Cour Internationale de Justice

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THE INTERNATIONAL COURT OF JUSTICE

COUR INTERNATIONALE DE JUSTICE
THE PEACE PALACE

LE PALAIS DE LA PAIX
THE HAGUE, THE NETHERLANDS

LA HAYE, LES PAYS-BAS
THE CASE CONCERNING THE EGART AND THE IBRA

AFFAIRE CONCERNANT L’EGART ET L’IBRA
PEOPLE’S DEMOCRATIC REPUBLIC OF ANDUCHENCA

REPUBLIQUE DEMOCRATIQUE POPULAIRE D’ANDUCHENCA
v.
FEDERAL REPUBLIC OF RUKARUKU

REPUBLIQUE FEDERALE DE RUKARUKU
MEMORIAL FOR THE RESPONDENT

MEMORIAL POUR LE DEFENDEUR
THE 2018 PHILIP C. JESSUP
INTERNATIONAL LAW MOOT COURT COMPETITION

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TABLE OF CONTENTS
INDEX OF AUTHORITIES ......................................................................................................... i

STATEMENT OF JURISDICTION .......................................................................................... vi
QUESTIONS PRESENTED ...................................................................................................... vii
STATEMENT OF FACTS ........................................................................................................ viii
SUMMARY OF PLEADINGS ................................................................................................. xiii
PLEADINGS ................................................................................................................................. 1
I. THE ARBITRAL AWARD OF 2 MARCH 2017 IS VALID. ........................................... 1
A. The dispute concerning Egart is arbitrable under Article 10(a) of the Friendship,
Commerce and Navigation (“FCN”) Treaty. .............................................................................. 1
1. Rukaruku has a dispute with Anduchenca concerning the interpretation and
application of Article 7 of the FCN Treaty. ............................................................................ 1
2. The Arbitral Tribunal is competent to rule on it jurisdiction. ...................................... 2
B. Anduchenca’s non-participation did not divest the arbitral tribunal of its jurisdiction. ..... 3
C. The reported irregularities cannot nullify the award........................................................... 3
1. Judge Moyet’s actions did not compromise the validity of the award. ........................ 4
2. There is no obligation under international law to disclose Mr. Mikkel Orivindari’s
appointment as an assistant. .................................................................................................... 5
3. Nonetheless, Orivindari’s appointment did not prejudice either State parties. ............ 6
II. EVEN IF THE ARBITRAL AWARD IS NOT VALID, RUKARUKU DID NOT
VIOLATE ARTICLE 6 OF THE FCN TREATY WHEN THE EGART OPERATED IN
ANDUCHENCA’S TERRITORIAL SEA, BUT ANDUCHENCA VIOLATED ARTICLE 7
OF THE FCN TREATY BY CAPTURING THE EGART, WHICH IT THEREFORE
MUST RETURN TO RUKARUKU. ........................................................................................... 7
A. Egart’s presence does not violate Anduchenca’s sovereignty. ........................................... 7
1. Rukaruku merely exercised its right to freedom of navigation and innocent passage. 7
i. Egart is a ‘ship’ under international law. ...................................................................... 8
ii. Egart was passing continuously and expeditiously in Anduchencan waters. ........... 9
iii. Egart navigated on the surface. ................................................................................. 9
iv. Egart was not collecting information prejudicial to the defense or security of
Anduchenca....................................................................................................................... 10
B. Rukaruku’s right to freedom of navigation was violated by Anduchenca’s seizure of
Egart. ......................................................................................................................................... 11
C. Therefore, Anduchenca must return Egart. ....................................................................... 13
1. The seizure is an internationally wrongful act. ........................................................... 13
2. Thus, Anduchenca has the obligation to return it. ...................................................... 13
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III. ANDUCHENCA VIOLATED ARTICLE 16 OF THE FCN TREATY BY

COMMISSIONING AND OPERATING THE IBRA............................................................. 14
A. Disarmament is the purpose of Article 16. ....................................................................... 14
B. A regional custom to disarm exists in Odasarra. .............................................................. 15
1. There is uniform and constant practice towards disarmament in Odasarra. ............... 16
2. Said practice is supported by opinio juris. ................................................................. 18
3. Regional disarmament is a recognized practice towards nuclear disarmament. ........ 20
4. The Odasarran custom to disarm binds Anduchenca. ................................................ 20
C. Operating Ibra also violated an obligation to disarm under Article 25 of the UN Charter
in relation to SC Resolution (“SCR”) 3790. ............................................................................. 20
1. Anduchenca had the primary obligation to comply with SCR 3790. ......................... 21
D. Commissioning and operating Ibra also violated a customary obligation to negotiate in
good faith. ................................................................................................................................. 22
1. The norm-creating character of NPT’s Article VI. ..................................................... 23
IV. RUKARUKU DID NOT VIOLATE ARTICLE 17 OF THE FCN TREATY BY
ATTACKING THE COVFEFE OR BY CAPTURING THE IBRA. .................................... 25
A. The attack on Covfefe and capture of Ibra are covered by Article 17’s exception. ......... 25
1. The attack on Covfefe and capture of Ibra were made under the authority of SCR
3790. 26
i. SCR 3790 is valid and binding. .................................................................................. 26
ii. Ibra is a threat under Article 2 of the UN Charter. ................................................. 27
iii. SCR 3790 contemplated the use of force. ............................................................... 29
2. Even assuming that SCR 3790 did not authorize use of force, the measures taken
were an act of self-defense under Article 51. ....................................................................... 30
i. Rukaruku has an inherent right of anticipatory self-defense. ..................................... 30
ii. The deployment of Ibra in undisclosed locations constituted imminent threat of an
armed attack. ..................................................................................................................... 32
3. The measures taken were necessary and proportional. ............................................... 33
i. The measures were necessary and proportional under jus ad bellum. ........................ 34
ii. The measures were necessary and proportional under jus in bello. ........................ 37
PRAYER FOR RELIEF............................................................................................................. 40
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INDEX OF AUTHORITIES
Treaties
1962 Amendments to the 1954 International Convention for Prevention of Pollution of the Sea
by Oil, 11 April 1962, 600 U.N.T.S. 332.................................................................................... 8
Charter of the United Nations, 24 October 1945, 1 UNTS XVI....................................... 21, 25, 30
Convention on the International Regulations for Preventing Collisions at Sea, 20 October 1972,
1050 U.N.T.S. 16 ........................................................................................................................ 8
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 29
December 1972, 1046 UNTS 138 ............................................................................................... 8
International Convention for Prevention of Pollution from Ships of 1973, as amended by the
1978 Protocol, 17 February 1978, 1340 U.N.T.S. 61, 184 ......................................................... 8
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection
of victims of international armed conflicts, 08 June 1977, 1125 U.N.T.S. 3 ........................... 37
Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes or
Other Matter, 7 November 1996, 36 I.L.M. 1............................................................................. 8
Statute of the International Court of Justice, 26 June 1945, 33 U.N.T.S. 993 .............................. 16
The Treaty on the Non-Proliferation of Nuclear Weapons, 1 July 1968, 729 U.N.T.S. 161........ 22
Treaty of Amity, Economic Relations and Consular Rights between the United States of America
and Iran, 15 August 1955, 284 U.N.T.S. 93 ............................................................................. 33
United Nations Convention on the Law of the Sea, December 10, 1982, 1833 UNTS 3 ....... 7, 8, 9
Vienna Convention on the law of treaties, 23 May 1969, 1155 U.N.T.S. 331 ................... 8, 11, 15
ICJ and PCIJ Cases

Accordance with Inernational Law of the Unilateral Declaration of Indepence in Respect of
Kosovo, Advisory Opinion, 2010 I.C.J. 403 (July 22) ............................................................. 29
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, 2011
I.C.J. (I), p.84. ............................................................................................................................. 1
Arbitral Award of 31 July 1989 (Guinea-Bissau vs. Senegal), 1991 I.C.J. 53 (Nov. 12) ........ 2, 11
Case Concerning Armed Activities on the Territory of the Congo (Congo v. Uganda), 2005 I.C.J.
168, Dissenting Opinion of Judge Koojimans. ......................................................................... 35
Case Concerning the Arbitral Award Made by the King of Spain on 23 December 1906
(Honduras v. Nicaragua), 1960 I.C.J. 192 (Nov. 18) .................................................................. 3
Certain expenses of the United Nations (Article 17 Paragraph 2 of the Charter), Advisory
Opinion, 1962 I.C.J. 151 (July 20)............................................................................................ 27
Opinion, 1962 I.C.J. 151 (July 20) Separate Opinion of Judge Quintana) ............................... 11
Colombian-Peruvian Asylum Case, Judgment, 1950 I.C.J. 266 (Nov. 20) .................................. 16
Corfu Channel (United Kingdom v Albania), 1949 I.C.J. 4 ..................................................... 7, 12
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Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion,
1971 I.C.J. 16 (June 21) ................................................................................................ 21, 26, 29
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8)
................................................................................................................................. 15, 16, 19, 33
Mavrommatis Palestine Concessions, Judgment No. 2, 1924 P.C.I.J. Series A, No. 2 .................. 1
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America) 1986 I.C.J. 14 ........................................................................................................ 7, 33
Nottebohm Case (Preliminary Objections) (Liechtenstein v. Guatemala), 1953 I.C.J (Nov. 18) .. 2
Oil Platforms (Islamic Republic of Iran v. United States of America), 2003 I.C.J. 161 (Nov. 6)33,
35
Temple of Preah Vihear, Judgment, 1962 I.C.J. 6 ........................................................................ 14
Other International Cases

Abyei Arbitration (The Government of Sudan and The Sudan People’s Liberation Army
Movement), Final Award of 22 July 2009 .................................................................................. 2
Contempt Judge v. Akhbar Beirut SAL and Al Amin (Ibrahim Mohamed Ali), Case No. STL-14-
06/PT/CJ, ICL 1003 (STL 2014), Decision on Motion Challenging Jurisdiction, 2014 Special
Tribunal for Lebanon (Nov. 6).................................................................................................. 11
Dubai/Sharjah Boundary arbitration, Court of Arbitration, 19 October 1981, 91 INTERNATIONAL
LAW REPORTS 53......................................................................................................................... 2
In the Matter of an arbitration under the Arbitration Agreement between the Government of the
Republic of Croatia and the Government of the Republic of Slovenia (Croatia vs. Slovenia),
Partial Award of 30 June 2016, P.C.A. 166428 ...................................................................... 2, 4
Prosecutor v. Dario Kordic and Mario Cerkez, Appeals Judgment by the International Tribunal
for the Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, (2004)
IT-95914/2-A, (Dec. 17) ........................................................................................................... 38
The Arctic Sunrise Arbitration (Netherlands v. Russia), Award on Jurisdiction, P.C.A. 2014-02,
(Nov. 26) ..................................................................................................................................... 3
The Tokyo War Crimes Trial. International Military Tribunal for the Far East. Judgment of 12
November 1948 ......................................................................................................................... 31
The Trial of German Major War Criminals. Proceedings of the International Military Tribunal
(I.M.T.) sitting at Nuremberg, Germany. Judgment of 1 October 1946 ................................... 30
U.N. Documents
G.A. Res. 1 (I), U.N. Doc. A/12 (24 January 1946) ..................................................................... 18
G.A. Res. 1653 (XVI), 4, U.N. Doc. A/4942/Add.3 (24 November 1961) .................................. 18
G.A. Res. 33/71 (B), U.N. Doc. A/Res/33/71 (14 December 1978)............................................. 18
G.A. Res. 34/83 (G), U.N. Doc. A/Res/34/83 (11 December 1979) ............................................ 18
G.A. Res. 35/152 (D), U.N. Doc. A/Res/35/152 (12 December 1980) ........................................ 18
G.A. Res. 36/92 (I), U.N. Doc. A/Res/36/92 (9 December 1981) ................................................ 19
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G.A. Res. 45/59, U.N. Doc. A/Res/45/59 (4 December 1990) ..................................................... 19

