App 1511

TEAM CODE
BEFORE THE INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING MILITARY ACTIVITES IN BAYSEA
15TH D.M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE

INTERNATIONAL MOOT COURT COMPETITION
FEDERAL DEMOCRATIC
REPUBLIC OF CORNUCOPIA (THE
REPUBLIC OF IRONMAIDEA
V.
(THE RESPONDENT STATE)
APPLICANT STATE)
SUBMITTED IN THE REGISTRY OF THE COURT

ON BEHALF OF APPLICANT STATE
-FEDERAL DEMOCRATIC REPUBLIC OF CORNUCOPIA-
TABLE OF CONTENTS
MEMORIAL ON BEHALF OF APPLICANT

TABLE OF CONTENTS
INDEX OF AUTHORITIES.......................................................................................................IV
STATEMENT OF JURISDICTION.......................................................................................XIII
STATEMENT OF FACTS.......................................................................................................XIV
QUESTIONS PRESENTED..................................................................................................XVII
SUMMARY OF ARGUMENTS..........................................................................................XVIII
BODY OF ARGUMENTS.............................................................................................................1
1.
IRONMAIDEAS
MILITARY
INTERVENTION
IN
CORNUCOPIA
IS
IN
BREACH
OF
INTERNATIONAL LAW......................................................................................................................1
A.
IRONMAIDEAS
MILITARY
INTERVENTION
VIOLATES
NORMS
OF
TERRITORIAL
SOVEREIGNTY AND INTEGRITY ENSHRINED IN INTERNATIONAL LAW..........................................1

A.1. The intervention into Cornucopias territory is without its consent.................................1
A.2. The Military Intervention Violates the Principles of Territorial Integrity and
Independence Enshrined in the UN Charter............................................................................2
A.3. The Military Intervention does not fall in any of the exceptions Enshrined in the UN
Charter.....................................................................................................................................2
B.
IRONMAIDEAS MILITARY INTERVENTION IS EQUIVALENT TO AN ACT OF AGGRESSION AND
HENCE
C.
VIOLATES INTERNATIONAL LAW........................................................................................4
IRONMAIDEAS ACTIONS CANNOT BE JUSTIFIED EVEN ON THE GROUND OF
HUMANITARIAN INTERVENTION.....................................................................................................4
C.1. Humanitarian Intervention Is Not A Customary International Law.................................4
D.
ARGUENDO, EVEN IF RIGHT OF HUMANITARIAN INTERVENTION EXISTS, IRONMAIDEAS
ACTION DOES NOT SATISFY ITS CRITERIA....................................................................................5

D.1. There Has Been No Genocide Or Any Other War Crime Committed By Cornucopia.....6
I|PAGE
TABLE OF CONTENTS
D.2. Unilateral Intervention By Ironmaidea In Cornucopia Is Unlawful................................6

2.
MINISTER MAYNARD CAREY
IS
GUILTY
OF
CRIMES
COMMITTED
AGAINST
CORNUCOPIAS CITIZENS. HE SHOULD EITHER BE PROSECUTED OR EXTRADITED.....................7
A.
CRIME AGAINST CORNUCOPIAS CITIZENS WAS COMMITTED.............................................7

A.1. Genocide Was Committed By Ironmaidea During Its Intervention..................................7
A.2. Crimes Against Humanity Were Committed By Ironmaidea.............................................8
B.
PRINCIPLE OF RESPONDEAT SUPERIOR IS APPLICABLE.........................................................9

B.1. The Existence Of A Superior-Subordinate Relationship,..................................................9
B.2. Actual Or Imputed Knowledge Of The Superior That Crimes Were Or Are About To Be
Committed By His Or Her Subordinates,.................................................................................9
B.3. Failure Of The Superior To Prevent Or Punish Violations Of International Criminal
Law.........................................................................................................................................10
C.
ELEMENTS OF THE CRIME ARE FULFILLED.......................................................................10

C.1. Actus Reus (Material Elements).....................................................................................10
C.2. Mens Rea (Mental Elements)..........................................................................................10
D.
MINISTER CARREY IS LIABLE TO BE PROSECUTED OR EXTRADITED................................11

D.1. The principle of aut dedere aut judicare is applicable in the present case....................11
D.2. Maynard Carey is not entitled to any immunity.............................................................12
3.
THERE HAS BEEN NO BREACH
OF
INTERNATIONAL INVESTMENT LAW
AND
CORNUCOPIA IS NOT LIABLE TO PAY COMPENSATION FOR ALLEGED BREACH.....................13

A.
IRONMAIDEA MUST ESTABLISH LOCUS STANDI TO BRING CLAIMS ON BEHALF OF
TROOPER MOBILE:.......................................................................................................................13
A.1. States Can Extend Diplomatic Protection Only To Corporate Bodies Incorporated In
Their Territories:....................................................................................................................13
A.2. Ironmaidea Lacks Locus Standi To Represent Trooper Mobile:.....................................13
II | P A G E
TABLE OF CONTENTS
A.3. Assuming that Trooper Mobile is a National of Ironmaidea, the Claim is not Admissible
to Due to Rule on Exhaustion of Local Remedies:.................................................................13
A.4. No Bilateral Investment Treaty Subsists Between Ironmaidea And Cornucopia:..........14
B. IN ARGUENDO, THERE WAS NO BREACH OF INTERNATIONAL INVESTMENT LAW:...............15
B.1. The SCARE Act Is Protected Under Security Measures Of The General Agreement On
Trade In Services:...................................................................................................................15
B.2. The Jamming Of Towers Does Not Give Rise To Expropriation:...................................15
B.3. There Is No Breach Of Fair And Equitable Treatment Standard:..................................16
4.
CORNUCOPIA HAS NOT FAILED TO TAKE ADEQUATE DUE DILIGENCE AND IS NOT
LIABLE TO MAKE REPARATIONS FOR DAMAGE CAUSED.........................................................17

A.
THE RESPONDENT IS FORECLOSED FROM BRINGING THIS CLAIM BEFORE THE COURT:. 17
B.
EVEN IF THIS CLAIM IS ADMISSIBLE, THERE WAS NO BREACH OF INTERNATIONAL LAW
DUE TO INADEQUATE DUE DILIGENCE........................................................................................18

B.1. Adequacy Of Due Diligence Cannot Be Brought Before This Court:............................18
B.2. In Arguendo, Due Diligence Was Carried Out In The Factory......................................18
C.
STATES ARE NOT RESPONSIBLE FOR ACTS OF NON-STATE ACTORS:................................19

C.1. States Are Not Responsible For Acts Of Terrorists:.......................................................19
C.2 The Explosion At The Factory Is Imputable To Terrorists And Not Cornucopia Thus
Absolving Cornucopia Of Liability:.......................................................................................20
D.
CORNUCOPIA IS NOT STRICTLY LIABLE FOR DAMAGE CAUSED TO IRONMAIDEA...........21
E.
THE BREACH OF THE DAM WAS FORCE MAJEURE...........................................................21
PRAYER....................................................................................................................................XIX
III | P A G E
INDEX OF AUTHORITIES
I.C.J. CASES & REPORTS

