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TEAM 453A THE 2011 PHILLIP C.

JESSUP INTERNATIONAL LAW MOOT COURT COMPETITION

IN THE INTERNATIONAL COURT OF JUSTICE AT THE PEACE PALACE, THE HAGUE

CASE CONCERNING THE ZETIAN PROVINCES

- Between -

The State of Ardenia Applicant - and -

The State of Rigalia Respondent

Memorial for the Applicant

TABLE OF CONTENTS

INDEX OF AUTHORITIES ......................................................................................................... i STATEMENT OF JURISDICTION ......................................................................................... vii QUESTIONS PRESENTED ..................................................................................................... viii STATEMENT OF FACTS .......................................................................................................... ix SUMMARY OF PLEADINGS .................................................................................................. xv PLEADINGS ................................................................................................................................. 1 I. RIGALIAS DRONE STRIKES IN RIGALIA AND ARDENIA VIOLATE INTERNATIONAL LAW AND THE COURT SHOULD ORDER THEIR IMMEDIATE CESSATION................................................................................................................................... 1 1. (a) (b) 2. (a) (b) i. ii. (c) 3. (a) (b) i. ii. Ardenia has standing to bring this claim.............................................................................. 1 International law permits Ardenia to bring a claim as parens patriae for its citizens .... 1 Zetians dual nationality does not bar diplomatic protection .......................................... 1 International human rights law applies to the drone campaign ........................................... 3 There was no international armed conflict justifying the use of force ............................. 3 There was no non-international armed conflict justifying the use of force ..................... 3 Hostilities had not reached a minimum level of intensity ................................................ 4 Zetian insurgents are not parties to a conflict .............................................................. 4 No other type of armed conflict exists in law ................................................................... 5 Under international human rights law, Rigalias campaign is unlawful .............................. 5 The campaign is a crime against peace ........................................................................... 5 The campaign violates the right to life ............................................................................. 6 The strikes were not absolutely necessary ....................................................................... 7 The strikes were not strictly proportionate ...................................................................... 8

4. In the alternative that there is an armed conflict, Rigalias drone strikes violate international humanitarian law (IHL) ......................................................................................... 9 (a) (b) (c) 5. The law of international armed conflict applies to this conflict ...................................... 9 The law of international armed conflict prohibits the strikes ........................................ 10 Human rights law continues to apply............................................................................. 11 The Court should order the immediate cessation of the drone strikes ............................... 12

II. THE ATTACK ON THE BAKCHAR VALLEY HOSPITAL IS ATTRIBUTABLE TO RIGALIA, RIGALIA HAS AN OBLIGATION TO INVESTIGATE THE ATTACK AND TO COMPENSATE ARDENIA THEREFORE AND, MOREOVER, THE ATTACK WAS A DISPROPORTIONATE AND UNLAWFUL ACT OF AGGRESSION AGAINST THE PEOPLE OF ARDENIA ............................................................................................................... 12 1. (a) (b) (c) 2. The attack on the Bakchar Valley hospital is attributable to Rigalia ................................. 12 The Morganian forces carrying out the strikes were acting on Rigalias behalf .......... 13 The informants were acting on Rigalias behalf ............................................................ 14 Mistake and contravention of authority do not negate attribution to Rigalia ............... 15 Rigalia has an obligation to investigate the attack and to compensate Ardenia therefore . 15

3. The attack was a disproportionate and unlawful act of aggression against the people of Ardenia ...................................................................................................................................... 17 (a) (b) i. ii. The attack violated Ardenias sovereignty and political independence ......................... 17 The attack is not a lawful exercise of self-defence ......................................................... 18 Zetian insurgents were not acting on Ardenias behalf ................................................. 18 Rigalia was not subject to an armed attack ................................................................... 18

iii. In the alternative that the right to self-defence exists, the attack was not a lawful exercise of that right .............................................................................................................. 19 III. RIGALIAS MAVAZI BAN VIOLATES ZETIANS RIGHTS UNDER INTERNATIONAL LAW ............................................................................................................................................. 20 1. Ardenia has standing to challenge Rigalia's Mavazi ban on behalf of Zetians living in Rigalia ....................................................................................................................................... 20 (a) Ardenia can bring a claim as parens patriae for its citizens ........................................ 20

(b) Alternatively, the Mavazi ban is a breach of obligations erga omnes, compelling Ardenia to bring a claim ........................................................................................................... 20 2. Rigalia's Mavazi ban violates the freedom of religion rights of Zetian women and girls under international law .............................................................................................................. 22 (a) (b) The Mavazi ban violates Rigalia's treaty obligations on freedom of religion ............... 22 The Mavazi ban is not a permissible limitation on freedom of religion. ....................... 22

i. The Mavazi ban does not fall under enumerated grounds of permissible limitations under treaty law ..................................................................................................................... 22 ii. The Mavazi ban is too broad and lacks proportionality to be a permissible limitation 24

iii. The Mavazi ban can be distinguished from cases where Courts have permitted limitations on freedom of religion ......................................................................................... 26

3. Rigalia's Mavazi ban is discriminatory in violation of international treaty law ................... 26 (a) (b) The Mavazi ban discriminates against Zetian women and girls .................................... 26 The Mavazi ban discriminates against Zetians as a minority cultural group................ 28

IV. ARDENIA DID NOT VIOLATE THE OECD ANTI-BRIBERY CONVENTION OR THE OECD DECISION ON MNE GUIDELINES ...................................................................... 28 1. (a) i. ii. Ardenia did not breach the OECD Anti-Bribery Convention ........................................ 28 The alleged acts of bribery do not fall under the Convention........................................ 28 The recipients of the alleged bribes are not foreign public officials ............................. 28 The alleged acts are not bribes ..................................................................................... 29

(b) Ardenia fulfilled its obligations under the Convention in addressing Rigalia's concerns 31 i. Ardenia pursued an investigation in accordance with the Convention ........................ 31

ii. The balance of the Mutual Legal Assistance (MLA) information requested by Rigalia is outside the scope of the Convention ...................................................................................... 33 2. The Ardenian National Contact Point (NCP) did not breach the OECD Decision on MNE Guidelines (the Decision) ...................................................................................................... 33 (a) It is the prerogative of the NCP to decide whether issues raised merit further examination ............................................................................................................................... 33 (b) The NCP responded to the CRBC with sufficient reasons for why it was not the appropriate Contact Point to deal with its concerns ................................................................ 34 PRAYER FOR RELIEF............................................................................................................. 35

INDEX OF AUTHORITIES

Multilateral Treaties and Conventions Charter of the United Nations, 26 June 1945, Can TS 1945 No 7.. 17, 19 Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981)... Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)..

27 22, 23

Convention (IV) relative to the Protection of Civilian Persons in Time of War, 12 August 1949. 3, 9 International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171.. 6, 16, 22, 23, 27, 28

International Covenant on Economic, Social and Cultural Rights, 16 December 1966, UNGAOR 21st Sess, Supp No 16, UN Doc A/RES/2200(XXI)[A-C], 993 UNTS 3 (entered into force 3 January 1976) Article 15 28 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 17 December 1997, 37 ILM 1 (entered into force 15 February 1999)..

29, 31, 32, 33

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to 9, 10, the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977... 12, 15, 17 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977. 4 Universal Declaration of Human Rights, UNGAOR, 3d Sess, Supp No 14, UN Doc A/RES/217(III)A (1948). 6, 22

International Court of Justice Cases Avena et al (Mexico v USA), [2004] ICJ Rep 59. Barcelona Traction, Light and Power Co. Ltd. (Belgium v Spain), [1970] ICJ Rep 3... Case Concerning Armed Activities on the Territory of the Congo (DRC v Uganda), Judgement, [2005] ICJ Rep 168.. i 16 21 6, 12,15, 17,18

Gabckovo-Nagymaros Project (Hungary v Slovakia), [1997] ICJ Rep 81.. Interhandel (Switzerland v USA) [1959] ICJ Rep 6, 27..

16 1

Legal Consequences of the Construction of a Wall in the Occupied Palestinian 6, 12, Territory, Advisory Opinion, [2004] ICJ Rep 136.. 18, 21 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep 226 12, 19 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v USA) 14, 18, [1986] ICJ Rep 14 19 Nottebohm (Liechtenstein v Guatemala), [1955] ICJ Rep 4, 24. South West Africa (Ethiopia v South Africa; Liberia v South Africa), Preliminary Objections [1962] ICJ Rep 319... 2 21, 24

Permanent Court of International Justice Cases Factory at Chorzw, Jurisdiction (1927), PCIJ (Ser A) No 9, 21.. 16

Mavrommatis Palestine Concessions, Judgement No 2 (1924), PCIJ (Ser A) No 2, 12. 1 Minority Schools in Albania (1935), Advisory Opinion, PCIJ (Ser A/B No 64) 2

International Criminal Tribunals Prosecutor v Dusco Tadic, IT-94-1, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber) online: ICTY <www.itcy.org> ............... Prosecutor v Dusko Tadic, IT-94-1-A, Judgement (15 July 1999) (International Criminal Tribunal for the former Yugoslavia, Appeals Chamber) online: ICTY <www.itcy.org................................................................................................................ Prosecutor v Dusco Tadic, IT-94-1-T, Opinion and Judgement (7 May 1997) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber), online: ICTY <www.itcy.org> Prosecutor v Fatmir Limaj, IT-03-66-T, Judgement (30 November 2005) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber), online: ICTY <www.itcy.org>

4, 10 14, 15

4, 5

ii

International Human Rights Courts Dahlab v Switzerland, No 42393/98, [2001] V ECHR... Dogru v France, No 27058/05, [2008] ECHR, 49 EHRR 8... Finucane v UK, No 29178/95 [2003] ECHR 328... Ergi v Turkey, No 66/1997/850/1057 [1998] ECHR.. Kaya v Turkey, No 158/1996/777/978 [1998] ECHR, 28 EHRR 1 Manoussakis and Others v Greece, No 18748/91 [1996] IV ECHR, 23 EHRR 387. McCann v UK (1995), 324 ECHR (Ser A), EHRR 97 26 26 16 16 16 24 7, 8, 15

