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SUMMARY OF ARGUMENTS

I.

The placement of troops by Kylosia, in the island of Etermia, had violated Article
2(4) of the World Nation.
The Agent on behalf of petitioner humbly submits that the placement of troops by
Kylosia, in the island of Etermia, had violated Article 2(4) of the World Nation. Article
2(4) states that 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.
The placement of troops by Kylosia in the island of Etermia is a clear threat and use of
force. Hence, violation of Article 2(4). Article 2(4) of the World Nation is a complete
prohibition on the use of force irrespective of the motive behind it. Further, It is the
enshrined principle of the preamble that that armed force shall not be used, save in the
common interest. Thus, the placement of troops is violating the sole purpose of the
World Nation which has been referred to as the heart of the W.N. charter.
The secessionist movement by Etermia is unlawful.
The Agent on behalf of petitioner humbly submits that the people of Etermia do not have
the right to secede to Kylosia since the people of Etermia do come under the category of
"people" who have been granted right to self determination by Article 1(2) of the W.N.
Charter. "People" refers to those who are "subject to alien subjugation" and are a "part of
colonial empire", which is not the case in Etermia. Right to secede can only be exercised
in limited circumstances such as in extreme circumstances and in cases of continuing
violence. No such conditions prevail in the territory of Etermia. It will also lead to
disruption of territorial integrity of Vadertham which is against the purpose and principles
of W.N. Charter. Thus, the people of Etermia do not have the right to secede from
Vadertham and the secessionist movement is thereby unlawful.

WRITTEN PLEADINGS

I.

THE PLACEMENT OF TROOPS BY KYLOSIA, IN THE ISLAND OF


ETERMIA, HAD VIOLATED ARTICLE 2(4) OF THE WORLD NATION.

The placement of troops by Kylosia, in the island of Etermia, had violated Artcile 2(4) of the
W.N. Article 2(4) of the W.N.This rule was "enshrined in the United Nations Charter in 1945 for
a good reason: to prevent states from using force as they felt so inclined". 1 Article 2(4) of the
World Nation is a complete prohibition on the use of force irrespective of the motive behind it 2.
This is supported by the travaux, as the text of Article 2(4) at the Dumbarton Oakes Conference
read as a complete prohibition on the use of force 3. The term against territorial integrity or
political independence in Article 2(4) was inserted to provide a safeguard to states 4.Further, the
term against territorial integrity or political independence was defined in UNGA5 that that no
force is permissible irrespective of its purpose this has been endorsed by UNGA 6 and the ICJ7.
Territorial integrity, especially where coupled with political independence is synonyms with
territorial inviolability. Thus a state would be acting in breach of its obligations under the Charter
if it were to invade or commit an act of force within the territory of another state. 8 The 1970
1 International Commission of Jurists, 18 March 2003, "Iraq - ICJ Deplores Moves Toward a War of Aggression on
Iraq"

2Corfu Channel, 1949 ICJ 4, 109;Arechaga, International Law in the Past Third of a Century,159 RDC 1,9(1978)
[Arechaga].

3brownlie,international law and the use of force by states 266(1963)[brownlie ii]


4Brownlie, General Course on Public International Law, 255 RDC 9,199 (1995); Arechaga, 91.
52131 (XX)
6Gen. Ass. Res. 2625(XXXV 1970), reprinted in 9 INTL LEGAL MATLS 1292 (1970).
7 Corfu channel case
8H. Lauterpacht, Oppenheims International Law, Vol. II (7th edn, London: Longmans, 1952),p.154.

declaration further recalls the duty of states to refrain from military or any other form of
coercion directed at the political independence or territorial integrity of another state. It
specifies that such a threat or use of force constitutes a violation of international law and the
charter of W.N. and shall never be employed as a means of settling international issues. Which
was reaffirmed by the 1987 declaration 9. Moreover, in UK Albania case10 the ICJ alluding the
W.N. charter held that even demonstration of force could violate Article 2(4). In Nicargua
case11 ICJ held that Military manoeuvres could indeed amount to violation of article 2(4) of the
W.N. charter. Even the milittary force is illegal even if it is not aimed at disruption the territorial
integirity or political independence of other nations. Hence, by the placement of troops by
Kylosia has violated Article 2(4) as it is a threat and use of force against the territorial intergrity
and political independence of Vadertham. The eminent importance of article 2(4) is also
recognised in the jurispudence of ICJ which in the Congo-Uganda case12 referred to the provision
as a cornerstone of the united nation charter. Thus, with the introduction of Article 2(4), a rule
of International Law was introduced for the first time making it illegal for States to use or
threaten to use force, for any reasons.This principle has not only been recognized as a rule of
international law, but has now achieved the status of a jus cogens norm .This was not only
expressed by the International Law Commission as far back as in 1966 13 but has also been
recognized as such by the International Court of Justice in the Nicaragua case14. Also by the

9Gen. Ass. Reso. 42/22 (1987), reprinted in 27 INTL LEGAL MATLS 1672 (1988).
10Corfu channel
11nicaragua
12 Demorcratic republic of the congo v. Uganda (merits) [2005] ICJ Rep 168, para 148.
13Yearbook of International Law Commission, Edition 1966, Volume 2, at Page 247.
14International Court of Justice, Nicaragua vs. United States, I.C.J. Reports 1986, Page 14, at Paragraph 190, Page
871.

European Journal of International Law15. Thus, by the placement of its troops, Kylosia has
violated the sole purpose of W.N. charter. The terms used in the Preamble to unite our strength
to maintain international peace and security and to ensure, by the acceptance of principles and
the institution of methods, that armed force shall not be used, save in the common interest
shows the purpose of W.N. violation of which is destroying the entire W.N. charter. Therefore, by
the placement of troops, Kylosia has acted against the preamble of the W.N. charter.
I.(1)- KYLOSIA HAS DISTURBED THE PEACE AND SECURITY. Kylosia has disturbed
the peace and security of Vadertham by placing the troops in the island of Etermia. Article 1(1)
moreover Article 1(1),Article 2 and Article 3 indicate that the term peace is more than the
absence of war. By the placement of troops, Kylosia has violated the principle purpose of the
aforesaid Articles. Article 1(1) refers to the maintainence of international peace and security as
the overreaching purpose of the united nation. This means that international peace and security
may be endangered not only by acts of agression but also by any other threat to peace 16. It
may be worthwhile to mention that Article 2(4) is preceded by a provision in Article 2(3) which
mandates all States to settle their mutual disputes in a peaceful manner in order to secure
international peace and security and justice. Thus, Article 2(4) is a logical complement of Article
2(3) and vice versa. The principle imposes obligation upon the states to make bonafide 17 efforts
to resolve their disputes by peaceful means. Moreover, by showing the threat, Kylosia has acted
against Article 2(3) and hence, liable for the disturbance of peace and security in the state of
Vadertham.By the placement of troops, Kylosia has shown Aggression against Vadertham which
is against the W.N. res. 3314 (XXIX). Article 1 of Res. 3314 18 has defined Aggression which
states that Aggression is the use of armed force by a state against the sovereignty, territorial
integrity or political independence of another state , or in any other manner inconsistent with the
15European Journal of International Law, Vol. 18, Issue 5, pp. 853-871, 2007
16 Concept of agression Y dinstein vol 1(OUP 2012).
17north sea continental shelf case, ICJ Rep 1969,pp.3,47;the german external debts case,47 ILR,pp.418,454.
18(XXIX) (1974)

