duties of an occupying power. 48 Article 43 of THR
should be interpreted broadly to allow the occupying power to fulfill its duties under occupation
law, in particular the administration of the occupied territory for the benefit of the local
population, while ensuring the security of its own armed forces.49 The occupying authority is
empowered to enact suitable legislations to that effect.50 Therefore the orders promulgated by
Lemania on 1 November 2013, were in accordance to its obligations under the international
humanitarian law applicable to situations of occupation, to maintain law and order in Orangia.
It is also submitted that the occupant Powers position is that of an interim military
administration, which entitles it to obedience from the inhabitants so far as concerns the
maintenance of public order, the safety of the occupying forces, and such laws or regulations as
44
Fact sheet, 11, 12,16.

R Normand and C.A F Jochnick, The Legitimization of violence: a critical analysis of the gulf
war [1994] 35 Harv. ILJ 2, 11.
46
Hague Regulations art. 43
47
GC IV art. 64
48
M. Sassol, Legislation and maintenance of public order and civil life by occupying powers,
European Journal of International Law, Vol. 16, No. 4, 2005, pp. 661-694
49
Tristan Ferraro, Report on Occupation and other forms of Administration of foreign Territory,
International Committee of the Red Cross(ICRC) 2012
50
Id.
45
are necessary to administer the territory. 51 Thus the citizens of Orangia had an obligation to
adhere to the orders of the Interim Authority, established by Lemania.
2.2 LEMANIA CANNOT BE HELD ACCOUNTABLE FOR IHR OBLIGATIONS BEYOND ITS
TERRITORY AND JURISDICTION
It is clear that both; Lemania and Orangia are parties to the CAT and ICCPR. Thus both these
treaties count for the IHRL obligations of Lemania and Orangia in their domestic jurisdictions.
Therefore, it is humbly submitted that Lemania cannot be held accountable for IHR obligations
beyond its territory and jurisdiction.
B. IHR treaties dont apply extra-territorially in cases of armed conflict and military
occupation
It is submitted that the relevant criteria for ascertaining scope of application of ICCPR and CAT,
especially in situations of armed conflict must begin with the ordinary meaning of each
instrument in its context and in light of its object and purpose, its preparatory work, and state
practice thereunderin short the standard tools of treaty interpretation (which are also a part of
CIL) as set forth in the Vienna Convention on the Law of Treaties.52
iv.
The Ordinary Meaning of the Instruments
Art. 2(1) of ICCPR states that each State Party to ICCPR undertakes to respect and to ensure to
all individuals within its territory and subject to its jurisdiction the rights recognized in the
present Covenant.53 Hence, based on the plain and ordinary meaning of its text, this article
establishes, in the conjunctive, that a state party is required to ensure the rights in the Covenant
only to individuals who are both within the territory of a state party and subject to its sovereign
authority.
I.A SHEARER, STARKES INTERNATIONAL LAW, OXFORD UNIVERSITY PRESS

1994) REPRINT. (11th ed. 2013) p. 510
52
Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, arts. 31-32,
1155 U.N.T.S. 331.
53
ICCPR Art. 2(1)
51
Further, several commentators endorse a literal territorial reading of Article 2(1) of the ICCPR,54
and further argue that Covenant obligations apply, in the context of armed conflict, only with
respect to acts of a states armed forces executed within that territory.55
The early views of the Committee on Human Rights also support the position that the provisions
of the Covenant do not apply extraterritorially in situations of armed conflict and military
occupation. In two of the cases56, involving exceptional instances where Uruguayan state agents
abducted citizens living abroad into Uruguayan territory, committee member Christian
Tomuschat observed in identical opinions that"[t]he formula [within its territory] was intended to
take care of objective difficulties which might impede the implementation of the Covenant in
specific situations, citing inability to ensure the enjoyment of Covenant rights by a state's
citizens abroad. He specifically cited occupation of foreign territory as "another example of
situations which the drafters of the Covenant had in mind when they confined the obligation of
States parties to their own territory.
Further, more recently, the Committee in its General Comment No. 31 (May 2004), abandoned
the literal reading altogether. This has been criticized on the grounds that the Committee does not
explain why it interpreted the and in Article 2(1) into an or. 57 Several commentators 58 ,
including Nowak in his commentary on the ICCPR, disagree with the grammatical
(re)interpretation done in General Comment No. 31 in the sense of a disjunctive conjunction
.. fails, however, to convince because .. States are not responsible for all violations of the
Covenant on their territory (e.g., by insurgents, by occupation forces, etc.). The correct
interpretation, which is oriented on the purpose of the Covenant in light of its historical
54
Egon Schwelb, Some Aspects of the International Covenants on Human Rights of December
1966, in INTERNATIONAL PROTECTION OF HUMAN RIGHTS 103, 109 (Asbjrn Eide &
August Schou eds., 1968); Manfred Nowak, The Effectiveness of the International Covenant on
Civil and Political RightsStocktaking After the First Eleven Sessions of the UN-Human Rights
Committee, 1 HUM. RTS. L.J. (1980).136, 156
55
MICHAEL BOTHE, KARL JOSEF PARTSCH, & WALDEMAR A. SOLF, NEW RULES
FOR VICTIMS OF ARMED CONFLICTS (1982) p. 635; Schindler, supra note 10, at 939.
56
Lopez Burgos v.Uruguay and Celiberti v. Uruguay
57
Michal j. Dennis Non- Application of Civil and Political Rights Treatie extraterritorially
during times of international armed conflicts
58
SARAH JOSEPH, JENNY SCHULTZ, & MELISSA CASTAN, THE INTERNATIONAL
COVENANT ON CIVIL AND POLITICAL RIGHTS 8891 (2nd ed. 2004).
10
background, was convincingly presented by Tomuschat in individual opinions in Lpez Burgos v.