G.A. Res. 46/37 (D), U.N. Doc A/Res/46/37 (6 December 1991) ............................................... 19
G.A. Res. 49/75, U.N. Doc. A/Res/49/75 (9 January 1995) ......................................................... 18
G.A. Res. 65/45. Regional Disarmament. U.N. Doc A/Res/65/45 (13 January 2011) ................. 24
G.A. Res. 68/109, U.N. Doc. A/68/462 (2013) .............................................................................. 5
G.A. Res. 71/39. Confidence-building measures in the regional and subregional context. U.N.
Doc A/Res/71/39 (5 December 2016)....................................................................................... 24
G.A. Res.71/40, U.N. Doc A/Res/71/40 (9 December 2016) ....................................................... 20
Hôtel Métropole case, UNRIAA, vol. XIII (Sales No. 64.V.3) (1950) ........................................ 14
ILC, Articles Concerning the Law of the Sea, with commentaries, II YEARBOOK OF THE
INTERNATIONAL LAW COMMISSION (1956), p.272. ..................................................................... 7
ILC, Articles on Responsibility of States for Internationally Wrongful Acts, November 2001,
Supplement No. 10 (A/56/10), chp.IV.E.1 ......................................................................... 13, 25
International Law Commission (ILC), Model Rules on Arbitral Procedure, with a general
commentary, II YEARBOOK OF THE INTERNATIONAL LAW COMMISSION (1958) [“Model
Rules”], Article 1(3)............................................................................................................ 2, 3, 5
S.C. Res. 1887, U.N. Doc. S/Res/1887 (24 September 2009) ...................................................... 19
S.C. Res. 2310, U.N. Doc. S/Res/2310 (23 September 2016) ...................................................... 19
UN High-Level Panel on Threats, Challenges and Change. ‘A More Secure World’ (2004) ...... 31
UN Office for Disarmament Affairs, Treaty on the Non-Proliferation of Nuclear Weapons
(Status of the Treaty) ................................................................................................................. 24
United Nations Commission on International Trade Law, UNCITRAL Model Law on
International Commercial Arbitration 1985, as adopted on 21 June 1958 and as amended on 7
July 2006, (UN Doc. A/40/17; UN Doc. A/61/17) ..................................................................... 5
United Nations Conference on Institutional Organizations, U.N. Doc. 943 III/5 11, (12 June
1945) ......................................................................................................................................... 27
United Nations Conference on the Law of the Sea, Official Records, Vol. II, 24 February-27
April 1958 ................................................................................................................................. 12
United Nations Secretary-General, In larger freedom: towards development, security and human
rights for all, Report of the Secretary-General, U.N. Doc. A/59/2005, 21 March 2005 .......... 31
Books
Adam Roberts and Richard Guelff. Documents on the Laws of War (3rd ed.), 2000 ................... 34
Brownlie, Ian. Principles of Public International Law, (2008 ed.) ............................................... 18
Malanczuk, Peter. Akehurst’s Modern Introduction to International Law (7th ed.), 1997 ........... 34
O’Connell, Daniel Patrick. The International Law of the Sea (Vol. 2) 1982 ............................... 10
Oppenheim, Lassa. International Law: A Treatise (8th ed.) 1955 ............................................... 13
Rothwell, Donald and Stephens, Tim The International Law of the Sea (2nd ed.) 2016 ............. 12
Shaw, Malcolm. International Law (6th Ed) 2008 ....................................................................... 12
Tanaka, Yoshifumi. The International Law of the Sea (2nd ed.) 2015 .................................... 9, 12
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Articles
Ashley S. Deeks, Taming the Doctrine of Pre-Emption (The Prohibition of the Use of Force,
Self-Defense, and Other Concepts), THE OXFORD HANDBOOK OF THE USE OF FORCE IN
INTERNATIONAL LAW, 1 January 2015 ...................................................................................... 30
Christopher Greenwood. International Law and the Pre-emptive Use of Force. 4 SAN DIEGO
INT’L L.J. 7 (2003) .................................................................................................................... 32
D.W. Bowett, The Dubai/Sharjah Boundary Arbitration of 1981, 65 BYBIL 103-116 (1994)..... 2
Enzo Canizzaro. Contextualizing proportionality: jus ad bellum and jus in bello in the Lebanese
war. 88 INTERNATIONAL REVIEW OF THE RED CROSS 864 ........................................................ 34
Francis Bugnion. The International Committee of the Red Cross and nuclear weapons: From
Hiroshima to the dawn of the 21st century. 87 INTERNATIONAL REVIEW OF THE RED CROSS 859
(2005) ........................................................................................................................................ 18
George H. Adrich, The Pueblo Seizure: Facts, Law, Policy, 63 PROC. AM. SOC’Y INT’L L 1, 3
(1969) ........................................................................................................................................ 13
Matko Ilic, Croatia v. Slovenia: The Defiled Proceedings, 9 ARBITRATION LAW REVIEW 347
(2017) .......................................................................................................................................... 5
Matthew C. Waxman. The Use of Force Against States That Might Have Weapons of Mass
Destruction. 31 MICH J. INT’L L. 1 (2009) ................................................................................ 32
Michael N. Schmitt and David S. Goddard, International Law and the Military Use of
Unmanned Maritime Systems, 2016 INTERNATIONAL REVIEW OF THE RED CROSS 575 ............. 8
Richard M. Mosk, The Role of Party-Appointed Arbitrators in International Arbitration: The
Experience of the Iran-United States Claims Tribunal, 1 TRANSNATIONAL LAW 253 (1988) ... 5
Sean D. Murphy, The Doctrine of Pre-emptive Self-Defense, 50 VILL L. REVIEW 3 ................... 31
Società Italiana per l’Organizzazione Internazionale–Consiglio Nazionale delle Ricerche, LA
PRASSI ITALIANA DI DIRITTO INTERNAZIONALE, 1st series, Vol. II ............................................ 14
Sompong Sucharitkul, The Role of the International Law Commission in the Decade of
International Law, 3 LEIDEN J. OF INT’L LAW 15 (1990)............................................................ 5
Stuart Kaye, Freedom of Navigation, Surveillance and Security: Legal Issues Surrounding the
Collection of Intelligence from Beyond the Littoral, 2005 AUSTRALIAN YEARBOOK OF
INTERNATIONAL LAW 24 ..................................................................................................... 10, 13
Theodora Christodoulidou and Kalliopi Chainoglou, The Principle of Proportionality from a Jud
Ad Bellum Perspective. THE OXFORD HANDBOOK OF THE USE OF FORCE IN INTERNATIONAL
LAW, 1 January 2015 ................................................................................................................ 34
Wilmshurst, Elizabeth. “The Chatham House Principles of International Law on the Use of
Force in Self-Defence”, I.C.L.Q., vol. 55 (2006) ..................................................................... 32
Other Authorities
International Council for Commercial Arbitration, Young ICCA Guide on Arbitral Secretaries,
10 February 2015, ICCA Reports No. 1 ................................................................................. 6, 7
Judge Robert Ago. Addendum to the Eighth Report on State Responsibility. YEARBOOK OF THE
INTERNATIONAL LAW COMMISSION, 1980, Vol. II, A/CN.4/318/ADD.5-7 .............................. 38
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Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to
Nuclear Disarmament (Marshall Islands v. United Kingdom), Memorial of the Marshall
Islands ....................................................................................................................................... 25
San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994,
appearing on San Remo Manual on International Law Applicable to Armed Conflicts at Sea,
edited by Louise Doswald-Beck, GROTIUS PUBLICATIONS (1995) ............................................ 40
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STATEMENT OF JURISDICTION
The People’s Democratic Republic of Anduchenca (“Anduchenca”) and the Federal Republic of
Rukaruku (“Rukaruku”) appear before the International Court of Justice in accordance with Article
36(1) of the Statute of the Court (“Statute”) and the Statement of Agreed Facts notified to the Court
on August 23, 2017.
Pursuant to Article 36 of the Statute, the Court has jurisdiction to hear and decide on all matters
brought before it. The opposing parties shall accept the Court’s decision as final and binding and
shall execute it in good faith.
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QUESTIONS PRESENTED
I.
Whether the March 2, 2017 Arbitral Award is valid.
II.
Whether Rukaruku violated Article 6 of the FCN Treaty when the Egart operated in Anduchenca’s
territorial sea and that Anduchenca did not violate Article 7 of the FCN Treaty when it captured
the Egart
III.
Whether Anduchenca violated Article 16 of the FCN Treaty by commissioning and operating the
Ibra
IV.
Whether Rukaruku violated Article 17 of the FCN Treaty when it attacked the Covfefe and when
it captured the Ibra.
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STATEMENT OF FACTS
BACKGROUND
The People’s Democratic Republic of Anduchenca (“Anduchenca”) and the Federal
Republic of Rukaruku (“Rukaruku”), along with three other states, comprise the Odasarra Region.
Since the Middle Ages, the nations of the Odasarra Region have been heavily dependent on trade
among themselves and across the Kumatqesh Ocean.
RUKARUKU’S QUEST TO STABILIZE THE REGION
After World War II left a great deal of Odasarra in ruins, Rukaruku embarked on a
substantial program to promote stability in the Region.
It provided economic aid packages to the other Odasarran States, helped them implement
large-scale disarmament programs, and regularly shared data collected by its Navy with all of
them.
As a result, Rukaruku was able to conclude bilateral Treaties of Friendship, Commerce and
Navigation (“FCN”) with Anduchenca and the other Odasarran States. Rukaruku then provided
US$4.5 billion (US$33.8 billion today) in economic aid to Anduchenca for 20 years, a period
marked by a strong, positive relationship among the political leaders of the two countries.
REGIME CHANGE IN ANDUCHENCA
Anduchenca suffered from significant economic depression and government corruption in
the years following the war. This gave rise to increasingly restive political factions, and ultimately
led to the installation of General Rafiq Tovarish as the country’s Head of State and Government.
Under Tovarish’s leadership, Anduchenca adopted a socialist political ideology.
The coup and ideological shift was roundly criticized by the other Odasarran States. From
henceforth, Anduchenca’s relationship with the rest of the Region became hostile and spiteful.
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ANDUCHENCA’S REFUSAL TO DENUCLEARIZE AND REJECTION OF THE UNCLOS
While all Odasarran States have signed and ratified the Treaty on the Non-Proliferation of
Nuclear Weapons (“NPT”) and the United Nations Convention on the Law of the Sea
(“UNCLOS”), Anduchenca decided to ignore and reject the two treaties.
RUKARUKU’S LEADERSHIP IN THE FIGHT AGAINST ILLICIT ARMS TRADE
Desirous of ending the rampant illicit small-arms trade in the Region, Rukarukan Navy
intensified its fight against arms traffickers and has, on multiple encounters, neutralized more than
80 vessels suspected of trafficking over the last 22 years.
THE EGART
Rukaruku began using autonomous underwater vehicles (“AUVs”) in its naval operations.
These highly advanced AUVs are all identical, 3.6 meters in length and 0.5 meters in diameter,
weighing approximately 400 kilograms. They are equipped with sophisticated optical, acoustic,
and sonar systems, including an advanced sense-and-avoid system. They also have the capability
to detect, identify, and lift objects weighing less than five kilograms from the ocean floor.
One of these AUVs is called the Egart. In strict compliance with Anduchencan law, it has
been specifically programmed to remain at least 12 nautical miles away from the Anduchenca
coast at all times.
ANDUCHENCA’S PARANOIA AND PILFERAGE OF THE EGART
Anduchenca enacted a maritime security law requiring any foreign government vessel to
obtain prior authorization before entering its territorial sea—which it had considered for decades
to have a breadth of 12 nautical miles from its coastal baseline. Rukarukan Ambassador to
