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THE 2010 PHILIP C. JESSUP INTERNATIONAL LAW MOOT COURT

COMPETITION

IN THE INTERNATIONAL COURT OF JUSTICE AT THE PEACE PALACE THE

HAGUE, THE NETHERLANDS

The Case Concerning Certain Criminal Proceedings in Ardenia and Rigalia

THE STATE OF ARDENIA

APPLICANT

v.

THE STATE OF RIGALIA

RESPONDENT

2011

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TABLE OF CONTENTS

Index of Authorities..iv

Statement of Jurisdiction.xi

Questions Presented.xii

Statement of Facts...xiii

Summary of Pleadingsxvii

Pleadings..1

I. RIGALIAS PREDATOR DRONE STRIKES IN ARDENIA VIOLATE

INTERNATIONAL LAW AND THE COURT SHOULD ORDER THEIR IMMEDIATE

CESSATION1

1. Rigalia is not under attack from Ardenia1

a) The ZDP are freedom fighters and not under control of the Ardenian government2

i) Rigalia are not entitled to argue self-defence as they are the aggressor..2

b) Art. 51 of the UN Charter 2

2) Rigaliasactions are a breach of Ardenias Human Rights..4

B. The Zetian Democratic Party are non-state actors. Therefore there is no state responsibility on

Ardenia...4

1. Rigalia failed to meet the conditions of collective security .4

a) The actions of the ZDP are not the responsibility of the Ardenian government..4

b) Art. 25 of the UN Charter 5

c) TheArmed Activities Case5

C. Ardenia Submits that Rigalia was not invited to intervene and that there is no legal authority

to justify humanitarian intervention and therefore Rigalias intervention was

illegal.5

1. Rigalias actions are unjustifiable6

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1. Under Art. 2(4) of the UN charter the use of force is illegal....14

2. The State of Ardenia has marked the hospital correctly...15

3. Rigalia has also breached Art. 14 and 18 GCIV..15

(i) The only legal way of attacking a hospital....15

D.Rigalia has acted with aggression in the attack on the Bakchar Valley hospital which is a

breach of international law.16

1. Under UN Charter the use of force is prohibited...16

E.Rigalias attack was a disproportionate unlawful act...16

1. Claiming against terrorism through self-defence..16

(i) The Security Council Resolutions 1368 and 1373 (2001).17

III. RIGALIAS BAN ON THE MAVAZI FOR ZETIAN WOMEN AND GIRLS

VIOLATES THEIR RIGHTS UNDER INTERNATIONAL LAW.17

A. Rigalia has breached the rights of Zetian females to manifest their religion by preventing them

from wearing the Mavazi17

1. Rigalia has violated its obligations under Article 18 of the International Covenant on Civil and

Political Rights 1966.Art. 18(1)..18

a) Freedom of Religion.18

(i) The wearing of the Mavazi is a definite manifestation of the Zetian faith.18

(ii) The significance of the manifestation19

(iii)The blanket ban on wearing the Mavazi in public.20

b) The banning of the Mavazi is not justified under any of the exceptions listed in Art. 18(3)

ICCPR..21

(i) Rigalia is maintaining that the ban is justified .21

(ii) Rigalia also submits that the ban is legitimate....21

(iii)It is the women themselves who consent to wearing the Mavazi.22

2. Rigalia has violated the rights of Zetian females ..22

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3. Rigalia has violated its obligations under the Convention on the Rights of the Child 1989 Art.

5 23

a) The right to freedom of thought, conscience and religion.23

(i) the right to privacy and choice..24

B. Rigalia has breached the rights of Zetian females to non-discrimination by preventing them

from wearing the Mavazi. 24

1. discrimination on the basis of sex, religion or other status..24

a) The Rigalianban provides for sexual discrimination 25

(i) The ban on the Mavazi equates to discrimination based on religion.25

b) The Mavazi ban can also be seen to discriminate against Zetian people .25

c) Art. 25 ICCPR .26

C. Rigalia has breached the minority rights of Zetian females by preventing them from wearing

the Mavazi. 26

1. Rigalia has violated the rights of minorities ..26

a) The Zetian community should be able to enjoy wearing the Mavazi. .27

b) Art. 27 ICCPR27

2. Rigalia has violated the right to participate in a cultural life28

IV. ARDENIA HAS NOT VIOLATED OECD (ORGANISATION FOR ECONOMIC CO-

OPERATION AND DEVELOPMENT) CONVENTION ON COMBATING BRIBERY OF

FOREIGN PUBLIC OFFICIALS IN INTERNATIONAL BUSINESS TRANSACTIONS.

28

1. Thedefinition of bribery .28

2. Ardenia has not violated the OECD Anti-Bribery Convention29

3. The $10 million given to Clyde Zangra..29

(i)MDI has provided money to the people in need30

4. Regalia asked for the bank transaction details from the year 2001 but MDI has its own website

which gives all the details...30

(i)the investigation should be dropped due to lack of reasonable evidence31

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5. Ardenia has not violated any of the OECD guidelines for Multi National Enterprise.31

(i) Ardenia has not violated any obligations under the international law ...31

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INDEX OF AUTHORITIES

Treaties

Additional Protocol II of the Geneva Conventions 1125 UNTS 609...............3, 10

African (Banjul) Charter on Human and Peoples Rights 1981.......................................18

American Convention on Human Rights 1969................................................................18

Arab Charter on Human Rights........................................................................................18

Charter of the United Nations 892 UNTS........................1, 3, 5, 9, 16

Convention on Combating Bribery of Foreign Public Officials in International BusinessTransactions.........30

Convention on the Rights of a Child......23, 24, 26

European Convention on Human Rights 1950...............................................................18

European Union Charter of Fundamental Rights ......19

Geneva Conventions; I,II,III,IV........6, 14, 15

International Convention on Economic, Social And Cultural Rights 1966.....................28

North Atlantic Treaty Organisation 1949.............................5

The Hague Convention 1907 ...9

The International Covenant on Civil and Political Rights 1966.....18, 21, 22, 25, 26

United Nation Convention Against corruption.......30

United Nations Convention And Transnational Organised Crimes........30

The United States Constitution........................................................................................18

United Nations Documents

Conclusions and Recommendations of the Special Rapporteur on Freedom of Religion or BeliefE/CN.4/2006/5..........21, 22

Dickinson B. The United Nations and Freedom of Religion, ICLQ 1995 44 (2) 327..20

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Francesco Capotorti, the UN Special Rapporteur report on minorities in 1979: E/CN. 4/Sub.2/1979/384. 26

General Assembly Resolution 3314 on Definition of Aggression, 1974...2, 3, 16

General Comment 23: The Rights of Minorities (Art. 27), UN Doc CCPR/C/21/Rev.1/Add.5

(1994) ................................................................................................................................27

ILC Draft Articles .....................9, 10, 11, 12, 13, 14

Kymlicka W. The Rights of Minority Cultures, 'Minority Cultures and the CosmopolitanAlternative Waldron J.' Oxford University Press, (1999) at Pg.97; Also General Comment 23:The Rights of Minorities.........27

Ministerial Declaration 1999.......8

Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, PhilipAlston, Addendum, Study on targeted killings...........................6

UN Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons1980. .......................6

United Nations Security Council Resolution 1373 (2001) ......2, 17

United Nations Security Council Resolution 1368 (2001)......2

International Cases and Arbitral Decisions

Archivio del Ministero degli Affari esteri italiano, serie politica P, No. 43..........................10

Behrami and Behrami v France, (2007) 45 E.H.R.R. SE 10..................................................10

Boodoo v. Trinidad & Tobago, Communication 721/1996, UN Doc CCPR/C/74/D/721/1996(2002) ................................................................................................................................20

Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) I.C.J.