Myrna Mack-Chang v Guatemala (2003), Inter-Am Ct HR (Ser C) No 101.. 16 calan v Turkey, No 46221/99 [2005] IV ECHR, 41 EHRR 45 Sahin v Turkey, No 44774/98, [2005] ECHR, 41 EHRR 8 Velsquez-Rodrguez v Honduras (1988), Inter-Am Ct HR (Ser C) No 4. 7 26 16

General Claims Commissions Youmans (USA) v United Mexican States (1924) 4 RIAA 10 (US-Mexico General Claims Commission)... 15

National Case Law Public Committee Against Torture et al v Government of Israel et al (2006), Supreme Court of Israel, HCJ 769/02. 17 R v Director of the Serious Fraud Office, [2008] UKHL 60........................................... 32

UN Resolutions and Documents Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UNGAOR, 60th Sess, UN Doc A/RES/60/147 (2005).. 16

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Basic principles of the legal status of the combatants struggling against colonial an alien domination and racist regimes, UNGAOR, 28th Sess, Supp No 30, UN Doc A/RES/3103(XXVIII) (1973), 142. Code of Conduct for Law Enforcement Officials, UNGAOR, 34th Sess, UN Doc A/RES/34/169 (1979).. Crawford, James (Special Rapporteur). Second Report on State Responsibility, ILC, 51st Sess, UN Doc A/CN.4/498 (1999).. Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, UNGAOR, 25th Sess, UN Doc A/RES/2625(XXV) (1970) 121 Declaration on the Rights of Indigenous Peoples, UNGAOR, 61st Sess, UN Doc A/RES/61/295 (2007).. Definition of Aggression, UNGAOR, 29th Sess, UN Doc A/RES/3314(XXIX), (1974).. General Comment No 22: The right to freedom of thought, conscience and religion (Article 18), UNHRCOR, 48th Sess, UN Doc CCPR/C/21/Rev.1/Add.4 (1993). General Comment No 31 [80]: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UNHRCOR, 80th Sess, 2187th Mtg, UN Doc CCPR/C/21/Rev.1/Add.13 (2004).. International Law Commission. Draft Articles on Diplomatic Protection, UNGAOR, 61st Sess, Supp No 10, UN Doc A/61/10 (2006)

10 6, 7, 8 20

6, 10 6 17, 19 22, 23, 24, 25

6, 16 1, 2

-----. Draft Articles on Responsibility of States for Internationally Wrongful Acts, 1,2,12UNGAOR, 56th Sess, Supp No 10, UN Doc A/56/10 (2001) 43 17,19,21 Lopez v Uruguay, Views under article 5(4) of the Optional Protocol to the ICCPR (July 1981), UNHCROR, 13th Sess, UN Doc CCPR/C/13/D/52/1979.. Model Protocol for a Legal Investigation of Extra-Legal, Arbitrary and Summary Executions, Part III UN Doc E/ST/CSDHA/.12 (1991).. 7

16

Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, ESC Res 1989/65, UNESCOR, 1989, Supp No 1, UN Doc E/1989/89. 6 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, 7 September 1990, UN Doc A/CONF.144/28/Rev.1, 112.

6, 7, 8, 9

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United Nations Declaration on the Elimination of All Forms of Racial Discrimination, UNGAOR, 18th Sess, UN Doc A/RES/18/1904 (1963)...

21

OECD Publications, Meetings and Decisions OECD. 2008 Annual Meeting of the National Contact Points: Report by the Chair, (24-25 June 2008) 34 -----. Bribery in Public Procurement: Methods, Actors and Counter-Measures (OECD, 2007). OECD Guidelines for Multinational Enterprises: Decision of the Council, Decision adopted June 2000 (OECD, 2008)..................

30 34

OECD, Working Group on Bribery. Phase I and II Reviews of Denmark, England and Wales, in Mark Pieth, Lucinda Low & Peter Cullen, eds, The OECD Convention on Bribery: A Commentary (Cambridge: Cambridge University Press, 2007)........... 32 -----. Phase I Review of Germany, in Mark Pieth, Lucinda Low & Peter Cullen, eds, The OECD Convention on Bribery: A Commentary (Cambridge: Cambridge University Press, 2007) 32 -----. Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions (adopted by the Council 26 November 2009, with amendments adopted 18 February 2010), online: OECD: <http://www.oecd.org> 31 Travaux prparatoires of the OECD Convention Combating Bribery of Foreign Public Officials (1999) International Trade Corruption Monitor F-1033.. 31

Legislation Loi no 2010-1192 du 11 octobre 2010, JO, 12 October 2010.. 25

Books Brownlie, Ian. Principles of Public International Law, 4th ed (New York: Oxford University Press, 1990) 21

Cullen, Peter. "Article 5: Enforcement" in Mark Pieth, Lucinda Low & Peter Cullen, eds, The OECD Convention on Bribery: A Commentary (Cambridge: Cambridge 31, 32, University Press, 2007), 289 33 Fleck, Dieter, ed. The Handbook of International Humanitarian Law, 2d ed (Oxford: Oxford University Press, 2008).......................................................................................

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Moir, L. The Law of Internal Armed Conflict (London: Cambridge University Press, 2000) 10 Nowak, Manfred & Tanja Vospernik. Permissible Restrictions on Freedom of Religion or Belief in Tore Lindholm & Bahia Tahzib-lie, eds, Facilitating Freedom of Religion or Belief: A Deskbook (Leiden: Martinus Nijhoff Publishers, 2004)...

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Miscellaneous Crowley, Philip J. Daily Press Briefing (14 July 2010), online: United States Department of State <http://www.state.gov>. 25

Damian Green says burka ban would be un-British, BBC News (18 July 2010) online: BBC News <http://www.bbc.co.uk>... 25 International Committee of the Red Cross. How is the Term Armed Conflict Defined in International Humanitarian Law? (Opinion Paper, March 2008), online: ICRC <www.icrc.org> -----. International Humanitarian Law and International Human Rights Law (January 2003), online: ICRC/EHL <http://www.ehl.icrc.org>. Maillot, Karine. Le Parlement europen soppose linterdiction totale de la burqua (24 June 2010), online: Zinfos974 <http://www.zinfos974.com>)... Vierecke, Andreas. Burka Debate in Germany and Europe An Interview with Heiner Bielefeldt, online: Goethe-Institut: <http://www.goethe.de>

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25 25

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STATEMENT OF JURISDICTION

The State of Ardenia, Applicant, and the State of Rigalia, Respondent, have submitted their differences concerning the Zetian Provinces by Special Agreement dated 5 May 2010, without reservation, to the International Court of Justice in accordance with Article 40(1) of the Statute of the International Court of Justice. The parties have agreed to the contents of the Compromis, subject to the Corrections and Clarifications issued 1 December 2010. In accordance with Article 36(1) of the State of the International Court of Justice, each party will accept the judgment of this Court as final and binding and shall execute it in its entirety and in good faith.

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QUESTIONS PRESENTED

I.

Whether the drone campaign against Zetian terrorists in Rigalia and Ardenia is consistent with international law;

II.

Whether the attack on the Backchar Valley Hospital is attributable to Rigalia;

III.

Whether Rigalia has an obligation to investigate the attack on the Bakchar Valley Hospital and compensate Ardenia therefore;

IV.

Whether the attack on the Backchar Valley Hospital was part of a legitimate and proportionate operation to defend against Zetian terrorists;

V.

Whether Rigalias ban of the Mavazi for Zetian women and girls is consistent with international law;

VI.

Whether Ardenias failure to investigate and prosecute the alleged corruption and to provide mutual legal assistance to Rigalia constitute breaches of the OECD Anti-bribery Convention; and

VII.

Whether the failure of the Ardenian NCP to respond to the complaint by the CRBC constitutes a breach of the OECD Decision on MNE Guidelines.

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STATEMENT OF FACTS

Rigalia and Ardenia 1. Rigalia is composed of 65% ethnic Rigalians and 35% ethnic Zetians. Zetian tribes

comprise nearly 100% of the populace in Rigalias Northern Provinces. Teemu Khutai is Rigalias President. 2. Ardenia borders Rigalia to the north. Ethnic Zetians make up 90% of the populace in

Ardenias Southern Provinces. Glenda Arwen is Ardenias President. 3. When Ardenia and Rigalia came into existence in 1924, they each granted Zetians full

citizenship in a formal agreement between the states, recognizing Zetians nomadic lifestyle. While many Zetians are now settled in either state, intermarriage and close affinities continue between Zetians in both states. 4. Ardenia is a highly decentralized state, in which Zetians in the Southern Provinces enjoy

substantial autonomy. Rigalia is highly centralized, although Zetian tribal council rules have virtually 100% practical effect in the Northern Provinces. 5. Zetians practice the Masinto religion, one of the tenets of which requires females older

than 14 to wear a Mavazi. The Mavazi covers the head and face, and contains ornate colours and designs unique to each tribe. Economy

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6.

Rigalian Refining Inc. (RRI), headed by Leo Bikra, oversees Rigalias most important

resource, coltan, located in the Northern Provinces. In 1997, an Ardenian company, Mineral Dynamics Incorporated (MDI), won a coltan mining contract with RRI to explore and develop Rigalias coltan reserves. This contract was renewed in 2002. ZDP and the Zetian Manifesto 7. The Rigalia-based Zetian Democratic Party (ZDP) has long endorsed a separate Zetian

state. Zetians in Ardenia traditionally have been sympathetic to the nationalist cause, if not politically active. 8. At a joint tribal council meeting dominated by radical ZDP members in the Northern

Provinces, participants issued a Manifesto on 5 May 2008, calling for increased autonomy for tribal lands; a greater share of coltan mining revenues for Zetians; and respect for Zetians way of life. Rigalias Reaction, Escalation of Violence 9. Khutai reacted by stating that central Rigalian law governs people in the Northern

Provinces. In a televised interview, he pledged to modernize the Zetians, disparaging their traditions and attributing their lack of prosperity to their backwards mentality and insularity. 10. Khutais remarks provoked sporadic fighting in the Northern Provinces. Tens of

thousands of protestors marched on the Rigalian and Ardenian capitals. 11. Khutai responded with increasing severity, sending soldiers to the Northern Provinces,

heightening surveillance and arresting protestors, and banning public organization and assembly. These measures provoked further violence and resistance to arrest. x

12.