Uruguay, No. 52/1979, and Celiberti v. Uruguay, No. 56/1979. . . .59
It is further contended that, strictly speaking, the international human rights treaty bodies lack
authority to issue binding legal interpretations. Thus, only the parties to a treaty are empowered
to give a binding interpretation of its provisions unless the treaty expressly provides otherwise or
the parties have otherwise so agreed. 60 The international human rights treaties do not so
provide. 61 Additionally, the International Court of Justice does not automatically have
jurisdiction to issue binding interpretations of human rights treaties.62
It is also submitted that it is not without significance that the ICJs advisory opinion in the Wall
case63, in concluding that the provisions of the ICCPR applied extraterritorially in the West Bank
and Gaza, did not cite General Comment No. 31 in its opinion. In contrast
to the Human Rights Committees cause-and-effect theory of application,
64
the ICJ
concluded that the ICCPR is applicable in respect of acts done by a State in the
exercise of its jurisdiction.65
Indeed, the Courts specific holding concerning the ICCPR was founded on Art. 12(1), which
contains an express territorial limitation: Everyone lawfully within the territory of a State shall,
within that territory, have the right to liberty of movement.66 Thus, arguably the most logical
reading of the Courts advisory opinion is that it was based only on the view that the West Bank
and Gaza were part of the territory of Israel for purposes of the application of the Covenant,
since the territories occupied by Israel have for over 37 years been subject to its territorial
59
MANFRED NOWAK, U.N. COVENANT ON CIVIL AND POLITICAL RIGHTS, CCPR