Rep. 2003. ................................................................................................................7, 16, 17

Corfu Channel Case (Merits), I.C.J. Rep. 1949, p.509. ..............................................11, 13

Factory at Chorzw Case, merits, Judgment No. 13, 1928, P.C.I.J.......................................12

Fisheries Jurisdiction Case (Merits) (U.K. v Iceland), I.C.J. Rep. 1974 ...........................13

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Gabcikovo-Nagymaros Project Case (Hungary v Slovakia), I.C.J. Rep. 1997......................13

Hasan v. Bulgaria (2002) 34 E.H.R.R. 55. ........................................................................20

Hyatt International Corp. v. Govt. of Islamic Republic of Iran (1985) 9 Iran-U.S. C.T.R......9

ICJ Reports (1999). .............................................................................................................8

LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001..............13

Military and Parliamentary Activities in and against Nicaragua (Merits) (Nicaragua v UnitedStates of America), I.C.J. Rep. 1986. .2, 4, 13, 16

Oppenheims ICJ Reports, 1949 p.4; 16AD............................................................................11

Rainbow Warrior affair, UNRIAA, vol. XX (Sales No. E/F.93.V.3), 82 ILR......................13

Sahin v. Turkey (2007) 44 E.H.R.R. 5 .............................................................................22

Suarez Rosero v. Ecuador (Merits), Inter-Am. Ct HR, 12 November 1997.........................13

The Armed Activities Case (Democratic Republic of the Congo v Uganda), I.C.J. 2005.....5

The Caroline Case (The Caroline and McLeod Case) 32 A.T.I.L 1938.................................7

National Case Law

R (Begum) v. Denbigh High School Governors (2007) 1 AC 100;[2005] UKHL 15..18,19,20

R (Daly) v. Secretary of State for the Home Department [2001] 2 AC 532...........................21

R (Playfoot) v. Millais School [2007] HRLR 34 ...............................................................19

R(Williamson) v. Secretary of State for Education and Employment [2005]2 AC 246...19, 20

National Legislation

Anti Bribery Act 2010 UK.....................................................................................................30

Constitution of the Peoples Republic of China.....................................................................18

Constitution of the Russian Federation..................................................................................18

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German Constitution...............................................................................................................18

Treatises and Digests

Conte A. &Burchill R. Defining Civil and Political Rights The Jurisprudence of the UnitedNations Human Rights Committee, Ashgate, (2009)............................................................23

Handbook of International Law, Anthony Aust, 2010, Cambridge University Press...........17

Hegarty A. & Leonard S. Human Rights: An Agenda for the 21st Century, at Pg. 355 'EthnicDimensions of International Human Rights. Thornberry P.' Cavendish Publishing Limited,(1999)....................................................................................................................................27

Hegarty A. & Leonard S. Human Rights: An Agenda for the 21st Century, at Pg.139 'Women'sRights as Human Rights Old Agendas in New Guises. Bell C.' Cavendish Publishing Limited,(1999)...................................................................................................27

Manual of the Law of Armed Conflict, 2005, Ministry of Defence..2

Nowak M. United Nations Covenant on Civil and Political Rights, CCPR Commentary, 2nd ed.N. P. Engel (2005).......................................................................................................22, 27

Revised Draft by the Special Rapporteur1961,Mr Garcia Amador,Yearbook 1961,vol.11....10

Miscellaneous

J Sainsbury plc, Corporate website, Responsibility (annual report 2010), accessed on 14-12-2010........................................................................................................................................29

J.-M Henckaerts- Study on customary international humanitarian law vol. 87 no.857, march2005, International review of the Red Cross...........................................................................7

League of Nations, Conference for the Codification of International Law, Bases ofDiscussion.............................................................................................................................10

OECD Convention on Combating Bribery of Foreign Public Officials in International Business

Transactions...........................................................................................................30

OECD Guidelines For Multinational Enterprises.................................................................30

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OECD Working Group on Bribery in International Business Transactions, Recommendations ofthe Council for Further Combating Bribery of Foreign Public Officials in International BusinessTransactions, ss VI (Nov. 26, 2009, adopted by the Council Feb. 18, 2010 withamendments)..........................................................................................................................30

Red Cross Fundamental Rules 1978.......................................................................................6

Tesco plc, Corporate Responsibility (Communities), accessed on 14-12-2010.....................29

United States of America-China agreement, ASIL.................................................................13

iv

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STATEMENT OF JURISDICTION

The State of Rigalia and the State of Ardenia have agreed to submit the present dispute to this

court, for final resolution in accordance with Article 40(1) in accordance with the Statute of the

International Court of Justice, by special agreement in accordance with Article 36, the

jurisdiction of the Court comprises all cases that the parties refer to it.

xi

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QUESTIONS PRESENTED

Applicant, Ardenia, requests that the court adjudge and declare that:

(a) Under International Law Rigalia has no obligation to investigate the Bakchar

Hospital attack, or compensate for it.

(b) The state of Rigalia is responsible for the attack on Bakchar valley hospital and

has an obligation to investigate this attack. Rigalias attack on Bakchar valley

hospital was disproportionate and an unlawful act of aggression against the

peoples of Ardenia.

(c) Rigalias ban on the Mavazi for Zetian women and girls violates their rights under

international law.

(d) Ardenia has not violated OECD (organisation for economic co-operation and

development) convention on combating bribery of foreign public officials in

international business transactions.

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STATEMENT OF FACTS

The Rigalian population consists of 65% ethnic Rigalians and 35% ethnic Zetians, Rigalia and

Ardenia have a Zetian population in common, which is spread throughout Rigalias Northern

Provinces. These provinces consist of almost 100% Zetian population. These provinces are also

home to the Morian Mine which constitutes a generous income for Rigalia.

Rigalias central government struggles to control these provinces, as they are largely governed

by the tribal councils, who are of exclusive Zetian ethnicity. They have their own traditional

rules, such as the Mavazi a traditional head covering which covers the face; made from the

hide of the Zorax, a deer species that the Zetians hold to be sacred. Each Mavazi is exceptionally

intricate, with ornate colours and designs unique to each tribe. The Rigalian authorities have

made attempts to enforce Rigalias marriage and anti-discrimination laws in the Northern

Provinces.

Ardenia is a small state on the Northern border of Rigalia. Ardenias Southern Provinces

compromise of about 20% of Ardenias land mass, and whose population consists of a mixture of

Zetians, Junonians and Donaxes. In the Capital City of Ardenia, Junoniaville women are allowed

to wear clothing that permits their faces, bodies and their hair to be visible. Ardenias system of

government is decentralised and each province has their own establish court system and legal

rules to govern family, contract, property and criminal law.

In contrast Rigalias is a centralised state and although divided for the purpose of administration

into separate provinces all individuals are subject to Rigalian law. Tribal council rules are not

recognised by the state as legally binding, although they have virtually 100% practical effect in

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the Northern Provinces. Zetians in Ardenian Southern Provinces are subject to the custom law

and provincial law to wear Mavazis.

As the Zetians are traditionally nomadic people, moving themselves amongst the five provinces

straddling the border between Rigalia and Ardenia. Ethic Zetians have been granted full

citizenship rights by both states in light of this.

For many years, the Zetian Democratic Party (ZDP), has represented more than 75% of the

ethnic Zetians living in Rigalia. The Zetians in Ardenia have not actively participated in the

secessionist movement of the ZDP which is to create an independent state consisting of five

Zetian provenances.

Ardenia and Rigalia have had mostly positive bilateral economic relations and have enjoyed

healthy cross-border trade investment. Rigalian Refining Inc. (RRI), which industrialises

Rigalias coltan reserves which was set up in 1994 by Leo Bikra, who is President and Director

General. Leo Bikra called for a tender for a five-year exploration and development contract for

the Moria Mine located in Rigalias Northern Provinces, a coltan mine on behalf of RRI.

Ardenian and Rigalian companies were permitted to present bids. After following the bidding

procedure set out in the RRI regulations , the contract was ultimately awarded in 1997 to Mineral

Dynamics Incorporated (MDI), a major Ardenian state-owned corporation specialized in mineral

extraction and transportation.

MDI has an active community service programme and has published information about financial

support it has provided to the Zetian Refugees Fund (ZRF), a charity incorporated in Ardenia.

The ZRF mission statement claims that it was created to provide educational opportunities and

humanitarian assistance to Zetians living in both Rigalia and Ardenia. When the Moria mine

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contract was renewed allegations surfaced through the media that it had been secured through

MDIs offer to support the ZRF large sums of money and shares in MDI, resulting in Money

being funnelled through to the ZDP to support its political activities.