charter of the united nations, as set out in this definition. Clearly, the placement of troops by
Kylosia qualifies for the act of Aggression adhering to the aforesaid definition. Moreover Article
3 lays down the acts which qualify as Aggression Article 3(a)- The invasion or attack by the armed forces of a state of the territory of
another state, or any military occupation, however temporary, resulting from such
invasion or attack, or an annexation by the use of force of the territory of another state or
part thereof
Article 3(g)- The sending by or on behalf of a state of armed bands, groups, irregulars
or mercenaries, which carry out acts of armed force against another state of such gravity
as to amount to the acts listed above, or its substantial involvement therein.
The ICJ has decided that the provision in article 3, paragraph (g), of the Definition reflects
customary international law19 which was affirmed by ICJ in Armed Activites case.20 According to
Article 3(a) and Article 3(g) the sending of troops by Kylosia in the territory of Vadertham
amounts to Agression. Therefore, Kylosia is to be held responsible for disturbing the peace and
security of Vadertham.
I.(2)- ARTICLE 51 IS NOT APPLICABLE. HENCE, SLEF DEFENCE CANNOT BE USED.

THAT

LAWFUL

SELF-DEFENCE

REQUIRES

ARMED

ATTACK,

NECESSITY AND PROPOTIONALITY.


Article 51 of the W.N. charter is not applicable in the concerned case and therefore self-defence
cannot be used by Kylosia in justification of their acts. Article 51 of the W.N. charter states
that :Nothing in the present Charter shall impair the inherent right of collective or individual
self-defence if an armed attack occurs against a member of the United Nations,until the Security
Council has taken the measures necessary to maintain international peace and security.
Measures taken by members in exercise of this right of self-defence shall be immediately
19Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,
Judgment, I.C.J. Reports 1986, p. 14, para. 3.

20Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J.
Reports 2005, p. 168.

reported to the Security Council and shall not in any way affect the authority and responsibility
of the Security Council under the present Charter to take at any time such action as it deems
necessary in order to maintain or restore international peace and security.The Charter provides
in article 51 for a regulation which allows individual states the threat or use of force, in principle,
only under the conditions stipulated therein.21 Since article 51 is an exception to art 2(4), the
general rule of interpretation is that exceptions to a principle should be interpreted restrictively,
so as not to undermine the principle. Until an armed attack occurs , states are expected to
renounce forcible self-defence as the Article itself uses the term Armed attack".The first aspect
of necessity is the requirement for ascertaining whether there is in fact an Armed Attack against
it.22 'Armed attack' exists only when the force is used on a large scale, is of a sufficient gravity ,
and has a substantial effect.23 Even though the GA's definition of Aggression does not, as such,
claim to define the notion of 'armed attack', its Art. 3 does in fact give useful indications on how
to interpret this term.24The provision lists examples of 'acts of aggression', which can, subject to
certain qualifications, be taken to characterize 'armed attacks' within the meaning of Art.51 as
well. The ICJ has, for example, referred to the case of Art 3(g) of the Definition of Aggression as
being one possible form of 'armed attack'.25 And in the concerned case there has been no armed
attack done by Vadertham. Since, the utmost condition of Self-Defence is not present in the
concerned case and therefore, Kylosia is not entitled to use Self-Defence. The right of selfdefence under Article 51 is subject conditions: (i). There should be an armed attack. (ii). the right
exists until Security Council has taken any action. (iii). It should be reported to the Security
21 Tams, 'The Use of Force Against Territories' (n 8) 382-83 and 392.
22Oil platform
23 nicaragua (n 17) para 191, oil platforms (n 11) paras 51, 64 and 72; Institut de Droit International 'Tenth
Commission, Present Problems of the use of Armed Force in International Law' (27 October 2007) 10 A Res EN,
para 5.

24 Gray (n 8) 130 and 173; Dienstein (n 3) 217.


25 nicaragua (n 17) para 195.

Council. (iv). It is subject to the review by Security Council. (v). This right shall not affect the
responsibility of the Security Council for the maintenance of peace and security.26 Thus, the
beginning of an armed attack is condition precedent for resort to force in selfdefence.27Moreover, Article 51 isnt open to wide interpretation as the principle laid down in the
DRC v. Uganda case28 that Article 51 of the charter may justify the use of force in self defence
only within the strict confines there laid down. it does not allow the use of force by a state to
protect security interests beyond those parameters, other means are available to a concerned
state, including in particular, the recourse to security council. And in Nicaragua case29 the
World Court refused a broad treatment of treatment of the term Armed attack. The W.C.
further held that the right to self defence ,whether individual or collective, is only available in
response to an armed attack. Which was also confirmed by the W.C. in Arm ativities case 30.
The interpretation of Art. 51 as being an exclusive regulation of the right to self-defence, has
been confirmed by State practice31 and by the ICJ. In its Nicaragua judgement the ICJ proceeded
from the assumption that the existence of an armed attack is a 'conditio sine qua non'32 for the
exercise of the right to individual and collective self-defence. The ICJ has reaffirmed that the
right to self-defence cannot be asserted against acts which do not reach the threshold of an armed
attack. It is important to note that the alleged victim state has the burden of proving the existence

26 Julius Stone, Legal Control of International Conflicts (London, Stevens and sons, 1954), p.244.
27 "The Use of Force in Self Defence", BYBIL, Vol.37 (1966) p.266.
28 DRC v Uganda
29 nicaragua
30 Arm activites
31 Gray (n 8) 118.
32 Nicaragua (n 17) para 237.

of an armed attack if it wishes to justify any use of force in self-defence. 33In all the four
landmark cases the court affirms the requirement of Armed Attack as prerequisite for a lawful
self defence Nicaragua34, Construction of Wall Advisory Opinion35, Oil Platform (Iran vs US)36,
Congo v Uganda37. It is therefore a settled law that Armed Attack is the first and the most
important element of the right of self defence.Hence, to use Self-Defence the presence of Armed
Attack is a necessary condition which cannot be interpretated outside the strict confines laid
down. Since, there was no Armed Attack by Vadertham, Kylosia is not entitled to use Article 51
of the W.N.
NECESSITY AND PROPORTIONALITY
Authority to invoke Self-Defence is limited in two ways: first, the State acting in self-defence
must observe the principle of necessity "proportionality" 38. As reaffirmed again and again by
the W.C. in the leading cases where self defence was an issue for example in Nicaragua 39 it was
held that whether the response to the attack is lawful depends on observance of the criteria of
the necessity and the proportionality of the measures taken in self defence. The placement of
troops by Kylosia was not necessary and proportional in the concerned case as Vadertham didnt
33 Oil Platdforms (n 11) para 57: 'the burden of proof of the facts showing the existence of such an attack rests on
the United States.'