Rigalian officials also detained suspected ZDP members. Citing womens rights and

public safety concerns, Khutai introduced a bill banning the Mavazi in public and when receiving public services. Zetians Fears, Ardenias Peace Efforts 13. Meanwhile, Rigalian Zetians held meetings in Ardenia out of fear of Rigalian troops,

according to evidence gathered by the International Loan Syndicate Association (ILSA). 14. The Ardenian government responded to the Manifesto with an information campaign,

supporting Zetian schools and agriculture to win hearts and minds, and suggesting that women can choose to remove the Mavazi at home and in special womens gardens. 15. Ardenia acknowledged that Arwen met with Zetian tribal leaders to discuss how to

strengthen friendly relations. However, Rigalian press allegations that she concluded a secret agreement with tribal leaders to support a future Zetian state on Rigalian territory, have not been confirmed. Rigalias War 16. Eventually, a group of tribal leaders, all ZDP members, mounted a violent campaign for

independence. On 22 March 2009, Khutai declared his government at war with the Zetian secessionist movement and its supporters in both states. Also, Parliament enacted the Mavazi ban. Rigalias Corruption Allegations 17. In an attempt to pressure the Ardenian government, Rigalia opened an investigation into

allegations of bribery during the 2002 renewal of MDIs contract. These allegations were based xi

on media rumours and statements of a former MDI employee, accusing Bikra of securing the contract through a promise of payments to the Zetians Refugee Fund (ZRF), a charitable organization headed by Bikras nephew, Clyde Zangara. Rigalia also alleges that MDI responded to solicitations from members of the provincial tribal councils to pay mandatory undocumented fees. 18. For its investigation, Rigalia requested Mutual Legal Assistance (MLA) from Ardenia,

including MDIs bank records and correspondence between the ZRF and Zetian tribal councils. On 23-24 March 2010, during a Working Group on Bribery meeting, Ardenia stated that it was working on how to satisfy Rigalias MLA request given domestic legislative constraints and because some of the information sought was irrelevant to the corruption investigation. 19. The Ardenian Prosecutor subsequently dropped its investigation into the bribery

allegations, citing national interests and resource constraints. Within a month, the Committee for Responsible Business Conduct (CRBC), a non-governmental organization funded in part by Rigalia, filed a complaint against MDI and RRI with the Ardenian National Contact Point (NCP). The NCP decided not to examine the complaint further, and responded to CRBC with its reasons, including that it was not the appropriate contact point. Rigalias Predator Drone Campaign 20. Frustrated over the Zetian situation and impatient over the bribery allegations, Khutai

initiated a series of attacks on separatists along the Rigalian-Ardenian border with the help of President Sophia Ratko of Morgania. Ratko instructed her Air Force to deploy Predator Drones to Fort Raucus, a Morganian base in Rigalia.

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21.

The unmanned drones, launched from Fort Raucus, have cameras that project images

onto a screen in Morganville. Morganian army members in Morganville operate the drones, deciding whether to fire missiles from them based on information from informants on the ground, whom the Rigalian government recruits from prisons and pays. 22. From mid-September 2009 until late March 2010, at the urging of Rigalias Defence

Force under Khutais command, more than 50 drone strikes against suspected separatists killed an estimated fifteen separatist leaders and 230 Zetian civilians in Rigalia. Attack on Ardenian Hospital 23. On 15 March 2010, a drone strike in Ardenia, at night and without warning, killed Admar

Bermal a prominent ZDP member and decision-maker in secessionist activities at home. It also killed his entire family. 24. A missile also struck the public Bakchar Valley hospital that night, killing 150 persons

and wounding 200. The drone operator fired on it when distracted by an informants call, although informants were not authorized to contact operators directly. 25. Ardenia immediately lodged a protest with Rigalia, which denied targeting innocent

civilians. Arwen then held an international press conference condemning the drone program as illegal under international law. Ardenias Continued Peace Efforts 26. Pursuant to Arwens notification that she was deeply concerned about the drones and

tensions with Rigalia, the UN Security Council discussed the Zetian situation and on 22 March urged the states to resolve their differences peacefully. xiii

27.

On 28 March, Arwen sent a diplomatic note to Khutai discussing concern over the

drones, hospital attack and Mavazi ban, and how best to proceed. On 15 April, Khutai rejected these propositions, adding that Ardenia was violating its international obligations in failing to act regarding the bribery allegations. 28. Following three days of fruitless negotiations between the states in late April, Ardenia

filed an application at this Court on 5 May. The Court has decided that Morgania is not a necessary third party to the case.

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SUMMARY OF PLEADINGS

Standing Ardenia has standing to bring a parens patriae claim against Rigalia to challenge the Predator Drone campaign and the Mavazi ban on behalf of Zetians. The rules on diplomatic protection apply to Zetians because they are Ardenian citizens. Their dual nationality is not a bar to this claim because Ardenia is Zetians predominant nationality and the Citizenship Agreement creates a sui generis right to act. With respect to the Mavazi ban in particular, alternatively, Ardenia or any other state, is able to bring a claim because the Mavazi ban breaches Rigalias obligations erga omnes. By enacting the Mavazi ban, Rigalia failed to refrain from racial discrimination against Zetians and contravened its human rights treaty obligations that guarantee freedom of religion and antidiscrimination. I. Rigalias Predator Drone campaign on Zetians is contrary to international human rights law. Its actions are a crime against peace as they deprive Zetians of their right to determine their political status, and to pursue their economic, social, and cultural development as an indigenous people. Rigalia is also violating the fundamental human right to life of its targets and other victims by engaging in a use of force that is neither absolutely necessary nor proportionate. Thus, Rigalia is failing to fulfil its international human rights obligations duties that remain incumbent on the state at all times and in carrying out law enforcement activities.

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Because there is no armed conflict justifying the use of force, only the above rules of international human rights law apply to the situation. International armed conflicts occur between states that are parties to the Geneva Conventions, not non-state, non-party entities like the Zetian activists. Non-international armed conflict refers to situations where hostilities have reached a significant level of severity between a state and a highly organized non-state group. It does not refer to sporadic violence involving an unorganized collection of radical members of a community, as in the Zetian situation. Alternatively, if there is an armed conflict in this case, Rigalias drone campaign violates the rules of international humanitarian law that govern armed conflict under the Geneva Conventions and Additional Protocols, in causing indiscriminate and disproportionate civilian harm. II. Rigalia is responsible for the Bakchar Valley attack, which damaged a public hospital in Ardenia and killed and wounded many victims. Rigalia, in using organs of another state for its own purposes and recruiting informants from within Rigalia, bears responsibility for the drone campaign as a whole and the hospital attack in particular. Consequently, Rigalia must investigate the attack, and compensate Ardenia therefore. The hospital attack was, furthermore, an act of aggression against the people of Ardenia, violating Ardenias sovereignty and political independence as it strives to live peacefully as a multi-ethnic state. This unwarranted use of force is not justified by the right to self-defence, which does not apply in this case because Rigalia was not subject to an armed attack attributable to Ardenia. In any event, the hospital attack was an unnecessary and disproportionate use of force. III. xvi

The Mavazi ban is illegal under international law because it denies freedom of religion and is discriminatory. The Mavazi ban infringes on freedom of religion by preventing Zetian females from manifesting their religion. The purported rationale behind the Mavazi ban does not fulfil the necessity test prescribed in treaty law to constitute a permissible limitation on freedom of religion. The law is too broad, lacks proportionality and is applied in a discriminatory manner. In further violation of Rigalias international treaty obligations, the Mavazi ban discriminates on the basis of gender and targets a minority cultural group. IV. Ardenia did not breach the OECD Anti-Bribery Convention (Convention) since the alleged acts and impugned actors do fall under the Convention. In any case, Ardenia conducted an investigation in accordance with the Convention, and exercised prosecutorial discretion in deciding not to continue with the bribery investigation. Rigalias Mutual Legal Assistance request seeks irrelevant information and thus, Ardenia is not required to fulfil its request. Ardenia did not breach the OECD Decision on MNE Guidelines as it responded sufficiently to the CRBC with sufficient reasons for why the Ardenian National Contact Point did not further examine its complaint.

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PLEADINGS I. RIGALIAS DRONE STRIKES IN RIGALIA AND ARDENIA VIOLATE INTERNATIONAL LAW AND THE COURT SHOULD ORDER THEIR IMMEDIATE CESSATION 1. (a) Ardenia has standing to bring this claim International law permits Ardenia to bring a claim as parens patriae for its citizens A state can protect its subjects when injured by internationally unlawful acts of another state if they have been unable to obtain satisfaction through the ordinary channels." 1 Ardenia can protect Zetians, including those in Rigalia, as they Ardenian citizens and have exhausted local remedies in Rigalia. 2 (b) Zetians dual nationality does not bar diplomatic protection The 1924 Agreement creates a sui generis right to Ardenia to bring a claim against Rigalia. Ordinarily dual nationals obtain their status through birth (jus soli), descent (jus sanguinis) or naturalization initiated by individuals themselves. Ardenia and Rigalia have formally recognized that both are a legitimate country of citizenship for Zetians. It is a unique state-driven conferral of dual nationality. Further, a state may protect a dual national against the other state of nationality if the former is the state of predominant nationality, as determined by such factors as attachment, Mavrommatis Palestine Concessions, Judgment No 2 (1924), PCIJ (Ser A) No 2, 12; Interhandel (Switzerland v USA) [1959] ICJ Rep 6, 27. See also ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, UNGAOR, 56th Sess, Supp No 10, UN Doc A/56/10 (2001) 43, Article 42 [Responsibility]; ILC, Draft Articles on Diplomatic Protection, UNGAOR, 61st Sess, Supp No 10, UN Doc A/61/10 (2006) [Protection].
2 1

Compromis, clarification 5. 1

family ties and activities. 3 All Zetians are more attached to Ardenia. Those residing in Rigalia have strong family ties in Ardenia through their nomadic heritage 4 and cross-border marriages. 5 They share political sympathies, and have sought greater coltan revenues for Zetians in both states. 6 Unlike with Rigalia, Zetians relations with Ardenia remain friendly: Arwen has reached out to Zetians, who have been comfortable meeting in and with the Ardenian state. 7 Since determining predominant nationality varies according to each cases circumstances, 8 the unique 1924 Agreement should be brought to bear. As with the minority protection treaties during the interwar period, 9 the need to protect minorities irrespective of their place of residence or nationality is relevant. Here, the sui generis conferral of dual nationality creates a situation whereby predominant nationality must be determined by the state willing to protect the minority group. That state is Ardenia.