Anduchenca denounced the same for being inconsistent with international law. Out of international
comity, the Rukarukan Navy complied nonetheless.
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General Tovarish openly accused Rukaruku before the United Nations General Assembly
of committing espionage through the use of “spy drones,” referring to the AUVs employed by the
Rukarukan Navy.
Not long after, Anduchenca seized the Egart when it was found within 11 nautical miles of
its territorial sea. The Anduchencan Navy jammed its communication links and transmitted false
GPS coordinates to its navigation system in order to lure the AUV to Anduchencan shore.
Thereafter, Anduchenca began studying the Egart.
RUKARUKU’S PLEA FOR THE RETURN OF THE EGART
Rukarukan Ambassador to Anduchenca delivered a formal demand for the Egart’s return.
The Anduchenca simply ignored it. Even Rukarukan Prime Minister Kakak Dage publicly offered
to travel to Anduchenca to negotiate its return. However, General Tovarish adamantly insisted that
there was nothing to negotiate. Left with no other recourse, Rukaruku instituted arbitration
proceedings against Anduchenca under Article 10(a) of the FCN Treaty for the illegal seizure of
the Egart.
ANDUCHENCA’S DEFIANCE OF THE ARBITRAL AWARD
Anduchenca refused to participate in the arbitration. Instead, it sent a Note Verbale to
Rukaruku objecting to the Arbitral Tribunal’s jurisdiction. The Tribunal was composed of three
world-renowned jurists, namely: Judge Alice Bacal, International Court of Justice (“ICJ”)
President; Judge Bhrasht Moyet, an elected judge to the ICJ in 2008; and Judge Mou Tong of the
International Tribunal of the Law of the Sea.
After rounds of written pleadings and oral argument, the Tribunal ruled in favor of
Rukaruku and ordered Anduchenca to return the Egart.
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To justify its non-compliance with the Award, Anduchenca rallied behind the report of the
Institute for Legal Studies of Arbitration (“ILSA”) revealing three pieces of information: first, a
conversation between Mr. Bouc Chivo, a lawyer from the Rukarukan Ministry of External
Relations, and Judge Moyet; second, the belated disclosure of Mr. Mikkel Orvinadri as an
appointed assistant to the Tribunal; and, third, a draft of the arbitral award by Judge Tong which
was similar to the final version.
For its part, Rukaruku maintains that Mr. Chivo—who already resigned from his post—
acted on his own initiative. Despite its disappointment over the private conversation between him
and Judge Moyet, Rukaruku remains resolute that the ILSA’s report does not negate the correct
application of the law to the facts by the Tribunal.
THE IBRA AND ANDUCHENCA’S NUCLEARIZATION
Being the lone non-signatory to the NPT in the Odasarran Region, Anduchenca has
commissioned a nuclear-armed submarine: the Ibra. General Tovarish proudly announced that it
was equipped with the world’s greatest nuclear weapons with cutting edge ballistic missile
technology. He also reported that Anduchenca’s representative to the United Nations Conference
to Negotiate a Legally Binding Instrument to Prohibit Nuclear Weapons would not attend the
second substantive session, and would not sign any treaty emerging from those meetings.
THE UN SECURITY COUNCIL’S INTERDICTION OF THE IBRA
Alarmed by the potentially destabilizing presence of the Ibra in a nuclear-weapon-free
region, the United Nations Security Council (“UNSC”) adopted Resolution 3790. It authorized
member-states to take all measures to interdict the Ibra and neutralize the threat it poses to
international peace and security.
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Pursuant to said resolution, Rukaruku fired 12 cruise missiles at Covfefe, a supply ship to
the Ibra located on the high seas 250 nautical miles away from the Anduchencan coast. With its
supply ship disabled, the Ibra was forced to surface—at approximately 20 nautical miles from the
Anduchencan coast—following a series of torpedo fire. It was escorted to a Rukarukan naval base,
and all its crew members were safely delivered to the Anduchencan Embassy in Rukaruku after
questioning.
Subsequently, an agreement was minted between Rukaruku, the International Atomic
Energy Agency (“IAEA”), and two NPT nuclear weapon states for the dismantling of the Ibra and
disposal of all its nuclear materials under IAEA monitoring and supervision. The UNSC adopted
another resolution affirming the agreement. Six weeks later, nuclear experts from the IAEA
certified that the agreement had been carried out.
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SUMMARY OF PLEADINGS
FIRST PLEADING
The dispute concerning the Egart is arbitrable under the FCN Treaty, since it clearly
concerns the interpretation and application of the same. Pursuant to the kompetenz-kompetenz
principle, the arbitral tribunal is competent to rule—as it did—on it own jurisdiction and the
arbitrability of the submitted dispute. Further, Anduchenca’s non-participation in the proceedings
did not divest the tribunal of its jurisdiction. Moreover, the reported irregularities by ILSA are not
sufficient grounds to nullify the Award.
SECOND PLEADING
When it operated within Anduchenca’s territorial sea, the Egart merely exercised its
freedom of navigation and right to innocent passage guaranteed both by the FCN Treaty and
customary international law. As a ship, it complied with the requirements of innocent passage.
Although it was collecting information in Anduchencan waters, the data collected were not
prejudicial to the defense or security of Anduchenca. Contrarily, they are regularly shared by
Rukaruku to all Odassaran states and are used to protect the Kumatqesh ocean.
Further, Anduchenca’s maritime security law is inconsistent with international law. A
coastal State cannot require prior authorization before a ship could exercise its right to innocent
passage.
Since Anduchenca’s seizure of the Egart is an internationally wrongful act for violating
Rukaruku’s freedom of navigation and right to innocent passage, it has the obligation to return it
as a form of restitution.
THIRD PLEADING
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By commissioning and operating Ibra, Anduchenca violated its disarmament obligations
under international law in contravention to Article 16. Anduchenca had binding obligations to end
the proliferation, manufacture, and use of nuclear weapons based on a: regional disarmament
custom existing in Odasarra; a UN Charter obligation to obey a disarmament order from the SC;
and a general customary obligation to pursue negotiations in good faith and achieve total global
disarmament. The evidence shows that Anduchenca had been bound by an Odasarran custom to
disarm as an aftermath of World War II, as such it was specifically barred by law to commission
a nuclear weapon. As a consequence of this violation, the SC, in the spirit of maintaining
international peace and security, concluded that Ibra was a threat to international peace and
subsequently authorized all States of the UN, including Anduchenca, to neutralize the vessel. By
defying the SC’s decision, Anduchenca violated another disarmament obligation arising out of the
UN Charter no less. Finally, Anduchenca was bound by a recognized customary obligation to
pursue good faith negotiations and achieve complete disarmament. For being directly opposed to
this obligation and having produced the very outcome sought to be eliminated by the customary
obligation, the act of commissioning and operating Ibra violated another disarmament obligation
Anduchenca had under international law.
FOURTH PLEADING
The attack of Covfefe and the capture of Ibra Rukaruku did not violate Article 17. Article
17 itself recognizes that use of force may be exceptionally allowed under international law—when
authorized by the SC and when done in self-defense. As provided for by the SCR 3790, Rukaruku
was authorized to take all necessary measures commensurate with its specific circumstances in
confronting Ibra, with the goal of neutralizing it. The evidence reveals that the SCR authorized the
use of force and that Anduchenca’s resort to the same was therefore justified. In any case, as an
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Odasarran state who was a direct target of Ibra, Rukaruku is still allowed to use force as an act of
self-defense. The threat posed by Ibra was imminent and and as a weapon of mass destruction, its
deployment in unknown locations in the Kumatqesh Ocean left an irreversible emergency that
warranted the use of force by Rukaruku who inherently has the right to defend its existence. In any
event, both the attacking of Covfefe and the capture of Ibra complied with the principles of
proportionality and necessity under jus ad bellum and jus in bello.
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PLEADINGS
I. THE ARBITRAL AWARD OF 2 MARCH 2017 IS VALID.
A. The dispute concerning Egart is arbitrable under Article 10(a) of the Friendship,
Commerce and Navigation (“FCN”) Treaty.
1. Rukaruku has a dispute with Anduchenca concerning the
interpretation and application of Article 7 of the FCN Treaty.
Article 10(a) of the FCN Treaty provides that “any dispute concerning the interpretation or
application of Articles 1 to 9 shall be submitted at the request of either Contracting Party to
arbitration.”1
A dispute is “a disagreement on a point of law or fact, a conflict of legal views or of
interests between two persons.” 2
According to Anduchenca, the dispute was not arbitrable because Article 7 covers only
commercial vessels, and not governmental vessels.3 Conversely, Rukaruku asserted that Article 7
also covers governmental vessels since the subject provision does not make any distinction.
Clearly, there was a disagreement on a point of law or conflict of legal views as to the applicability
of Article 7 to Egart, a governmental vessel.
1
Annex I of the Facts [“Annex I”].
2
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, 2011 I.C.J.
(I), p.84. See also Mavrommatis Palestine Concessions, Judgment No. 2, 1924 P.C.I.J. Series A,
No. 2, p.11.
3
Facts, ¶23.
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2. The Arbitral Tribunal is competent to rule on it jurisdiction.
In the Model Rules on Arbitral Procedure,4 any dispute concerning arbitrability shall be
referred to the constituted arbitral tribunal.5
According to the Arbitral Award Case (G.B. v. Sen.), an international tribunal has the right
to decide as to its own jurisdiction and has the power to interpret for this purpose the instruments
which govern that jurisdiction.6 This Court further held in Nottebohm that such right exists under
general international law,7 known as the kompetenz-kompetenz principle.8
The tribunal ruled that it had the competence to resolve the dispute, and ultimately issued
an award ordering Egart’s return.9 It opined that Article 7 covered the issue because the parties
disputed whether Egart was lawfully navigating in the territorial sea of Anduchenca.10
4
In Dubai/Sharjah Boundary arbitration, Court of Arbitration, 19 October 1981, 91
INTERNATIONAL LAW REPORTS 53, the ILC Model Rules were regarded as an authoritative
statement of customary international law and used to identify the salient charactertistics of a true
arbitral award. See also D.W. Bowett, The Dubai/Sharjah Boundary Arbitration of 1981, 65
BYBIL 103-116 (1994)
5
International Law Commission (ILC), Model Rules on Arbitral Procedure, with a general
commentary, II YEARBOOK OF THE INTERNATIONAL LAW COMMISSION (1958) [“Model Rules”],
Article 1(3).
6
Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), 1991 I.C.J. 53 (Nov. 12) [“Arbitral
Award Case, G.B. v. Sen.”], ¶46.
7
Nottebohm Case (Preliminary Objections) (Liechtenstein v. Guatemala), 1953 I.C.J (Nov. 18)
[“Nottebohm Case”], p.119. See also In the Matter of an arbitration under the Arbitration
Agreement between the Government of the Republic of Croatia and the Government of the
Republic of Slovenia (Croatia v. Slovenia), Partial Award of 30 June 2016, P.C.A. 166428
[“Croatia v. Slovenia”], ¶157.
8
Abyei Arbitration (The Government of Sudan and The Sudan People’s Liberation Army
Movement), Final Award of 22 July 2009, ¶499.
9
Facts, ¶26.
10
Facts, ¶26
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B. Anduchenca’s non-participation did not divest the arbitral tribunal of its jurisdiction.
Under Article 10(a) of the FCN Treaty, either Contracting Party may institute arbitration
proceedings. This signifies that when it signed the FCN Treaty11, Anduchenca has given its a priori
consent to the arbitration proceedings, and recognition to the Arbitral Tribunal’s jurisdiction.
Anduchenca cannot deny the tribunal’s jurisdiction over the dispute when, in fact, it has
consented to, and recognized the same by signing the FCN Treaty.
Further, the Model Rules also provide that “[w]henever one of the parties has not appeared
before the tribunal, or has failed to present its case, the other party may call upon the tribunal to