Aerial Incident (Israel v. Bulgaria), 1955, ICJ 127, (July 27).
20
Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 2007 ICJ 43 . 204 (Feb 20
26).
Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Judgment,
5
1970 ICJ 3, 32(Sept 12)
Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 248 (Dec. 15)
1
Difference Relating to Immunity from Legal Process of a Special Rapporteur, Advisory
19
Opinion,1999, ICJ 62, 87 (April 29)
Gabcikovo-Nagumaros Project (Hungary v Slovakia), Judgment, 1997, ICJ 7(Sept. 25)
6
Land, Island and Maritime Frontier Dispute (El Salvador v Honduras), Intervention,
6
1992, ICJ 92 (Sept 11)
Legal Consequences for States of the Continued Presence of South African Namibia
3
(South West Africa), Advisory Opinion, 1971, ICJ 16, 35 (June 21).
Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion,
17
1996 ICJ 266
Military and Paramilitary Activities in and against Nicaragua (The Republic of
3
Nicaragua v. The United States of America), Merits, 1986 ICJ 121 (June 27)
North Sea Continental Shelf (Federal Republic of Germany v Denmark), Merits, 1969,
5
ICJ 3, para.77 (Feb 20).
Oil platforms (Islamic Republic of Iran v. U.S.A.), Judgment, 2003 ICJ 161 (Nov. 6)
3
Pulp Mills on the River Uruguay (Argentina v Uruguay), 2006 ICJ 113 (April 20).
18
Request for an Examination of the Situation in Accordance with the Courts Judgment in
18
the Nuclear Tests Case, ICJ Reports 288 (1995).
Rights of Nationals of the United States of America in Morocco (France v. USA), 1952
3
ICJ 176 (Aug. 27)
P.C.I.J. CASES
IV | P A G E
Certain German Interests in Polish Upper Silesia (Germany v. Poland), Merits, 1926,
PCIJ, (Ser. A), No. 7, 22, (May 25).
Chorzow Factory (Germany v. Poland) 1927 P.C.I.J (ser. A) No. 9 (July 26, 1927).
Lotus (France v. Turkey), 1927 PCIJ (Ser. A) No. 10, (Sept. 7).
15
19
1
INTERNATIONAL ARBITRATION AND CLAIMS COMMISSION CASES

Azurix Corp v. Argentine Republic, Award ICSID Case No. ARB/01/12, IIC 24 (2006),
16
360
BG Group Plc. v Argentine Republic, (UNCITRAL Rules), IIC 321 (2007), . 275310. 16
Claim of Kunhardt & Co., Mixed Claim Commission United States-Venezuela, 9 RIAA
13
172 (Feb. 17, 1903).
CME Czech Republic BV (The Netherlands) v. Czech Republic, UNCITRAL rules,
17
Partial Award, IIC 61 (2001)
CMS Gas Transmission Company v. Argentine Republic, Annulment proceedings,
16
ICSID Case No. Arb/01/8, 277 (Sept. 25, 2007).
Eureko BV v. Poland, UNCITRAL, Partial Award, 231-35 (Aug. 19, 2005)
16
Gill Arbitration (France v. Mexico), 5 RIAA 159 (1931).
21
Home Missionary Society Claim (USA v. Grt. Britain), 6 RIAA 42 (Dec. 18, 1920)
19
International Thunderbird Gamign Corp. v. Mexico, UNCITRAL, Partial Award 147
16
(Jan. 26, 2006)
LG&E International Inc. v. Argentine Republic, ICSID Case No. ARB/02/1, IIC 152
16
12 (2006).
Metalpar SA and Buen Aire SA v. Argentina, ICSID Case No. ARB/03/5, Award, at
16
182-88 (June 6, 2008)
MTD Equity and FTD Chile S.A v. Republic of Chile Award ICSID Case No. ARB/01/7,
16
IIC 174 (2004), 109-113
Occidental Exploration and Production Company v. Republic of Ecuador, Final Award,
16
LCIA Case No UN 3467, IIC 202d (2004), 183
Occidental Exploration, LCIA Case No. UN 3467 at 183.
17
Parkerings-Compagniet v. Republic of Lithuania, Award, ICSID Case No ARB/05/8, IIC
16
302 (2007), 332
PSEG Global, Inc., and Konya Ingin Electrik Uretimve Ticaret Limited Sirketi v.
17
Republic of Turkey, Award, ICSID Case No. ARB/02/5, IIC 198 253254 (2007)
Salukav. Czech Republic, Partial Award, UNCITRAL 230 (Mar. 17, 2006) [hereinafter
15
Saluka].
Salvador Commercial Company, 15 RIAA 477 (1902).
19
V|PAGE
Santa Elena v. Costa Rica 39 ILM, 2000 1317, 1329

15
OSPAR (Ireland v. UK), Final Award, (July 2, 2003), 144;MasseyCase( ), 4RIAA 155
19
(1927)
Sempra Energy International v Argentine Republic, Award, ICSID Case No. ARB/02/16,
15
IIC 304 (2007).
Spanish Zone of Morocco Claims (Grt. Britain v. Spain), 2 RIAA 615 (1923).
20
gBWalter Bau AG v. Thailand, UNCITRAL, Award, 12.1 (July1, 2009).
16
Youmans [Thomas H. Youmans (USA) v. United Mexican States), 4 RIAA 110 (Nov. 23,
19
1926)
INTERNATIONAL CRIMINAL TRIBUNAL CASES

Prosecutor v Clement Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, . 87,
199 (May 21)
Prosecutor v Musema, Case No. ICTR-96 -13-T, 2000, . 884 (Jan 27, 2000).
Prosecutor v. Delalic, Case No. IT-96-21-T, 439 (Nov 16, 1998).
Prosecutor v. Furundija, IT-95-17/1-I, (Dec. 10, 1998).
Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-A, 51, (July 3, 2002).
Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, . 731 (Sept. 2, 1998).
Prosecutor v. Kvoka, Case No. IT-98-30-/1-T, (Nov. 21, 2001).
Prosecutor v. Oric, Case No. IT -03-06-8-T 293 (June 30, 2006).
Prosecutor v. Radislav Krstic, Case No.IT-98-33-T, 590, (Aug. 2, 2001)
Prosecutor v. Zdravko Mucic (Celebici Camp Case), Case No. IT-96-21, 2001, 223
(Feb. 20, 2001).
The Hostage (U.S. v. List, et al.), XI/2 T.W.C. before Nuremberg Mil. Trib., Case No. 10
(Feb. 19, 1948).
8
8
8
8
9
8
8
10
6
9
9
OTHER CASES
Aydin v. Turkey, Judgment of (Sept. 27, 1997), Application No. 57/1996/676/866.
8
C.T. and K.M v. Sweden, Communication No. 279/2005, (Nov. 17 2006), UN Doc.
8
CAT/C/37/D/279/2005 (2007)
People of Israel v. Eichmann 36 I.L.R. 306, 377 (Supreme Court of Israel 1962)
12
R v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 3),
12
2 All E.R. 97(1999), 2 W.L.R. 827 (H.L.) at 119
R. v. Finta, 1 S.C.R. 701 (Supreme Court of Canada, 1994).
12
V.L. v. Switzerland, Communication No. 262/2005, (Nov. 20, 2006), UN Doc. 8
VI | P A G E
CAT/C/37/D/262/2005 (2007)
INTERNATIONAL CONVENTIONS TREATIES & RESOLUTIONS

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Art. 7, June 26, 1987, GA res. 39/46, annex, 39 UN GAOR Supp. (No. 51) 11
at 197, UN Doc. A/39/51 (1984); 1465 UNTS 85
Convention on the Prevention and Punishment of the Crime of Genocide, Art. 2, opened
for signature Dec 9, 1948, 78 UNTS 277 (entered in force Jan. 12, 1951)
Convention on the Repression and Punishment of the Crime of Genocide, art. 4., Dec. 9,
1948, 78 U.N.T.S. 277.
Draft Declaration on Rights and Duties of States art. 3, 1949-12-06, 1949 Y.B. Int'l L.
Comm'n 178.
General Agreement on Trade in Services, art.11 (Jan. 1, 1995) 1869 UNTS 183; 33 ILM
1167 (1994).
Geneva Convention (IV) Relative to the Protection of Civilian Persons in time of War,
Art. 136, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.
International Convention on the Suppression of Terrorist Bombings, adopted by the
General Assembly, 9 December 1999, UN Doc A/RES/54/109 (1997).
Montevideo Convention on Rights and Duties of States, art. 8, 165 LNTS 19 (entered
into force Dec. 26, 1934)
UN General Assembly, Prevention And Punishment Of The Crime Of Genocide, art. 2.,
Dec. 9, 1948, U.N. Doc. A/RES/260.
United Nations Conference on Environment & Development, Rio de Janerio, Braz., June
6
12
2
15
11
20
2
7
3-14, 1992, Rio Declaration on Environment and Development Principle 17, U.N. Doc. 18
A/CONF.151/26 (Vol. I), 1992 [hereinafter Rio Declaration, 1992.].
Vienna Convention on the Law of Treaties, art.11 & 12, opened for signature 23 May
1969, 1155 UNTS 331, (in force 27 January 1980)
14
U.N. DOCUMENTS, REPORTS & GENERAL ASSEMBLY RESOLUTIONS