34 nicara
35Construstion of wall advisory opinion ICJ reports (2004)136 para 139.
36Oil platform
37 Congo v ugan
38 Military and Paramilitary Activities in and against Nicaragua ( Nicaragua v. United States of America )[1986]
ICJ Rep 14, para 194; Oil platforms (n 11) paras 74-76 (necessity), 77-78 (proportionality).

39Nicaragua

use any Armed Force against Kylosia. Hence, Kylosias contention of Self-defence is invalid.The
principle of necessity and proportionality are of exceptional legal and practical importance as
limits on the right of self-defence.40 The ICJ has emphasised and applied them on several
occasions.41 Thus, any recourse to the right of self-defence laid down in Article 51 is likewise
subject to these principles of necessity and proportionality.42 Their violation constitutes an
'additional ground of wrongfulness'.43 The ICJ has therefore insisted that ' the requirement of
international law that measures taken avowedly in self-defence must have been necessary for that
purpose is strict and objective, leaving no room for any "measure of discretion"'. 44In the Caroline
case45, Mr. Webster declared that the necessity of self-defence should be "instant, overwhelming
and leaving no choice of means and no moment for deliberation."46 The principle was affirmed
by Nuremburg Tribunal47 in 1946 which observed that "it must be remembered that preventive
action in foreign territory is justified only in case of 'an instant and overwhelming necessity of
self-defence, leaving no choice of means and no moment for deliberation." 48 In the concerned
case Kylosia had no instant and overwhelming necessity of self-defence hence, self-defence
40 TM Frank, 'On proportionality of Countermeasures in International Law' (2008) 102 AJIL 715, 719-22.
41 Nicaragua (n 17) para 194, 237; Oil Platforms (n 11) paras 43, 51, 73-77; Congo v Uganda (n 11) para 147;
Legality of the threat or use of nuclear weapons (n 152) para 41.

42 Schindler (n 26) 17, Schachter, 'The Right of States to use armed Force' (n 107) 1637.
43 nicaragua(n 17) para 237.
44 oil platforms (n 11) para 73.
45 Caroline case
46 Webster, Daniel. 'Letter to Henry Stephen Fox', in K.E Shewmaker (ed.). The Papers of Daniel Webster:
Diplomatic Papers, vol. 1. 1841-1843 (1983) 62. Dartmouth College Press.

47 Numberg tribunal

cannot be invoked. Further, the criterion of necessity was considered fundamental to the law of
self-defence49. It is stated that necessity is a threshold and the criterion of imminence can be
seen to be an aspect of it, inasmuch as it requires that there be no time to pursue non-forcible
measures with a reasonable chance of averting or stopping the attack 50. In the concerned case
there seems to apply to necessity as there was no imminent threat to Kylosia from Vadertham
and therefore the placement of troops was unnecessary on part of Kylosia.In Nicaragua 51 the
court stated that specific rule whereby self-defence would warrant only measures which are
proportional to the armed attack and necessary to respond it, a rule well established in
customary international law and this decision was affirmed in the Advisory Opinion52 W.C.
gave to the General Assembly on the legality of threat or use of Nuclear weapons.The council
therefore submits that necessity and proportionality are limits on Self-Defence as affirmed by
DRC v Uganda53 and the oil platform case54. In this very case the court held that U.S attack
against Iranian were not justified as lawful exercise of self defence because-US failed to
discharge the burden of proof of the existence of Armed Attack by Iran;The requirement of
necessity was not satisfied ;USs attack was not proportionate.The criteria to qualify for selfdefence has not been fulfilled in the concerned case, as there was no necessity involved, troops
48 The Caroline's Case, Moore's Digest of International Law, Vol.11, p.412.
49Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996 ICJ Rep. 226)
50The Chatham house principles on international law on the use of force in self-defence,55 ICLQ, 2006, pp. 963,
967.

51nicara
52the advisory opinion on legality of threats or use of nuclear weapons ( ICJ reports (1996)226 para 141
53(ICJ reports (2005 )168 para 147)
54(ICJ Reports (2003) 161 para 43)

sent by Kylosia were not at all proportional as there was no use of Armed Attack by Vadertham.
Therefore Kylosias contention of Self-Defence is erroneous.
FAILURE TO REPORT TO SECURITY COUNCIL.
Under Article 51 states are obliged to inform the Security Council before taking self defence,
measures taken in self defence shall be immediately reported to the Security Council because of
the pre-eminent position of the SC within the Charter system of collective Security, the affected
state can in that situation merely call upon the Sc to qualify the violations of Article 2(4) as
constituting a breach of peace and to decide on measures under Chapter VII. In Nicaragua case
the W.C. observed that a state should not invoke the right of self defence if it failed to comply
with the requirement of reporting to the Security Council". In Nicaragua55. The court held that
the absence of a report may be one of the factors indicating whether the state in question was
itself convinced that it was acting in self defenceTherefore it is clear that the duty to report to
the SC can acquire an important evidentiary significance. The court in DRC V UGANDA56
noted Ugandans failure to report the use of force it claimed as self defence. The court held
that- since the precondition for the exercise of self-defence does not exist in the circumstances
of the present case, the court has no need to enquire whether such an entitlement to self-defence
was in fact exercised in circumstances of necessity and in a manner that was
proportionate.Kylosia did not report to the Security Council events that it had regarded as
requiring it to act in self defence. hence, failure to report to the Security Council means failure to
fulfil the conditions to invoke Article 51 of the W.N. charter. There was as such no act done by
Vadertham which qualified as an Armed attack and the placement of troops by Kylosia were not
necessary and proportional and moreover the failure to report to security council confirms it that
Kylosia has no right to invoke Article 51.
II.

THE STATIONING OF TROOPS BY KYLOSIA WAS NOT INVITED


INTERVENTION.