In response the May 5th Manifesto President of Rigalia, Teemu Khutai responded by making

various disparaging comments about the Zetian religion. He declared that he aimed to

modernise the northern provinces so that Zetians would no longer have to suffer the barbaric

tribal customs that oppressed women and girls.He then went on to state that the Zetian leaders

had a backwards mentality.

The remarks expressed by President Khutai sparked fighting in the northern provinces which was

further incensed by increased surveillance and arrest of protesters. In reaction to this President

Khutai imposed a ban on groups assembling in public places. The president then introduced a bill

prohibiting all Rigalians from wearing the Mavazi in public place or receiving public services

while wearing a Mavazi. He argued the subjugation of women was a direct cause of poverty in

the Northern Provinces and contributed to the radicalization of Zetians.

In comparison President Arwen of Ardenia launched an information campaign and dedicated

substantial funds to the Zetian tribal areas in order to assist the population. In addition to this

President Arwen has expressed her respect for the freedom of choice for the women to wear the

mavazi. In addition she helpfully suggested womens gardens for those who uncomfortable in the

Mavazi.

Ardenia argues no bribery.

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SUMMARY OF PLEADINGS

The State of Rigalias use of force is completely prohibited under international law, and

therefore their actions and intervention in Ardenia are illegal.

In addition the Zetian Democratic Party are non-state actors. Therefore there is no state

responsibility on Ardenia.

Ardenia Submits that Rigalia was not invited to intervene and that there is no legal authority to

justify humanitarian intervention and therefore Rigalias intervention was illegal.

The State of Rigalia is responsible for the illegal attack on the Bakchar Valley hospital. Under

ILC Draft articles on Responsibility of States for Internationally Wrongful Acts 2001,

Rigalia has an obligation to investigate the attack and to compensate Ardenia for this.

Rigalia has breached its international obligations through an unlawful attack of a marked

hospital.

Rigalia has acted with aggression in the attack on the Bakchar Valley hospital which is a breach

of international law.

The state of Rigalias attack was a disproportionate unlawful act.

The state of Rigalia has breached the rights of Zetian females to manifest their religion by

preventing them from wearing the Mavazi.

Rigalia has breached the rights of Zetian females to non-discrimination by preventing them from

wearing the Mavazi.

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Rigalia has breached the minority rights of Zetian females by preventing them from wearing the

Mavazi.

There is a lack of substantial evidence provided by Rigalia to constitute bribery and therefore

there is no need for Rigalia to investigate or provide mutual assistance into the matter without

their presence.

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I. RIGALIAS PREDATOR DRONE STRIKES IN ARDENIA VIOLATEINTERNATIONAL LAW AND THE COURT SHOULD ORDER THEIR

IMMEDIATE CESSATION.

The use of force is completely prohibited under international law with few exceptions which

Rigalia is not entitled to claim, as their use of force is aggressive, disproportionate and

unjustifiable under the criteria laid out to internationally control states aggression and the use of

force.

A. Rigalias use of force is completely prohibited under international law, and thereforetheir actions and intervention in Ardenia are illegal.

As Rigalia was not originally under attack from Ardenia, Rigalias aggressive actions are

prohibited under international law, the use of force is prohibited under the Art. 2(4) of the

United Nations Charter (hereafter UN Charter), prohibiting all nationsfrom threatening or

using force against the territorial integrity or political independence of any state1. In Art. 2(7)

of the UN Charter it is agreed that the united nations shall not intervene in matters, which are

under the domestic jurisdiction of any state or shall require the members to submit such matters

to settlement2. This clearly submits that Rigalias intervention is prohibited under international

law and such a concern should have been expressed and settled with the United Nations. Art.

51 of the UN Charter allows exceptions as to the use of force such as; self defence requiring the

United Nations Security Council is notified immediately3 as shown in the situation following

1 United Nations Charter (1945), Art. 2(4).

2 UN Charter, Art. 2(7).

3 UN Charter, 1945, Art. 51.

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the events of September the eleventh in the Security Council resolutions 1368 and 13734.

Referring to the case ofNicaragua v. USA5

the international court indicated two required

conditions that need to be satisfied in order to claim the exception of lawful self-defence, firstly

the victim state should declare itself as victim state, requesting assistance. Secondly the

wrongful act of the aggressor must be deemed an armed attack. Art. 2 of the General

Assembly Resolution 3314 on Definition of Aggression(hereafter GAR3314) states that the

first use of force by a state in contravention of the charter shall constituteprima facie evidence

of an act of aggression6, Art. 3 also states Any of the following acts, regardless of a

declaration of war, shall, subject to and in accordance with the provisions of Art. 2, qualify as

an act of aggression: bombardment by the armed forces of a state against the territory of

another state or the use of any weapons by a state against the territory of another state7, thus

proving that Ardenia is not the aggressor. As it is a wrongful act, based on the definition of this

resolution and does not constitute an armed attack as Ardenia has not used bombardment

through their armed forces against Rigalia.

1. Rigalia is not under attack from Ardenia and therefore is not entitled to act in self-defence.

The definition of what constitutes as war is clearly laid out in the Manual of the Laws of armed

conflict8 which we can interpret to show Rigalia is not at war. There is a clear difference between

what war is and what merely an armed attack is. An armed conflict exists whenever there is a

4 Security Council Resolutions 1368 (2001) and 1373(2001).

5Military and Parliamentary Activities in and againstNicaragua (Merits) (Nicaragua v United States of America),

I.C.J. Rep. 1986.

6 General Assembly Resolution 3314 on Definition of Aggression, 1974, Art. 2.

7ut supra, Art. 3.

8 Manual of the laws of armed conflict.

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resort to armed force between states or protracted armed violence between governmental

authorities and organised armed groups where as war is a contention between two or more states,

through their armed forces for the purpose of overpowering each other9.

a) It is seen that the Zetian Democratic Party (hereafter ZDP) were involved in an armed

conflict with Rigalia. The ZDP are freedom fighters and not under control of the Adrenian

government, therefore it is not Ardenia that has done acts of an armed conflict. Due to Rigalias

drone strikes across Ardenia, it appears Rigalia is unlawfully attacking Ardenia with a use of

force10in order to prevent the ZDP from encouraging the independence of the northern states of

Rigalia. Rigalias rules are currently in force in these provenances.

i)This interpretation leans towards the idea that Rigalia is starting a war to overpower Ardenia

in agreement with the prior definitions, and therefore are not entitled to argue self-defence as

they are the aggressor. This is supported in the GAR3314 Art. 3(a)(b) which state such acts as

the invasion or attack by the armed forces of a state of the territory of another state and the use

of any weapons of a state against another against the territory of another state.11

b) Art. 51 of the UN Charter requires that measures taken by states to exercise the right of self

defence must be immediately reported to the Security Council12. Rigalia has failed to comply

with this and therefore their actions and claim to self defence or invalid and unlawful as they

9 Additional Protocol II, Art. 1, Geneva Convention 1949, Art. 2 & 3.

10 UN Charter, 1945, Art. 2(4).

11 General Assembly Resolution 3314 on Definition of Aggression, 1974, Art. 3(a)(b).


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must seek the support of the Security Council to exercise this right. In applying this Rigalia is

therefore not at war with Ardenia, voiding the laws of war.

2) As Ardenia is not at war with Rigalia, Rigalias actions are a breach of Ardenians Human

Rights.

B. The Zetian Democratic Party are non-state actors. Therefore there is no state

responsibility on Ardenia.

There is no state responsibility on Ardenia for the ZDP activities. Rigalias drone strikes are

not being used as a defence from an armed conflict or an anticipated attack.

1. Rigalia failed to meet the conditions of collective security and therefore have no legal

exception as to the use of force. In the Nicaragua Case13 , the United States of America

(hereafter USA) contended that Nicaragua was actively supporting armed groups operating in

neighbouring countries. Therefore collective self defence was justifiable. The court held that

there was not enough sustainable evidence to support such a statement and that whether the self-

defence is individual or collective it can only be exercised in response to an armed attack14.

a) The definition given does not include assistance to rebels, in the form of provisions of

weapons or other support. This shows that the actions of the ZDP are not the responsibility of the

Ardenian government. They are also not providing these armed bands with weaponry or other

13(Nicaragua v United States of America), I.C.J. Rep. 198414 as meaning not merely action by regular armed forces across an international border, but also the sending by a

state of armed bands on to the territory of another state, (Nicaragua v United States of America), I.C.J. Rep. 1984.