decide in favour of its case.”12
In Arctic Sunrise, the Permanent Court of Arbitration (“PCA”) ruled that Russia’s non-
participation in the arbitration proceedings—predicated on the compulsory dispute settlement
under UNCLOS to which it was a signatory—did not divest the Tribunal of its jurisdiction.13
Similarly, Anduchenca and Rukaruku are signatories to the FCN Treaty which also
provides for a compulsory dispute settlement under Article 10.
C. The reported irregularities cannot nullify the award.
To impugn an arbitral award, it must be shown that it was vitiated by “essential errors”14
in the correct application of the law. The challenge must not amount to a mere evaluation of the
11
Facts, ¶6.
12
Model Rules, Article 25(1).
13
The Arctic Sunrise Arbitration (Netherlands v. Russia), Award on Jurisdiction, P.C.A. 2014-02,
(Nov. 26) [“Arctic Sunrise Case”], ¶¶77-78.
14
Case Concerning the Arbitral Award Made by the King of Spain on 23 December 1906
(Honduras v. Nicaragua), 1960 I.C.J. 192 (Nov. 18), p.215.
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documents and other evidence submitted to the arbitrators,15 since such appraisal pertains to the
discretionary powers of the arbitrators which are not open to question.16
As observed by Rukaruku’s Ministry of External Affairs, the supposed irregularities
merely pertained to technical and procedural matters.17 Even if the ILSA’s exposé were to be
accepted as true, the irregularities did not call into question the accuracy of the tribunal’s
conclusions in law and in fact.18
1. Judge Moyet’s actions did not compromise the validity of the award.
The PCA noted in Croatia v. Slovenia that ex parte communications between an arbitrator
and an agent of the parties, per se, do not nullify the proceedings.19 Careful considerations must
be given as to what could have been, even hypothetically, the practical effects of those
communications.20 To nullify the award, it must be shown that said communications resulted in
any procedural disadvantage to the parties.21
Similarly, Mr. Bouc Chivo merely requested Judge Moyet to emphasize certain parts of
Rukaruku’s arguments—which were already presented in the written and oral proceedings—to the
tribunal.22 No new arguments nor evidence were presented. He did not argue nor pleaded on its
15
Honduras v. Nicaragua, supra.
16
Ibid.
17
Facts, ¶36
18
Ibid.
19
Croatia v. Slovenia, supra, ¶191.
20
Ibid.
21
Id.
22
Facts, ¶31
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behalf. Judge Moyet’s intervention could simply be characterized as expressions of his views on
the weight to be given to certain parts of Rukaruku’s submissions, which were already known to
the other members of the Tribunal.
Further, party-appointed arbitrators are chosen to ensure that positions of the parties that
appointed them are considered and understood by other arbitrators.23 They, presumably, have the
knowledge of the laws, practices, and customs of the State who appointed them.24 Their role is to
help the Tribunal better understand the position of the party who selected that arbitrator.25 Judge
Moyet simply guided the Tribunal in better understanding Rukaruku’s submissions.
2. There is no obligation under international law to disclose Mr. Mikkel
Orivindari’s appointment as an assistant.
Both the Model Rules26 and the UNCITRAL Model Law on International Commercial
Arbitration,27 the two widely used arbitral rules in ad hoc proceedings,28 do not provide for any
procedure for the appointment of an assistant to a tribunal. The textual silence of these rules means
that it is for the tribunal to determine its own rules and procedure for appointing an assistant. This
23
Richard M. Mosk, The Role of Party-Appointed Arbitrators in International Arbitration: The
Experience of the Iran-United States Claims Tribunal, 1 TRANSNATIONAL LAW 253 (1988), p. 253.
24
Ibid.
25
Matko Ilic, Croatia v. Slovenia: The Defiled Proceedings, 9 ARBITRATION LAW REVIEW 347
(2017), p. 30.
26
Model Rules, Article 25(1).
27
United Nations Commission on International Trade Law, UNCITRAL Model Law on
International Commercial Arbitration 1985, as adopted on 21 June 1958 and as amended on 7 July
2006, (UN Doc. A/40/17; UN Doc. A/61/17).
28
G.A. Res. 68/109, U.N. Doc. A/68/462 (2013); Sompong Sucharitkul, The Role of the
International Law Commission in the Decade of International Law, 3 LEIDEN J. OF INT’L LAW 15
(1990), p. 21.
5
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is consistent with Article 13 of the Model Rules which expressly authorizes the tribunal to make
its own rules of procedure Ineluctably, the tribunal may opt to not disclose the appointment of an
assistant. It would be highly impractical to require the tribunal to disclose every personnel under
its employ.
3. Nonetheless, Orivindari’s appointment did not prejudice either State
parties.
The Young ICCA Guide recommends the prior disclosure of an assistant or secretary’s
appointment to the parties.29 The rationale for the disclosure is to allow the parties to raise genuine
objections concerning the appointee’s independence, impartiality, or conflict of interests.30 This is
merely a recommendation which is not founded on customary practice of States nor observed as
opinio juris.
Despite the non-disclosure of Mr. Orivindari’s appointment to Anduchenca and Rukaruku,
no prejudice befell on either State parties. The facts do not show that Mr. Orivindari acted without
independence, impartiality, or with conflict of interest. Therefore, the evils sought to be prevented
did not occur in this case.
29
International Council for Commercial Arbitration, Young ICCA Guide on Arbitral Secretaries,
10 February 2015, ICCA Reports No. 1 [“Young ICCA Guide”], Article 2(2).
30
Young ICCA Guide, Article 2(3).
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II. EVEN IF THE ARBITRAL AWARD IS NOT VALID, RUKARUKU DID NOT
VIOLATE ARTICLE 6 OF THE FCN TREATY WHEN THE EGART OPERATED IN
ANDUCHENCA’S TERRITORIAL SEA, BUT ANDUCHENCA VIOLATED ARTICLE 7
OF THE FCN TREATY BY CAPTURING THE EGART, WHICH IT THEREFORE
MUST RETURN TO RUKARUKU.
A. Egart’s presence does not violate Anduchenca’s sovereignty.
Under Article 6 of the FCN Treaty, “each Contracting Party shall respect the sovereign
territory and sovereign waters of the other Contracting Party as required under international law.”
Hence, in assessing whether an act is a violation of another state’s sovereign territory and
waters, reference must be made as to what acts are not deemed as such under international law,
e.g. freedom of navigation and innocent passage.31
1. Rukaruku merely exercised its right to freedom of navigation and
innocent passage.
Article 7 of the FCN Treaty and customary international law32 guarantee the freedom of
navigation and the right to innocent passage of all states. UNCLOS codified the rules pertaining
to the customary right of innocent passage.33
31
United Nations Convention on the Law of the Sea, December 10, 1982, 1833 U.N.T.S 3
[“UNCLOS”], Article 17; Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America) 1986 I.C.J. 14 [“Paramilitary Activities”], ¶ 213.
32
Corfu Channel (United Kingdom v Albania), 1949 I.C.J. 4 [“Corfu Channel”], p.28.
33
ILC, Articles Concerning the Law of the Sea, with commentaries, II YEARBOOK OF THE
INTERNATIONAL LAW COMMISSION (1956), p.272.
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i. Egart is a ‘ship’ under international law.
The right to innocent passage is extended to ships belonging to all states.34 While UNCLOS
does not define the term “ships,”35 documented state practice36 adopts a broad definitional
approach.37 It includes any and all sea-going vessels, manned or unmanned. In interpreting
UNCLOS, the current characterization of “ships” by State parties is important since “any
subsequent practice in the application of the treaty which establishes the agreement of the parties
regarding its interpretation.”38
34
UNCLOS, Article 17.
35
Michael N. Schmitt and David S. Goddard, International Law and the Military Use of
Unmanned Maritime Systems, 2016 INTERNATIONAL REVIEW OF THE RED CROSS 575.
36
1962 Amendments to the 1954 International Convention for Prevention of Pollution of the Sea
by Oil, 11 April 1962, 600 U.N.T.S. 332, Article 1(1); International Convention for Prevention of
Pollution from Ships of 1973, as amended by the 1978 Protocol, 17 February 1978, 1340 U.N.T.S.
61, 184, Article 2(4); Protocol to the Convention on the Prevention of Marine Pollution by
Dumping of Wastes or Other Matter, 7 November 1996, 36 I.L.M. 1, Article 1(6); Convention on
the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 29 December 1972,
1046 UNTS 138, Article III(2); Convention on the International Regulations for Preventing
Collisions at Sea, 20 October 1972, 1050 U.N.T.S. 16, Rule 3(a).
37
Schmitt and Goddard, supra.
38
Vienna Convention on the law of treaties, 23 May 1969, 1155 U.N.T.S. 331 [“VCLT”], Article
31(3)(b).
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ii. Egart was passing continuously and expeditiously in
Anduchencan waters.
A ship’s navigation through the territorial sea must be continuous and expeditious. 39 This
means that ships must proceed with due speed, having regard to safety and other relevant factors.40
When it was apprehended, Egart was traversing Anduchencan waters continously.41
iii. Egart navigated on the surface.
Egart did not initially navigate on the surface, since, to begin with, it was specifically
programmed to remain at least 12 nautical miles ("nm") away from Anduchenca’s coastline.42 It
is still undetermined why it navigated closer to the shore.43 Possibly, Egart experienced a technical
malfunction while in operation.
Nonetheless, Egart sufficiently complied with Article 20 of UNCLOS when it eventually
navigated on the surface because Anduchenca hacked into its navigation system and forced it to
surface.44 UNCLOS does not require that upon entry into the territorial sea, an underwater vehicle
should resurface and show its flag.45
39
UNCLOS, Article 18(2).
40
Tanaka, Yoshifumi. The International Law of the Sea (2nd ed.) 2015, p.87.
41
Facts, ¶17.
42
Facts, ¶13.
43
Facts, ¶17.
44
Facts, ¶16.
45
UNCLOS, Article 20.
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iv. Egart was not collecting information prejudicial to the defense or
security of Anduchenca.
Article 19 (2)(c) of UNCLOS considers a ship "collecting information" as non-innocent. It
is not without qualification. It must be for the purpose of "collecting information prejudicial to the
defense or security of the coastal State."46 The passage of every ship is presumed innocent until
demonstrated otherwise.47 Besides the bare allegations of the Anduchencan Navy Chief-of-Staff,
the facts do not show that the data collected by Rukaruku were prejudicial to the defense or security
of Anduchenca. Not all intelligence is intended to have the objective of prejudicing international
peace and security48 of another state. Hence, even if it was a data-gathering technology, Rukaruku
has regularly shared data collected by its Navy with all the Odassaran states including Anduchenca.
These naval operations are specifically conducted for the protection of the Kumatqesh Ocean from
the aftermaths of World War II.49 Rukaruku’s acts are in fulfillment of the FCN Treaty and its
long-standing commitment to ensure safe passage in the Kumatqesh Ocean.50
Nonetheless, “[t]he presence of a submarine, even if accompanied by intelligence
collection, does not on its face constitute the ‘threat or use of force against the territorial integrity
or political independence’ of the coastal state.”51 Anduchenca has not shown that the data allegedly
46
UNCLOS, Article 19(2)(c).
47
O’Connell, Daniel Patrick. The International Law of the Sea (Vol. 2) 1982, p.273.
48
Stuart Kaye, Freedom of Navigation, Surveillance and Security: Legal Issues Surrounding the
Collection of Intelligence from Beyond the Littoral, 2005 AUSTRALIAN YEARBOOK OF
INTERNATIONAL LAW 24, p.96.
49
Facts, ¶5
50
Facts, ¶17.
51
Kraska, p.247.
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gathered by Egart threatened its territorial integrity or political independence. Contrarily, the
intelligence gathered are being utilized by the Rukarukan Navy to protect Anduchenca and all
Odassaran states.52
B. Rukaruku’s right to freedom of navigation was violated by Anduchenca’s seizure of
Egart.
1. The FCN Treaty also applies to government vessels.
In interpreting and applying the provisions of a treaty, a tribunal must endeavor to give
effect to them in their natural and ordinary meaning.53
From its plain language, the FCN Treaty does not distinguish between private commercial
and governmental vessels in granting freedom of navigation between the territories of the two
Contracting States. When the law makes no distinction, one should not distinguish.54 Thus,
Egart,—a governmental vessel—must also be accorded the same freedom.
2. In any case, international law affords the same rights to government
vessels.
52