55ICJ Reports (1986) 14,para 200


56 DRC

Stationing of troops by Kylosia was not invited intervention. it is necessary to characterize


invitations to intervene by the relative standing of government and rebel forces at the time an
invitation to intervene is issued.Since President Dragos Government at the time of invitation
was not in actual control of the country of Vadertham , the invitation is not recognized.

PERMISSION WAS NOT TAKEN FROM SECURITY COUNCIL


From a legal standpoint, the simplest cases to analyze are those in which a recognized,
incumbent government controls the political apparatus and most of the territory of the state. In
such cases, the government ordinarily retains full authority to request external assistance, or even
military intervention, to assist it in maintaining control of the state 57. The government may seek
such assistance from the United Nations, from regional organizations ,in our concerned case the
Ex President instead of seeking assistance from the UN sought to Kylosia which is already
known to exploit other countries58. In Nicaragua v. United States59, the International Court of
Justice concluded that intervention by other State violated the non-intervention principle. For the
same reason, the U.S. invasion of Panama was widely condemned.60 When President Samuel
Doe's government in Liberia61 accepted the invasion led by Nigeria and of ECOWAS (Economic
Community of West African States ) ,it was criticized by the United Nations as they did not have
Security Council authorization when it sent troops into Liberia. as an illegal foreign invasion. 62 .
Although it is the consent of the state itself that is ultimately at issue, states are abstract entities
57 . See IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 327 (1963);
Schachter, supra note 16, at 1641-42; Louis Henkin, Use of Force: Law and U.S. Policy, in RIGHT V. MIGHr
INTERNATIONAL LAW AND THE USE OF FORE 37, 63 (2d ed. 1991

58Fact Sheet, amity lucknow, para 8-9.


59 nicaragua
60 Nicaragua, 1986 I.C.J. at 126
61 David Wippman, Enforcing the Peace: ECOWAS and the Liberian Civil War, in ENFORCING RESTRAINT.
COLLECIIVE INTERVENTION IN INTERNAL CoNFLICTs 157 (L. Damrosch ed., 1991).

and cannot by themselves give or withhold consent to intervention only Security Council has that
power.63Therefore keeping the above cases in mind the invitation by the then President should
not be taken into view and Kylosian troops should be asked to move out of Etermia. Same
happened in the case of Grenada vs United States in which the invasion of US on Grenada by the
invitation of Governor General of Grenada was condemned.64

PRESIDENT DRAGOS INVITATION WAS NOT VALID AS HE HAD LOST THE


POWER TO REPRESENT VADERTHAM.
External military intervention to reinstate the ejected incumbent would seem to constitute
impermissible interference in the state's internal affairs. In general, international law presumes
that when a government exercises effective control over the territory and people of the state, the
government (and more particularly, the authorized officials of that government) possesses the
exclusive authority to express the will of the state in its international affairs. 65 This presumption
derives from a mix of practical and theoretical considerations. As a theoretical matter, effective
control serves as a rough proxy for the existence of some degree of congruity between the
government and the larger political community of the state, which supports the government's
claim to represent the state as a whole.66Critically, it is the state that gives the consent and thus
the invitation must come from an entity or official empowered to speak for the state. In the
given case . Moreover, reliance on effective control as the test for a government's capacity to
represent the state offers a reasonably objective and externally verifiable basis for determining
62 id. at 168-69.
63 Quincy Wright, United States Intervention in the Lebanon, 53 AM. J. INT'L L. 112, 120 (1959).
64 G.A. Res. 38/7, U.N. GAOR, 38th Sess., Supp. No. 47, U.N. Doc. A/38/47 (1983).
65 Tom J. Farer, Panama: Beyond the Charter Paradigm, 84 AM. J. INT'L L. 503, 510 (1990) RESTATEMENT
(THIRD) OF FOREIGN RELATIONS 210 cmt. d (1985).

66 Cf Fernando Tes6n, Collective Humanitarian Intervention, 17 MICH. J. INT'L L. 323,332 (1996)

governmental authority, thus "inhibiting intervention" by outside states. 67 In some cases,


however, the presumption that the government speaks for the state may break down. In
particular, when the government's control over the state is effectively challenged by an internal,
armed opposition, the presumption that the government represents the state may become
untenable.68President Drago did not have an effective control and internal situations were against
him , so he had lost the power to represent Vadertham Indeed, it is precisely the authority of a
particular government to speak for the state as a whole that is called into question by an internal
conflict. Arguably, the U.N. Charter prohibits aid to either government or rebel, since aid to one
side might disrupt the internal play of forces, and thereby violate the political independence of
the state and the right of its people to determine their own political future. 69 During WW II
international law permitted military aid to an incumbent government."Conversely, most states
viewed aid to rebel forces as a violation of the non-intervention principle.70 A government may
not authorize external military intervention against a national liberation movement opposing
racist or colonial domination or a movement for democratic reform. 71To the contrary, the
liberation movement or democratic movement alone possessed the right to seek external
assistance, although there is considerable controversy over whether such assistance could entail
aid amounting to a use of force.72 Nolte recognizes that such a rule, allowing an essentially
defunct government to invite external military intervention to prevent an adversary from taking
67 Tom J. Farer, Panama: Beyond the Charter Paradigm, 84 AM. J. INT'L L.511 (1990)RESTATEMENT (THIRD)
OF FOREIGN RELATIONS 210 cmt. d (1985).

68 David Wippman, Change and Continuity in Legal Justifications for Military Intervention in Internal Conflicts,
27 COLUM. HUM. RTs. L. REv. 435 (1996)

69 Oscar Schachter, International Law: The Right of States to Use Armed Force, 82 MicH. L. REv. 1620, 1641
(1984); John Norton Moore, Legal Standards for Intervention in Internal Conflicts, 13 GA. J. INT'L & Comp. L.
191, 196 (1983); see also U.N. CHARTER, art. 2(4).

70Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14,126 (June 27).
71 HEATHER A. WILSON, INTERNATIONAL LAW AND THE USE OF FORCE BY NATIONAL
LIBERATION MOVEMENTS 91-136 (1988).

power, might be abused by neighboring states with hegemonic aspirations, and might lead to an
internationalization of a domestic conflict.73In the Nicaragua case, the ICJ described the
consequences of this agency principle in situations of internal conflict: a government can issue
an invitation but:It is difficult to see what would remain of the principle of non-intervention in
international law if intervention, which is already allowable at the request of the government of
a State, were also to be allowed at the request of the opposition. This would permit any State to
intervene at any moment in the interna1 affairs of another State, whether at the request of the
government or at the request of its opposition. Such a situation does not in the Courts view
correspond to the present state of international law. 74 It is further stated that the new ruling
power had no obligations towards nor by the interveners , their presence should be rectified by
them to make it legal. At some point even the continued presence of external forces in normal
conditions require will ordinarily require either renewed consent emanating from the new
constellation of warring factions or Security Council authorization." 75 There are many cases
where intervention by invitation and consent is not held right and unpersuasive. For example,
when the Soviet Union invoked the principle of state consent to justify invasions of Hungary 76 in
1956, Czechoslovakia77 in 1968, and Afghanistan78 in 1979, it met with widespread criticism on
72 HEATHER A. WILSON, INTERNATIONAL LAW AND THE USE OF FORCE BY NATIONAL
LIBERATION MOVEMENTS 91-136 (1988).