Commentary on the Draft Articles on Prevention of Transboundary Harm from
21
Hazardous Activities, 2001, Report of the ILC on its 53rd Session, A/56/10, at 183.
Draft Articles on Diplomatic Protection art. 11, Geneva, Switzerland, Rep. of Intl Law 13
VII | P A G E
Commn, 58th Sess., May 1-June 9&July 3 to Aug. 11, 2006

Draft Articles on International Liability, Art. 11, UN Doc A/CN 4/ 428 (1990).
18
Draft Articles on Prevention of Transboundary Harm from Hazardous Activities art. 3- 7,
18
Report of the ILC on its 53rd Session, 159, UN Doc. A/56/10.
Draft Articles on Responsibility of States for Internationally Wrongful Acts art. 8, in
Report of the International Law Commission on the Work of Its Fifty-Third Session, UN
GAOR, 56th Sess.,Supp. No. 10, at 43, UN Doc. A/56/10 (2001), reprinted in [2001] 2
19
Y.B. INTL L. COMMN 26, UN Doc. A/CN.4/SER.A/2001/Add. 1 (Part 2).

Draft Articles on Responsibility of States for Internationally Wrongful Acts Chapter V,,
in Report of the International Law Commission on the Work of Its Fifty-Third Session,
UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001), reprinted in
17
[2001] 2 Y.B. INTL L. COMMN 26, UN Doc. A/CN.4/SER.A/2001/Add. 1 (Part 2).

G.A. Res. 2131 (XX), U.N. Doc. A/RES/2131(XX), (21st Dec, 1965).
1
G.A. Res. 2793 (XXVI), 1, UN Doc A/L.647/Rev.1 (Dec. 4, 1971)
5
G.A. Res. 2840 (XXVI), U.N. Doc. A/RES/2840 (Dec. 18, 1971)
11
G.A. Res. 3020 (XXVII), UNAOR, 30th Sess., 2114th plen. mtg. at 68, UN Doc.
11
A/RES/3020/(XXVII), (Dec. 3, 1973)
G.A. Res. 3074 (XXVIII), UNAOR, 30 th Sess., 2185th plen. mtg. at 78, UN Doc.
11
A/9030/1973, (Nov. 30, 1973).
G.A. Res. ES-6/2, U.N.G.A.O.R., 6thEmerg. Sp. Sess., Supp. 1, U.N. Doc. A/RES/E-6/
1
(1980) at 2 (1980)
ILC Draft Articles on the Law of the Non-Navigational Uses of International
Watercourses art. 28, U.N. GAOR, 49 th Sess., Supp. No. 10, at 197, U.N. Doc. A/49/10 19
(1994).
Secretary-Generals High-Level Panel, Threats, Challenges And Change, A More Secure
World: Our Shared Responsibility, 65-66 (2004)
U.N. Secretary-General, In Larger Freedom: Towards
Development, Security and
Human Rights for All, 33, UN Doc. A/59/2005 (2005).

UN General Assembly, Charter of Economic Rights and Duties of States: resolution
7
7
adopted by the General Assembly, art. 2 (2) (c), UN Doc A/RES/29/3281, (Dec. 12, 15
1974).
UN General Assembly, Declaration on Principles of International Law concerning
Friendly Relations and Cooperation among States in accordance with the Charter of the
United Nations, U.N. Doc. A/RES/2625(XXV) (Oct. 24, 1970)

UNGA Res 2625, UN Doc A/8082, at 121 (24 Oct 1970)
UNSC SCOR, 26th Sess., 1606th mtg. at 18 UN Doc S/10416 (Dec. 4, 1971)
Yearbook of the ILC, 1961, vol. II, p. 46 and ILC Commentary 2001, p. 183.
1
5
21
VIII | P A G E
Yearbook of the ILC, 1979, vol. II, p. 133.
21
BOOKS.
1SIR ROBERT JENNINGS
ET AL.,
OPPENHEIMS INTERNATIONAL
London, Sir Arthur Watts et al., 9th Ed., 1994)

2 SIMMA BRUNO ET AL., THE CHARTER OF
THE
LAW,
382 (Longman
UNITED NATIONS: A COMMENTARY
(Oxford University Press, Hermann Mosler et al., IInd edition, 2002)

ALBRECHT SCHNABEL & RAMESH THAKUR, KOSOVO AND THE CHALLENGE OF
1
1
HUMANITARIAN INTERVENTION: SELECTIVE INDIGNATION, COLLECTIVE ACTION, AND 7

INTERNATIONAL CITIZENSHIP, 319 (United Nations Univ. Press, Schnabel et al., 2000)
ANDRE NOLLKAEMPER, NATIONAL COURTS AND INTERNATIONAL RULE OF LAW,
(Oxford University Press, 2011)
AVRA CONSTANTINOU, THE RIGHT
OF
SELF-DEFENSE
UNDER
CUSTOMARY
INTERNATIONAL LAW AND ARTICLE 51 OF THE UN CHARTER, 57 (Ant. N. Sakkoulas, 3

2000).
BROWNLIE, INTERNATIONAL LAW
AT THE
FIFTIETH ANNIVERSARY
OF THE
UNITED
NATIONS, 255, Recueil des Cours de lAcadmie de Droit International 9, 49(1995).

CHRISTINE D. GRAY, INTERNATIONAL LAW AND THE USE OF FORCE, 100 (Oxford
University Press, 2nd ed. 2004)
ERIKA DE WET, THE CHAPTER VII POWERS
OF THE
UNITED NATIONS SECURITY
COUNCIL, 268(Hart Publishing, 1st ed., 2004)

GARY D SOLIS, THE LAW OF ARMED CONFLICT: INTERNATIONAL HUMANITARIAN LAW IN
WAR, 381 (Cambridge University Press, 2010)
GEORGE L COIL, WAR CRIMES IN THE AMERICAN REVOLUTION , 82 Mil. L. Rev. 171, 197
4
3
3
9
(1978); COL. WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS, 297 (Washington: 9
Gpo, 2d ed., 1920).
HUGO GROTIUS, THE LAW OF WAR AND PEACE, 2 BKII Ch. XXI 331, 138 (Indianapolis:
Bobbs-Merrill Co., Francis Kelsey trans., 1925)
JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSIONS ARTICLES
RESPONSIBILITY: INTRODUCTION, TEXT
University Press, 1st ed. 2002)
LESLIE C. GREEN, ESSAYS ON
AND
ON
STATE
COMMENTARIES, 188 (Cambridge 5
THE MODERN LAW OF WAR,
283 (Transitional publishers,
2d ed., 1999)
MCDOUGAL AND FELICIANO, THE INTERNATIONAL LAW
IX | P A G E
OF
WAR, 177 [Martinus 2
Nijhoff, 1st ed., Dordrecht 1994]
PHILLIP C. JESSUP, A MODERN LAW
OF
NATIONS, 169-70 [The Macmillan Company,
New York, 1st ed. 1948].

R DOLZER & M STEVENS, BILATERAL INVESTMENT TREATIES 59 (Martinus Nijhoff, ed.,
1995)
RENLEFEBER, TRANSBOUNDARY ENVIRONMENTAL INTERFERENCE
AND THE
ORIGIN
OF
STATE LIABILITY, 182-183, (Kluwer Law International, 1996).

RUSSEL RUTH B., AND JEANNETTE E. MUTHER, A HISTORY OF THE UNITED NATIONS
CHARTER, (The Brookings Institution, 1958)
THOMAS M. FRANK, RECOURSE TO FORCE, (Cambridge University Press, 2002).
2
16
21
1
1
ARTICLES
Andre Nollkaemper, Concurrence between Individual Responsibility and State
19
Responsibility in International Law, 52 ICLQ 615 (2003).