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means of support. Rigalia is therefore not entitled to the response of self-defence15as it is not an

armed attack by Ardenia as they are not instructing, supplying or controlling the terrorists or

their attacks. These terrorist attacks are mere freedom fighters protesting their rights amongst the

Zetian provenances in which Rigalia seeks to oppress.

b) Art. 25 of the UN Charter states the primary responsibility for peacekeeping which lies within

the Security Council duties. Member states accept and carry out the decisions of the council from

Art. 2516. The requirements for collective security are that the victim state is to declaring

themselves a victim and to request the assistance of the Security Council to resolve the problem

and keep the peace. Rigalia is bound by the UN Charter so should comply with this authority.

c) TheArmed Activities Case, highlights the necessity to comply with these regulations of the

UN Charter17. The Security Council then has two options under Chapter VI Art. 33-3818. The

Security Council can make recommendations with the objective to achieving a peaceful

settlement to disputes this is under Chapter VII Art. 40 for the enforcement measures. This

authorises the council to call upon states to comply with such provisional measures as it deems

necessary. Rigalia failed to meet these conditions. Applying, Art. 5 of the North Atlantic Treaty

15(Nicaragua v United States of America), I.C.J. Rep. 1986, p.14, para.194.


17The Armed Activities Case (Democratic Republic of the Congo v Uganda), I.C.J. 2005, p.168, para.145.

18 UN Charter 1945, Ch IV, Art. 33-38.

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i) Protocol III23 relates to incendiary weapons. This was originally considered due to the

international concern of USA bombs in Vietnam. Incendiary weapons are not prohibitedper se,

but incendiary weapons which cause unnecessary harm to civilians on attacks of military

objectives located within a civilian population are. The example given by the protocol is

definitely comparable given the definition of an incendiary weapon. Therefore Rigalia has

violated international laws of war using non-conventional weapons to attack non military targets

such as the 230 civilians and the hospital.

ii) Rigalias drone strikes violate the customary international rules of necessity and

proportionality. There is a limit to the necessity of self-defence which must be assessed in

deciding whether the exception is lawful. The right to self-defence may be recognised by the UN

charter but the right to anticipatory self-defence has not been incorporated. The Caroline Case

outlines a formula for assessing the right to self-defence by means of necessity24. Rigalia could

have requested Ardenia to take action against the ZDP, which they did not. They also did have a

moment for deliberation when communicating with Morgania.

iii) The second limitation upon self-defence is that of proportionality found in custom. This is

that the counter attack must be proportionate in all aspects to the original attack.25 To assess the

proportionality of the drone strikes on Ardenia, the case ofIran v. USA26can be used. The courts

23 UN Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons 1980.

24

The Caroline Case (The Caroline andM

cLeod Case) 32 A.T.I.L 1938.

25 J.-M Henckaerts- Study on customary international humanitarian law vol. 87 no.857, march 2005, International

review of the Red Cross.

26Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America) I.C.J. Rep. 2003. P.161.

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concluded here that the retaliated actions of the USA were unjustifiable and disproportionate in

terms of self-defence. They were not necessary measures to protect the security interests of the

USA. Applying this principle it is apparent that Rigalias drone attacks which killed 230 civilians

including the family of a ZDP commander are disproportionate. Rigalias actions are not a

proportionate response to the ZDPs actions. These strikes do not prevent the ZDP actions nor

are they necessary to uphold Rigalias security and are therefore disproportionate.

b) Rigalia has no authority to attack Ardenia, as any claims as to humanitarian intervention are

undermined legally by political motives. Rigalia is not entitled to intervene because of the lack of

involvement by the Ardenian government towards the ZDP. Theses genuine interests are

undermined by an alterpolitical motive which is preventing the independence of the northern

provenances of Rigalia. This situation can be compared to the NATO bombings of targets

throughout Yugoslavia. Here NATO had resorted to using the excuse of humanitarian motives,

despite Yugoslavia true political interest in Kosovo.27Three months after the NATO action ended

a Ministerial Declaration was produced by foreign ministers, The so-called right of

humanitarian interventionhas no basis in the UN Charter.28 This represents the opinion of 132

states, and maintains the need of clear distinctions between humanitarian intervention and other

activities of the member states of the UN. Therefore Rigalias predator drone strikes are

inconsistent with their legal international rights.

27 ICJ Reports (1999).

28 Ministerial Declaration 1999, para. 69.

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II. THE STATE OF RIGALIA IS RESPONSIBLE FOR THE ATTACK ONBAKCHAR VALLEY HOSPITAL AND HAS AN OBLIGATION TO

INVESTIGATE THIS ATTACK. RIGALIAS ATTACK ON BAKCHAR VALLEY

HOSPITAL WAS DISPROPORTIONATE AND AN UNLAWFUL ACT OF

AGGRESSION AGAINST THE PEOPLES OF ARDENIA.

Rigalia is responsible for the unlawful, disproportionate and aggressive attack on the Bakchar

Valley hospital under international law, and has an obligation to investigate and compensate

Ardenia for this. Rigalia has breached its international legal obligations with an unlawful and

disproportionate aggressive attack on the peoples of Ardenia.

A. Rigalia is responsible for the illegal attack on the Bakchar Valley hospital under ILC

Draft articles on Responsibility of States for Internationally Wrongful Acts 2001.

1. Rigalia has breached international law under Art. 2(3) of the UN Charter as not settling their

disputes by a peaceful means29

, as well as having breached Art. 2(4) of the UN Charter through

their use of force upon the Bakchar Valley hospital of Ardenia. Art. 23(g) of The Hague

Convention (HC)30 has also been breached by Rigalia in their attack. The act of doing this was

within their master and agent relationship with a Morganian officer, making Rigalia at breach to

Art. 23(e) of the HC31. Rigalia is responsible for the actions of the Morganian officer as an

entity, defined in ILC Draft Articles on the Responsibility of States for Internationally

Wrongful Acts 2001(hereafter ILC Draft Articles)32, of Rigalia.

29 UN Charter , Art. 2(3).

30 The Hague Convention 1907, Art. 23(g).

31 HC, Art. 23(e).

32 ILC Draft Articles, Art. 5.

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a) The Morganian officer was empowered to perform this act by Rigalia. In using the ILC Draft

Articles to address Rigalias breach of the UN Charter this can be seen. Art.5 of the ILC draft

articles is concerned with the conduct of persons or entities exercising elements of governmental

authority. The Morganian officer is an entity for Regalia from the principles found in Hyatt v.

Iran case33. An entity is further characterised in an assertion from the German Government

made at Preparatory Committee for the 1930 Hague Conference34. As an entity the Morganian

officer has exercised governmental authority35

, therefore manufacturing the responsibility of

her on Rigalia.

i) Following from Art. 5&7 of the ILC Draft Articles can be applied resulting in Rigalia being

responsible for the excess of authority36 used by the Morganian officer in her mistaken action

of the bombing of the Bakchar Valley hospital. Herultra vires act does not give way for Rigalia

to be irresponsible for the attack, as state practice has suggested from British and Spanish

governments pointed out at an Italian request37. This is also recognised in the writings of jurist

33Hyatt International Corp. v. Govt. of Islamic Republic of Iran (1985) 9 Iran-U.S. C.T.R., vol. 9, p. 72, at pp. 88

94.

34 when, by delegation of powers, bodies act in a public capacity, e.g., police an area the principles governing

the responsibility of the State for its organs apply with equal force. From the point of view of international law, it

does not matter whether a State polices a given area with its own police or entrusts this duty, to a greater or less

extent, to autonomous bodies. League of Nations, Conference for the Codification of International Law, Bases of

Discussion.

35Behrami and Behrami v France, (2007) 45 E.H.R.R. SE 10, p.34.

36 ILC Draft Articles, Art. 7.37 For the opinions of the British and Spanish Governments given in 1898 at the request of Italy in respect of a

dispute with Peru, see Archivio del Ministero degli Affari esteri italiano, serie politica P, No. 43.