73 Christopher J. Borgen, The Theory and Practice of Regional Organization Intervention in Civil Wars, 26 N.Y.U. J.
INT'L L. & Po. 797,817 (1994).

74 [para. 246] (Nicaragua Case)


75 STEVEN R. RATNER, THE NEw U.N. PEACEKEEPING: BUILDING PEACE IN LANDS OF CONFLICr
AFTER THE COLD WAR 38 (1995).

76 Russia invasion in hungary


77 Russian invasion in chez
78 Russian invasion in afgan

the ground that the invitations at issue were either manufactured or coerced. 79 Similarly, when
the United States sent troops to the Dominican Republic in 1965 and to Grenada in 1983, it was
condemned by many states which questioned the legal authority of the officials who issued the
invitations to intervene80Hence, the Agent submits that since President Dragos Government did
not had any effective control and the constitutional machinery of the state was broken 81 , the
invitation is not valid. Arguendo ,if we accept the initial invitation to be valid , the continuation
of the troops in the Etermia region after the coming of new Government and without its consent
is against the Principles of the World Nations Law. Intervention by consent must remain within
the bounds of that consent. Accordingly, if a generally effective incumbent government revokes
its prior consent to an external military intervention, the interveners must withdraw.82" Failure to
do so amounts to an intervention against the will of the state. For the same reason, the U.S.
invasion of Panama was widely condemned even though the invasion ousted a dictatorial regime
and replaced it with a democratically elected one.83 In 1967, Egypt withdrew its consent to the
presence of the United Nations Emergency Force on Egyptian territory, thus paving the way for

79 U.N. SCOR, 14th Sess., 746th mtg. at 4, U.N. Doe. S/PV.746 (1956) (Hung.); U.N. SCOR, 23d Sess., 1441st mtg. at 1, U.N.
Doe. S/PV.1441 (1968) (Czech.); U.N. SCOR, 35th Sess., 2185th mtg. at 2, U.N. Doe. S/PV.2185 (1980) (Afg.). The interventions
were generally deemed invalid.

Rein Mlllerson, Intervention by Invitation, in LAW AND FORCE IN THE NEW

INTERNATIONAL ORDER 127,128-29 (L. Damrosch & D. Scheffer eds., 1991).

80 Louise Doswald- Beck, The Legal Validity of Military Intervention by Invitation of the Government, 1985BRIT.Y.B. INT'L L.
189, 189 n.4 (1986). France intervened more than a dozen times

81 Fact Sheet
82 Domingo Acevedo, The Haitian Crisis and the OAS Response: A Test of Effectiveness in Protecting Democracy,
in ENFORCING RESTRAINT:. COLLECTIVE INTERVENTION IN INTERNAL CONFLICrS 119, 139 (L.
Damrosch ed., 1993)

83 G.A. Res. 44/240, U.N. GAOR, 44th Sess., Supp. No.49, 88th plen. mtg. at 52,U.N. Doc. A/44/L.63 and Add. 1
(1989). See generally Louis Henkin, The Invasion of PanamaUnder International Law: A Gross Violation, 29
COLUM. J. TRANSNAT'L L. 293 (1991); Ved Nanda, The Validity of United States Intervention in Panama Under
International Law, 84 AM. J. INT'L L. 494 (1990). Brad R. Roth, Governmental

an Egyptian attack on Israel." 84 The Secretary-General, concluded that the United Nations had no
legal option but to withdraw. In his view, the deployment of peacekeepers required the
continuous affirmative consent85, Deployment of military forces in a state's territory without its
actual, contemporaneous consent impinges so directly on the autonomy of the state that the state
presumably must retain, by virtue of its sovereignty, the right ultimately to revoke its consent and
to force the interveners to withdraw86." The interveners do not have the right to pursue their
mission against internal opposition by the Government.87 Any coercive actions and even the
continued presence of the troops requires either the contemporaneous consent of the state as a
Kylosia had neither the consent of the new Government of Vadertham nor of Security
Council.88The withdrawal of consent amount to the termination of consent as a legal basis for
intervention."89 Moreover consent still prove to be a dubious basis for intervention, since some of
the factions that gave their consent originally may splinter, disappear, or be replaced by new
factions as seen in the present case.90 the continued presence of external forces in normal
84 Georg Nolte, Restoring Peace by Regional Action: International Legal Aspects of the Liberian Conflict, 53
ZErrScHRIFT FOR AUSLANDISCHES OFFENTLIcmESRECHT UND VOLKKERRECHT 629 (1993).

85 ANN VAN WYNEN THOMAS & A. J. THOMAS, JR., NON-INTERVENTION: THE LAW AND ITS IMPORT
IN THE AMERICAS 215, 221 (1956) (if all parties to an internal struggle request intervention, "the legality of the intervention
would then be based upon the total consent of the state").

86 Georg Nolte, Restoring Peace by Regional Action: International Legal Aspects of the

Liberian Conflict, 53

ZErrScHRIFT FOR AUSLANDISCHES OFFENTLIcmESRECHT UND VOLKKERRECHT 603 (1993).

87 OSCAR SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRACTICE 408


(1991)
88 Fact Sheet
89 Domingo Acevedo, The Haitian Crisis and the OAS Response: A Test of Effectiveness in Protecting Democracy, in
ENFORCING RESTRAINT:. COLLECTIVE INTERVENTION IN INTERNAL CONFLICrS 119, 139

90 Fact Sheet

conditions require will ordinarily require either renewed consent emanating from the new
constellation of warring factions or Security Council authorization." 91 Only the contemporaneous
consent of the effective government can satisfy the peremptory norm against the use of force in
international relations embodied in Article 2(4) of the U.N. Charter.
THE GOVERNMENT OF VADERTHAM WAS RECOGNIZED.
The contention of non-recognition of Vaderthams Government is vague as Governments that
come into office in a normal and constitutional manner require no recognition in international
law.92
Declaratory Theory :According to the declaratory theory a government may exist prior to
recognition and recognition is just a declaration to that effect. The existence of a new Govts
with all the legal consequences attaching to its existence is not affected by the refusal of
recognition by one or more states.93 Evidentary or declarotory theory finds support in the fact
that recognition has frequently been withheld for political reasons. Tinoco Concession
Case94Moreover in Gesellschaft v Polishstate95 the tribunal stated that the recognition is nothing
else than a declaration of existence.
Further, the Estrada doctrine propounded the doctrines of automatic recognition of governments
in all the circumstances.96in 1930 the then minister of foreign affairs of mexico , ESTRADA
91 STEVEN R. RATNER, THE NEw U.N. PEACEKEEPING: BUILDING PEACE IN LANDS OF CONFLICr
AFTER THE COLD WAR 38 (1995).