COMMENTARY 762 (2005). pp. 43, 78
60
Cf. Majorie M. Whiteman, 14 DIGEST INTL L. 361 (1970)(quoting Research in International
Law (Harvard Law School), Draft Convention on the Law of Treaties, Art. 19, Comment, 29
AM. J. INTL. SUPP. 937, 975-76 (1935).
61
Michal j. Dennis Non- Application of Civil and Political Rights Treatise extraterritorially
during times of international armed conflicts,Vol. 99 of Am. J. Intl L. p. 458
62
Michal j. Dennis Non- Application of Civil and Political Rights Treaties extraterritorially
during times of international armed conflicts p. 459-460
63
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ
Advisory Opinion, 9 July 2004[Hereinafter referred as Construction of the Wall Case]
64
UN Doc. CCPR/CO/78/ISR (Aug. 21, 2003), 11
65
Construction of the Wall case, 111.
66
11
jurisdiction as the occupying Power. 67 The same was the finding of the HRC (in its concluding
observations concerning Israel)68 which was cited in the opinion of the court.69
The same is supported by Dennis criticism that the ICJs conclusion () appears to have been
based upon the unusual circumstances of Israels prolonged occupation. It therefore remains
unclear whether the opinion should be read as generally endorsing the view that the obligations
assumed by States under international human rights instruments apply extraterritorially during
situations of armed conflict and military occupation.70
Also, the Congo judgment offers little guidance as to what constitutes an act done by a state in
the exercise of its jurisdiction outside of the context of military occupation, since the Court
refrained from making specific findings of fact in that regard. 71 Further since the Congo
judgment is completely based on the reliance upon the Wall case, which as afore-mentioned
points out that human rights obligations do not apply extraterritorially (in a narrow sense).
The positions of both the Human Rights Committee and the ICJ concerning the scope of
application of the ICCPR appear to be at odds with the approach taken by the European Court of
Human Rights concerning Article 1 of the ECHR. 72 In Bankovi v. Belgium 73 , the Grand
Chamber of the European Court of Human Rights held that Article 1 of the Convention must be
considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of
jurisdiction being exceptional and requiring special justification in the particular circumstances
of each case.74 The Court concluded that had the drafters of the Convention wished to ensure
jurisdiction as extensive as that advocated by the applicants, they could have adopted a text the
same as or similar to the contemporaneous Articles 1 of the four Geneva Conventions of 1949.75
Even more recently, in Al-Skeini & Others v. Secretary of State for Defence, which involved
several killings by British occupation forces in Iraq, the British Lords of Appeal concluded that
67
Id. 112
10, UN Doc. CCPR/C/79/Add.93 (1998)
69
70
M.J. Dennis, p. 122.
71
DRC V Congo
72
Michal J. Dennis Non- Application of Civil and Political Rights Treaties extraterritorially
during times of international armed conflicts p. 467
73
Bankovi v. Belgium, 2001XII Eur. Ct. H.R. 333 (GC)
74
Id. 37.
75 Id. 75.
68
12
Iraq was not part of the European espace juridique for purposes of the ECHR.76 The Court took
the position that the broad dicta of Issa should not be read as detracting in any way from the
clearand clearly restrictiveapproach to article 1 jurisdiction adopted in Bankovi. 77 The
British Lords also rejected the relevance of the reasoning utilized by the Human Rights
committee in Lpez Burgos and Celiberti and cited with approval the individual opinions of
Committee member Christian Tomuschat (as discussed above).78
v.
The Preparatory Work
The Vienna Convention on the Law of Treaties provides in Art. 32 that recourse may be had to
the preparatory work of the treaty in order to confirm the meaning resulting from the
application of Art. 31 of the Convention or to determine the meaning when the interpretation
under Art. 31 leaves the meaning ambiguous or obscure.
Thus, it is humbly submitted that the travaux prparatoires cited by the ICJ in the Wall case79
actually establishes that the reference to within its territory was included in Article 2(1) of the
Covenant in part to make clear that states were not obligated to ensure the rights therein in
territories under military occupation. Thus it becomes clear that a states obligations under the
Convention only apply within its territory and subject to its jurisdiction, a phrase which should
not be read disjunctively.80
Further, during the drafting of the ICCPR, it was the United States delegation that added the
words territory and subject to its before jurisdiction in Article 2(1) by way of an amendment
to the draft text of Article 2 of the ICCPR (1950) then under consideration by the Commission
on Human Rights. 81 Other delegationsprimarily aimed at confirming that States retain
76
Al-Skeini v. Sec. of State for Defence [2007] UKHL 26, [2007] 3 All E.R. 865
Id. 131
78
Id. 74
79
80
M.J. Dennis, Application of human rights treaties extraterritorially in times of armed conflict
and military occupation, 99 AM. J. INTL L. 119, 122-127 (2005); M. Nowak, The effectiveness
of the International Covenant on Civil and Political Rights: stocktaking after the first eleven
sessions of the UN Human Rights Committee, 1 HUMAN RIGHTS L.J. 136, 156 (1980).
81
UN Doc. E/CN.4/365, at 14 (1950); NOWAK, pp. 3034.
77
13
obligations to guarantee the Covenants rights to their own citizens abroad unsuccessfully
opposed the proposed amendment.82
vi.
Subsequent State Practice
There is no indication of any subsequent practice whereby state parties have interpreted the
ICCPR as applicable to their military operations, whether unilateral, alliance-based or United
Nations mandated, outside their territory.83
Additionally, some states (especially U.S. 84 and Netherlands85) have specifically informed the
Human Rights Committee during its review of state party reports that the provisions of the
ICCPR do not have an extraterritorial application. Thus the territorial limitation in Article 2, far
from being inconsistent with the object and purpose of the treaty, reflects the clear and expressed
intention of those countries that negotiated the instrument.
C. Arguendo, IHL applies as lex specialis in cases of armed conflict and Occupation
It is humbly submitted that the best reading of the interrelationship between the IHR instruments
and IHL, is the more traditional view that IHL should be applied as the lex specialis, if it is
assumed that human rights instruments apply extraterritorially during periods of armed conflict
and military occupation.
At several times states (inter-alia U.S.86 and U.K. 87) have maintained both that the obligations
assumed under a particular instrument do not apply outside their territory and that in any event
82
UN Doc. E/CN.4/SR.194, at 11 (1950). Michael J. Dennis, Application of Human Rights