Bruno Simma, The charter of the United Nations: a commentary. BRITISH YEARBOOK
OF INTERNATIONAL LAW 474-474 (1996).

Buhm-Suk Baek, The Definition and Jurisdiction of the Crime of Aggression and the
International Criminal Court, 19 Cornell Law School Graduate Student Papers (2006).
Christopher Stalker, Diplomatic Protection of Private Business Companies:
13
Determining Corporate Personality for International Law Purpose, 61.3 BYBIL

(1990).
E. Jimenez de Arechaga, International Responsibility, 531 Manual of Public 14
International Law, 531-534(1968).
G. Handl, State Liability, 33 AJIL 53.053.43 (1939).
21
G.A. Christenson, Attributing Acts of Omission to the State, 12Michigan Journal of 20
International Law, 316-317 (1991)
George A. Finch, The Nuremberg Trial and International Law, 41, No. 1, AJIL, 20-37, 9
(1947).
John Quigley, The Privatization of Security Council Enforcement Action: A Threat to
Multilateralism Vol. 17, MJIL, 249, [1996]

Kelly D. Askin, A Decade of the Development of Gender Crimes in International Courts
and Tribunals: 1993 to 2003." 11.3, Human Rights Brief, 19; (2004).
Oscar Schacter, SovereigntyThen and Now, Essays in Honor of Wang Tiyes, 6
671(1993).
R.J. Erickson, Legitimate Use of Military Force against State Sponsored International
X|PAGE
20
Terrorism, AIR UNIV MAXWELL AFB AL,100-103, 1989.

Wolfgang Schomburg and Ines Peterson, Genuine Consent to sexual violence Under
International Criminal Law, 101 AJIL 121-122 (2007).

Yoram Dinstein, Right to Life, Physical Integrity and Liberty, 115, The International 7
Bill of Rights (1981).
Young Sok Kim, General Principle of the Criminal Law in the Statute of the
10
International Criminal Law, 2 Mofat Intl L. Rev 29 (2003).

Zachary Dogulas, The Hybrid Foundations of Investment Treaty Arbitration, 74 BYIL 14
152 (2003).
STATUTES
Charter of the International Military Tribunal, 1945, art. 6 (c) 82 UNTS 279; 59 Stat.
1544; 3 Bevans 1238; 39 AJILs 258 (entered into force Aug. 8, 1945)
Rome Statute of the International Criminal Court, 2002, 8 bis, UN Doc. A/CONF. 183/9;
37 ILM 1002 (1998); 2187 UNTS 90 (July 1, 2002)
Statute of the International Court Justice, 1945, 1 UNTS 993
United Nations Charter, 1945, 1 UNTS XVI
XI | P A G E
8
4
5
1
STATEMENT OF JURISDICTION
STATEMENT OF JURISDICTION
On behalf of The Federal Democratic Republic of Cornucopia (the Applicant), in accordance
with Article 40(1) of the Statute of the International Court of Justice, we have the honor to come
to this honorable Court for resolving the differences between the Applicant and the Respondent
concerning military activities in Baysea.
XII | P A G E
STATEMENT OF FACTS
MEMORIAL
ON BEHALF OF
APPLICANT
STATEMENT OF FACTS
1. CORNUCOPIA:
Cornucopia is a multi-cultural country, founded on principles of democracy and equal rights. It
was amongst the first to introduce universal adult suffrage and was a leading proponent of
womens rights. A largely peaceful nation, it is one of the most poorly armed developed nations.
A federation, its provinces enjoy significant financial and political autonomy. Foofistan and
Ironmaidea are western and eastern neighbors of Cornucopia respectively. River Grohl flows
downstream from Cornucopia to Ironmaidea.
2. IRONMAIDEA:
Ironmaidea is a landlocked country. Its leadership always worked towards ensuring that it had
powerful armed forces. As of 2012, it has a huge standing army and is one of the largest
importers of defense equipment in the world. Most political leaders have a military background.
All the Presidents after Hanneman have held senior posts in defense prior to being elected. The
government exercises significant control over armed forces. General Carey, the Chief of Armed
Forces, resigned, becoming a minister in the government. He is regarded as the sole liaison
between government and the armed forces; the Super General with ultimate oversight over key
strategic decisions. Metalism, recognized only by Ironmaidea, is followed by the majority.
3. BAYSEA:
This southernmost province of Cornucopia is regarded as home to the second largest population
of Metalists after Ironmaidea. The Cornucopian government does not recognize this religion. In
1956, movement for Independence in Baysea started. It subsequently got violent and arrests were
made. In 1962, 4 leading independence figures were executed for treason. The movement lost
steam eventually, when the funds from Ironmaidea dried up.
4. AMPPAD:
After extensive negotiations between Ironmaidea and Cornucopia, the Ancient Mariner Power
Project and Dam (AMPPAD) was built on the Grohl in Ironmaidea, 5 km from the International
border. Ironmaidea agreed to provide Cornucopia with subsidized power generated by the
project; Ironmaideas enterprises could own up to 49% of companies and factories in Cornucopia
XIII | P A G E
STATEMENT OF FACTS
MEMORIAL
ON BEHALF OF
APPLICANT
involved in the production of dioxin. Such enterprises had the permit to export all of their
production to Ironmaidea.
5. COMA:
Ironmaidea, through its state-owned National Chemical Production Factory (NCPF) made 49%
investment in Chemicals Organization and Manufacturing Agency (COMA). COMA agreed to
export 90% of its dioxin production to Ironmaidea. Environmental Due Diligence on Schemes
Act, 1979 (EDDOSA) was enacted in Cornucopia. The EDDOSA process lasted for 7 months
and in 1980, license was granted. In June 1993, due to unusually heavy rains, the factory and
power plant were flooded. A chemical storage tank leaked, but was quickly contained. NCPF
thereafter sold its share. In 2012, bomb blasts resulted in storage tanks being ruptured. Gallons of
metadioxin washed into the Grohl. The dam breached, resulting in heavy flooding damage.
6. TELECOM SECTOR:
The telecom revolution of the 1980s was dominated by Cornucopian companies, such as
Trooper Mobile (TM) which was subsequently bought by Ironmaidea and Foofistan in violation
of accords. Icarus telecommunications (a Cornucopian enterprise) had an effective monopoly in
the construction and provision of cellular towers. During the military conflict, Strategic
Cooperation and Riposte to Emergencies Act (SCARE Act) was passed. BFG turned to cellular
phones after its communication was blocked by radio frequency jammers. Icarus, a responsible
corporation, blocked the numbers used by the BFG. Incidentally majority of these numbers were
of TM, which started incurring losses. Arbitration proceedings are ongoing with respect to the
claim of TM against Icarus.
7. MOVEMENT OF INDEPENDENCE:
To negotiate Bayseas independence, three Conferences on the Viability of an Independent
Baysea (COVIB) took place. After the third COVIB, a referendum on the Independence of
Baysea was held, voting against Bayseas independence. Progress for Baysea Party, a political
front for a violent faction, BFG, came to power. In 1998, an insurgency movement led by the
BFG (self-declared as Bayseas Army) began and terror attacks commenced. BFG refused an
amnesty scheme and continued their insurgent activities. They were given an ultimatum and
following the deadlines lapse, Cornucopian army commenced its operation.
XIV | P A G E
STATEMENT OF FACTS
MEMORIAL
ON BEHALF OF
APPLICANT
8. INTERVENTION OF IRONMAIDEA:
Cornucopias action against the terrorists (BFG) resulted in certain collateral damages.
Cornucopia was finally close to unifying the country once divided by terrorist factions. Baysea,
in the face of defeat sought help from UNSC and Ironmaidea. UNSC did not intervene but
Ironmaidea did, deploying battalions which committed grave Crimes Against Humanity. 50,000
non-Metalists were killed by them in less than a month. With Ironmaideas help, BFG resumed
its attacks on Cornucopia. To curtail BFGs ability to recruit volunteers, Icarus again blocked the
cellular towers in Baysea. By 2012 a UN brokered a cease fire and by October 15 all of
Ironmaideas forces had withdrawn from Baysea. The warrant against Maynard Carey was issued
by a local court under well-established principle of exercising jurisdiction over the actions
considered to be crime in international law. But Ironmaidea paid no heed to Cornucopian
demands.
XV | P A G E
QUESTIONS PRESENTED
QUESTIONS PRESENTED.
1.
Whether the Military Intervention by Ironmaidean forces on Cornucopian land violates
2.
International Law?
Whether Minister Maynard Carey can be prosecuted or extradited to Cornucopia for the
3.
War Crimes during the Military Intervention in Cornucopia?