92DJ HARRIS, cases and materials on international law, p 156


93 Annure del Institut de Droit International , 1936-72,300
94 Tinoco Claim Arbitration (Great Brtain vs Costa Rica) , 1 UN Rep Intl Arb Awards 369(1923)
95 (1929) 5 A.D. 11 at 13.
96 P.jessup,the estrada soctrine,25 AJIL 1931,p.719.

stated that his government

would no longer issue declaration in the sense of grants of

recognition inasmuch as course is an insulting practise . this is known as Estrada doctrine. This
doctrine is generally understood to mean that recognition of government is unnecessary once the
state has been recognised. Renewing recognition of a government is not necessary when it
changes in a normal, constitutional way (such as an election).According to this doctrine,
constitutionality or unconstitutionality of the government was an internal affair of a state.
Estrada propounded that whenever there was change in government, other states were duty
bound to recognise such change. The declaratory theory of recognition holds that a state may
exist without being recognised. The same policy has been applied in recent years by several
other states, including US, UK , france and spain.Therefore, the government of Vadertham is
deemed to be recognised else it will oppose the further mentioned doctrines.
III.

THE SECESSIONIST MOVEMENT BY ETERMIA IS UNLAWFUL.


THERE IS NO PRECEDENT TO SUPPORT SECESSION OF ETERMIA
The secessionist movement taken by the Etermia region is unlawful and hence invalid. Right
to unilateral secession can be defined as a right of a minority-people to separate a part of the
territory of the parent State on the basis of that peoples right to self-determination. However,
as it follows from the Declaration on Principles of International Law, the Kosovo Advisory
Opinion (International Court of Justice)97 and the Quebec case (Supreme Court of Canada)98,
in modern international law unilateral secession of sub-states is neither prohibited nor
allowed.For instance, in the Kosovo Advisory Opinion, the ICJ evaded the question of
whether the Kosovo population could legitimately secede as a manifestation of their right to
self-determination. In the Quebec case, the Supreme Court of Canada adopted a conservative
construction of external self-determination as a right that may be exercised under limited
conditions only like extreme circumstances of continuing violence which is absent in the
territory of Etermia. Thus no precedent for a right to secede has been established in judicial
practice. In addition, special attention shall be brought to the paragraph 88 of the Written
Statement by the Russia in the Kosovo Advisory Proceedings before the ICJ where it was

97kosovo
98quebec

stated the following: [international law] may be construed as authorizing secession under
certain conditions. However, those conditions should be limited to truly extreme
circumstances, such as an outright attack by the parent State, threatening the very existence
of the people in question. Otherwise, all efforts should be taken in order to settle the tension
between the parent State and the ethnic community concerned within the framework of the
existing State.99 Russia argued in its submissions that self-determination can be exercised
within the system of an existing state and only in extreme circumstances of continuing
violence against a group and after exhaustion of all the other means to settle the conflict may
an entity claim secession. No such conditions prevail in the territory of Etermia.The Supreme
Court of Alaska in the Kohlhaas v Alaska

100

case (2006) found that a referendum on

secession would be unconstitutional' and therefore the demand of plebiscite to move away
from Vadertham is void. International law cannot be neutral regarding the unilateral
secession of Etermia as the demand for declaration of independence of Etermia from
Vadertham was effected through the Kylosian military assistance. This argument is supported
by the ICJ in the Kosovo Advisory Opinion. In particular, in paragraph 81 the following is
stipulated: The illegality attached to [some other] declarations of independence stemmed
not from the unilateral character of these declarations as such, but from the fact that they
were, or would have been, connected with the unlawful use of force or other egregious
violations of norms of general international law, in particular those of a peremptory
character (jus cogens).101 In other words, a unilateral declaration of independence will be
recognized as illegal where a violation of jus cogens principles took place102. Here, an
unlawful secession in violation of jus cogens occured as Kylosia violated jus cogens
99 Written Statement of Russia in Kosovo Case (Accordance with international law of the unilateral declaration of
independence in respect of Kosovo) (Request for Advisory Opinion)

100 Kohlhaas v. State (11/17/2006) sp-6072, 147 P3d 714


101 Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request
for Advisory Opinion)

102 Articles 40 and 41 of ILC Articles on State Responsibility.

principle of non-use of force under Article 2(4) of the UN Charter.103It is now the prevailing
view that the right to self-determination in and of itself does not amount to a right to secede.
The neglect of fundamental principles of international law by the Kylosia will inevitably lead
to significant political, economic and military setbacks in our globalized world, as well as to
the disruption of the situation both in Vadertham and within the Kylosia. Kylosia is invoking
the imaginary breach of collective rights of communities in Vadertham and the region as an
excuse for military aggression. This approach is very likely to be applied in further cases of
military intrusion in the internal affairs of other States of Kylosia. This scenario can also be
exploited by other States for intervention into Kylosias own affairs and support for separatist
movements within its component regions. Kylosia had always used its power and resources
to control the foreign policies of remaining neighbouring countries.104 It has been bullying
Vadertham since its independence.105and it is supporting the secession movement of Etermia
for its strategic importance and for exploitating its natural resources 106 for its own use and
with no feeling towards people. Moreover the dissention among the people arose in the
Etermian region and demand for plebiscite happened after stationing of the Kylosian
troops107 , therefore , there is no free will of the people and it is influenced by the Kylosian
troops and hence neutral plebiscite cannot happen in such a case.
SECESSION WILL DISRUPT THE TERRITORIAL INTEGRITY
At the same time the documents (UN Charter, the Declaration on Principles of International
Law, the Declaration on the Granting of Independence to Colonial Countries and Peoples, the
103 Un charter