Treaties Extraterritorially in Times of Armed Conflict and Military Occupation, 99 AMERICAN
JOURNAL OF INTERNATIONAL LAW 119, 12324 (2005)
83
Michal J. Dennis Non- Application of Civil and Political Rights Treaties extraterritorially
during times of international armed conflicts p. 477
84
Statement of Conrad Harper, Legal Adviser, Department of State, 20, UN Doc.
CCPR/C/SR.1405 (1995). : U.S. DEPT OF STATE, UNITED STATES SECOND AND
THIRD PERIODIC REPORT CONCERNING THE INTERNATIONAL COVENANT ON
CIVIL AND
POLITICAL RIGHTS (2005)
85
Concluding Observations of the Human Rights Committee: Netherlands, 27, UN Doc.
CCPR/CO/72/NET (Aug. 27, 2001).
86
Statement of John B. Bellinger, III, Legal Adviser, U.S. Department of State, May 5, 2005,
available at http://www.usmission.ch/Press2006/0505BellingerOpenCAT.html
87
Conclusions and Recommendations of the Committee Against Torture: United Kingdom, 4
(b),UN Doc. CAT/C/CR/33/3 (Dec. 10, 2004).
14
the lex specialis of humanitarian law suspends the extraterritorial application of the instrument
during periods of armed conflict and military occupation.
During the drafting of the CAT, the United States had similarly expressed its understanding that
that the convention was never intended to apply to armed conflicts and thus supersede the 1949
Geneva Conventions on humanitarian law in armed conflicts and the 1977 Protocols additional
thereto.88 The United States emphasized that having the Convention apply to armed conflicts
would result in an overlap of the different treaties which would undermine the objective of
eradicating torture.89 No delegation contradicted the U.S. statement and several supported the
position including Switzerland90, Norway91, and Israel.92
In its earlier advisory opinion in the Nuclear Weapons case, the Court stated that the most
directly relevant applicable lawis that relating to the use of force enshrined in the United
Nations Charter and the law applicable in armed conflict which regulates the conduct of
hostilities and further noted that whether a particular loss of life, through the use of a certain
weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the
Covenant [ICCPR], can only be decided by reference to the law applicable in armed conflict and
not deduced from the terms of the Covenant itself.93
The ICJs subsequent opinions in the Wall94 case and DRC v. Uganda95 also appear to recognize
that the lex specialis of international humanitarian law may exclude the general application of
certain provisions of human rights instruments during periods of armed conflict and military
occupation.
In the ongoing International Law Commission (ILC) study on the effects of armed conflicts on
treaties, a number of states in the Sixth Committee of the General Assembly, as well as
individual members of the ILC, have supported inclusion of a provision based upon the principle
stated by the ICJ in the Nuclear Weapons case.
88
CHR, Report of the Working Group on a Draft Convention Against Torture, 5, UN Doc.
E/CN.4/1984/72 (Mar. 9, 1984).
89
Id.
90
UN Doc. A/39/499, at 14 (Oct. 2, 1984)
91
Id.
92
J. HERMAN BERGERS & HAN DANELIUS, THE UNITED NATIONS CONVENTION
AGAINST TORTURE (1988) p.106
93
Nuclear Weapons case, 25, 34.
94
Construction of the Wall case, 106
95
DRC v. Uganda, 216
15
PRAYER
WHEREFORE, IN THE LIGHT OF THE ACTS STATED, QUESTIONS PRESENTED, ARGUMENTS

ADVANCED AND AUTHORITIES CITED, THE STATE OF LEMANIA MOST RESPECTFULLY REQUESTS
THIS HONBLE COURT TO ADJUDGE AND DECLARE THAT:
(a) Lemania use of force was in the exercise of its right to self-defense, in accordance with the
U.N Charter.
(b) Lemania did not violate its obligations under the Internal Humanitarian Law. Thus, Orangia
cannot ask for compensation.
(c) Lemania cannot be held accountable for IHR obligations beyond its territory and jurisdiction.
AND TO PASS ANY SUCH ORDER, DISCRETION
& JUDGEMENT
AS THIS
HONBLE
COURT MAY
DEEM FIT IN THE INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE.
All of which is respectfully submitted

Sd/- ______________________
AGENTS FOR THE STATE OF
LEMANIA
Place: The Hague, The Netherlands
xv