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Mr Garcia Amador38, and in Art. 91 of Additional Protocol I to GC 194939, which Rigalia is a

party to.

ii) Rigalia is responsible for this act even if the fault has no blame attached. As from the

principles in the Corfu Channel Case, the fact that the action may not have been what was

wanted by Rigalian authority of the Morganian officer to do it does not shift the burden of

proof40. This principle is reiterated in Oppenheims International law 41.

B. Rigalia has an obligation to investigate the attack and to compensate Ardenia for this.

The attack on the Bakchar Valley hospital is attributable to Rigalia under the ILC Draft Articles.

This act therefore must be compensated for, for the peoples of Ardenia.

1. Rigalia must investigate their actions of the Bakchar Valley hospital and take appropriate steps

to ensure the safety of Ardenia and its people in the future. Rigalia is under a legal obligation to

recognise its wrongful attack under the criteria in Art. 2842 of the ILC Draft Articles. This

provides that Rigalia is to take action to meet the legal consequences of their wrongful attack.

This is to be with total irrelevance of their internal laws, Art. 32&343 of the ILC Draft Articles,

38 Revised Draft by the Special Rapporteur1961, Mr Garcia Amador, Yearbook 1961, vol.11 p.53.

39 GC 1949, Additional Protocol, Art. 91.

40Corfu Channel Case (Merits), I.C.J. Rep. 1949, p.509.

41 Oppenheims ICJ Reports, 1949 p.4; 16AD, p.155.


43 ILC Draft Articles, Art. 3 and 32.

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Rigalia cannot justify not complying with these articles through the use of their own internal

laws.

2. Rigalia has an obligation to see cessation and non-repetition of their wrongful act towards

Ardenia. Under Art. 30(b)44, Rigalia, as the state responsible for the attack on the Bakchar Valley

hospital, is under an obligation to offer appropriate assurances and guarantees of non-repetition

of such an act. These assurances and guarantees are concerned with the restoration of confidence

in a continuing future relationship with Ardenia45

.

3. Rigalia has an obligation to make full reparation for the injury caused by the wrongful act,

under Art. 31, ILC Draft Articles. This general principle was used by the PCIJ inFactory at

Chorzw Case, where re-establishment of the situation affected by the breach is deemed an

obligation also46. They further added a clear meaning of reparation, and that compensation can

form part of this47

adding a further obligation for Rigalia to pay compensation to Ardenia if

necessary. The injury mentioned here is defined in Art. 3148 is meant to include any damage

44 ILC Draft Articles, Art.30.45 President Johnson stated following repeated demonstrations against the US embassy in Moscow, 1965, the

protection which is required by international law and custom and which is necessary for the conduct of diplomatic

relations between states.

46 It is a principle of international law that the breach of an engagement involves an obligation to make reparation in

an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there

is no necessity for this to be stated in the convention itself. Differences relating to reparations, which may be due by

reason of failure to apply a convention, are consequently differences relating to its application,Factory at Chorzw

Case jurisdiction, Judgment, No. 8, 1927, P.C.I.J., Series A, No. 9, p. 21.

47Factory at Chorzz Case, merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, p.47.


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caused by that act. It also includes any material or moral damage caused by that act49. In apply

this definition compensation must be paid for injury to individuals injured, families of those who

have lost somebody in the act, as well as that for the material damage done to the Bakchar Valley

hospital.

(i) Rigalia is also at an obligation to provide full reparation for the injury caused, from Art. 34 of

ILC Draft Articles50. The jurisdiction inLaGrand Case51 and Suarez-Rosero v Ecuadorshow,

[F]ull reparation for the injury caused52

, must be given, including restitution, compensation and

satisfaction to Ardenia.

4. Finally Rigalia has an obligation to give full compensation to Ardenia for the wrongful act.

Art. 36 ILC Draft Articles explains this. In applying the judgment in the case ofGabcikovo-

Nagymaros project Case by the ICJ53, the obligation of compensation is further seen. Rigalia has

an obligation by the courts to pay this compensation from the customary law principles in

Nicaragua Case54 and in The Fisheries55 jurisdiction, which are usus and opinion juris.

(i) Rigalia has an obligation to give compensation for the deaths of Ardenias people as well as

injury and damage to Ardenia. The Corfu Channel Case56judgment, where compensation was

49 ILC Draft Articles, with commentaries, UN, Art. 31 (5).


51LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 485, para.48.

52Suarez Rosero v.Ecuador(Merits), Inter-Am. Ct HR, 12 November 1997, Ser. C, No. 35 104, 2001, 210.

53Gabcikovo-Nagymaros Project Case (Hungary v Slovakia), I.C.J. Rep. 1997, p.81, para.152.

54(Nicaragua v United States of America), I.C.J. Rep. 1984, p.142.

55Fisheries Jurisdiction Case (Merits) (U.K. v Iceland), I.C.J. Rep. 1974, pp.203-205, paras.71-76.

56Corfu Channel Case (Merits), I.C.J. Rep. 1949, p.249.

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given for the deaths of several civilians to their families. This compensation from Art. 36(2) are

agreed upon in ILC commentary 200157

.

(ii)This compensation that Rigalia has an obligation to pay need is to be given even if full

responsibility is not found for the Bakchar Valley hospital attack. This was agreed upon in a US-

China agreement for the ex gratia payment to families of the killed and injured58.

(iii) Rigalia is under an obligation from the Rainbow Warrior Case59 in an arbitral tribunal, to

provide more than just material damage to Ardenia. This would include compensation for the

killed. Rigalias obligation to pay compensation to Ardenia for the attack on Bakchar Valley

hospital has hereby been given in notice to Rigalia completing Ardenias obligations in Art. 43

ILC Draft Articles60.

C.Rigalia has breached its international obligations through an unlawful attack of a

marked hospital.

Under international law Rigalia has breached Art. 11 of the Fourth GC (hereafter GCIV)61 in

bombing a hospital that was marked successfully under the guidelines of Art. 6.

57 ILC Draft Articles, with commentaries, 2001, p243, and, Report of the ILC on the work of its forty-fifth session

A/48/10 p.185.

58 United States of America-China agreement, ASIL, vol 94, No.1, p.127.

59 Case concerning the difference between New Zealand and France concerning the interpretation or application of

two agreements concluded on 9 July 1986 between the two States and which related to the problems arising from the

Rainbow Warrioraffair, UNRIAA, vol. XX (Sales No. E/F.93.V.3),82 ILR, pp.499, 574, 575.60 ILC Draft Articles, Art. 43.61 GCIV, Art. 11.

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1. Under Art. 2(4) of the UN charter the use of force is made illegal. Rigalia has breached this

with their attack on the Bakchar Hospital. This attack on the 15th

March 2010 is a breach of the

GCIV 1949 under Art.1162. Here it is laid out as an international legal principle that, In no

circumstances may hospital[s] and safety zones be the object of attack63. Ardenia holds Rigalia

responsible for the breach of this international law.

2. Furthermore Art. 6 of GCIV64, defines how a hospital is to be marked in order to prevent an

accidental attack. The guidelines for this have been reached by the State of Ardenia as, in the

compromis the drone operator saw a red cross on top of the hospital. As the State of Ardenia has

marked the hospital correctly it can be expressly shown that Art. 11 GCIV has been breached by

Rigalia in their unlawful use of force within the attack upon the Bakchar Valley hospital.

3. The State of Rigalia has also breached Art. 14 and 18 GCIV65. Art. 14 stating, after the

outbreak of hostilities, the Parties thereto, may establish in their own territory and, if the need

arises hospitals66 and in joining with Art. 18 which states, Hospitalsmay in no

circumstances be the object of attack67

. It is seen that even after Rigalia declaring war on March

62 GCIV, Art. 11.

63 'In no circumstances may hospital and safety zones be the object of attack. The Fourth Geneva Convention 1949,

Art. 11.

64 GCIV, Art. 6.65 GCIV, Art. 14 & 18.

66 GCIV, Art. 14.

67 GCIV, Art. 18.

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22nd 2009 against Ardenia, hospitals are still not too be attacked under international law, as in the

GCIV, which Rigalia is a party too. This again makes the state of Rigalia responsible for the

illegal attacks of the Bakchar Valley hospital.