104 Fact Sheet . Page no. 1 , Para (4)


105 Fact Sheet , Pg 2 Para 9
106 Fact Sheet pg 2 para 13
107 Fact Sheet pg 3 , para 14

International Covenant on Civil and Political Rights, the CSCE Helsinki Final Act, the African
Charter of Human and Peoples Rights, the CSCE Charter of Paris for a New Europe, and the
Vienna Declaration and Programme of Action ) recognise the principle of territorial integrity,
which may be in contradiction with the principle of self-determination. For instance, paragraph 6
of the Declaration on the Granting of Independence to Colonial Countries and Peoples stipulates
that any attempt aimed at the partial or total disruption of the national unity and the territorial
integrity of a country is incompatible with the purposes and principles of the Charter of the
United Nations. Charter of the United Nations.There are several circumstances when secession
may be regarded as legal: (1) it shall concern people in territories that are subject to
decolonization; (2) it shall be envisaged by the national legislation of the parent state
concerned; (3) the territory inhabited by a certain people should be occupied or annexed after
1945; (4) the secessionists shall be a people; (5) their parent state shall flagrantly violate
their human rights and(6) no other effective remedies under national or international law may
exist, if any of these conditions are met.108First, Etermia is not subject to decolonisation. Etermia
is an integral part of Vadertham and not its colonized state. Generally, all political systems insist
on legality of secession only through constitutional means. For instance, the Supreme Court of
Canada in the Quebec case held that any attempt to effect the secession of a province from
Canada must be undertaken pursuant to the Constitution of Canada. 109 Neither of the
exceptional circumstances justifying the remedial secession are present in case of Etermia. It is
needless to say that colonial context is inapplicable in this situation, nor has there been any
oppression, domination or large-scale and continuing breach of rights in respect of the Etermian
population. And finally, there is no evidence that the rights of the Etermian population in Etermia
have ever been subject to flagrant human rights violations from the government ofVadertham .
Thus, all claims that the Etermian population facing oppression and violence are, at the very
least, groundless. In accordance with the relevant norms of international law, the Etermia is an

108 Quebec case, 2 S.C.R. 217, para.123 (1998); Aaland Islands case, L.N.O.J. Spec. Supp. No.3 (1920); Pellet A.,
Ellet A., The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of
Peoples, 3 EJIL 178.

109 Reference re Secession of Quebec, [1998] 2 S.C.R. 217

integral part of Vadertham110. No duly authorized national, foreign or international institution has
declared any violation of human rights on the territory of Vadertham, or specifically in the
Etrmia, which would have required the intervention of any subject of international law or the
international community.
NO RIGHT OF SECESSION MAY BE EXCERCISED BY ETERMIA.
The secessionists (i.e. Etermian population) may not be regarded as a people. As it follows
from the Quebec case a people shall be governed as part of a colonial empire, be subject to
alien subjugation, domination or exploitation, be denied any meaningful exercise of its right to
self-determination within the state of which it forms a part 111. And in all other circumstances,
peoples are expected to achieve self-determination within the framework of their existing
state112. It is needless to say that colonial context is inapplicable in this situation, nor has there
been any oppression, domination or large-scale and continuing breach of rights in respect of the
Etermian population. As aptly pointed out by Dame Rosalyn Higgins, former President of the Court,
when the Court addressed this matter in the South-West Africa (Namibia) and Western Sahara cases,
there were still those who insisted that self-determination was nothing more than a political
aspiration.113As Higgins noted, the Court has recognized self-determination as a legal right. The
main aim of self determination was decolonization of colonies , UN deals with it just because it is
anunfinished process that has been with the international community for too long. ,114 The UN
Special Committee on Decolonization continues its work, since there still remain 16 non self-

110 Fact Sheet


111 Quebec case, 2 S.C.R. 217, para.123 (1998); Aaland Islands case, L.N.O.J. Spec. Supp. No.3 (1920); Pellet
A., Ellet A., The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of
Peoples, 3 EJIL 178.

112 WRITTEN STATEMENT OF RUSSIA IN KOSOVO CASE


113 R. Higgins, The International Court of Justice and Human Rights, in International law: Theory and Practice:
essays in honour of Eric Suy, Karel Wellens (ed.), The Hague/Boston/London: Martinus Nijhoff Publishers, 1998, p.
694.

governing territories115. Etermia is not a colonized territory and self determination and secession is
authorized by United Nations for colonized states , the demand for secession of Etermia is void.
Also, it has been mentioned by United Nations that for all other states the matter of secession should
be decided within the frame work of that country.116

SELF INTEREST OF KYLOSIA INVOLVED.


All claims that the Etermian population facing oppression and violence are, at the very least,
groundless. In accordance with the relevant norms of international law, Etermia is an integral
part of Vadertham and one of the territory which is rich in natural resources 117. No duly
authorized national, foreign or international institution has declared any violation of human
rights on the territory of Vadertham, or specifically in Etermia, which would have required the
intervention of any subject of international law or the international community.Therefore, the
people of Etermia do not have the right to Self-determination hence, no secession right to secede
from Vadertham as it is against the W.N. charter and against the very essence of International
law. Secession will lead to disruption of the territorial integrity and sovereignty of Vadertham
assured by W.N. charter and moreover, the intention of Kylosia is to exploit Etermia 118 and
hence, Vadertham had to criticize secession.
UNILATERAL DECLARATION OF VADERTHAM IS JUSTIFIED

114 Secretary-General Message to the Committee of 24 of 27 February 2009, available at:


http://www.un.org/Depts/dpi/decolonization/special_commitee_speeches_09/SG-feb09.doc (last accessed on 12
Feb2016)

115
116 Written Statement of Russia in Kosovo Case (Accordance with international law of the unilateral declaration
of independence in respect of Kosovo) (Request for Advisory Opinion)

117 Fact Sheet


118 Fact sheet

The unilateral declaration of Vadertham is according to the norms of International law . United
Nations have allowed such independence as seen in the case of Kosovo 119. During the
eighteenth, nineteenth and early twentieth centuries, there were numerous
instances of declarations of independence, often strenuously opposed by the
State from which independence was being declared. In no case, however,
does the practice of States as a whole suggest that the act of promulgating
the declaration was regarded as contrary to international law. On the
contrary, State practice during this period points clearly to the conclusion
that

international

law

contained

no

prohibition

of

declarations

of

independence. During the second half of the twentieth century, the


international law of self-determination developed in such a way as to create
a right to independence for the peoples of non-self-governing territories and
peoples subject to alien subjugation, domination and exploitation. 120.The
presumption in international law is that civil and human rights, including of minorities, should be
protected, with the aim of demonstrating that these rights were abused by the then-governing
Kylosian administration. People of Vadertham have right to self determination. The right of
nations to self-determination is a cardinal principle in modern international law (jus cogens ),
binding, as such, on the United Nations as authoritative interpretation of the Charters
norms.121122 It states that nations, based on respect for the principle of equal rights and fair
119 Kosovo vs yugosolavia
120 cf. Legal Consequences for States of the Continued Presence of SouthAfrica in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970),Advisory Opinion, I.C.J. Reports 1971, pp. 31-32,
paras. 52-53; East Timor (Portugal v.Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29; Legal
Consequences of theConstruction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports
2004 (I), pp. 171-172, para. 88).