Responsibility, supra n1, Article 44; Protection, supra n1, Article 7 and commentary. See also Nottebohm (Liechtenstein v Guatemala), [1955] ICJ Rep 4, 24.
4 5 6 7 8 9

Compromis, para 8. Ibid, paras 9 (intermarriage),11 (Ilona Bikras family in Ardenia),17 (Arwens Zetian spouse). Ibid, paras 9,13,15. Ibid, paras 17,20. Protection, supra n1, Article 7 commentary. Minority Schools in Albania (1935), Advisory Opinion, PCIJ (Ser A/B No64). 2

2.

International human rights law applies to the drone campaign International humanitarian law (IHL) applies to armed conflicts. 10 Absent armed conflict,

human rights law provides rules for evaluating state conduct. 11 (a) There was no international armed conflict justifying the use of force International armed conflict occurs between parties to the Geneva Conventions. 12 Rigalias declaration of war 13 was on the non-party Zetians, while Ardenia and Rigalia, both parties, were not in an armed conflict. Rather, as Arwen asserted, they are addressing disturbances to public safety and public order. 14 (b) There was no non-international armed conflict justifying the use of force Common Article 3 of the Geneva Conventions, and Additional Protocol II, govern noninternational armed conflicts. Protocol II defines such conflict as between a state and organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to

10

Convention (IV)relative to the Protection of Civilian Persons in Time of War, 12 August 1949 [Geneva Convention] Common Articles 2,3 [CA2,CA3]. ICRC, International Humanitarian Law and International Human Rights Law (January 2003), online: ICRC/EHL<http://www.ehl.icrc.org>.
12 13 14 11

CA2, supra n10, para 1 and commentary. Compromis, para 21. Ibid, para 32. 3

implement this Protocol. 15 This threshold, requiring a level of both intensity of hostilities and party organization, also applies to Common Article 3. 16 i. Hostilities had not reached a minimum level of intensity Armed conflict exists where there is protracted, large-scale violence between parties. 17 The sporadic Zetian unrest, coupled with political demonstrations and later, bombings that were limited to one bridge and two government buildings, did not amount to such intensity. 18 Moreover, these incidents were not, as in Limaj, a series of attacks over a widespread and expanding geographic area. 19 ii. Zetian insurgents are not parties to a conflict Zetians carrying out violent acts are not an organized armed group under responsible military command. In Limaj, such a group existed because it had a General Staff, unit commanders, subordinate units, soldiers, disciplinary rules, military police, and recruitment and

15

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, Article 1 [APII].
16

ICRC, How is the Term Armed Conflict Defined in International Humanitarian Law? (Opinion Paper, March 2008), 3, online: ICRC<www.icrc.org> [ICRC Opinion]. See also Prosecutor v Dusco Tadic, IT-94-1-T, Opinion and Judgment (7 May 1997), paras 561-568 (ICTY, Trial Chamber), online: ICTY<www.itcy.org>[Tadic trial]; Prosecutor v Fatmir Limaj, IT-03-66-T, Judgement (30 November 2005), para 84 (ICTY, Trial Chamber), online: ICTY <www.itcy.org>[Limaj].
17

Tadic, IT-94-1, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction (2 October 1995), para 70 (ICTY, Appeals Chamber) [Appeals Decision].
18 19

Compromis, paras 15-16,18. Limaj, supra n16, para 168. 4

equipping procedures. 20 There is no indication that the ZDP affiliates who launched the violent campaign had such organizational structure. Moreover, the violent acts of radical Zetians do not represent the Zetian community. All Zetians historical sympathy for the nationalist cause and even, prior to the violence, their participation in demonstrations, 21 is not the same as advocating or identifying with violence. Conversely, that Zetians as a whole enjoy a degree of organization and territorial control in both states does not mean that the few who launched the violent campaign possessed such an organizational structure for the purposes of APII. Rather, their acts resemble banditry, unorganized and short-lived insurrections, or terrorist activities, 22 which are not captured under APII. (c) No other type of armed conflict exists in law The ICRC acknowledges that there is no other type of armed conflict than international and non-international conflict. 23 Thus, there was no armed conflict here. 3. (a) Under international human rights law, Rigalias campaign is unlawful The campaign is a crime against peace All peoples have the right to determine their political status and to pursue their economic, social, and cultural development. 24 Rigalias use of force to deprive Zetians of this right contravenes the UN Charter and constitutes a crime against peace. 25
20 21 22 23

Ibid, paras 95-134. Compromis, paras 9,15. Tadic Trial, supra n16, para 562. ICRC Opinion, supra n16, 1. 5

Moreover, self-defence does not legitimize Rigalias use of force. A state may exercise self-defence against another state, and only when it claims and proves that attacks against it are imputable to that state. 26 Rigalia, therefore, cannot justify its offensive against non-state actors suspected Zetian separatists on the basis of self-defence. (b) The campaign violates the right to life All individuals have a fundamental right to life and not to be arbitrarily deprived thereof. 27 Use of force in law enforcement must coincide with respect for this human right, 28 even in situations of political instability or public emergency. 29 Moreover, a state owes this obligation extra-territorially to individuals over whom it exercises jurisdiction, 30 as with extra-

24

International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171, Article 1 [ICCPR]; Declaration on the Rights of Indigenous Peoples, UNGAOR, 61st Sess, UN DocA/RES/61/295 (2007), Preamble, Article 3.

25

Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, UNGAOR, 25th Sess, UN Doc A/RES/2625(XXV) (1970) 121,122-124 [Relations].
26

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] ICJ Rep 136, para 139 [Wall]; Armed Activities on the Territory of the Congo (DRC v Uganda), Judgment, [2005] ICJ Rep 168, para 130 [Activities].

27

ICCPR, supra n24, Article 6(1); Universal Declaration of Human Rights, UNGAOR, 3d Sess, Supp No 14, UN Doc A/RES/217(III)A (1948), Article 3 [UDHR]. UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, 7 September 1990, UN Doc A/CONF.144/28/Rev.1, 112, Preamble, Principle 5 [Basic Principles]; Code of Conduct for Law Enforcement Officials, UNGAOR, 34th Sess, UN Doc A/RES/34/169 (1979), Preamble, Article 2 [Code].
29 28

ICCPR, supra n24, Articles 4(1),4(2); Basic Principles, supra n28, Principle 8; Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, ESC Res 1989/65, UNESCOR, 1989, Supp No1, UN Doc E/1989/89, Article 19 [Investigation].
30

ICCPR, supra n24, Articles 2,6; Wall, supra n26, para 111; Activities, supra n26, paras 17880; General Comment No 31[80]: The Nature of the General Legal Obligation Imposed on 6

territorial arrests 31 or killings. 32 Thus, neither the fact that Rigalia perceived a public emergency, 33 nor the cross-border nature of Rigalias response, derogates from Rigalias obligation to respect the right to life. i. The strikes were not absolutely necessary A states law enforcement officials must use force only when strictly necessary and to the extent required for the performance of their duty, 34 as in the case of an imminent threat of death or serious injury. 35 In McCann, the use of force may have been necessary since officials believed their targets could detonate bombs at any moment, but even then only if they made sufficient allowances for the possible erroneousness of their intelligence. 36 Moreover, officials should only use force when less extreme means to remove the threat are unavailable. 37 The Rigalian authorities and their agents conducted the drone campaign under no belief mistaken or otherwise that their targets posed such an imminent threat, but rather on the basis

States Parties to the Covenant, UNHRCOR, 80th Sess, 2187th Mtg, UN Doc CCPR/C/21/Rev.1/Add.13(2004), para 10 [Comment 31].
31

See Lopez v Uruguay, Views under article 5(4) of the Optional Protocol to the ICCPR (1981), UNHCROR, 13th Sess, UN Doc CCPR/C/13/D/52/1979, para 12; calan v Turkey, No 46221/99 [2005] IV ECHR.
32 33 34 35 36 37

See e.g. McCann v UK, 21 ECHR (Ser A) 97 [McCann]. See Compromis, paras 16 (Rigalias invocation of emergency powers), 21 (war declaration). Code, supra n28, Article 3, restated in Basic Principles, supra n28, Preamble. Basic Principles, supra n28, Principle 9. McCann, supra n32, paras 206-210. Basic Principles, supra n28, Principles 9,14. 7

of their targets status as prominent Zetian separatists. 38 Nor is there evidence of significant investigation into the reliability of such a belief, beyond an ILSA report alleging Zetian meetings in Ardenia, and Rigalian press allegations of an Ardenian-Zetian agreement. 39 Moreover, Rigalia did not consider less extreme alternatives to ensure that lethal force was strictly unavoidable in order to protect life. 40 Unlike McCann, where officials considered it impossible to arrest targets due to a belief that they possessed explosives, there is no evidence that Rigalia considered less forceful means in individual cases like Bermals. 41 Nor is there evidence of cooperative initiatives like those to which Zetians were receptive in Ardenia. 42 ii. The strikes were not strictly proportionate Use of force in law enforcement is an exceptional measure that should be proportionate to the seriousness of the offence and to the legitimate objective to be achieved. 43 Even had Rigalias use of lethal force been necessary pursuant to some legitimate objective, Rigalia failed to exercise such restraint so as to decrease the risk of unnecessary harm. 44 Specifically, Rigalia did not minimize damage and injury to preserve human life, ensure immediate assistance and medical aid to injured or affected persons, or notify the latters
38 39 40 41 42 43

Compromis, para 30. Ibid, paras 19-20. Basic Principles, supra n28, Principle 9. See also Code, supra n28, Article 3. Even in McCann (supra n32), the ECHR still found the use of force unlawful. Compromis, para 17.