Facts, ¶¶5,17.
53
Arbitral Award (G.B. v. Sen.), ¶48; VCLT, Article 31.
54
Contempt Judge v. Akhbar Beirut SAL and Al Amin (Ibrahim Mohamed Ali), Case No. STL-
14-06/PT/CJ, ICL 1003 (STL 2014), Decision on Motion Challenging Jurisdiction, 2014 Special
Tribunal for Lebanon (Nov. 6), ¶20; Certain expenses of the United Nations (Article 17 Paragraph
2 of the Charter), Advisory Opinion, 1962 I.C.J. 151 (July 20) Separate Opinion of Judge
Quintana), ¶26.
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UNCLOS55 does not distinguish between private commercial vessels and government
vessels.56 In Corfu Channel, this Court noted that the customary right to innocent passage also
extends to governmental vessels.57
3. Anduchenca had no basis to seize Egart and its maritime security law
(“MSL”) is contrary to international law.
UNLCOS does not allow the coastal State to make passage of ships through the territorial
sea subject to prior authorization.58 In fact, State parties to the UNCLOS rejected a proposal to add
said right in its final draft.59 The legality of prior authorization has not yet ripened into an accepted
rule of international law.60
As confirmed in Corfu Channel, coastal states do not have the right to prohibit innocent
passage in times of peace.61
55
UNCLOS, Article 17.
56
Shaw, Malcolm. International Law (6th Ed) 2008, p.574.
57
Corfu Channel, p.28.
58
Tanaka, supra, p.91.
59
United Nations Conference on the Law of the Sea, Official Records, Vol. II, 24 February-27
April 1958, pp.66-68.
60
Rothwell, Donald and Stephens, Tim The International Law of the Sea (2nd ed.) 2016 p.223.
61
Corfu Channel, p.29.
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C. Therefore, Anduchenca must return Egart.
1. The seizure is an internationally wrongful act.
An internationally wrongful act is committed when an action is attributable to a state62 and
it constitutes a breach of an international obligation.63 Its commission gives rise to the obligation
to make restitution.64
Anduchenca’s seizure of Egart violated Rukaruku’s right to freedom of navigation.
Anduchenca had no right to seize it for non-compliance with its MSL. Under UNCLOS,
Anduchenca may only require it to leave the territorial sea immediately. 65 In the absence of an
immediate threat of an armed attack, the foreign vessel may only be escorted out of the territorial
waters.66 Since Egart did not pose any immediate threat of an armed attack to Anduchenca, it was
wrong to seize it.
Even if Egart was committing espionage, it is only during periods of armed conflict would
a coastal state have a right to seize foreign naval vessels engaged in espionage.67
2. Thus, Anduchenca has the obligation to return it.
Under Article 35 of the ARSIWA, “[a] State responsible for an internationally wrongful
act is under an obligation to make restitution, that is, to re-establish the situation which existed
62
ILC, Articles on Responsibility of States for Internationally Wrongful Acts, November 2001,
Supplement No. 10 (A/56/10), chp.IV.E.1 [hereinafter, ARSIWA], Article 2(a).
63
Ibid, Article 2(b)
64
Id, Article 35.
65
UNCLOS, Article 30.
66
Kaye, p.232, citing George H. Adrich, The Pueblo Seizure: Facts, Law, Policy, 63 PROC. AM.
SOC’Y INT’L L 1, 3 (1969).
67
Oppenheim, Lassa. International Law: A Treatise (8th ed.) 1955, p.750.
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before the wrongful act was committed.” Restitution includes the return or handing over of
captured ships68 and other types of state properties.69
III. ANDUCHENCA VIOLATED ARTICLE 16 OF THE FCN TREATY BY
COMMISSIONING AND OPERATING THE IBRA.
Article 16 provides that each Contracting Party shall comply with all disarmament
obligations binding on it under international law.70
A. Disarmament is the purpose of Article 16.
A treaty shall be interpreted in light of its object and purpose; and any subsequent practice
in the application of the treaty which establishes the agreement of the parties regarding its
interpretation shall be taken into account together with the context.71
The FCN Treaty between the Rukaruku and Anduchenca is one of the many bilateral FCN
treaties Rukaruku concluded with all the states in Odasarra to promote stability in the region.72
The treaties were a part of the efforts to rebuild the region whose states served as major fronts
68
See the “Giaffarieh” incident (1886) which originated in the capture in the Red Sea by an
Egyptian warship of four merchant ships from Massawa under Italian registry, Società Italiana per
l’Organizzazione Internazionale–Consiglio Nazionale delle Ricerche, LA PRASSI ITALIANA DI
DIRITTO INTERNAZIONALE, 1st series, Vol. II, pp.901–902.
69
See Temple of Preah Vihear, Judgment, 1962 I.C.J. 6, pp.36–37; and Hôtel Métropole case,
UNRIAA, vol. XIII (Sales No. 64.V.3) (1950), p.219
70
Annex I.
71
VCLT, Article 31.
72
Facts, ¶5.
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during World War II73 and included provisions promoting the disarmament of the Odasarra
Region.74
Pursuant thereto, Rukaruku provided economic aid packages to its Odasarran neighbors
and helped each of them implement large-scale disarmament programs. Rukaruku provided
US$4.5 billion in economic aid to Anduchenca, part of which was earmarked to develop
cooperative disarmament programs.75
Article 16, together with the context during which the FCN Treaty was entered into and its
parties’ subsequent practice, indicates that disarmament is its underlying purpose. Commissioning
the Ibra and arming it with nuclear capabilities76, known to “have the potential to destroy all
civilization and the entire ecosystem of the planet,”77 is an act diametrically opposed to the purpose
of Article 16. It cannot be countenanced without violating the principle of pacta sunt servanda.78
B. A regional custom to disarm exists in Odasarra.
Article 16, which covers disarmament obligations under international law, embraces an
obligation arising out of an Odasarran custom to disarm.
73
Facts, ¶4.
74
Facts, ¶5.
75
Facts, ¶6.
76
Facts, ¶38.
77
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8)
[“Nuclear Weapons”]
78
VCLT, Article 26.
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While ICJ failed to find a customary rule of a worldwide scope prohibiting nuclear
weapons in Nuclear Weapons,79 it is not precluded to find a customary rule of a local or regional
scope where one exists. According to Asylum Case, a regional or local custom is a valid source of
law80 and “the party which relies on a custom of this kind must prove that this custom is established
in such a manner that it has become binding on the other party.” Consequently, the customary rule
invoked should be in accordance with a constant and uniform usage practiced by the States in
question.81 Further, the substance of a customary rule must be “looked for primarily in the actual
practice and opinio juris of States.”82
1. There is uniform and constant practice towards disarmament in
Odasarra.
It is undisputed that both Anduchenca and Rukaruku, along with three other independent
States, belong to the Odasarran region.83 After entering into the FCN Treaties containing
disarmament policies, all the Odasarran States engaged in large-scale disarmament programs to
restabilize the region.84
Twenty years thereafter, all Odasarran States, except Anduchenca, signed and ratified the
Treaty on the Non-Proliferation of Nuclear Weapons (“NPT”) as non-nuclear-weapon States.
Anduchenca’s refusal was grounded on its allegation that the treaty “establishes and aggravates an
79
Nuclear Weapons, ¶2 of the dispositif.
80
Statute of the International Court of Justice, 26 June 1945, 33 U.N.T.S. 993, Article 38(1)(b).
81
Colombian-Peruvian Asylum Case, Judgment, 1950 I.C.J. 266 (Nov. 20) [“Asylum Case”]
82
Nuclear Weapons, ¶64.
83
Facts, ¶1.
84
Facts, ¶5.
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inherent inequality between nuclear-weapon States and non-nuclear-weapon States.”85—a reason
that does not negate the long-standing disarmament policy it has shared with the other Odasarran
states prior the NPT.
Anduchenca’s refusal cannot meet the threshold established by the ICJ in the Asylum Case
when it found Peru to have repudiated the custom alleged by Colombia. Accordingly, “the custom
invoked by Colombia cannot be used against Peru which, far from having by its attitude adhered
to it, has repudiated it by refraining from ratifying the Montevideo Conventions of 1933 to 1939,
which were the first to include a rule concerning the qualification of the offence in matters of
diplomatic asylum.”86
In contrast, the NPT is not the first convention to include a disarmament rule binding upon
Anduchenca. Even before the NPT, Anduchenca had already entered into binding agreements
geared towards the ultimate purpose of disarming through the FCN Treaties.87
These facts constitute the uniform and constant usage of Odasarran States towards
disarmament which has spanned beyond seven decades, predating multilateral treaties, UN
resolutions or international cases seeking to achieve wide-scale disarmament.
85
Facts, ¶9.
86
Asylum Case.
87
Facts, ¶4.
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2. Said practice is supported by opinio juris.
The ICJ discovers opinio juris from the evidence of state practice or from more positive
evidence of the belief that a given practice is legally obligatory.88 According to ICJ, UNGA
Resolutions have normative value and can provide evidence of opinio juris.89
The series of UNGA Resolutions—beginning with the very first GA resolution,90
unanimously adopted on 24 January 1946, five months after the U.S. nuclear bombings of
Hiroshima and Nagasaki,91 around the same time the FCN Treaties were entered into, and whose
terms of reference included making specific proposals for "the elimination from national
armaments of atomic weapons and of al1 other major weapons adaptable to mass destruction"92—
signifies the existence of a customary rule prohibiting those weapons. In numerous subsequent
resolutions, the GA reaffirmed the need for nuclear disarmament93 and that the use of nuclear
weapons is contrary to the spirit, letter and aims of the UN and thus, a direct violation of the UN
Charter94 and a crime against humanity.95 In Resolution 808(IX)(A), likewise unanimously
88
Brownlie, Ian. Principles of Public International Law, (2008 ed.) pp.9-10
89
Nuclear Weapons, supra, ¶70.
90
G.A. Res. 1 (I), U.N. Doc. A/12 (24 January 1946)
91
Francis Bugnion. The International Committee of the Red Cross and nuclear weapons: From
Hiroshima to the dawn of the 21st century. 87 INTERNATIONAL REVIEW OF THE RED CROSS 859
(2005)
92
93
Ibid.
94
G.A. Res. 1653 (XVI), 4, U.N. Doc. A/4942/Add.3 (24 November 1961).
95
G.A. Res. 49/75, U.N. Doc. A/Res/49/75 (9 January 1995). See G.A. Res. 33/71 (B), U.N. Doc.
A/Res/33/71 (14 December 1978); G.A. Res. 34/83 (G), U.N. Doc. A/Res/34/83 (11 December
1979); G.A. Res. 35/152 (D), U.N. Doc. A/Res/35/152 (12 December 1980); G.A. Res. 36/92 (I),
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adopted, it concluded "that a further effort should be made to reach agreement on comprehensive
and co-ordinated proposals providing for: (b) The total prohibition of the use and manufacture of
nuclear weapons and weapons of mass destruction of every type…."96
The annual adoption by the GA of Resolutions recalling the content of Resolution
1653(XVI) and requesting member States to conclude a convention prohibiting nuclear weapons
in all circumstances, reveals the desire of a very large section of the international community to
take a significant step to complete nuclear disarmament, which could emerge as a customary rule
of a general scope.97
While this Court may have found these Resolutions insufficient then to establish opinio
juris binding to the entire world,98 they should be enough to prove opinio juris as to Odasarra
whose States have had a consistent and uniform policy of disarmament since 1946.
Since Nuclear Weapons, more Resolutions were issued not only by the GA99 but by the
Security Council (“SC”) upholding the illegality of nuclear weapons. 100 UN has since then made
efforts to strengthen the rule and has hosted a Conference to Negotiate a Legally Binding
U.N. Doc. A/Res/36/92 (9 December 1981); G.A. Res. 45/59, U.N. Doc. A/Res/45/59 (4 December
1990); and, G.A. Res. 46/37 (D), U.N. Doc A/Res/46/37 (6 December 1991).
96
G.A. Res. 808 (IX), U.N. Doc. A/2779 (4 November 1954).
97
98
Ibid, ¶73.
99
See note 95.
100
See S.C. Res. 2310, U.N. Doc. S/Res/2310 (23 September 2016); and, S.C. Res. 1887, U.N.
Doc. S/Res/1887 (24 September 2009).
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Instrument to Prohibit Nuclear Weapons.101 Even Anduchenca initially participated in the said
conference but withdrew after commissioning Ibra.102
3. Regional disarmament is a recognized practice towards nuclear
disarmament.
Regional disarmament is an enhanced approach to general and complete disarmament.103
Affirming 26 Resolutions on regional disarmament dating back to 1990, the UNGA issued