(i)Adding to this, Art. 19 of GCIV provides the only legal way of attacking a hospital, in that,

Protection to hospitalsshall not cease unless they are used to commit, outside their

humanitarian duties68. Bakchar Valley hospital was not being used for reasons outside of its

humanitarian duties, therefore creating a breach on the part of Rigalia for this.

D.Rigalia has acted with aggression in the attack on the Bakchar Valley hospital which is a

breach of international law.

Under international law the use of force from one state upon another state is illegal under the UN

Charter Art. 2(4)69

. Rigalia has used force in an aggressive way from the definitions of the

principle under GAR3314.

1. Under UN Charter70 the use of force is prohibited and with adding the Nicaragua Case71 the

relevant judgments show that the use of Art. 2(4), gives us a clear definition of the illegal use of

force. Applying this to the State of Rigalias actions makes them liable. This illegal attack is also

68 GCIV, Art. 19.



71(Nicaragua v United States of America) (Jurisdiction and Admissibility), I.C.J. Rep. 1984.

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an act of aggression. In applying the UN General Assembly Resolution 331472 gives the

definition of aggression. Rigalias use of force upon the Bakchar Valley hospital was within the

first uses of armed force towards Ardenia. In applying the definition the state of Rigalia is

attributable to the state of Ardenia for an aggressive act.

E.The state of Rigalias attack was a disproportionate unlawful act.

Rigalias attack upon the Bakchar Valley hospital was a disproportionate unlawful act of

aggression when distinguished from the principles of the Oil Platforms Case73.

1. Before 2001 only the USA and Israel had expressed a claim to act against terrorists in self-

defence. This suggests custom is not do this, and making an act such as this disproportionate. In

the Oil Platforms Case74

judgements the USA were asked to show the attack was proportionate

to the threat or use of force against them and that the force used was a necessity and

proportionate. From the principles in this judgment and the customs set after the event it is seen

that Rigalias actions in using force to stop the ZDP were disproportionate. As Ardenia has not

threatened or used force towards Rigalia, their attack on the Bakchar Valley hospital is

disproportionate. These principles were reiterated when the USA carried out air raids on Tripoli

in response to supposed Libyan involvement in a terrorist attack75. The situation here is almost

the same to Rigalias attack on Ardenia making the attack disproportionate.

72 GAR3314, 1974.

73Oil Platforms Case, I.C.J. Rep. 2003.74ut supra,para 74.

75 Handbook of International Law, Anthony Aust, 2010, Cambridge University Press, p.89.

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(i)Adding to this is the Security Council Resolutions 1368 and 1373 (2001). The number of

deaths resulting from the ZDP attacks was nowhere near the extreme figures of the Al Qaeda

attack. Security Council Resolution137376 reiterates the accepted proportionality here, thus

making Rigalias actions disproportionate in comparison with the figures presented. Rigalia is

therefore liable for their disproportionate actions in this way.

III. RIGALIAS BAN ON THE MAVAZI FOR ZETIAN WOMEN AND GIRLS

VIOLATES THEIR RIGHTS UNDER INTERNATIONAL LAW.

A. Rigalia has breached the rights of Zetian females to manifest their religion by

preventing them from wearing the Mavazi.

Rigalia's ban on the Mavazi breaches the rights of Zetian women and girls to manifest their

religion as protected under international law.

1. Rigalia has violated its obligations under Article 18 of the International Covenant on Civil and

Political Rights 1966. Art. 18(1) ICCPR guarantees the right to freedom of thought, conscience

and religion. This right shall include freedom to [] either individually or in a community with

others and in public or private, to manifest his religion or belief in worship, observance, practice

and teaching. Also in relation to the younger females wearing the Mavazi, Art. 18(4) obliges the

state to respect the parents' right to educate their children in conformity with their religion.77

76 Security Council Resolutions 1373 (2001).77ICCPR, Art. 18(4).

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a) The fundamental importance of this human right is signified by the repetition of it in many

international documents and national constitutions.78

Particular support for freedom of religion as

a general rule of international law can be found in Art. 18 of the Universal Declaration of Human

Rights 1948 (UDHR), on which the ICCPR is based, also in Art. 9 of the European Convention

on Human Rights and Fundamental Freedoms 1950 (ECHR).

(i) It is clear that in relation to the Masinto religion, the wearing of the Mavazi is a definite

manifestation of the Zetian faith, the case ofR (Begum) v. Denbigh High School Governors

where the wearing of a Jilbab was held to be sincere manifestation of religious belief.79

Although the right to freedom of religion does not protect every act motivated by religion it is

apparent from the Zetian culture that the wearing of the Mavazi is of particular importance. 80

Tribal councils oblige Zetian women and girls to wear the Mavazi and those that refuse are

forced to leave the Northern Provinces or are punished severely. Not only is it the tribal councils

that oblige females to wear the Mavazi but women and girls themselves wear the Mavazi

pursuant to their beliefs in regard to the Masinto religion. In order for the religion to afford

protection it is important that certain threshold requirements are in place. 81 Firstly the belief

78ICCPR, Art. 18; ECHR, Art. 9; African (Banjul) Charter on Human and Peoples Rights 1981, Art. 8; American

Convention on Human Rights 1969, Art 12; Arab Charter on Human Rights, Art 26 & 27; The United States

Constitution, Amendment 1; German Constitution, Art. 4; Constitution of the Russian Federation, Art. 28;

Constitution of the Peoples Republic of China, Art. 36.

79R (Begum) v. Denbigh High School Governors (2007) 1 AC 100.

80Rv. Denbigh High (2007) 1 AC 100 and R(Williamson) v. Secretary of State for Education and Employment

[2005]2 AC 246 as summarised in R (Playfoot) v.Millais School[2007] HRLR 34 at 1063-1064.

81 ut supra.

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must be consistent with basic standards of human dignity or integrity. The discomfort in wearing

the Mavazi cannot be described as inconsistent with human dignity as it does not violate the

principle of the equal and intrinsic value of all humans.82 It is in fact highly likely that the

opposite is true and in not wearing the Mavazi, Zetian females will feel undignified and

stigmatised within the Zetian community.

(ii)Also when one considers the inconvenience of wearing the Mavazi, the fact that it is still so

widely adopted in practice only further supports the significance of the manifestation within the

Masinto religion and Zetian culture. The belief must be sufficiently serious and important. It is

apparent that due to the intricacy of the head wear, and the fact that it is made using the sacred

Zorax hide the garment is important to the religion. The belief must be coherent. Too much

emphasis should not be placed on this requirement however, as religion [typically] involves

belief in the supernatural. It is not always susceptible to lucid exposition or, still less, rational

justification. Depending on the subject matter, individuals cannot always be expected to express

themselves with cogency or precision.83

Overall, it is clear that with regard to the threshold

requirements the conditions [] must not be set at a level which would deprive minority beliefs

of the protection that they are obviously intended to have84. Therefore, these requirements need

not be strictly applied. With regards toBoodoo Case the Human Rights Committee reaffirmed

that the freedom to manifest one's belief extended to practices integral to religious acts and thus

82European Union Charter of Fundamental Rights, Art. 1, Justice Commentary,

http://www.eucharter.org/home.php?page_id=69.

83R. v.Denbigh High [2005] UKHL 15, Para.23.

84R (Williamson and Others) v. Secretary of State for Education and Employment[2002] EWCA Civ 1926, Para.258.

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applied a broader scope than the requirement of necessity.85 In this light, it is even more definite

that the wearing of the Mavazi is a religious manifestation.

(iii)The blanket ban on wearing the Mavazi in public introduced in Rigalia is a clear and direct

interference with the Art. 18 ICCPR right for Zetian females to manifest their belief in the

Masinto religion. The right to manifest ones religion should be interpreted in light of the right to

freedom of association and in this perspective the believers right to freedom of religion

encompasses the expectation that the community will be allowed to function peacefully, free

from arbitrary state intervention.86 Furthermore, as Dickinson states Generally speaking []

there can be little justification for prohibiting religious practices. If practices affect only the

volunteer adherents of that religion they should not be legally objectionable.87

b) The banning of the Mavazi is not justified under any of the exceptions listed in Art. 18(3)

ICCPR.88 Although a legislative ban can be authorized under this Article, it must also be

necessary for one of the specified causes. Furthermore, restrictions on Art. 18 may not be

imposed or applied in a discriminatory manner.89

85Boodoo v. Trinidad & Tobago, Communication 721/1996, UN Doc CCPR/C/74/D/721/1996 (2002) Para.6.6.