Basic Principles, supra n28, Principle 5(a); Code, supra n28, Article 3 and commentary. See also McCann, supra n32, para 149.
44

See Basic Principles, supra n28, Principles 5,9; McCann, supra n32, para 135. 8

relatives or close friends. 45 Rather, Rigalia disregarded human life, not only unnecessarily killing some fifteen targets, but harming approximately 230 citizens by mid-March. 46 The 15 March attack not only killed Bermal, but his entire family and 25 civilians, while injuring 112 more, with no indication that they received assistance or that their loved ones were notified. 47 The extent of harm shows that the attacks intensity and scope far outstripped any objective behind them. 4. In the alternative that there is an armed conflict, Rigalias drone strikes violate international humanitarian law (IHL) The Geneva Conventions apply to international armed conflicts including situations of occupation on a states territory. 48 These situations include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination. 49 (a) The law of international armed conflict applies to this conflict The Northern Provinces are largely governed by Zetians, who also exercise territorial control there, 50 yet they struggle under the de jure central Rigalian government that is oppressive

45 46 47 48 49

Basic Principles, supra n28, Principles 5(b)-5(d). Compromis, para 29. Compromis, para 30. CA2, supra n10.

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, Article 1, paras 3-4 [API].
50

Compromis, paras 3-4. 9

and racist in its intolerance of Zetian culture, traditions, and desire for autonomy. 51 Thus, they are a people struggling against a racist regime, their struggle is legitimate and Rigalias intervention unlawful, and the resulting armed conflict is international. 52 In the alternative that the conflict is not international, the rules of international armed conflict should apply nonetheless. As then-ICTY President Antonio Cassese has stated, [T]here has been a convergence such that internal strife is now governed to a large extent by the rules and principles which had traditionally only applied to international conflicts. 53 (b) The law of international armed conflict prohibits the strikes API prohibits attacks that fail to discriminate between the civilian population and combatants or between civilian objects and military objectives. 54 Attacks in which the attacker has no direct view of the objective require especially great caution. 55 Attacks that cause disproportionate death and injury to civilians, or damage to civilian objects, in relation to the anticipated military advantage, are also prohibited. 56

51 52

Compromis, para 14.

API, supra n49, Article 1 commentary; Basic principles of the legal status of the combatants struggling against colonial an alien domination and racist regimes, UNGAOR, 28th Sess, Supp No 30, UN Doc A/RES/3103(XXVIII) (1973) 142, paras 1-3; Relations, supra n25, The principle of equal rights and self-determination of peoples.
53

Memorandum to Preparatory Committee for the Establishment of the ICC (22 March 1996), in L Moir, The Law of Internal Armed Conflict (London: Cambridge University Press, 2000), 51. See also Appeals Decision, supra n17, para 127; Dieter Fleck, ed, The Handbook of International Humanitarian Law, 2d ed (Oxford: Oxford University Press, 2008), 608.
54 55 56

API, supra n49, Article 51. Ibid, Article 57(2)(b) commentary. Ibid, Article 57(a)(iii) and commentary. 10

The strikes are indiscriminate. Although attackers have no direct view of targets, insufficient caution was taken in discriminating civilians from combatants. Rather, the suspected Zetian separatists who were targeted and died were not combatants, but political leaders. Nor were they civilians acting as unlawful combatants directly participating in acts of war likely to cause harm at the time of the strikes, as required by API. 57 Rather, they were targeted as civilians, even as with Bermal at home with family. Furthermore, the expected collateral civilian casualties, which became ever more apparent as the strikes progressed, were disproportionate to the expected military gain. Even before the 15 March strike, more than 230 civilians died, out of proportion to the fifteen targets killed. Moreover, Rigalia did not take all feasible precautions in choosing means and methods to avoid civilian damage, 58 and failed to provide civilians with effective advance warning. 59 Instead, Rigalia chose unnecessarily deadly means, as indicated above, and persisted with the attacks which in cases like Bermals occurred without warning 60 despite their disproportionate civilian harm. (c) Human rights law continues to apply The existence of armed conflict and consequent application of IHL does not preclude the application of human rights law: some principles like respect for life apply at all times, and

57 58 59 60

Ibid, Article 51(3) and commentary. Ibid, Article 57(2)(a)(ii),(4). Ibid, Article 57(2)(c). Compromis, para 30. 11

courts must consider which legal regimes apply in any given situation. 61 In Activities, for example, Uganda simultaneously had violated the principle of non-use of force, human rights law and humanitarian law. Similarly in this case, armed conflict and humanitarian law do not prevent the Court from considering human rights. 5. The Court should order the immediate cessation of the drone strikes The consequence of internationally wrongful conduct is the cessation and non-repetition of such conduct. 62 Because, as the foregoing arguments show, the strikes violate international law, they must cease immediately. II. THE ATTACK ON THE BAKCHAR VALLEY HOSPITAL IS ATTRIBUTABLE TO RIGALIA, RIGALIA HAS AN OBLIGATION TO INVESTIGATE THE ATTACK AND TO COMPENSATE ARDENIA THEREFORE AND, MOREOVER, THE ATTACK WAS A DISPROPORTIONATE AND UNLAWFUL ACT OF AGGRESSION AGAINST THE PEOPLE OF ARDENIA 1. The attack on the Bakchar Valley hospital is attributable to Rigalia The conduct of individuals acting under a states instructions or control is attributable to the state, as is the conduct of organs placed at the states disposal by another state. 63

See Activities, supra n26, para 216; Wall, supra n26, para 106; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep 226, para 25 [Weapons].
62

61

Responsibility, supra n1, Article 30. For armed conflict specifically, see API, supra n49, Articles 85(3)(a)-(e),57(2)(b) and commentary. Responsibility, supra n1, Articles 4-6. 12

63

(a)

The Morganian forces carrying out the strikes were acting on Rigalias behalf The conduct of a states organ, placed at the disposal of another state, are attributable to

the latter where the organ acts with the consent, under the authority of and for the purposes of the receiving state. 64 Rigalia not only consented to having the Morganian army an organ of Morgania act on its behalf, but solicited it to do so. Ratko instructed Morganias Air Force to deploy drones to Fort Raucus, thereby placing the organ at Rigalias disposal such that it could act, ultimately, under Rigalias authority: strikes were conducted at the urging of Rigalias Defence Force, under Khutais command, with Rigalias defence minister instructing Morgania. 65 At most, Morganias army acted on the joint instructions of Morgania and Rigalia, in which case its conduct is attributable to both states. 66 Moreover, Morganias army was acting for Rigalias purposes. It was Rigalia that declared war on Zetian separatists, who seek secession from Rigalia. Even Rigalias defence minister referred to the situation as Rigalias fight to defend itself and its people. 67 Morgania, like all states, has an interest in combating terrorism. However, the drone campaign is a Rigalian affair, for which Rigalia simply is using Morganias weapons and organs.

64 65 66 67

Ibid, Article 6 commentary. Compromis, paras 29,31. See Responsibility, supra n1, Articles 6, 47 and commentary. Compromis, para 31. 13

(b)

The informants were acting on Rigalias behalf Conduct in fact authorized by the state is attributable to the state, even where the actors

are private individuals acting as auxiliaries while remaining outside the official structure of the State and not forming part of its police or armed forces. 68 In recruiting and compensating with large money payments and relocation from jail the informants, 69 Rigalia offered them a quid pro quo that established its authority over their conduct. Moreover, individuals conduct is attributable to a state if the actors are under the states direction or control, 70 as determined by the test of effective control. 71 Rigalia did more than provide financial support and arms, which alone is insufficient to establish effective control. 72 Rather, Rigalia made the informants conduct possible in the first place by actively recruiting and paying them for its own purpose of cracking down on Zetians. A state establishes effective control over individuals conduct in another state, even if only by necessary implication, by issuing specific instructions. 73 Given that Rigalia recruited informants, who were not authorized to talk to drone operators, the Court can reasonably infer that Rigalia did otherwise issue positive instructions to informants, 74 thereby establishing
68 69 70 71

Responsibility, supra n1, Article 8 commentary. Compromis, para 29. Responsibility, supra n1, Article 8.

Tadic, IT-94-1-A, Judgement (15 July 1999), paras 124,137 (ICTY Appeals Chamber) [Tadic Appeal]. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v USA) [1986] ICJ Rep 14, para 116 [Nicaragua].
73 74 72

Tadic Appeal, supra n71, para 118. Compromis, para 31. 14

effective control. Alternatively, a state establishes effective control through retroactive public approval of conduct. 75 Rigalia implicitly did so: although it sought to deny responsibility, 76 it never condemned the attack. Rather, in admitting that it was a regrettable consequence of Rigalias fight against separatism, the defence minister acknowledged the incident as an acceptable part of conduct carried out on Rigalias behalf. 77 (c) Mistake and contravention of authority do not negate attribution to Rigalia Conduct on a states behalf is attributable to it even when in breach of the authority granted by the state. 78 Thus, the hospital strike remains attributable to Rigalia even though an informants contravention of authority, in talking directly to a drone operator, led to the attack. Similarly, the operators consequent error in firing at the hospital, although not within her authority, does not detract from Rigalias ultimate responsibility. 79 2. Rigalia has an obligation to investigate the attack and to compensate Ardenia therefore Unlawful conduct attributable to a state entails the states responsibility and duty to bear the consequences. 80 Because the hospital attack was unlawful and attributable to Rigalia, the state must bear the consequences by investigating it and compensating Ardenia.