Resolution 71/40 observing the initiative of states towards disarmament, nuclear non-proliferation
and security at the regional and sub-regional levels.104
4. The Odasarran custom to disarm binds Anduchenca.
These observations lead to the conclusion that a regional custom exists in Odasarra
prohibiting nuclear weapons despite the absence of a worldwide custom. Hence, the
commissioning and operation of Ibra constitute a violation of Article 16.
C. Operating Ibra also violated an obligation to disarm under Article 25 of the UN
Charter in relation to SC Resolution (“SCR”) 3790.
Anduchenca is obligated to specifically disarm under SCR 3790105 and Ibra’s continued
operation after the Resolution’s issuance violates the UN Charter and Article 16 of the FCN Treaty.
Through SCR 3790, the SC, employing UN Charter Chapter VII language, effectively
determined that Anduchenca created an “unacceptable threat to the stability of the States of the
101
Facts, ¶39.
102
Ibid.
103
G.A. Res.71/40, U.N. Doc A/Res/71/40 (9 December 2016)
104
Ibid.
105
Annex II of the Facts [“Annex II”].
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Region”106 and explicitly provided that it “decides to authorize Member States to take all measures
commensurate with their specific circumstances in confronting the Ibra, with the goal of
neutralizing the threat it poses to international peace and security.”107
UN Charter Article 25 provides that the Members agree to accept and carry out the
decisions of the SC.108 Article 25 applies to “the decisions of the SC” adopted in accordance with
the Charter.109 The employment by the SC of Chapter VII language and its explicit ‘decision’ to
authorize measures among Member States effectively activated the operation of Article 25.
1. Anduchenca had the primary obligation to comply with SCR 3790.
As a Member State, Anduchenca is obligated to comply with the Resolution either by
ceasing, or at least suspending, Ibra’s operation. This obligation is imposed upon all UN Member
States, but primarily upon Anduchenca whose unlawful act triggered the Resolution itself. This is
similar to South Africa in Namibia, where, pursuant to another SCR, the ICJ held, “South Africa,
being responsible for having created and maintained a situation which this Court has found to have
been validly declared illegal, has the obligation to put an end to it… By maintaining the [present]
illegal situation, and occupying the Territory without title, South Africa incurs international
responsibilities arising from a continuing violation of an international obligation.”110
106
Annex II, ¶3 of the Decisional Text.
107
Ibid, ¶4
108
Charter of the United Nations, 24 October 1945, 1 UNTS XVI [“UN Charter”]
109
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971
I.C.J. 16 (June 21) [“Namibia”] ¶113.
110
Namibia, ¶118.
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By deploying Ibra despite the SCR,111 Anduchenca evidently maintained the illegal
situation and violated a disarmament obligation it had, also violating Article 16 of the FCN Treaty.
SCR 3790’s nature and effect substantially affect Rukaruku’s obligations and rights under
Article 17 of the FCN Treaty. For brevity, a more exhaustive discussion on the Resolution’s
interpretation is reserved under Part IV, Par. A, Sub-Par. 1 of this Memorial, regarding Rukaruku’s
fourth and final prayer.
D. Commissioning and operating Ibra also violated a customary obligation to negotiate
in good faith.
Under the dispositif of Nuclear Weapons, this Court unanimously ruled that there exists an
obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear
disarmament in all its aspects.112 Considering said unanimity, “this twofold obligation to negotiate
in good faith and achieve the desired result has now, 50 years on, acquired a customary
character,”113 establishing the norm-creating character of Article VI of the NPT, which provides:
"[E]ach of the Parties to the Treaty undertakes to pursue negotiations in good faith
on effective measures relating to cessation of the nuclear arms race at an early
date and to nuclear disarmament, and on a treaty on general and complete
disarmament under strict and effective international control."114
111
Facts, ¶42.
112
Nuclear Weapons, ¶105(2)(F).
113
Ibid, p.274.
114
The Treaty on the Non-Proliferation of Nuclear Weapons, 1 July 1968, 729 U.N.T.S. 161.
[“NPT”]
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1. The norm-creating character of NPT’s Article VI.
Exceptionally, the VCLT provides that nothing under it “precludes a rule set forth in a
treaty from becoming binding upon a third state (non-party state) as a customary rule of
international law, recognized as such.”115
The ICJ applied the concept of a norm-creating provision to refer to a provision “which
has constituted the foundation of, or has generated a rule which, while only conventional or
contractual in its origin, has since passed into the general corpus of international law, and is now
accepted as such by the opinio juris, so as to have become binding even for countries which have
never, and do not, become parties to the [Convention].”116
This Court identified three requirements: first, the provision concerned should be of a
fundamentally norm-creating character forming the basis of a general rule of law; second, even a
very widespread and representative participation in the convention; and third, State practice, which
should have been both extensive and virtually uniform in the sense of the provision invoked.117
For the first requirement, Article VI can be regarded as forming the basis of a general
rule.118 The obligation is not made subject to other conditions nor is it subject to any form of
derogation by the parties confirms this.119 By its nature, Article VI concerns the vast majority of
115
VCLT, Article 38.
116
North Sea Continental Shelf Cases (Germany v. Denmark), Judgment, 1969 I.C.J. 3, ¶71.
117
North Sea Continental Shelf Cases, ¶72.
118
Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to
Nuclear Disarmament (Marshall Islands v. United Kingdom), Memorial of the Marshall Islands,
[“Marshall Islands”] ¶192.
119
Ibid, ¶193.
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the international community120 and virtually the whole of this community appears to have been
involved when resolutions of the UNGA concerning nuclear disarmament have repeatedly been
unanimously adopted,121 and is aimed at holistically protecting a collective interest of the
international community.122
The widespread and representative participation in the NPT is a matter of fact,123 as out of
the 195 states in the world, 191 are parties to the NPT,124 a status it shares with only few
multilateral treaties125—satisfying the second requirement.
For the last requirement, practice in negotiating a permanent nuclear disarmament is
deduced from countless initiatives, taken at both universal and regional level. 126 According to
120
121
Ibid, ¶100.
122
Marshall Islands, ¶192.
123
Ibid, ¶194.
124
UN Office for Disarmament Affairs, Treaty on the Non-Proliferation of Nuclear Weapons
(Status of the Treaty), http://disarmament.un.org/treaties/t/npt (last visited on 10 January 2018)
125
126
Marshall Islands, ¶195. See The Peace Treaties of 10 February 1947; Treaty of Tlateloco of 14
February 1967 for the Prohibition of Nuclear Weapons in Latin America, and its Additional
Protocols; Treaty of Rarotonga of 6 August 1985 on the Nuclear-Weapon-Free Zone of the South
Pacific, and its Protocols; Treaty of 12 September 1990 on the Final Settlement with respect to
Germany; Treaty of 11 February 1971 on the Prohibition of the Emplacement of Nuclear Weapons
and Other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the Subsoil
Thereof; Treaty of 5 August 1963 Banning Nuclear Weapon Tests in the Atmosphere, in Outer
Space and under Water; 1995 Bangkok Treaty on the Southeast Asia Nuclear-Weapon-Free Zone,
1996 Pelindaba Treaty on the creation of a nuclear-weapons-free zone in Africa; and the 2006
Treaty on a Nuclear-Weapon-Free Zone in Central Asia; See also G.A. Res.71/40, U.N. Doc
A/Res/71/40 (9 December 2016); G.A. Res. 71/39. U.N. Doc A/Res/71/39 (5 December 2016);
and, G.A. Res. 65/45. U.N. Doc A/Res/65/45 (13 January 2011) citing 19 other resolutions
affirming effectiveness of regional disarmament as early as 1991.
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Nuclear Weapons, in the last two decades from 1996, numerous negotiations have been
conducted127 and numerous still have been conducted thereafter. Meanwhile, the recognition that
a legal obligation is involved can be deduced, inter alia, from the widespread support of UNGA
and SC Resolutions that have recognized the existence of an obligation to negotiate for nuclear
disarmament.128
Meeting the criteria for a norm-creating character, the twofold obligation under Article VI
effectively binds Anduchenca as customary.129 Anduchenca breached this obligation by
commissioning and operating Ibra for being “not in conformity with its obligation.”130
IV. RUKARUKU DID NOT VIOLATE ARTICLE 17 OF THE FCN TREATY BY
ATTACKING THE COVFEFE OR BY CAPTURING THE IBRA.
A. The attack on Covfefe and capture of Ibra are covered by Article 17’s exception.
Article 17 prohibits each Contracting Party from the threat or use of force against the
territorial integrity or political independence of the other Contracting Party, unless permitted under
international law.131
The threat or use of force is allowed in two exceptional instances: when taken in individual
or collective self-defense under Article 51 of the UN Charter; and, when it is mandated by a
Chapter VII SC resolution.132
127
128
129
VCLT, Article 38.
130
ARSIWA, supra, Article 12.
131
Annex I.
132
UN Charter, supra.
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The attack on Covfefe and Ibra’s capture, done pursuant to Article 51 and authorized by
SCR 3790,133 both constitute permissions.
1. The attack on Covfefe and capture of Ibra were made under the
authority of SCR 3790.
SCR 3790 provides that the SC “decides to authorize Member States acting nationally or
through regional organizations to take all measures commensurate with their specific
circumstances in confronting Ibra, with the goal of neutralizing the threat that it poses to
international peace and security.”134
i. SCR 3790 is valid and binding.
The SC, tasked to maintain international peace and security, is bound to act in accordance
with the Purposes and Principles of the UN.135 It is empowered to determine threats to international
peace from which it may either recommend or decide measures to be taken to maintain or restore
peace under Chapter VII of the Charter.136 If the SC chooses to make a decision, such action
triggers Article 25 of the UN Charter and hence, it is for all member States to comply with that
decision.137
In Certain Expenses, this Court interpreted the reference of a resolution to “the
maintenance of international peace and security” and its wording, viz., “decides to authorize the
133
Corrections and Clarifications to the Statement of Agreed Facts, ¶7 [“Clarifications”]
134
Annex II
135
UN Charter, Article 24.
136
Article 39, Ibid..
137
Namibia, ¶116.
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Secretary-General,” as suggestive of a decision that had an authorizing effect. 138 It arrived at a
similar conclusion in Namibia, where the preambles and provisions of the resolutions involved
referred to the UN’s purposes and made conclusions that South Africa performed acts contrary to
said purposes.139
In this case, SCR 3790’s preamble provides that “the situation along the Kumatqesh coast
in the Odasarra Region constitutes a threat to international peace and security,” and “acting under
Chapter VII of the Charter of the UN”, the SC, inter alia, “decides to authorize Member States to
take [all] measures...”.140 Plainly, SCR 3790 is: first, founded upon a determination of a threat to
international peace and security; second, issued by the SC pursuant to its mandate under the
Charter; and, third, a decision under Article 25.
ii. Ibra is a threat under Article 2 of the UN Charter.
Although the SC has “the entire discretion as to what constitutes a threat to the peace, a
breach of the peace, or an act of aggression,”141 Anduchenca still insists that Ibra is not a threat,142
contrary to law.
Possession of nuclear weapons justifies an inference of preparedness to use them. Whether
this is a “threat” contrary to Article 2 of the Charter depends upon whether the envisaged use of
force would be directed against the territorial integrity or political independence of a State, or
138
Opinion, 1962 I.C.J. 151 (July 20) ¶175.
139
Namibia, ¶109, 115.
140
Annex II, supra.
141
United Nations Conference on Institutional Organizations, U.N. Doc. 943 III/5 11, (12 June
1945), ¶17.
142
Facts, ¶42.
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against the Purposes of the UN or whether, as a means of defense, it would necessarily violate the
principles of necessity and proportionality.143