Whether the jamming of cellular towers in Baysea and the Applicants subsequent failure
to compensate Trooper Mobile has resulted in the Applicant breaching International
4.
Investment Law?
Whether Cornucopia is liable to make reparations for damage so caused in the territory
of Ironmaidea further whether Cornucopia has failed to take adequate due diligence in
respect of the COMA riverside?
XVI | P A G E
SUMMARY OF ARGUMENTS
summary of arguments
1.
IRONMAIDEA BY ITS MILITARY INTERVENTION HAS BREACHED INTERNATIONAL LAW.
Ironmaideas Military Intervention violates norms of Territorial Sovereignty and Integrity

enshrined in International Law.
Ironmaideas Action cannot be justified on the ground of Humanitarian Intervention.
Arguendo, Even if Right of Humanitarian Intervention exists, Ironmaideas actions do not

satisfy its criteria.
2.
MINISTER
MAYNARD
CAREY
IS
GUILTY
OF
CRIMES
COMMITTED
AGAINST
CORNUCOPIAS CITIZENS. HE SHOULD EITHER BE PROSECUTED OR EXTRADITED.
3.
Crime against Cornucopias citizens was committed.

Principle of Respondeat Superior is applicable.
Elements of the Crime are fulfilled.
Minister Carrey is liable to be prosecuted.
THERE HAS BEEN NO BREACH OF INTERNATIONAL INVESTMENT LAW AND CORNUCOPIA
IS NOT LIABLE TO PAY COMPENSATION FOR ALLEGED BREACH.
4.
Ironmaidea lacks Locus Standi in bringing claims on behalf of Trooper Mobile.

In Arguendo, there was no breach of International Investment Law.
CORNUCOPIA HAS NOT FAILED TO TAKE ADEQUATE DUE DILIGENCE AND IS NOT
LIABLE TO MAKE REPARATIONS FOR DAMAGE CAUSED.
Ironmaidea is foreclosed from bringing this claim before the court.

Even if this claim is admissible, there was no breach of International Law due to
inadequate due diligence.

Cornucopia is not responsible for acts of non-state actors.
Cornucopia is not strictly liable for damage caused to Ironmaidea.
XVII | P A G E
BODY OF ARGUMENTS
BODY OF ARGUMENTS
1.
IRONMAIDEAS MILITARY INTERVENTION IN CORNUCOPIA IS IN

BREACH OF INTERNATIONAL LAW.
The State of Ironmaidea has violated the principles of non-intervention enshrined in the UN
Charter which prohibits States from using force in any manner inconsistent with its purposes. 1
Thus, any use of force will tantamount to violation of Cornucopias sovereignty.
A. IRONMAIDEAS MILITARY INTERVENTION VIOLATES NORMS OF TERRITORIAL
SOVEREIGNTY AND INTEGRITY ENSHRINED IN INTERNATIONAL LAW.
A.1. THE INTERVENTION INTO CORNUCOPIAS TERRITORY IS WITHOUT ITS CONSENT.
Sovereign equality of states is the basic principle of International Law.2 The sovereignty of a
nation involves territorial sovereignty (supremacy of sovereign within the state 3), an object of
International Law.4 It is fundamental in International Law to require a states consent for any
incursion in its territory.5 Ironmaideas military incursion into Cornucopia occurred without the
latters consent and hence it violates its sovereignty, protected under UN Charter and Customary
International Law.
1 United Nations Charter, 1945, 1 UNTS XVI, Article 2(4) [hereinafter UN Charter]; See also, RUSSEL RUTH B.,
AND JEANNETTE E. MUTHER,
SIMMA BRUNO ET AL., THE
A HISTORY OF THE UNITED NATIONS CHARTER, (The Brookings Institution, 1958); 2

CHARTER OF THE UNITED NATIONS: A COMMENTARY (Oxford University Press,
Hermann Mosler et al., IInd edition, 2002); THOMAS M. FRANK, RECOURSE TO FORCE, (Cambridge University
Press, 2002).
2 UN Charter, Art. 2(1).

3 1SIR ROBERT JENNINGS ET AL., OPPENHEIMS INTERNATIONAL LAW, 382 (Longman London, Sir Arthur Watts et
al., 9th Ed., 1994) [hereinafter Oppenheim]; See also, Lotus (France v. Turkey), 1927 PCIJ (Ser. A) No. 10, (Sept. 7).
4 G.A. Res. ES-6/2, U.N.G.A.O.R., 6thEmerg. Sp. Sess., Supp. 1, U.N. Doc. A/RES/E-6/ (1980) at 2 (1980); G.A.
Res. 2131 (XX), U.N. Doc. A/RES/2131(XX), (21st Dec, 1965).
5 UNGA Res 2625, UN Doc A/8082, at 121 (24 Oct 1970); Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 248 (Dec. 15)
[hereinafter Corfu Channel].
1|PAGE
BODY OF ARGUMENTS
A.2. THE MILITARY INTERVENTION VIOLATES
THE
PRINCIPLES
OF
TERRITORIAL
INTEGRITY AND INDEPENDENCE ENSHRINED IN THE UN CHARTER

Independence and Territorial Authority are the two main aspects of sovereignty of a State as
recognized by the UN Charter,6 which requires all members to refrain from the threat or use of
force against the territorial integrity or political independence of any state. 7 Territorial integrity
denotes the inviolability of a States physical territory and the proscription of forcible trespassing
of any kind8 and the same is infringed by the mere landing of military troops of one State on the
territory of another.9 Minister Maynard Careys ultimatum to Cornucopia, air strikes on the
Cornucopian military bases, dispatching of ground troops by Ironmaidea to the BayseaCornucopia border and capturing of the oil fields 10 all constitute threat to or unlawful use of
force.
A.3. THE MILITARY INTERVENTION
DOES NOT FALL IN ANY OF THE EXCEPTIONS
ENSHRINED IN THE UN CHARTER

Exceptionally, the Charter provides for the right of States to use force either in self-defense 11 or
upon the Security Councils exercise of its Chapter VII powers. 12 However, neither of these
exceptions can be successfully invoked by Ironmaidea:
6 UN Charter Article 2(4); Montevideo Convention on Rights and Duties of States, art. 8, 165 LNTS 19 (entered
into force Dec. 26, 1934) [hereinafter Montevideo Convention].
7 Document concerning Israeli Military Attacks from the Air on Iraqi Nuclear Research Centre, 7 th June, 1981 in
I.L.M. 20 (1981), p. 963-97; SC Res. 487 (1981), Documents concerning Israeli attack on Tunisian territory,
I.L.M(International Legal Materials)., 24 (1985), p. 1740.
8 MCDOUGAL AND FELICIANO, THE INTERNATIONAL LAW OF WAR, 177 [Martinus Nijhoff, 1st ed., Dordrecht 1994];
See Corfu channel, Supra note 5, at 34.
9 RANDELZHOFER, THE CHARTER

also, PHILLIP C.
OF THE UNITED NATIONS, A COMMENTARY, in Simma, 123 (2nd ed. 2002); See
JESSUP, A MODERN LAW OF NATIONS, 169-70 [The Macmillan Company, New York, 1st ed. 1948].
10 Compromis, 71.
11 UN Charter, Article 51.
12 UN Charter, Articles 43-48.
2|PAGE
BODY OF ARGUMENTS
A.3.1. The requisites of Self-defense are not fulfilled.