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TEAM CODE: TH

THE INTERNATIONAL COURT OF JUSTICE

THE CASE CONCERNING ARMED ACTIVITIES AND THE TREATMENT OF

DEMOCRATIC REPUBLIC OF ORANGIA

MEMORIAL FOR RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF LEMANIA

INDEX OF AUTHORITIES- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -iv-ix

ii. The attack by MUF can be attributed to Orangia

WRITTEN SUBMISSION ON BEHALF OF LEMANIA

The Ordinary Meaning of the Instruments 9-13

The Preparatory Work 13-14

Subsequent State Practice 14-15

WRITTEN SUBMISSION ON BEHALF OF LEMANIA

Case Concerning the Military and Paramilitary Activities in and against

Corfu Channel (U.K v. Alb.), 1949 I.C.J 4

Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996]

See Case Concerning Armed Activities On The Territory Of Congo (Congo V.

INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

Prosecutor v Tadi (Decision on the Defence Motion for Interlocutory Appeal)

Prosecutor v Bokoski (ICTY, IT-04-82-T, 10 July 2008)

Bankovi v. Belgium, 2001XII Eur. Ct. H.R. 333 (GC)

Annual Report of the Inter-American Commission on Human Rights: 1997,

CHR, Report of the Working Group on a Draft Convention Against Torture,

Declaration on Principles of International Law concerning Friendly Relations

WRITTEN SUBMISSION ON BEHALF OF LEMANIA

Hague Convention IV concerning the Laws and Customs of War on

International Covent on Civil and Political Rights, 16 Dec. 1966, GA Res

International Law Commissions Draft Articles on State Responsibility of

SC Res; 1368 (2001). UN SCOR. 2001, UN Doc. S/INF/57, 71.

Protocol Additional to the Geneva Conventions of 12 August 1949 and relating

UN Doc. CCPR/C/79/Add.93 (1998)

UN Doc. CCPR/CO/78/ISR (Aug. 21, 2003)

UN Doc. E/CN.4/365, at 14 (1950).

ALEXANDER ORAKHELASHVILI, PEREMPTORY NORMS IN

PUBLIC INTERNATIONAL LAW, SEVENTH EDITION, USE OF FORCE

COMMENTARY, NEW YORK: CAMBRIDGE UNIVERSITY PRESS (2nded,

C. GREENWOOD, CUSTOMARY INTERNATIONAL LAW AND THE

WRITTEN SUBMISSION ON BEHALF OF LEMANIA

LONDON: SWEET & MAXWELL. (1993)

CARLOS FERNNDEZ DE CASADEVANTE ROMANI, SOVEREIGNTY AND

INTERNATIONAL LAW: CASES AND MATERIALS, OXFORD

GARDAM, NECESSITY, PROPORTIONALITY AND THE USE OF FORCE

COMPARATIVE PUBLIC LAW AND INTERNATIONAL LAW,

I.A SHEARER, STARKES INTERNATIONAL LAW, OXFORD

IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, (7th

MANFRED NOWAK, U.N. COVENANT ON CIVIL AND POLITICAL

MICHAEL BOTHE, KARL JOSEF PARTSCH, & WALDEMAR A. SOLF,

WRITTEN SUBMISSION ON BEHALF OF LEMANIA

NEW RULES FOR VICTIMS OF ARMED CONFLICTS (1982)

TERRORISM UNDER THE JUS AD BELLUM, in INTERNATIONAL LAW

EXCEPTIONAL CIRCUMSTANCES, CAMBRIDGE UNIVERSITY PRESS

INTERNATIONAL LAW OF WAR: TRANSNATIONAL COERCION AND

NIGEL D. WHITE AND CHRISTIAN HENDERSON, RESEARCH

ROBERTA ARNOLD AND NOELLE QUENIVER, INTERNATIONAL

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 88

SHIV R S BEDI, THE DEVELOPMENT OF HUMAN RIGHTS LAW BY

STRUCHLER, THE THREAT OF FORCE IN INTERNATIONAL LAW

ON THE ADDITIONAL PROTOCOLS OF JUNE 1977 TO THE GENEVA

WRITTEN SUBMISSION ON BEHALF OF LEMANIA

YORAM DINESTEIN, WAR, AGGRESSION AND SELF DEFENSE,NEW

D Murphy, Terrorism and the concept of Armed Attack in article 51 of the

Alexandrov, Self-Defence Against the Use of Force in International Law, The

S. Schwebel, Aggression, Intervention and Self-Defence in Modern