86Hasan v.Bulgaria (2002) 34 E.H.R.R. 55.

87Dickinson B. The United Nations and Freedom of Religion, ICLQ 1995 44 (2) 327, at 327.

88 ICCPR, Art. 18(3) Freedom to manifest one's religion or beliefs may be subject only to such limitations as are

prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and

freedoms of others..

89Conclusions and Recommendations of the Special Rapporteur on Freedom of Religion or Belief E/CN.4/2006/5,

Para.66.

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(i) Rigalia is maintaining that the ban is justified for the protection of public safety owing to the

terrorist attacks and suicide bombers using the Mavazi to avoid detection by authorities.

However, it was only one of many suicide bombers that used the Mavazi to disguise their

identity. Considering this with the fact that only Mavazis have been banned rather than head gear

on a whole, the Rigalian ban is clearly disproportionate as well as discriminative towards the

Masinto religion, particularly females. The ban is not rationally connected90 to the objectives

Rigalia bases its claim upon as the Mavazi is not specifically linked to terrorism to a significant

extent.

(ii) Rigalia also submits that the ban is legitimate as it protects the fundamental rights and

freedoms of the Zetian women themselves, such as gender equality and the right not to be subject

to degrading treatment. Firstly, it seems from President Khutai's statements prior to the

legislation being passed that the ban is in fact more for public safety. It appears to be somewhat

of an afterthought that the ban could be imposed for the benefit of Zetian females. In relation to

the protection of rights, other religions include the wearing of headdresses by both men and

women and these are not outlawed for reasons of equality.

(iii)It is the women themselves who consent to wearing the Mavazi and in banning this religious

headpiece the women are in fact put at a greater risk of degrading treatment in their society. This

is reiterated in the case ofSahin v. Turkey.91 Perhaps most significantly, if Rigalia truly wish to

protect Zetian females from certain tribal practices, it would be much more beneficial to outlaw

the specific practices directly and enforce their existing laws in the Northern Provinces, rather

90R (Daly) v. Secretary of State for the Home Department[2001] 2 AC 532, at 547.

91Sahin v. Turkey (2007) 44 E.H.R.R. 5, Para.115.

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than leap to a discriminative and disproportionate prohibition. The ban clearly represents a

measure which is far beyond what is necessary and is not directly related enough to the specific

need on which they are predicated.92

2. Rigalia has violated the rights of Zetian females under Art. 17 ICCPR. This guarantees the

rightagainst arbitrary interference into one's privacy and home.93 This includes the right to

choose how to organise one's family and home, and presupposes protection of thought and

conscience.94 It is therefore clear that the right to freedom of religion requires protection

against State interference as contained in Article 17(1) ICCPR. The right also includes protection

against unlawful attacks on a person's honour and reputation. Also, Art. 17(2) ICCPR places a

duty on states to provide a means by which these guarantees are protected.95

By prohibiting the Mavazi, Zetian women's honour will clearly be threatened and their reputation

will be at risk for if they do not wear the religious headpiece their integrity will surely be

questioned in the Zetian community. In prohibiting the Mavazi, Rigalia has arbitrarily interfered

with the Zetian people's right as protected under Article 17(1) ICCPR.

92Conclusions and Recommendations of the Special Rapporteur on Freedom of Religion or Belief E/CN.4/2006/5,

Para.66.

93ICCPR, Art 17(1) No one shall be subject to arbitrary or unlawful interference with his privacy, family, home or

correspondence, nor to unlawful attacks on his honour and reputation..

94Nowak M. UN ICCPR Commentary, 2nd ed. N. P. Engel (2005), Art. 18, para.18.

95Conte A. &Burchill R. Defining Civil and Political Rights The Jurisprudence of the United Nations Human

Rights Committee, Ashgate, (2009), at Pg.201.

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3. Rigalia has violated its obligations under the Convention on the Rights of the Child 1989. Art.

5 CRC gives the right to parents to choose and direct the way in which a child may exercise the

relative rights included in the CRC.96 It is a relative right and so can be applied to the child's

right to freedom of religion as guaranteed by Art. 14 CRC. The ban imposed by Rigalia takes

away from a Zetian parent their right to direct and guide their child in an appropriate upbringing

in accordance with the family's and community's beliefs.

a)Art. 14(1) CRC guarantees the right to freedom of thought, conscience and religion, similar to

that in Art. 18(1) ICCPR.97 Furthermore, Art. 14(2) reiterates the rights contained in Art. 5 and

imposes an obligation on the state to respect the parents' right and duty to direct their child in this

matter.98 Again, the Rigalian legislation clearly violates this obligation as it prevents the children

themselves from manifesting their religion and it prevents the parents fulfilling their duty of

guidance in this respect. Although Art. 14(3) allows for exceptional restrictions to be placed

upon the right to manifest one's beliefs, these are a repetition of those contained in Art. 18(3)

96CRC, Art. 5: States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the

members of the extended family or community as provided for by local custom, legal guardians or other persons

legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child,

appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention..

97 CRC, Art. 14 (1): States Parties shall respect the right of the child to freedom of thought, conscience and

religion..

98CRC, Art. 14(2).

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ICCPR and therefore the aforementioned arguments apply in this regard.99 The ban is

disproportionate and cannot be justified for any of the purposes listed in Art. 14(3). There is

therefore a violation under both Art. 14 CRC and Art. 18(4) ICCPR.

(i) Art. 16(1) CRC is a repetition of the right contained in Art. 17(1) ICCPR and thus guarantees

the right to privacy and choice.100 Therefore the above argument applies and the Mavazi ban is a

violation of this Article.

B. Rigalia has breached the rights of Zetian females to non-discrimination by preventing

them from wearing the Mavazi.

Rigalia's ban on the Mavazi breaches the rights of Zetian women and girls to non-discrimination

as protected under international law.

1. Rigalia has violated its obligations under Art. 2 ICCPR, (1) protects individuals within a

State's territory from distinction in relation to all ICCPR rights, including discrimination on the

basis of sex, religion or other status, such as regional origin.101 In relation to the right to manifest

one's belief contained in Art. 18 ICCPR:

99CRC, Art. 14(3): Freedom to manifest one's religion or beliefs may be subject only to such limitations as are

prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and

freedoms of others.

100CRC, Art. 16(1).

101ICCPR, Art. 2(1).

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a) The Rigalian ban not only interferes with the religious right but it also provides for the sexual

discrimination against female Zetians. The restriction on the Mavazi only applies to women of

the Masinto religion and will not directly impact Zetian men, therefore women are not receiving

equal protection under Art. 18 ICCPR as stipulated under Art. 2(1).

(i) The ban on the Mavazi equates to discrimination based on religion, contrary to Art. 2(1)

ICCPR. The introduced legislation only applies to the Mavazi, hence it only affects members of

the Masinto religion. This is clear discrimination against the Masinto religion as members of

other religions are not targeted with similar restrictions and nor will members of any other

religion be affected by this particular ban.

b) The Mavazi ban can also be seen to discriminate against Zetian people on the basis that they

are Zetian and are regionally concentrated. President Khutai's dislike of the Zetian people is

apparent in his public statements and thus the Applicant puts forth that the ban is actually a

discriminative measure that results from the President's personal views. Khutai has referred to

the Masinto customs as barbaric and describes the people as having a backwards mentality.

The President's statements could be a violation of Art. 20(2) ICCPR as he has advocated

religious hatred that constitutes incitement to discrimination against the Zetian people.102 The

Mavazi ban, especially in conjunction with the President's statements, certainly does not promote

tolerance and the links to the Mavazi with terrorism will almost definitely stigmatize the Masinto

religion. The Zetian people are gaining a lesser level of protection under Art. 18 ICCPR than

other Rigalian citizens. This is particularly significant in the fact that all those who opposed the

102ICCPR, Art. 20(2).