The intervention cannot be considered as exercise of right of self-defense. Occurrence of an
armed attack (grave in nature) is a primary condition for the exercising self-defense. 13 Armed
attack constitutes the gravest form of the use of force, 14 in contrast with less grave forms,
which do not trigger the right.15 Therefore, it is for the responding state to face an attack of a
grave level, beyond the simple use of force. No use of gravest form was faced by Ironmaidea.
Hence it cannot invoke right of self-defense. Moreover the inflow of refugees in the
Respondents land cannot be attributed to the armed bands or groups which are sent by state to
carry out acts of armed force on another states land, which according to Nicaragua Case16 is an
actual armed attack conducted by regular forces. Henceforth no armed attack can be contended
from Respondents side.
A.3.2. Military Intervention Lacks Authorization of the Security Council.
Under Chapter VII of the Charter, the Security Council in some exceptional cases has the sole
authority to determine when a threat to, or breach of, the peace has occurred 17 and thus to
authorize the use of force.18 The Security Councils authorization must be explicit and in the
absence of such clarity any subsequent use of force will be unlawful.19 The resolution regarding
13 UN Charter, Article 51;JESSUP, Supra note 9.

14 Oil platforms (Islamic Republic of Iran v. U.S.A.), Judgment, 2003 ICJ 161 (Nov. 6); Rights of Nationals of the
United States of America in Morocco (France v. USA), 1952 ICJ 176 (Aug. 27) [hereinafter Rights of Nationals of
the United States of America in Morocco]; AVRA CONSTANTINOU, THE RIGHT OF SELF-DEFENSE UNDER
CUSTOMARY INTERNATIONAL LAW AND ARTICLE 51 OF THE UN CHARTER, 57 (Ant. N. Sakkoulas, 2000).
15 CHRISTINE D. GRAY, INTERNATIONAL LAW
AND THE USE OF FORCE , 100 (Oxford University Press, 2nd ed.
2004); Military and Paramilitary Activities in and against Nicaragua (The Republic of Nicaragua v. The United
States of America), Merits, 1986 ICJ 121 (June 27) [hereinafter Nicaragua].
16 Nicaragua, Supra note 15, at 194.

17 UN Charter, Article 39.
18 UN Charter, Article 24; ANTONIO CASSESE, INTERNATIONAL LAW IN A DIVIDED WORLD, 215(Clarendon Press,
1st ed., 1986).
19 ERIKA DE WET, THE CHAPTER VII POWERS OF THE UNITED NATIONS SECURITY COUNCIL, 268(Hart Publishing,
1st ed., 2004); Legal Consequences for States of the Continued Presence of South African Namibia (South West
Africa), Advisory Opinion, 1971, ICJ 16, 35 (June 21).
3|PAGE
BODY OF ARGUMENTS
the authorization of the military intervention in Baysea was tabled in UNSC on 10 th May 2012
but was never passed.20
B. IRONMAIDEAS MILITARY INTERVENTION IS EQUIVALENT TO AN ACT OF AGGRESSION
AND HENCE
VIOLATES INTERNATIONAL LAW.
Act of Aggression means the use of armed force by a State against the sovereignty, territorial
integrity or political independence of another State, or in any other manner inconsistent with the
Charter of the United Nations.21 An act of invasion or attack by the armed forces of a State on the
territory22 of another State or any military occupation, however temporary, resulting from such
invasion or attack, or any annexation by the use of force of the territory of another State or part
thereof, or bombardment, use of weapons23 by a state against another state, qualify as an Act of
Aggression.24 It is desirable to recognize the customary nature of the definition of Act of
Aggression in resolution (3314),25 which has hardened in to Customary Law.26 The acts of
Ironmaidea like entering in Baysea and occupying the oilfields, the heavy bombardments by
Ironmiadean Air force, constitute as aggression.
20 Compromis, 68.
21 Rome Statute of the International Criminal Court, 2002, 8 bis, UN Doc. A/CONF. 183/9; 37 ILM 1002 (1998);
2187 UNTS 90 (July 1, 2002) [hereinafter Rome Statute 2002].
22 Id., art. 8bis 2 (d).

23 Id., art. 8bis 2 (b).
24 Introduction to Elements of Aggression, Annex I, U.N. Doc. ICC-ASP/8/INF.2, Informal inter-sessional meeting
on the Crime of Aggression, the Princeton Club, New York, from 8 to 10 June 2009, Doc ICC-ASP/8/INF.2 (2009)
(2009 Inter-sessional Report), at 12, Annex I (Draft Elements of Crimes); See also, Rome Statute, art. 9 & 8 bis.
25 Mohammed M. Gomaa, The Definition of the Crime of Aggression and the ICC Jurisdiction over that Crime, in
The International Criminal Court and the Crime of Aggression (2004); See also,Nicaragua, Supra note 15, at 14.
26 Buhm-Suk Baek, The Definition and Jurisdiction of the Crime of Aggression and the International Criminal
Court, 19 Cornell Law School Graduate Student Papers (2006).
4|PAGE
BODY OF ARGUMENTS
C. IRONMAIDEAS ACTIONS CANNOT BE JUSTIFIED EVEN ON THE GROUND OF

HUMANITARIAN INTERVENTION.
C.1. HUMANITARIAN INTERVENTION IS NOT A CUSTOMARY INTERNATIONAL LAW.
Customary International Law operates on two basic principles i.e. state equality and rule of the
opinion.27Unless the following conditions are fulfilled, it is not a Customary International Law.
C.1.1. There must be a consistent State Practice.28
It is submitted that the instances in which a right of Unilateral Humanitarian Intervention have
been claimed over the last half century, in particular, Indias 1971 intervention in East Pakistan,
Vietnams 1978 intervention in Kampuchea and Tanzanias 1978 intervention in Uganda,
constitute insufficient State practice to amount to a new rule of customary law as each was
severely contested by the generality of the international community.29
C.1.2. There must be an emergence of Opinio Juris.30
The absence of opinion juris is indicated by the fact that, notwithstanding variously asserted
humanitarian motives, in each case the formal legal justification offered was self-defence. In
absence of these two crucial factors, it is very difficult to prove the legality of this intervention
on the ground of Customary Law. As a matter of Customary International Law, custom does not
permit Unilateral Humanitarian Intervention.31
D. ARGUENDO,
EVEN
IF
RIGHT
OF
HUMANITARIAN
INTERVENTION
EXISTS,
IRONMAIDEAS ACTION DOES NOT SATISFY ITS CRITERIA.