144
Before deploying Ibra in undisclosed locations in the Kumatqesh Ocean, General
Tovarish first announced to the world that it “is equipped with the world’s greatest nuclear
weapons, along with cutting edge ballistic missile technology. It will serve as a firm deterrent
against any who would persist in infringing [our] sovereignty.” He made such remarks a week
after the UN Secretary-General called Ibra a “potentially destabilizing development in a
particularly volatile part of the world.”145 Afterwards, Ibra was deployed where it could strike at
any target throughout the Odasarran Region within a range of 5,500 km.146 There was therefore
enough reason to consider Ibra a threat to international peace and security.
Against Anduchenca’s claim that Ibra’s operation was merely for deterrence, the threshold
set by the ICJ applies—that in the event of self-defense, whether the deterrence would necessarily
violate the principles of necessity and proportionality. Since no other State in the volatile
Odasarran region possess nuclear weapons besides Anduchenca, in case of any belligerent
eventuality, Anduchenca would be able to annihilate any of its Odasarran neighbors—violating
the dual principles of necessity and proportionality. With its unlawful purpose, Anduchenca’s
possession and operation of Ibra therefore constitutes a threat—a subject the SC can competently
suppress through a Resolution.
143
144
Annex II, ¶3.
145
Facts, ¶37.
146
Clarifications, ¶5.
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iii. SCR 3790 contemplated the use of force.
In view of the powers under Article 25, the question whether they have been exercised is
to be determined in each case, having regard to the resolution’s wording, the discussions leading
to it, the Charter provisions invoked and, in general, all circumstances that might assist in
determining the legal consequences of the resolution.”147 The interpretation and application of a
decision of one of the political organs of the UN is the responsibility of the organ which took that
decision.148 Hence, when the Court is called to interpret such decision as an incident of a case, the
Court looks into representations of members of the SC made at the time of their adoption, other
resolutions of the SC on the same issue, as well as the subsequent practice of relevant UN organs
and of States affected by those given resolutions.149
Before the attack, Rukaruku’s representative to the SC150 stated that “in accordance with
[this] Resolution, when it is adopted, Rukaruku will take its accustomed place among law-abiding
States, and will most certainly do what is necessary to promote peace and stability in the region.”151
Upon immediately learning of the Rukaruku’s attack, the SC again issued another Resolution
pertaining to the next steps to be taken in neutralizing Ibra, and accordingly affirmed Rukaruku’s
agreement with the UN-subsidiary International Atomic Energy Agency [“IAEA”] and two other
147
Namibia, ¶114.
148
Accordance with Inernational Law of the Unilateral Declaration of Indepence in Respect of
Kosovo, Advisory Opinion, 2010 I.C.J. 403 (July 22), [“Kosovo”] at ¶46.
149
Kosovo, at ¶94.
150
Facts, ¶48.
151
Facts, ¶41.
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NPT nuclear-weapons-States to dismantle the vessel.152 Following the standards laid by this Court,
there can be no better proof that SCR 3790 indeed authorized the use of force other than the SC’s
evident ratification of the same.
2. Even assuming that SCR 3790 did not authorize use of force, the
measures taken were an act of self-defense under Article 51.
Article 51 provides that “nothing in the present Charter shall impair the inherent right of
individual or collective self-defense if an armed attack occurs against a Member of the United
Nations, until the SC has taken the measures necessary to maintain international peace and
security.”153
i. Rukaruku has an inherent right of anticipatory self-defense.
Article 51 speaks of not impairing an “inherent right” of self-defense, meaning that the
article does not create a right to self-defense but instead preserves a right that has pre-existed the
Charter.154 International custom prior to the UN Charter recognized the ability of a state to defend
against not just an existing attack, but also against an imminent threat of attack—following the
Caroline incident of 1837 where it was first clearly established that ‘a state may use force in
anticipation of an imminent armed attack.’155 The international military tribunals at Nuremberg156
152
Facts, ¶47.
153
UN Charter.
154
Ashley S. Deeks, Taming the Doctrine of Pre-Emption (The Prohibition of the Use of Force,
Self-Defense, and Other Concepts), THE OXFORD HANDBOOK OF THE USE OF FORCE IN
INTERNATIONAL LAW, 1 January 2015.
155
Ibid.
156
The Trial of German Major War Criminals. Proceedings of the International Military Tribunal
(I.M.T.) sitting at Nuremberg, Germany. Judgment of 1 October 1946, p.435
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and Tokyo157 affirmed and used the Caroline test, explaining the pre-Charter existence of the right
of anticipatory self-defense.158 Imminent threats are covered by Article 51.159 In fact, “a threatened
State, according to long established international law, can take military action as long as the
threatened attack is imminent, no other means would deflect it, and the action is proportionate.”160
Such broad interpretation of Article 51 is supported by the French version of the Charter
which preserves the same right “dans un cas ofi un Membre des Nations Unies est l'object d'une
agression arm" (“in a situation where a Member of the UN is the object of an armed attack”).161
This interpretation validates certain State practice where force was used in the absence of
a consummated armed attack,162 demonstrating an acceptance of self-defense by states when an
attack is only imminent and unavoidable.163
157
The Tokyo War Crimes Trial. International Military Tribunal for the Far East. Judgment of 12
November 1948.
158
Deeks, supra.
159
United Nations Secretary-General, In larger freedom: towards development, security and
human rights for all, Report of the Secretary-General, U.N. Doc. A/59/2005, 21 March 2005
160
UN High-Level Panel on Threats, Challenges and Change. ‘A More Secure World’ (2004) p.63,
¶188.
161
Deeks, supra.
162
Sean D. Murphy, The Doctrine of Pre-emptive Self-Defense, 50 VILL L. REVIEW 3, p.699, 2005,
citing the 1962 "quarantine" of Cuba by the United States; the 1967 Arab-Israeli war; the 1981
Israeli attack against an Iraqi nuclear facility; and the 1986 U.S. bombing raids against Libya.
163
Ibid.
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ii. The deployment of Ibra in undisclosed locations constituted
imminent threat of an armed attack.
The requirements set out in the Caroline case must be met in relation to a threatened
attack.164 Accordingly, the right to self-defense is confined to “cases in which that self-defense is
instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”165 A
state may use force in self-defense only against a threatened attack that is imminent.166
Nuclear weapons are ‘potentially catastrophic’, in that they “have the potential to destroy
all civilization and the entire ecosystem of the planet.”167 An adversary with a weapon of mass
destruction (“WMD”) may be able to strike with little or no notice, after which it may be too late
to defend against the devastating impact.168 A WMD attack ‘can reasonably be treated as
imminent’ because of the extreme risk to a state forced to wait until the attack takes place and the
impossibility of affording that state any effective protection after such attack.169 This creates a
situation of irreversible emergency which meets the Caroline test of imminence.170
164
Wilmshurst, Elizabeth. “The Chatham House Principles of International Law on the Use of
Force in Self-Defence”, I.C.L.Q., vol. 55 (2006), p.963. [“Chatham”]
165
Murphy, citing then U.S. Secretary of State Daniel Webster.
166
Chatham, ¶4.
167
168
Matthew C. Waxman. The Use of Force Against States That Might Have Weapons of Mass
Destruction. 31 MICH J. INT’L L. 1 (2009).
169
Christopher Greenwood. International Law and the Pre-emptive Use of Force. 4 SAN DIEGO
INT’L L.J. 7 (2003).
170
Chatham, ¶4.
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Moreover, the ballistic missiles aboard Ibra had a range of over 5,500 kilometres, allowing
them to accurately strike targets throughout the Odasarra Region. 171 Anduchenca, despite
international protest against Ibra, still deployed the vessel in various undisclosed locations in the
Kumatqesh Ocean.172 Even on the assumption that deterrence was Anduchenca’s actual purpose
for developing Ibra, its act of deploying such WMD leaving the world to guess where in the vast
Kumatqesh Ocean it was submerged, only to find out later that the catastrophic vessel was already
outside its territorial waters,173 shows a display of force that Rukaruku properly considered as an
imminent armed attack.
3. The measures taken were necessary and proportional.
The invocation of a treaty provision174 authorizing use of armed force, allegedly in self-
defense, will entail an assessment of the conditions of legitimate self-defense in international
law.175 The criteria of necessity and proportionality are customary,176 and must be observed if a
measure is to be qualified as self-defense.177
171
172
Annex II, ¶2.
173
Facts, ¶46.
174
See Article XX of the Treaty of Amity, Economic Relations and Consular Rights between the
United States of America and Iran, 15 August 1955, 284 U.N.T.S. 93.
175
Oil Platforms (Islamic Republic of Iran v. United States of America), 2003 I.C.J. 161 (Nov. 6)
[“Oil Platforms”], ¶40.
176
177
Paramilitary Activities, supra, ¶282.
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The rules governing the use of force and armed conflict refer to the separate178 rules
governing the resort to armed conflict or jus ad bellum and rules governing the actual conduct of
armed conflict or jus in bello.179 Rukaruku’s acts fully complied with both laws.
i. The measures were necessary and proportional under jus ad
bellum.
In jus ad bellum, proportionality has a dual role: it serves to identify the situations in which
the unilateral use of force is permissible; and it serves to determine the intensity and the magnitude
of military action.180 From a broad point of view, in the Caroline formulation, the principle of
proportionality required “nothing unreasonable or excessive, since the act, justified by the
necessity of self-defense, must be limited by that necessity, and kept clearly within it.”181
According to the ICJ, “there is a specific rule whereby self-defence would warrant only
measures which are proportional to the armed attack and necessary to respond to it.”182 This
interpretation was affirmed in Nuclear Weapons,183 attesting to the view of this Court that
proportionality is to be interpreted against the size and the scope of the attack. 184 Proportionality
178
Adam Roberts and Richard Guelff. Documents on the Laws of War (3rd ed.), 2000 p.1
179
Malanczuk, Peter. Akehurst’s Modern Introduction to International Law (7th ed.), 1997, p.306
180
Enzo Canizzaro. Contextualizing proportionality: jus ad bellum and jus in bello in the Lebanese
war. 88 INTERNATIONAL REVIEW OF THE RED CROSS 864, p.779 (2006).
181
Chatham, ¶5.
182
Paramilitary Activities, ¶176.
183
Nuclear Weapons, ¶41-43.
184
Theodora Christodoulidou and Kalliopi Chainoglou, The Principle of Proportionality from a
Jud Ad Bellum Perspective. THE OXFORD HANDBOOK OF THE USE OF FORCE IN INTERNATIONAL
LAW, 1 January 2015.
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should be assessed by taking into account the scale of the whole operation as well as the necessity
of the measures taken in self-defense.185 The principle, as favoured by the ICJ, seems to strike a
balance between the self-defensive action and the wrong provoking it.186 As a distinct but related
concept, necessity requires that the level of force used is not greater than that necessary to end the
attack or the remove the threat.187
Another paradigm regarding necessity and proportionality advances that the requirement
of proportionality of the action taken in self-defense concerns the relationship between that action
and its purpose, namely that of halting and repelling that attack.188
As an SC-authorized measure, the Covfefe’s sinking, in order to neutralize the threat posed
by Ibra and deprive it of supplies,189 is embraced by the phrase “take all measures commensurate
with [their] specific circumstances in confronting Ibra, with the goal of neutralizing the threat that
it poses to international peace and security.”190 At the time of the attack, Covfefe was a confirmed
supply ship located 250 nmi from Anduchenca’s coast and was en route to deliver provisions and
personnel to Ibra.191 It was integral in ensuring the impunity of Ibra while it could strike any
185
Oil Platforms, ¶72.
186
Christodoulidou and Chainoglou, supra.
187
Chatham, ¶5.
188
Judge Robert Ago. Addendum to the Eighth Report on State Responsibility. YEARBOOK OF THE
INTERNATIONAL LAW COMMISSION, 1980, Vol. II, A/CN.4/318/ADD.5-7, 60, ¶60. See also
Paramilitary Activities, Dissenting Opinion of Judge Schwebel; Nuclear Weapons, Dissenting
Opinion of Judge Higgins; and Case Concerning Armed Activities on the Territory of the Congo
(Congo v. Uganda), 2005 I.C.J. 168, Dissenting Opinion of Judge Koojimans.
189
Facts, ¶44.
190
Annex II, ¶5.
191
Facts, ¶43.
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Odasarran target.192 After sinking Covfefe, the Rukarukan Navy then proceeded to pursue the Ibra,
which eight days later, was found to have moved to approximately 20 nmi from Anduchenca’s
coast. Six Rukarukan warships fired torpedoes forcing Ibra to surface, allowing a boarding party
to control the submarine, and escort it to a Rukarukan naval base.193
The danger posed by Ibra, which had the range of an intercontinental ballistic missile
enough to accurately strike targets throughout the Region, 194 clearly matched, if not outweighed,
the attack on Covfefe, which received prior communications via radio from the Rukarukan
warships for a total of 30 minutes, to no avail.195 Had Covfefe continued to supply Ibra and had
Anduchenca succeeded in wielding its actual force, the same would have resulted in a massive loss
of lives.196 In accordance with the test applied by the ICJ, the attack on Covfefe was a proportional
and necessary resort to use of force.
Under the second test, the first measure should be the goal sought by the action taken.197
SCR 3790 best reflects this goal: “neutralizing the threat that it poses to international peace and
security.”198 Attacking Covfefe, being essential in maintaining the presence of Ibra in its station,
was strategic to deprive Ibra of provisions and personnel and force it to revert back to base. Any
attack on Covfefe is proportional to the collective threat of Ibra and its supply train. After
192
193
Facts, ¶46.
194
Clarifications, supra.
195
196
197
Ago, supra.
198
Annex II, ¶4.
36
591R
immediately reporting both incidents to the SC,199 the SC adopted another Resolution for the
complete dismantling of Ibra and the disposal of all nuclear materials on board. Nuclear experts
from the IAEA certified that the agreement had been carried out,200 in other words, the threat posed
by Ibra was successfuly neutralized. All the undertakings of Rukaruku prior, during, and
subsequent to the capture of Ibra were not only consistent with the Resolution but were also
subsequently ratified by the SC and, more importantly, consistent with their purpose.
ii. The measures were necessary and proportional under jus in bello.
Attacks shall be limited strictly to military objectives,201 otherwise the attacks are
indiscriminate.202
Military objectives are limited to those objects which by their nature, location, purpose or
use make an effective contribution to military action and whose total or partial destruction, capture
or neutralization, in the circumstances ruling at the time, offers a definite military advantage.203
Merchant vessels and civil aircraft are civilian objects unless they are military objectives in
accordance with the principles and rules set forth in this document.204
199
200
Facts, ¶47.
201
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
protection of victims of international armed conflicts, 08 June 1977, 1125 U.N.T.S. 3, [“Protocol
I”] Article 52(2).
202
Protocol I, Article 51(4).
203
Protocol I, Article 52(2).
204
San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994,
appearing on San Remo Manual on International Law Applicable to Armed Conflicts at Sea,
edited by Louise Doswald-Beck, GROTIUS PUBLICATIONS (1995) [“San Remo Manual”] Part III.
Section I.
37
591R
Covfefe is a military objective. The facts show that Covfefe was supposed to reach a point
on the high seas where Ibra was located. Eight days after depriving Ibra of supplies, Ibra was
found and was torpedoed 20 nmi off of Anduchenca’s coast.205 As a supply ship, it effectively
contributed to Anduchenca’s military action, and its destruction offered a definite military
advantage to Rukaruku, who later on succeeded in neutralizing the threat.
Covfefe would have otherwise been exempt from attack under Part III, Section III of the
San Remo Manual had it satisfied the requirement of submission to identification and
inspection.206 Unfortunately, it refused to respond or change its course after receiving six
communication attempts via radio from the Rukarukan warships.207
It is accepted that attacks aimed at military objectives, including objects and combatants,
may cause ‘collateral civilian damage’208 which refers to the loss of life of, or injury to, civilians
or other protected persons, and damage to or the destruction of the natural environment or objects
that are not in themselves military objectives.209
Hence, the regrettable loss of lives of the persons on board Covfefe was merely collateral
and does not breach international humanitarian law. It remains necessary and proportional under
the law as “how far a State is justified in its military actions against the enemy will depend upon
205
Facts, ¶43.
206
San Remo Manual, Part III. Section III.
207
208
Prosecutor v. Dario Kordic and Mario Cerkez, Appeals Judgment by the International
Tribunal for the Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, (2004) IT-
95914/2-A, (Dec. 17),
209
San Remo Manual, Part III. Section I.
38
591R
the intensity and scale of the armed attack for which the enemy is responsible and the gravity of
the threat posed.”210 Rukaruku intended to dissolve the threat of an atomic weapon that
Anduchenca was already prepared to use.
210
San Remo Manual, Part I. Section I.
39
591R
PRAYER FOR RELIEF
For the foregoing, Anduchenca respectfully requests this Honorable Court to adjudge and declare:
1. The March 2, 2017 Arbitral Award is valid.
2. Rukaruku did not violate Article 6 of the FCN Treaty when Egart operated in
Anduchenca’s territorial sea, but Anduchenca violated Article 7 of the FCN Treaty
by capturing Egart, which it therefore must return to Rukaruku.
3. Anduchenca violated Article 16 of the FCN Treaty by commissioning and operating
Ibra.
4. Rukaruku did not violate Article 17 of the FCN Treaty when it attacked Covfefe
and when it captured the Ibra.
Respectfully submitted,
Agents of the Respondent
40