121 United Nations General Assembly Resolution 1514


122 McWhinney, Edward(2007). Self-Determination of Peoples and Plural-Ethnic States in Contemporary
International Law: Failed States, Nation-Building and the Alternative, Federal Option. Martinus Nijhoff Publishers.
p. 8

equality of opportunity, have the right to freely choose their sovereignty and international
political status with no external compulsion or interference.123 The Declaration on Friendly
Relations reiterates that "all peoples" have the right to self-determination. The declaration
emphasized not only about colonized territories but also about those
territories where people have been exploited.124The is that the right of selfdetermination, which the ICJ found to be jus cogens in the East Timor case 125, is a right of all
peoples, not only of those in a colonial context. After violating the human rights of vaderthams
Kylosia had lost its rights to the country. The existence of the state of Vadertham cannot be
ignored. Its existence is based on the right of self-determination by the people of Vadertham. Its
independence is irreversible. This will remain the case, not only for Vadertham, but also for the
sake of regional peace and security. It is evident from the fact sheet that Kylosia had
an exploitative nature and there were demand for development and respect
of human rights

126

and thus Vaderthams independence was within the

framework of international laws.A great many new States have come into
existence as a result of the exercise of this right. One such example will be
that of Bangladesh127 which unilaterally declared itself independent and has
been accepted as a part of United Nations. Kylosia is been relying on the territorial
integrity as provided by UN Charter. In the same vein, the Final Act of the Helsinki Conference
on Security and Co-operation in Europe of 1 August 1975 (the Helsinki Conference) stipulated
123 McWhinney, Edward (2007). Self-Determination of Peoples and Plural-Ethnic States in Contemporary
International Law: Failed States, Nation-Building and the Alternative, Federal Option. Martinus Nijhoff Publishers.
p. 8. ISBN 9004158359. Chapter I - Purposes and Principles of Charter of the United Nations

124 "Kosovo izmeu Rusije i Amerike" (in Serbian). RTS. 8 December 2009. Retrieved 8
December 2009.
125 East timor case
126 Fact sheet
127 1971 Bangladesh liberation

that [t]he participating States will respect the territorial integrity of each of the participating
States (Art. IV). Thus, the scope of the principle of territorial integrity is confined to the sphere
of relations between States. Kylosia and Vadertham has been accepted as a part of World Nations
after Vaderthams

independence from Kylosia so its pre independent act should not be

considered as a ground for territorial integrity. Following Georges Abi-Saab [I]t would be
erroneous to say that secession violates the principle of territorial integrity of the State, since this
principle applies only in international relations, i.e. against other States that are required to
respect that integrity and not encroach on the territory of their neighbours; it does not apply
within the State.128The principle of territorial integrity constrains only other states, not domestic
actors. The entities within the state are not bound by the principle of protection of territorial
integrity.129 The Declaration of independence is a political act. International law does not
address declarations of independence and the principle of respect of territorial integrity applies
only between states, not for internal entities It would be a severe violation of international law if
intervention by third states, forcefully or otherwise, was decisive for a declaration of
independence.130 But it was not so in the case of Vadertham. The principle of effectiveness, 131 is
the only principle that can be applied in the case ofVadertham, since Vadertham fulfills the
elements of statehood and its people, territory and government have nation-building
qualities".132 Declaring the declaration of independence illegal will not have any practical effect
in this case because Vadertham exists as a fact. It was a sovereign state

133

and kylosia made it a

part of its empire in the 19 th century.Its declaration of freedom was merely to get back its
128 Georges Abi-Saab, Conclusion, in Marcelo Kohen (ed.) Secession: International Law Perspectives
(Cambridge and New York: Cambridge University Press, 2006) p. 474.

129 Norways stand in kosovo case


130 "ICJ Hears Further Kosovo Arguments". Balkan Insight. 2 December 2009. Retrieved 2
December 2009.
131 http://www.icj-cij.org/docket/files/141/15714.pdf
132"Public hearing continues in Kosovo case". B92. 2 December 2009. Retrieved 2 December 2009.

sovereignity , as it was a sovereign state,it was all the characteristics required for being a
sovereign nation and thus Kylosia should accept it as it is. Also, Kylosian troop entered
Vadertham on the request of ex Vaderthamian president134 , it shows that they accept vadetham as
a separate nation.The argument of the respondent that Kosovo case cannot be
taken being unique is not accepted because each case is unique in its
domain and thus following that principle stare decisis will fail. Any declaration
of independence is one-sided by nature135 The territorial integrity which respondent has been
talking about was not for Kylosia but for the Kylosian Empire , which is now broken into 15
independent sovereign states136 , since the entity does not exist anymore , there can be no
question of territorial integrity.One of the basic principles governing the creation and
performance of legal obligations, whatever their source, is the principle of good faith. Just as the
very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the
binding character of an international obligation assumed by unilateral declarationritorial
integrity. Thus States may take cognizance of unilateral declarations and place confidence in
them, and are entitled to require that the obligation thus created be respected. 137One example
occasionally cited as evidence of the legal effect of a unilateral declaration involves the South
African declaration of April 9, 1946 in the Assembly of the League of Nations and equivalent
communications of October 14, and November 4, 1946 and July 23, 1947 to the United Nations
Secretary-General and the Fourth Committee of the UN General Assembly affirming South
Africa's responsibilities under the League of Nations arrangements for South-West Africa
(Namibia)138

Ostensibly

"unilateral"

declarations

have

been

consideredbinding.

Presumed Consent: To frame the supposed binding force of a unilateral declaration in terms of
133 Fact sheet
134 Fact sheet
135 Norway stand Kosovo case
136 Fact sheet
137 Nuclear Tests (Australia v. France), [1974] ICJ REP. 253 and Nuclear Tests (NewZealand v. France),.

presumed consent"139 is to translate strict unilateral declarations that rest on the intention to be
bound of the declarant alone and not on "any subsequent acceptance of the declaration," which
was the subject of the ICJ Judgment in the Nuclear Tests140 cases in which court said that it was
Court said that these unilateral declarations are enough to invite international obligations
Vadertham had declared its independence in 1991 , Kylosia did not objected to its declaration
back then , its long term silence is presumed as an acceptance 141 of Vadertham as a separate
nation and now they are questioning it for selfish interest.

138 International Status of South-West Africa, Advisory Opinion, [1950] ICJ Bin'. 128 at 135.
139 11 SCOR (776th mtg) para. 329 (1957).
140 (New Zealand v. France) [1974] I.C.J. Rep. 473
141 International Law Commission at its Fifty-eighth session, in2006, and submitted to the General Assembly as a
part of the Commissions report covering the work of that session (A/61/10).