75 76 77 78

Tadic Appeal, supra n71, para 118. Compromis, para 34. Ibid, para 31.

Responsibility, supra n1, Article 7; Activities, supra n26, para 214; Tadic Appeal, supra n71, paras 119,121; McCann, supra n32, para 185; Youmans(USA) v United Mexican States (1924) 4 RIAA 10; API, supra n49, Article 91. Compromis, para 30. Responsibility, supra n1, Articles 1-2. 15

79 80

States must ensure a remedy for those whose rights or freedoms they violate. 81 Such remedy in the case of unlawful killings includes an effective investigation, 82 even where it has not been established that the state was directly involved in the killing, 83 and especially where there has been a series of such killings. 84 Because the hospital attack violated the victims right to life, and given that it took place in the context of a series of killings, Rigalia has an obligation to investigate it. A state responsible for unlawful conduct must make full reparation for the injury caused, which may take the form of compensation for damage and which may be owed to another state where the latter was injured. 85 The 15 March attack injured Ardenia by damaging a public hospital. 86 Therefore, Rigalia, as the responsible state, must compensate Ardenia. Moreover, Rigalia has a duty to investigate and compensate even if there was an armed conflict. The ILC provides that all internationally wrongful acts entail legal consequences,
81 82

ICCPR, supra n24, Article 3(a).

Comment 31, supra n30, para 8; Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UNGAOR, 60th Sess, UN DocA/RES/60/147 (2005), Articles 18,22; Investigation, supra n29, Articles 8-9,19; Model Protocol for a Legal Investigation of Extra-Legal, Arbitrary and Summary Executions, UN DocE/ST/CSDHA/.12 Part III (1991). See also Finucane v UK, No 29178/95 [2003] ECHR 328; Inter-AmCtHR, MackChang v Guatemala (2003), Inter-AmCtHR (Ser C) No 101, para 156 [Mack-Chang].
83

See Kaya v Turkey, No 158/1996/777/978 [1998] ECHR; Ergi v Turkey, No 66/1997/850/1057 [1998] ECHR; Velsquez-Rodrguez v Honduras (1988), Inter-AmCtHR (Ser C) No 4, paras 172-177.
84 85

Mack-Chang, supra n82, para 152.

See Responsibility, supra n1, Articles 31,33-34,36; Factory at Chorzw, Jurisdiction (1927), PCIJ (SerA) No 9, 21; Gabckovo-Nagymaros Project (Hungary v Slovakia), [1997] ICJ Rep 81, para 152; Avena (Mexico v USA), [2004] ICJ Rep 59, para 119.
86

Compromis, para 30. 16

without distinguishing between those committed under human rights law and those committed under IHL. 87 As such, the Court should order an investigation even if there was an armed conflict, as Israels High Court has done. 88 Rigalia must compensate, whether the attack violated human rights law, IHL, or the principle of non-use of force. 89 3. The attack was a disproportionate and unlawful act of aggression against the people of Ardenia Aggression is an unwarranted threat or use of force that is inconsistent with the UN Charter. 90 A state may use force in self-defence against an armed attack, 91 as an exception to this general prohibition. 92 (a) The attack violated Ardenias sovereignty and political independence Violations of other states sovereignty, territorial integrity or political independence are prohibited. 93 Before 15 March, Arwen stated that the drone strikes violated Ardenias sovereignty, and indicated that they violated Ardenias political independence by undermining Ardenias efforts to live peacefully in a multi-ethnic-state. 94 The hospital attack confirmed and
87 88

Responsibility, supra n1, Article 28.

Public Committee Against Torture v Government of Israel (2006), Supreme Court of Israel, HCJ 769/02.
89 90

API, supra n49, Article 91 and commentary; Activities, supra n26, para 259.

Definition of Aggression, UNGAOR, 29th Sess, UN Doc A/RES/3314(XXIX) (1974), Article 1 [Aggression].
91 92 93 94

Charter of the United Nations, 26 June 1945, CanTS 1945 No 7, Article 51 [Charter]. See e.g. Activities, supra n26, para 112. Charter, supra n91, Article 2; Aggression, supra n90, Article 1. Compromis, para 32. 17

exacerbated these violations by further terrifying Ardenians and aggravating Zetian discontent. Indeed, although Rigalia has been involved in border skirmishes for years, 95 this attack exceeded the scope of prior acceptable conduct or of mutual understandings in efforts to maintain peace. 96 (b) i. The attack is not a lawful exercise of self-defence Zetian insurgents were not acting on Ardenias behalf A states right of self-defence exists only if it claims that armed attacks against it are imputable to another state. 97 Rigalia neither sustained armed attacks by Ardenia, nor claims that the perceived armed attacks by Zetians are imputable to Ardenia. Moreover, a state cannot rely on self-defence without sufficient evidence that another state was in a conspiracy to participate in or support military action against it. 98 Rigalias evidence of Zetian meetings in or with Ardenia does not demonstrate Ardenias involvement in an anti-Rigalian conspiracy and therefore does not ground a claim that Rigalia acted in selfdefence. 99 ii. Rigalia was not subject to an armed attack Mere assistance to rebels through weapons provision or logistical support cannot constitute an armed attack. 100 Thus, even if Ardenia were supporting Zetian insurgents, such

95 96 97 98 99

Ibid, para 1. Cf. Activities, supra n26, paras 110-111. Wall, supra n26, para 139. Activities, supra n26, paras 121-130. Compromis, paras 19-20. Nicaragua, supra n72, para 195. 18

100

support would not justify Rigalias resort to self-defence. Moreover, even if Ardenia were sending bands into Rigalia, their conduct would constitute an armed attack only if it were equally serious as an actual armed attack by regular armed forces, rather than a mere frontier incident. 101 As indicated above, the separatists conduct was not serious enough to warrant the drone strikes. Similarly, even if such conduct were attributable to Ardenia, it was not serious enough to constitute an armed attack warranting the vicious hospital strike. iii. In the alternative that the right to self-defence exists, the attack was not a lawful exercise of that right Self-defence is exercised lawfully when in response to an armed attack and in compliance with the twin principles of necessity and proportionality. 102 Use of force in self-defence must be necessary to eliminate the main danger to a state. 103 As with the case of the drone programme more generally, the 15 March strike on Bermals home and the hospital was not necessary to eliminate any danger from the insurgents, or from Ardenia itself. Rather, Rigalia could have sought less forceful means, including participation in the mediation and cooperation that Ardenia itself was initiating, 104 to arrive at a peaceful resolution with both Ardenia and the Zetians. Indeed, under the UN Charter, it was incumbent on Rigalia to do so, especially with the Security Councils urging. 105

101 102

Ibid; Aggression, supra n90, Article 3(g).

See Responsibility, supra n1, Article 21 and commentary; Nicaragua, supra n72, para 176; Weapons, supra n61, para 41. Nicaragua, supra n72, para 237. Compromis, paras 20,32. Ibid, para 32; Charter, supra n91, Article 33. 19

103 104 105

Similarly, the attack is out of proportion to any perceived armed attack. Although the number of individuals killed on 15 March is roughly equal to the cumulative number of individuals killed in attacks by Zetian insurgents, the strike killed more than any individual attack against Rigalia had done. Moreover, the number of wounded appears to be greater than even the cumulative number of those wounded in the attacks to which the strike responded. 106 Thus, Rigalias disproportionate response negates any claim the state has in self-defence.

III. RIGALIAS MAVAZI BAN VIOLATES ZETIANS RIGHTS UNDER INTERNATIONAL LAW

1. Ardenia has standing to challenge Rigalia's Mavazi ban on behalf of Zetians living in Rigalia (a) Ardenia can bring a claim as parens patriae for its citizens As argued in Section I.1(a), Ardenia is entitled to protect Zetians from injury caused by Rigalia, despite being Ardenian-Rigalian dual nationals. The injury can stem from the existence of a law that has the potential to directly and adversely affect an individual. 107 The Mavazi ban directly and adversely affects Zetians who don the Mavazi in Rigalia as it infringes upon their rights under international law to religious freedom and non-discrimination. Thus, Ardenia, as Zetians state of citizenship, has standing. (b) Alternatively, the Mavazi ban is a breach of obligations erga omnes, compelling Ardenia to bring a claim The Mavazi ban constitutes racial and religious discrimination and breaches international

106 107

Compromis, paras 18,30.

James Crawford, Special Rapporteur, Second Report on State Responsibility, ILC, 51st Sess, UN Doc A/CN.4/498 (1999), para 78. 20

human rights treaties, all of which are obligations erga omnes (i.e., owed to all states). Any state can intervene when obligations erga omnes are breached; 108 indeed this Court has stated that it is incumbent on all states to ensure that breaches to obligations erga omnes do not continue. 109 The Mavazi ban is a form of racial discrimination. This Court established that: the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination are obligations erga omnes. 110 Racial discrimination includes discrimination on the basis of ethnicity. 111 The Mavazi ban only targets the Zetian ethnic minority, preventing them from donning headdress specific to this ethnic group. By targeting religious headdress, it is also a form of religious discrimination, which international law increasingly views as tantamount to racial discrimination. 112 Further, obligations stemming from treaties of universal application, such as human rights treaties, are also obligations owed to all states. 113 As argued below in Section III.2, the Mavazi ban contravenes several international human rights instruments on freedom of religion,

108 109

Responsibility, supra n1, Article 48(1)(b).