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Rigalian ban in parliament were of Zetian ethnicity, and since the legislation was adopted their

views and culture therefore clearly do not have equal protection in law.

c) The Rigalian ban on the wearing of the Mavazi includes the prohibition of receiving public

services whilst wearing the garment. This legislative rule is in breach of Art. 25 ICCPR which

guarantees the provision of public services without distinction including that based on

religion.103 As Zetian women will be prevented from acquiring public services if they continue

to wear the Mavazi, clearly the right contained in Art. 25 ICCPR is not being applied equally,

without distinction, as it should be under Art. 2(1) ICCPR.

C. Rigalia has breached the minority rights of Zetian females by preventing them from

wearing the Mavazi.

Rigalia's ban on the Mavazi breaches the minority rights of Zetian women and girls as protected

under international law.

1. Rigalia has violated its obligations under Art. 27 of the ICCPR. Art. 27 protects the rights of

minorities to enjoy their own culture and profess their own religion in a community.104This right

is echoed in Art. 30 CRC.105 In conformity with Capotorti's definition,106 minorities are groups

that are numerically inferior within a state's population, that are in a non-dominant position,

103 ICCPR, Art. 25.

104ICCPR, Art. 27.

105 CRC, Art. 30

106 Francesco Capotorti, the UN Special Rapporteur report on minorities in 1979: E/CN. 4/Sub. 2/1979/384.

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standards.110 Thus, minority rights and cultural practices take primacy over equality rights.

Rigalia's arbitrary measure is therefore a breach of Art. 27 ICCPR and Art. 30 CRC right.

2. Rigalia has violated its obligations under Art. 15 of the International CESCR, Art. 15(1)

ICESC ensures the right to participate in a cultural life.111 This includes allowing citizens to take

part in their own traditional culture and restricts the right of the State to forbid cultural practices.

By restricting the wearing of the Mavazi, the State has interfered with the cultural life of the

Zetian people without just cause and as such Regalia has breached this Article.

IV. ARDENIA HAS NOT VIOLATED OECD (ORGANISATION FOR

ECONOMIC CO-OPERATION AND DEVELOPMENT) CONVENTION

ON COMBATING BRIBERY OF FOREIGN PUBLIC OFFICIALS IN

INTERNATIONAL BUSINESS TRANSACTIONS.

A. There is a lack of substantial evidences provided by Rigalia to constitute bribery andtherefore there is no need for Rigalia to investigate or provide mutual assistance into

the matter without their presence.

1. The definition of bribery has been well set out under the Art 1 (1) of OECD it is described as

the offence by any person who intentionally offers, promise or give any undue pecuniary or other

advantage by such means given under the Article112. MDIs (Mineral Dynamics Incorporated)

110Hegarty A. & Leonard S. Human Rights: An Agenda for the 21st Century, at Pg.139 'Women's Rights as Human

Rights Old Agendas in New Guises. Bell C.' Cavendish Publishing Limited, (1999), at. Pg.146. 111ICESC, Art. 15(1): The State Parties to the present Covenant recognize the right of everyone... (a) to take part in

cultural life.

112 Each Party shall take such measures as may be necessary to establish that it is a criminal offence under its law for

any person intentionally to offer, promise or give any undue pecuniary or other advantage, whether directly or

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intentions are difficult to infer because they have previously given money to ZRF (Zetian

Refugee Fund) whose motto is based on educational and humanitarian assistance to the Zetian

community. Rigalia never objected to previous payments and have only requested transactions

from 2001 rather from the time when they actually started helping ZRF. There are no relevant

evidences provided by Rigalia to back up their suspicions to the intentions and they are not

investigating property as they should ask for all transactions. Consequently, Ardenia dropped the

investigations.

2. Ardenia has not violated the OECD Anti-Bribery Convention, and therefore with regards to

Rigalias request to investigate the corruption material evidence required. Regalia based

evidence on the alleged corruption of the media news and a former employees statement of MDI

which does not have any specific information inciting Ardenia, other than that the MDI had

always helped the local communities. It is a custom to many of multinational firms of the world

that they make close contact with the charitable firms or Non Government Organisations (NGOs)

for the safety and smooth functioning of their firms and as well as the safety and interest of the

local people e.g. Sainsburys provided 86m to charities113 and they have claimed to offer the

space in their stores for charity purposes to bring the community together. In addition, Tesco

provided 7.4m to charities114.

through intermediaries, to a foreign public official, for that official or for a third party, in order that the official act or

refrain from acting in relation to the performance of official duties, in

order to obtain or retain business or other improper advantage in the conduct of international business.

113 J Sainsbury plc, Corporate website, Responsibility (annual report 2010), accessed on 14-12-2010.

114 Tesco plc, Corporate Responsibility (Communities), accessed on 14-12-2010.

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3. The $10 million given to Clyde Zangra was for the educational needs and humanitarian

assistance to the people of Zetians. This kind of facilitation payment is exempt under the Foreign

Corrupt Practices Act115 (FCPA) which was provided for the basic needs of the Zetians in the

region. Additionally, the OECD Anti-Bribery Convention does not prohibit facilitating

payments. Moreover, the OECDs February 2010 recommendation decries the corrosive effect

of small facilitation payments, particularly on sustainable economic development and the rule of

law116

. However, the money provided to Zetians was for the fundamental needs and

humanitarian protection whereas the OECDs does not prohibit this

(i)Furthermore, the Anti Bribery Act 2010117 does not apply here because MDI has provided

money to the people in need rather than given any advantage to Leo Bakra (President and

Director General of RRI).

4. Regalia asked for the bank transaction details from the year 2001 but MDI has its own website

which gives all the details, of any correspondence including the financial support provided to the

ZRF since the year 2000, discloses all information under the guidance of Art. 8(1)118

and also

115 15 USC ss. 78dd-1(b).

116 OECD Working Group on Bribery in International Business Transactions, Recommendations of the Council for

Further Combating Bribery of Foreign Public Officials in International Business Transactions, ss VI (Nov. 26, 2009,

adopted by the Council Feb. 18, 2010 with amendments), available at www.oecd.org/dataoecd/11/40/44176910.pdf.

117 S. 1 of Anti Bribery Act 2010 UK.

118 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

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under the Art. 10(b) and (c)119 to protect from bribery, so there is no need to investigate a matter

already in compliance with the OECD, UNCAC and Art 9 (1)120

.

(i)Furthermore, the investigation should be dropped due to lack of reasonable evidences and held

that the conduct of giving money to ZRF was under the international standards (publishing their

reports regularly on their website)121.

5. Ardenia has not violated the mutual assistance as described under the Article 9(1) of OECD

which is subject to the Article 11 of OECD which require, the notification to Secretary General

of OECD. Ardenia has not violated any of the OECD guidelines for Multi National Enterprise

because these guidelines have no legal effect on Ardenia or Regalia due to their nature of

existence122

.

(i)Therefore, for the above reasons Ardenia has not violated any obligations under the

international law in regard to the OECD for investigations or mutual assistance.

119 United Nation Convention Against corruption.

120 United Nations Convention And Transnational Organised Crimes.

121 Similarly; investigations has dropped on 6th May 2009 by the National Security Council of Maldives against

Kosovo due to lack of evidence and conduct of money has followed under international standards.

122 Part I, Concepts and Principles, Paragraph 1 of OECD Guidelines For Multinational Enterprises, p 12.

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CONCLUSION AND PRAYER FOR RELIEF

For the foregoing reasons in this Memorial, the State of Ardenia respectfully requests that this

honourable court:

(a)DECLARE that Rigalias predator drone strikes in Ardenia violate international law

and the court should order their immediate cessation.

(b)DECLARE the state of Rigalia is responsible for the attack on Bakchar Valley

hospital and has an obligation to investigate this attack. Rigalias attack on Bakchar

Valley hospital was disproportionate and an unlawful act of aggression against the

peoples of Ardenia.

(c)DECLARE thatRigalias ban on the mavazi for Zetian women and girls violates

their rights under international law.

(d)DECLARE that Ardenia has not violated OECD (organisation for economic co-

operation and development) convention on combating bribery of foreign public

officials in international business transactions.

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In respectful submission before the International Court of Justice

The State of Ardenia.