If there is a right of Humanitarian Intervention in International Law, its requisite criteria would
necessarily include (but not be limited to) prohibition from Unilateral Military Intervention and
27 BROWNLIE, INTERNATIONAL LAW AT THE FIFTIETH ANNIVERSARY OF THE UNITED NATIONS, 255, Recueil des
Cours de lAcadmie de Droit International 9, 49(1995).
28 Statute of the International Court Justice, 1945, 1 UNTS 993, Article 38(1) (b) [hereinafter ICJ Statute]; North
Sea Continental Shelf (Federal Republic of Germany v Denmark), Merits, 1969, ICJ 3, para.77 (Feb 20).
29 UNSC SCOR, 26th Sess., 1606th mtg. at 18 UN Doc S/10416 (Dec. 4, 1971); G.A. Res. 2793 (XXVI), 1, UN
Doc A/L.647/Rev.1 (Dec. 4, 1971); UN SCOR, 5th Sess., 473rd mtg., at 3, UN Doc S/12962 (Dec. 11, 1978).
30 ICJ Statute, Article 38(1) (b); See also Oppenheim, Supra note 3, at 22.
5|PAGE
BODY OF ARGUMENTS
presence of Genocide or Crime against Humanity or any other War Crimes in the country where
such intervention is being done.32
D.1. THERE HAS BEEN NO GENOCIDE OR ANY OTHER WAR CRIME COMMITTED BY
CORNUCOPIA.
D.1.1. The prerequisites set according to the ICC statute for committing Genocide
or any War Crime are not fulfilled.
[i] No Genocidal intent was present while killing the people. Genocide is defined inter alia as the
Killing of members of a group or intentionally inflicting on a group, conditions of life
calculated to bring about its physical destruction with intent to destroy it in whole or in part. 33In
the instant case, there is neither Genocide nor Crime against Humanity for want of intent as the
acts of government were directed against the supporters of division of a state, to protect the
territorial integrity. An organized killing carried out by the government of a state for such
reasons cannot be attributed to Genocide. 34[ii] Crime of Genocide requires killing of people of a
particular group35a distinct element.36 In the case in hand, the attacks by the Cornucopian
government were to curb the insurgency and the violent attacks by the BFG. The people killed
due to such attacks were mostly the members of BFG. BFG does not constitute a particular
group having a distinct element.
32JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSIONS ARTICLES
ON STATE RESPONSIBILITY:
INTRODUCTION, TEXT AND COMMENTARIES, 188 (Cambridge University Press, 1 st ed. 2002); See also, Barcelona
Traction, Light and Power Company, Limited (Belgium v Spain), Judgment, 1970 ICJ 3, 32(Sept 12) [hereinafter
Barcelona Traction].
33 Convention on the Prevention and Punishment of the Crime of Genocide, Art. 2, opened for signature Dec 9,
1948, 78 UNTS 277 (entered in force Jan. 12, 1951); Gabcikovo-Nagumaros Project (Hungary v Slovakia),
Judgment, 1997, ICJ 7(Sept. 25); Rights of Nationals of the United States of America in Morocco, Supra note 14, at
176; Oscar Schacter, SovereigntyThen and Now, Essays in Honor of Wang Tiyes, 671(1993).
34 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General pursuant to
SC Res.1564, 518, of 18 September 2004,25 January 2005, 518
35 Rome Statute, art.6 (a).

36 Prosecutor v. Radislav Krstic, Case No.IT-98-33-T, 590, (Aug. 2, 2001); See also, Rome Statute, 2002, Art. 6
(a).
6|PAGE
BODY OF ARGUMENTS
D.2. UNILATERAL INTERVENTION BY IRONMAIDEA IN CORNUCOPIA IS UNLAWFUL.

The UN charter does not exempt Unilateral Humanitarian Intervention from the prohibition of
use of force.37Ensuing to ECOWAS interventions in Liberia and NATOs intervention, many
writers have acknowledged that some form of exception to the use of force may be gaining
acceptance.38 Nevertheless, in the past few years, at least 133 states have issued individual or
joint statements opposing legalization of Unilateral Humanitarian Intervention. 39 Furthermore,
despite the prospects of wide-ranging UN reforms, Security Councils legal monopoly over the
use of force for humanitarian purpose is still maintained. 40 Thus legal prohibition on Unilateral
Humanitarian Intervention remains largely in place, and powerful international actors are not
inclined to support a fundamental revision of it.41 Hence it is humbly submitted that Ironmaideas
Military Intervention on Cornucopian land is illegal and violates International Law.
37 UN General Assembly, Declaration on Principles of International Law concerning Friendly Relations and
Cooperation among States in accordance with the Charter of the United Nations, U.N. Doc. A/RES/2625(XXV)
(Oct. 24, 1970); Land, Island and Maritime Frontier Dispute (El Salvador v Honduras), Intervention, 1992, ICJ 92
(Sept 11); Bruno Simma, The charter of the United Nations: a commentary. BRITISH YEARBOOK OF
INTERNATIONAL LAW 474-474 (1996).
38 Christine D. Gray,Supra note 15 at 99.

39Declaration
of
the
South
Summit,
Havana,
Cuba, Apr. 10-14,
2000,
http://www.g77.org/Docs/Declaration_G77Summit.htm (last accessed date: 10/2/2013 at 5:20).
54,
at
40 Secretary-Generals High-Level Panel, Threats, Challenges And Change, A More Secure World: Our Shared
Responsibility, 65-66 (2004); John Quigley, The Privatization of Security Council Enforcement Action: A Threat
to Multilateralism Vol. 17, MJIL, 249, [1996]; U.N. Secretary-General, In Larger Freedom: Towards
Development, Security and Human Rights for All, 33, UN Doc. A/59/2005 (2005).
41 ALBRECHT SCHNABEL & RAMESH THAKUR, KOSOVO AND THE CHALLENGE OF HUMANITARIAN INTERVENTION:
SELECTIVE INDIGNATION, COLLECTIVE ACTION, AND INTERNATIONAL CITIZENSHIP, 319 (United Nations Univ.
Press, Schnabel et al., 2000); ANDRE NOLLKAEMPER, NATIONAL COURTS AND INTERNATIONAL RULE OF LAW,
(Oxford University Press, 2011); Yoram Dinstein, Right to Life, Physical Integrity and Liberty, 115, The
International Bill of Rights (1981).
7|PAGE
BODY OF ARGUMENTS
2.
MINISTER MAYNARD CAREY IS GUILTY OF CRIMES COMMITTED

AGAINST CORNUCOPIAS CITIZENS. HE SHOULD EITHER BE PROSECUTED
OR EXTRADITED.
A. CRIME AGAINST CORNUCOPIAS CITIZENS WAS COMMITTED.
A.1. GENOCIDE WAS COMMITTED BY IRONMAIDEA DURING ITS INTERVENTION
The intent to eradicate a group within a limited geographical area, a region of the country or even
a municipality, could be characterized as Genocide.42 A conviction for Genocide relies on the
intent to destroy the group in part.43 Genocide Convention aims to prevent the intentional
destruction of entire human groups.44 It was held that sexual violence was an integral part of the
process of destruction specifically contributing to the groups destruction as a whole. 45 Rape is
also widely considered as an instrument of Genocide. 46In absence of confession, inference may
be made from the facts.47 Intent can be easily inferred from the fact that most deaths were of nonMetalists.
A.2. CRIMES AGAINST HUMANITY WERE COMMITTED BY IRONMAIDEA
Intent to kill is required to elevate killings into Crimes against Humanity.48 These are defined
as murder, extermination, enslavement, deportation and other inhumane acts committed against
any civilian population, before or during war, or persecutions on political, racial or religious
42 Krstic, Supra note 36 at 589.

43 Prosecutor v. Radislav Krstic, Case No. IT-98-33-A, 8 (Apr. 19, 2004).
44 UN General Assembly, Prevention And Punishment Of The Crime Of Genocide, art. 2., Dec. 9, 1948, U.N. Doc.
A/RES/260.
45 Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, . 731 (Sept. 2, 1998).

46 Kelly D. Askin, A Decade of the Development of Gender Crimes in International Courts and Tribunals: 1993 to
2003." 11.3, Human Rights Brief, 19; (2004).
47 See e.g. Prosecutor v Clement Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, . 87, 199 (May 21);
Prosecutor v Musema, Case No. ICTR-96 -13-T, 2000, . 884 (Jan 27, 2000).
48 Prosecutor v. Delalic, Case No. IT-96-21-T, 439 (Nov 16, 1998).