Wall, supra n26, paras 157-159. The Courts more recent pronouncements trump its previous view expressed in South West Africa (Ethiopia v South Africa; Liberia v South Africa), Preliminary Objections [1962] ICJ Rep 319, in which third-party standing before the ICJ was not accepted for a breach of obligations erga omnes [SW Africa].
110

Barcelona Traction, Light and Power Co Ltd (Belgium v Spain), [1970] ICJ Rep 3, para 34 [Barcelona Traction]. United Nations Declaration on the Elimination of All Forms of Racial Discrimination, UNGAOR, 18th Sess, UN Doc A/RES/18/1904 (1963), Article 1. Ian Brownlie, Principles of Public International Law, 4th ed (New York: Oxford University Press, 1990), 513 n29. Barcelona Traction, supra n110, para 34. 21

111

112

113

womens and childrens rights and the rights of minority cultures. Because the Mavazi ban goes against obligations erga omnes, Ardenia has a right, and even an obligation, to bring a claim. 2. Rigalia's Mavazi ban violates the freedom of religion rights of Zetian women and girls under international law (a) The Mavazi ban violates Rigalia's treaty obligations on freedom of religion The Mavazi ban prevents Zetians who believe it is their religious duty to wear the Mavazi from manifesting their religion. Freedom of religion is a fundamental international human right enshrined in treaty as well as in custom. 114 The ICCPR specifies that everyone has a right to freedom of religion and to manifest their religion. 115 Manifestation includes the wearing of distinctive clothing or head coverings, 116 such as the Mavazi. The Convention on the Rights of the Child (CORC) echoes the right of the child to freedom of religion, and adds that states must respect parents' religious guidance of their children. 117 These two treaty obligations protect the right of Zetian women and girls to wear the Mavazi if it is their sincere religious belief, or in the case of girls, if their parents guide them to do so. (b) The Mavazi ban is not a permissible limitation on freedom of religion.

i. The Mavazi ban does not fall under enumerated grounds of permissible limitations under treaty law The Mavazi ban is not justified under international law as it fails the necessity test for
114

UDHR, supra n27, Article 18; ICCPR, supra n24, Article 18; Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990), Article 14 [CORC]. ICCPR, supra n24, Article 18.

115 116

General Comment No 22: The right to freedom of thought, conscience and religion (Article 18), UNHRCOR, 48th Sess, UN Doc CCPR/C/21/Rev.1/Add.4 (1993), para 4 [Comment 22]. CORC, supra n114, Article 14. 22

117

limitations in the two treaties. Limitations on the freedom to manifest one's religion are only permitted when necessary for reasons of protecting public safety, order, health or morals or the fundamental rights and freedoms of others. 118 The Rigalian government claims that the ban is necessary for reasons of public safety and to promote women's rights. 119 As outlined below, neither of these propositions satisfy the requirements of the necessity test. Rigalia has not convincingly established the public safety benefit of banning the Mavazi. The public safety limitation is for situations of specific danger that threatens the safety of persons. 120 Since courts must proceed from the need to protect the guaranteed rights, and ensure that limitations are not applied so as to vitiate those rights, limitations should be strictly interpreted and can only be applied for the purposes for which they are prescribed. 121 The Rigalian government fails to explain how banning the Mavazi will protect the public when loose clothing, non-Masinto head coverings and disguises continue to be permitted. The act of one individual using a Mavazi to hide a bomb 122 does not preclude others from doing the same under other forms of permitted garb. Further, the security failure in the Mavazi bombing incident is with Rigalias policy not to question those wearing a Mavazi; not with the garb itself. 123 Protecting women and girls who sincerely believe wearing the Mavazi is their religious duty

118 119 120

ICCPR, supra n24; CORC , supra n114, Article 14(3); Comment 22, supra n116, para 8. Compromis, paras 16,34.

Manfred Nowak & Tanja Vospernik Permissible Restrictions on Freedom of Religion or Belief in Tore Lindholm & Bahia Tahzib-lie, eds, Facilitating Freedom of Religion or Belief: A Deskbook (Leiden: Martinus Nijhoff Publishers, 2004) 147, 150. Comment 22, supra n116, para 8. Compromis, para 18. Ibid. 23

121 122 123

overrides the questionable safety benefits associated with banning it. Rigalias claim of promoting womens rights does not satisfy the necessity test either. Women's rights is not one of the permissible grounds of the test. Nor can it be construed under the morality ground, because it is not for the state or courts to determine whether religious beliefs or manifestations are legitimate according to an objective standard. 124 Thus, the state is not able to question the belief of Zetian women and girls who choose (or are guided, in the latter case) to wear the Mavazi, on the grounds of morality. Even if womens rights fall under an enumerated ground, the Mavazi ban actually discriminates against women and therefore does not qualify as a permissible limitation. This is because limitations on freedom of religion cannot be imposed for discriminatory purposes or applied in a discriminatory manner. 125 Discrimination occurs when members of a minority group are excluded from participation in rights, interests and opportunities which a majority of the population can enjoy. 126 The Mavazi ban is discriminatory as it unjustifiably only targets a practice of the Masinto religion and prevents Zetian women who wear the Mavazi from participating in public life. 127 ii. The Mavazi ban is too broad and lacks proportionality to be a permissible limitation The Mavazi ban is too sweeping as it prohibits women and girls from manifesting their

124 125 126 127

Manoussakis and Others v Greece No 18748/91 [1996] IV ECHR, para 47. Comment 22, supra n116, para 8. SW Africa, supra n109 (Judge Tanaka, Dissenting Opinion), 307. Compromis, para 16. 24

religion in any public setting. 128 Limitations must directly relate and be proportionate to the specific need on which they are predicated. 129 This excessive restriction is not proportionate to any stated purpose of the law as it prevents Zetians who believe it is their religious duty to wear the Mavazi from any public life, effectively making them prisoners in their own homes. Current state practice does not support such excessive restriction. The recently passed French law prohibiting any facial coverings 130 the only law of its kind in the world was widely criticized by other states and international bodies as being excessive because, although it does not target a specific religion in its text, it effectively excludes Muslim women who wear the niqab from public activity. 131 The United States, a country for which national security is a significant concern, has stated that it takes a different approach from that of France in balancing security and religious freedom. 132 Similarly, the United Kingdom has stated that such an excessive ban is un-British and is at odds with its vision of a tolerant and mutually respectful society. 133 It remains to be seen whether the French ban will be upheld by courts, but in the case of the Mavazi ban, the requirements under international law to limit religious freedom are not
128 129 130 131

Compromis, para 16. Comment 22, supra n116, para 8. Loi no 2010-1192 du 11 octobre 2010, JO, 12 October 2010.

Criticized by the Council of Europe (see Karine Maillot, Le Parlement europen soppose linterdiction totale de la burqua (24 June 2010), online: Zinfos974 <http://www.zinfos974.com>) and the UN Human Rights Council Special Rapporteur on the Freedom of Religion and Belief (see Andreas Vierecke, Burka Debate in Germany and Europe An Interview with Heiner Bielefeldt, online: Goethe-Institut:<http://www.goethe.de>). Philip J Crowley, Daily Press Briefing (14 July 2010), online: United States Department of State<http://www.state.gov>. See Damian Green says burka ban would be un-British, BBC News (18 July 2010) online: BBC<http://www.bbc.co.uk>. 25

132

133

met. iii. The Mavazi ban can be distinguished from cases where Courts have permitted limitations on freedom of religion The European Court of Human Rights has upheld limitations on freedom of religion regarding religious headdress in situations that are distinct from the present case. 134 Those cases were about limited prohibitions of religious headdress, such as in public education settings, in contrast to the outright public ban of the Mavazi. They were addressing religious symbols broadly and did not target one specific religion, unlike the Mavazi ban. Further, the state policies aimed at maintaining a strong tradition of secularism in their societies where different religious groups must coexist. In Rigalia, Zetians live within their own community in the Northern Provinces where the practice of their religion is pervasive and not in opposition to other religious groups. 135 Secularism is not the policy rationale being adopted; rather, Rigalia has only singled out Zetian religious practice for unfounded reasons and has applied it in a discriminatory manner. International law does not permit such a discriminatory and sweeping incursion on a fundamentally held human right. 3. Rigalia's Mavazi ban is discriminatory in violation of international treaty law (a) The Mavazi ban discriminates against Zetian women and girls The Mavazi ban discriminates against Zetians on the basis of gender as it specifically targets the religious practice of women and girls. This violates Articles 2, 3 and 26 of the ICCPR, which guarantee the right to equality and non-discrimination with respect to the rights and

134

Dogru v France, No 27058/05, [2008] ECHR, 49 EHRR 8; Dahlab v Switzerland, No 42393/98, [2001] V ECHR; Sahin v Turkey, No 44774/98, [2005] ECHR, 41 EHRR 8.
135

Compromis, para 2. 26

freedoms, including freedom of religion, enshrined in the Covenant. 136 The Convention on the Elimination of Discrimination Against Women, which also prohibits discrimination, explains that "the term discrimination against women shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women... on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field." 137 The Mavazi ban affects only Zetian women and nullifies their participation in public life, effectively hindering their ability to enjoy or exercise any human rights and fundamental freedoms in all of the above listed spheres. If Rigalia were really interested in ameliorating the lives of Zetian women, as it claims, it would target the tribal council decrees forcing women to wear the Mavazi, 138 instead of infringing on the rights of those who sincerely believe it is their duty to wear the Mavazi. Also, Rigalia could make a sincere attempt to address the inequality Zetian women face in education, employment and marriage, which they have not. 139 Instead, they are using womens rights as a pretext for imposing the Mavazi ban in an effort to punish Zetians. This assertion is supported by Rigalias timing for enacting the Mavazi ban, which coincided with heightened clashes between Zetians and the Rigalian government over the Zetian secessionist movement and protests against Rigalias disparaging remarks about Zetian

136 137

ICCPR, supra n24, Articles 2,3,26.

Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981), Article 1. Compromis, para 2. Ibid, paras 3-4. 27

138 139

culture. 140 (b) The Mavazi ban discriminates against Zetians as a minority cultural group The Mavazi ban violates Zetians' rights as minorities to enjoy their own culture, and to profess and practice their own religion. 141 The Mavazi not only has religious significance, but also cultural significance for its ornate colours and designs unique to each tribe. 142 The impugned law confines pious Zetian females to their homes and prevents them from enjoying their culture and practicing their own religion with other Zetians outside their home. The ban is a manifestation of Rigalias lack of respect for Zetian culture, which is clear from its Presidents characterization of Zetian customs as barbaric and from his disparaging remarks about their traditional medicine and tribal structures. 143 The Mavazi ban constitutes discrimination against this minority culture in contravention of Rigalias obligations under international law.