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591R

THE INTERNATIONAL COURT OF JUSTICE

THE PEACE PALACE

THE HAGUE, THE NETHERLANDS

THE CASE CONCERNING THE EGART AND THE IBRA

PEOPLE’S DEMOCRATIC REPUBLIC OF ANDUCHENCA

FEDERAL REPUBLIC OF RUKARUKU

MEMORIAL FOR THE RESPONDENT

THE 2018 PHILIP C. JESSUP

INTERNATIONAL LAW MOOT COURT COMPETITION

INDEX OF AUTHORITIES ......................................................................................................... i

III. ANDUCHENCA VIOLATED ARTICLE 16 OF THE FCN TREATY BY

ICJ and PCIJ Cases

Other International Cases

G.A. Res. 45/59, U.N. Doc. A/Res/45/59 (4 December 1990) ..................................................... 19

on August 23, 2017.

shall execute it in good faith.

Whether the March 2, 2017 Arbitral Award is valid.

it captured the Ibra.

The People’s Democratic Republic of Anduchenca (“Anduchenca”) and the Federal

among themselves and across the Kumatqesh Ocean.

RUKARUKU’S QUEST TO STABILIZE THE REGION

substantial program to promote stability in the Region.

REGIME CHANGE IN ANDUCHENCA

Anduchenca suffered from significant economic depression and government corruption in

Under Tovarish’s leadership, Anduchenca adopted a socialist political ideology.

ANDUCHENCA’S REFUSAL TO DENUCLEARIZE AND REJECTION OF THE UNCLOS

(“UNCLOS”), Anduchenca decided to ignore and reject the two treaties.

RUKARUKU’S LEADERSHIP IN THE FIGHT AGAINST ILLICIT ARMS TRADE

80 vessels suspected of trafficking over the last 22 years.

coast at all times.

ANDUCHENCA’S PARANOIA AND PILFERAGE OF THE EGART

comity, the Rukarukan Navy complied nonetheless.

Thereafter, Anduchenca began studying the Egart.

RUKARUKU’S PLEA FOR THE RETURN OF THE EGART

ANDUCHENCA’S DEFIANCE OF THE ARBITRAL AWARD

Anduchenca refused to participate in the arbitration. Instead, it sent a Note Verbale to

International Tribunal of the Law of the Sea.

Rukaruku and ordered Anduchenca to return the Egart.

was similar to the final version.

application of the law to the facts by the Tribunal.

THE IBRA AND ANDUCHENCA’S NUCLEARIZATION

THE UN SECURITY COUNCIL’S INTERDICTION OF THE IBRA

Alarmed by the potentially destabilizing presence of the Ibra in a nuclear-weapon-free

international peace and security.

Subsequently, an agreement was minted between Rukaruku, the International Atomic

certified that the agreement had been carried out.

arbitrability of the submitted dispute. Further, Anduchenca’s non-participation in the proceedings

sufficient grounds to nullify the Award.

Further, Anduchenca’s maritime security law is inconsistent with international law. A

By commissioning and operating Ibra, Anduchenca violated its disarmament obligations

UN Charter no less. Finally, Anduchenca was bound by a recognized customary obligation to

Anduchenca had under international law.

proportionality and necessity under jus ad bellum and jus in bello.

I. THE ARBITRAL AWARD OF 2 MARCH 2017 IS VALID.

Commerce and Navigation (“FCN”) Treaty.

1. Rukaruku has a dispute with Anduchenca concerning the

interpretation and application of Article 7 of the FCN Treaty.

application of Articles 1 to 9 shall be submitted at the request of either Contracting Party to