IV. ARDENIA DID NOT VIOLATE THE OECD ANTI-BRIBERY CONVENTION OR THE OECD DECISION ON MNE GUIDELINES

1. (a) i.

Ardenia did not breach the OECD Anti-Bribery Convention The alleged acts of bribery do not fall under the Convention The recipients of the alleged bribes are not foreign public officials Leo Bikra, to whom the third-party recipient of the alleged bribe is connected, is not a

140 141

Ibid, paras 13-14, 16, 21.

ICCPR , supra n24, Article 27; International Covenant on Economic, Social and Cultural Rights, 16 December 1966, UNGAOR 21st Sess, Supp No 16, UN Doc A/RES/2200(XXI)[A-C], 993 UNTS 3 (entered into force 3 January 1976) Article 15.
142 143

Compromis, para 3. Ibid, para 14. 28

foreign public official, and therefore the Convention does not apply to this case. Officials of public enterprises that operate on a normal commercial basis, do not fall under the Convention. 144 In this case, RRI is in charge of industrializing coltan reserves by issuing tenders for companies to mine the reserves on its behalf. 145 It is not a public enterprise that carries out a public function and engaged in activities in the public interest. 146 RRI operates on a normal commercial basis, overseeing mining operations. Therefore, its officials, including Bikra, are not captured under the Convention's definition of a foreign public official. Mandatory undocumented fees that MDI may have paid to provincial tribal councils in the Northern Provinces do not fall under the Convention because tribal councils are not public government entities; they are councils of community leaders for an ethnic minority. 147 ii. The alleged acts are not bribes The alleged acts do not fall under the definition of a bribe under the Convention. Article 1 defines the offence of bribery of foreign public officials as being "any undue pecuniary or other advantage, whether directly or through intermediaries, to a foreign public official, for that official or for a third party... to obtain or retain business or other improper advantage in the conduct of international business." 148 Rigalia contends that the ZRF, and its head, Clyde

144

OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 17 December 1997, 37 ILM 1 (entered into force 15 February 1999), commentary, para 15 [Convention]. Compromis, para 10. Convention, supra n144, para 11 of commentary. Compromis, para 3. Convention, supra n144, Article 1. 29

145 146 147 148

Zangara, are the third-party recipients of the alleged bribe. 149 However, there is no definition in the Convention of who constitutes a "third party". The OECD admits that the link between a bribe and a third party is unclear and experts are uncertain how to understand who is a third party. 150 In this case, the alleged third-party recipient is a charitable organization that provides educational opportunities and humanitarian assistance to Zetians. Although the charity's head happens to be Bikras nephew, 151 there is no evidence to prove that MDI knew that Bikra and Zangara are related or that they conspired to qualify Zangara or the ZRF as a "third-party" beneficiary of the bribe. Rigalia's allegations are not credible as they are based on media rumours and information from a potentially disgruntled former employee of MDI, who spoke only on the condition of anonymity. 152 These donations are not bribery, particularly given that MDI has an established history of active community service and has been transparent about its donations to the ZRF, details of which have been openly published on its website since 2000. 153 Further, nothing in the Convention or Guidelines prevents any organization from making donations to charitable organizations. Even if tribal council members are considered public officials, small facilitation payments, such as the undocumented fees, made to induce public officials to perform their

149 150

Compromis, para 22.

OECD, Bribery in Public Procurement: Methods, Actors and Counter-Measures (OECD, 2007), 44. Compromis, para 11. Ibid, paras 10, 22. Ibid, para 11. 30

151 152 153

functions, are exempt from the Convention's definition of bribery in Article 1. 154 While the OECD recommends prohibiting or discouraging facilitation payments, 155 the exception has not been overridden or repealed, and thus remains in force. As such, facilitation payments do not constitute a breach of the Convention. (b) Ardenia fulfilled its obligations under the Convention in addressing Rigalia's concerns i. Ardenia pursued an investigation in accordance with the Convention Even though Ardenias position is that the alleged acts do not constitute bribery, it pursued an investigation in accordance with its obligations under the Convention. Article 5 of the Convention states that investigations are subject to the rules and principles of states and recognizes the importance of prosecutorial discretion. 156 Furthermore, credible allegations of bribery are what states are to investigate, particularly given the need to ensure that individuals' fundamental rights are respected. 157 The OECD Working Group on Bribery recognizes that the

154 155

Convention, supra n144, para 9 of commentary.

OECD Working Group on Bribery in International Business Transactions [WGB], Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions (adopted by the Council 26 November 2009, with amendments adopted 18 February 2010), VI, online: OECD:<http://www.oecd.org> [WGB Recommendation].

156

Convention, supra n144, Article 5; Travaux prparatoires of the OECD Convention Combating Bribery of Foreign Public Officials (1999) International Trade Corruption Monitor F-1033.

WGB Recommendation, supra n155, XIII (ii); Peter Cullen "Article 5: Enforcement" in Mark Pieth, Lucinda Low & Peter Cullen, eds, The OECD Convention on Bribery: A Commentary (Cambridge: Cambridge University Press, 2007), 289, 302 [Cullen]. 31

157

sufficiency of evidence is required in order to investigate. 158 In this case, the Chief Prosecutor determined, in accordance with Ardenian rules and principles, not to continue with the investigation. The tenuous links to bribery in this case justify prosecutorial discretion to end the investigation. Also, key to the Chief Prosecutor's decision, were the implications for national security and resource constraints facing his office. 159 Both of these are legitimate reasons to end an investigation. 160 The OECD Working Group on Bribery and Courts have accepted national security as a reason not to pursue an investigation. 161 Regarding the resource constraints rationale, while the Commentary to the Convention recommends that states adequately fund authorities to permit effective prosecution, 162 it does not make it a requirement to prosecute every case. The Convention's ban against allowing national economic interest to inform prosecutorial decisions does not apply in this case as this is distinct from a situation of resource constraints. Instead it is about ensuring that trade advantages are not unfairly gained through bribery, 163 which is not the situation here. Thus, Ardenia met its obligations under the Convention in how it investigated the allegations of bribery. In any event, Rigalia is conducting its own investigation 164 and thus, it
158

OECD WGB, Phase I and II Reviews of Denmark, England and Wales, in Cullen, supra n157, 304-305. Compromis, para 25. Cullen, supra n157, 313, 315.

159 160 161

WGB, Phase I Review of Germany, DE-Ph1, 11, 19, in Cullen, supra n157, 323; R v Director of the Serious Fraud Office, [2008] UKHL 60.
162 163 164

Convention, supra n144 para 27 of commentary para 27. Cullen, supra n157, 315. Compromis, para 22. 32

does not make sense that both countries pursue an investigation on the same matter. ii. The balance of the Mutual Legal Assistance (MLA) information requested by Rigalia is outside the scope of the Convention Ardenia's response to Rigalia's MLA request is in line with its obligations under the Convention. It recognizes that MLA is to be provided to the extent that a state's laws permit. 165 Ardenia informed Rigalia at the 23-24 March 2010 meeting of the OECD Working Group that it was considering how it could satisfy Rigalia's MLA request within its laws. 166 Some of the documentation requested, such as correspondence between ZRF officials and provincial tribal councils, falls outside the scope of the investigation since it relates to correspondence between parties that are far removed from the alleged bribe-giver and recipient. Bearing in mind that the fundamental rights of individuals being investigated need to be respected, 167 it would be inappropriate for Ardenia to provide information on individuals who have not been proven to be directly linked to Rigalia's investigation. This is particularly the case given our contention that Rigalian authorities are anti-Zetian. 2. The Ardenian National Contact Point (NCP) did not breach the OECD Decision on MNE Guidelines (the Decision) (a) It is the prerogative of the NCP to decide whether issues raised merit further examination As per the Decision, it is the prerogative of NCPs to assess whether the issues raised

165 166 167

Convention, supra n144, Article 9. Compromis, para 24. Cullen, supra n157, 302. 33

merit further examination. 168 Based on the Ardenian NCP's assessment, it determined that it was not the appropriate forum to address CRBC's concerns because Rigalia's NCP was better placed to deal with the issue, and investigations were underway on the matter. 169 This determination is supported by the OECD, which recognizes that issues should be dealt with through one NCP. 170 (b) The NCP responded to the CRBC with sufficient reasons for why it was not the appropriate Contact Point to deal with its concerns The NCP fulfilled its obligation as set out in the Decision. NCPs are obligated to provide responses to the business community and other non-governmental organizations on enquiries about the Guidelines. 171 In this case, the NCP responded with a letter detailing its reasons for not examining the complaint. 172 That CRBC was not satisfied with the response does not negate that the NCP provided them with a response. CRBCs subsequent letter is a follow up to its initial complaint. 173 Nothing in the Decision requires that NCPs engage in a back-and-forth dialogue with the same entity. As such, the Ardenian NCP did not breach the Decision.

OECD Guidelines for Multinational Enterprises: Decision of the Council, Decision adopted June 2000 (OECD, 2000), III.C(1) [OECD Decision].
169 170

168

Compromis, para 26.

OECD, 2008 Annual Meeting of the National Contact Points: Report by the Chair, (24-25 June 2008), 6. OECD Decision, supra n168, I.B(3). Compromis, para 26. Ibid. 34

171 172 173

PRAYER FOR RELIEF

For the foregoing reasons, Ardenia respectfully requests this Honourable Court to: 1. DECLARE that Rigalias drone campaign violates international human rights law and, in the event that there is an armed conflict, international humanitarian law; 2. DECLARE that the Bakchar Valley hospital strike is attributable to Rigalia, and is a disproportionate and unlawful act of aggression against Ardenians; 3. ORDER Rigalia to cease the drone campaign immediately, investigate the hospital attack and compensate Ardenia therefore; 4. 5. DECLARE that the Mavazi ban is illegal under international law and has no force; DECLARE that Ardenia has not breached the OECD Anti-Bribery Convention nor the OECD Decision on MNE Guidelines.

35