8|PAGE
BODY OF ARGUMENTS
grounds.49 Ill-treatment of civilian population is also a war crime. 50 The fact that rape and other
acts of sexual violence entail individual criminal responsibility under International Law has been
firmly established.51 Rape is not only a Crime against Humanity, it is also a Crime of Torture, 52
for the pain and suffering it causes.53 Even the Convention Against Torture (CAT) endorses the
above contention. It is also recognized as a war crime. 54 There was widespread rape committed
by the three battalions of Ironmaidea soldiers deployed in Baysea.
B. PRINCIPLE OF RESPONDEAT SUPERIOR IS APPLICABLE
The commanders liability for the actions of his subordinates has been accepted all over the
world by various military powers.55 It can very well be considered to be a Customary
International Law.56 Under Respondeat Superior, the commander is criminally responsible for the
subordinates actions, even if order for the wrongful act is not given by him. 57 Military
Intervention by Ironmaidea in Cornucopia was unlawful. Also, Maynard Carey is in a position of
power, being the Super General. Thousands of Cornucopians were killed by the Ironamadeas
armed forces that were deployed in the Cornucopian territory. Oxfam reports confirmed this.
The three elements of command responsibility apply and are here explained here under.
49 Charter of the International Military Tribunal, 1945, art. 6 (c) 82 UNTS 279; 59 Stat. 1544; 3 Bevans 1238; 39
AJILs 258 (entered into force Aug. 8, 1945), [hereinafter Charter on Nuremberg Trial].
50 London Charter, Nuremberg International Military Tribunal, re-printed in The Manual of the Law of the Armed
Conflict, 422 (Oxford University Press 2004).
51 Wolfgang Schomburg and Ines Peterson, Genuine Consent to sexual violence Under International Criminal Law,
101 AJIL 121-122 (2007).
52 C.T. and K.M v. Sweden, Communication No. 279/2005, (Nov. 17 2006), UN Doc. CAT/C/37/D/279/2005
(2007); See also, V.L. v. Switzerland, Communication No. 262/2005, (Nov. 20, 2006), UN Doc.
CAT/C/37/D/262/2005 (2007); Aydin v. Turkey, Judgment of (Sept. 27, 1997), Application No. 57/1996/676/866.
53 Prosecutor v. Kvoka, Case No. IT-98-30-/1-T, (Nov. 21, 2001).

54 Prosecutor v. Furundija, IT-95-17/1-I, (Dec. 10, 1998).
55 LESLIE C. GREEN, ESSAYS
ON THE MODERN LAW OF WAR, 283 (Transitional publishers, 2d ed., 1999);HUGO

GROTIUS, THE LAW OF WAR AND PEACE, 2 BKII Ch. XXI 331, 138 (Indianapolis: Bobbs-Merrill Co., Francis Kelsey
trans., 1925);GEORGE L COIL, WAR CRIMES IN THE AMERICAN REVOLUTION, 82 Mil. L. Rev. 171, 197 (1978); COL.
WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS, 297 (Washington: Gpo, 2d ed., 1920).
56 George A. Finch, The Nuremberg Trial and International Law, 41, No. 1, AJIL, 20-37, (1947).
57 GARY D SOLIS, THE LAW OF ARMED CONFLICT: INTERNATIONAL HUMANITARIAN LAW IN WAR , 381 (Cambridge
University Press, 2010) [hereinafter Solis].
9|PAGE
BODY OF ARGUMENTS
B.1. THE EXISTENCE OF A SUPERIOR-SUBORDINATE RELATIONSHIP,58

Command responsibility applies to both military and civilian superiors and a sufficient superiorsubordinate relationship exists if the accuseds control was such that they could have prevented
or punished the crimes in question.59
B.2. ACTUAL OR IMPUTED KNOWLEDGE OF THE SUPERIOR THAT CRIMES WERE OR ARE
ABOUT TO BE COMMITTED BY HIS OR HER SUBORDINATES,60
The fact that the commander had no hand in the actual crime is immaterial. 61 Also, ignorance
may not be pleaded by the commanders. 62 The commander, owing to the circumstances at the
time, should have known63, through reports received by him or through other
means,64 that the troops are committing unlawful acts. Being the super general, he would have
had reports from his subordinates. Also, numerous international reports pointed out the human
rights violations. This would have been enough source of information.
B.3. FAILURE OF THE SUPERIOR TO PREVENT OR PUNISH VIOLATIONS OF INTERNATIONAL
CRIMINAL LAW.65
The superior bears responsibility for his own omission in failing to act. 66 The superior is
responsible for the neglect of duty with regards to the crime committed by his subordinates.67
58 Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-A, 51, (July 3, 2002).

59 Id at, 53.
60 Prosecutor v. Zdravko Mucic (Celebici Camp Case), Case No. IT-96-21, 2001, 223 (Feb. 20, 2001).
61 Solis, Supra note 64, at 385.
62 The Hostage (U.S. v. List, et al.), XI/2 T.W.C. before Nuremberg Mil. Trib., Case No. 10 (Feb. 19, 1948).
63 The Manual of the Law of Armed Conflict, UK Ministry of Defence, L.O.A.C. Manual, 16.36 (July 1, 2004).
64 Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 501 at 178 (July 18, 1956).
65 Bagilishema, Supra note 58 at 53.
66 Prosecutor v. Oric, Case No. IT -03-06-8-T 293 (June 30, 2006).
67 Solis, Supra note 64, at 381.
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C. ELEMENTS OF THE CRIME ARE FULFILLED

Elements of the crime are considered as basic building blocks that fit together to constitute a
crime.68
C.1. ACTUS REUS (MATERIAL ELEMENTS)
Circumstances, conduct and consequences of the crime in consideration constitute
material elements.69 The material element of the crime is quite clear from the statements given by
Carey, the letter that he sent, his position as the Super General and the number of Cornucopian
deaths.
C.2. MENS REA (MENTAL ELEMENTS)
Mental elements in the ICC Statute are intent and knowledge. 70 There can be no criminal
responsibility in their absence.71Mens Rea has been clearly proved in earlier submissions.
D. MINISTER CARREY IS LIABLE TO BE PROSECUTED OR EXTRADITED.
Crimes that are prohibited by peremptory rules of international law are concerned, states are not
only entitled to exercise jurisdiction but are obliged to prosecute, 72 or to surrender the offender to
another state or a competent international tribunal for the purposes of prosecution.73
D.1. THE PRINCIPLE OF AUT DEDERE AUT JUDICARE IS APPLICABLE IN THE PRESENT CASE.
The customary principle of aut dedere aut judicare requires States to prosecute or surrender
individuals suspected of having committed crimes triggering universal jurisdiction,74 this view
68 Roger S Clark, "Rethinking Aggression as a Crime and Formulating Its Elements: The Final Work-Product of
the Preparatory Commission for the International Criminal Court" 15 Leiden Journal of International Law 859-890
(2002).
69 Young Sok Kim, General Principle of the Criminal Law in the Statute of the International Criminal Law, 2
Mofat Intl L. Rev 29 (2003).
70 Rome Statue, art. 30.

71 Id.; See also, Elements of the Crime of Aggression in Discussion paper proposed by the Coordinator, U.N. Doc.
PCNICC/2002/WGCA/RT.1 /Rev.1, (2002).
72 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 7, June 26,
1987, GA res. 39/46, annex, 39 UN GAOR Supp. (No. 51) at 197, UN Doc. A/39/51 (1984); 1465 UNTS 85
[hereinafter Torture Convention].
73 See, for example, Goodwin-Gill, Crime in International Law, p. 220.
74 BASSIOUNI & WISE, AUT DEDERE AUT JUDICARE: THE DUTY TO EXTRADITE OR PROSECUTE IN INTERNATIONAL
LAW, (Martinus Nijhoff Publishers, 1995); BANTEKAS & NASH, INTERNATIONAL CRIMINAL LAW, 91 (Cavendish
Publishing, 2003); Colleen Brown& Ari Fried, Universal Crime, Jurisdiction and Duty: The Obligation of Aut
11 | P A G E
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was also taken by ICTY in Blaki case.75 This principle has also been put forth in the Geneva
Convention76 (Ironmaidea and Cornucopia are both parties to this convention).77 Further, vide a
resolution of the Security Council, the principles of the Geneva Conventions have crystallised
into customary international law.78
A number of general Assembly resolution also place importance on the duty to prosecute or
extradite the perpetrators of Crimes against Humanity.79 International humanitarian and human
rights law provides a basis for extradition in the absence of inter- State agreements with respect
to certain crimes(Genocide or Apartheid), and in some cases even imposes an obligation on
States to extradite or prosecute the alleged perpetrators of such crimes. 80 Also, the Convention
Against Torture provides the legal basis for extradition in absence of any extradition treaty
between the two concerned state parties.81
D.2. MAYNARD CAREY IS NOT ENTITLED TO ANY IMMUNITY
State immunity can only be waived expressly.82 Accordingly, the Convention against Genocide
explicitly lifts State immunity, affirming that any person who violates the Convention shall be
punished whether they are constitutionally responsible rulers, public officials or private
individuals.83 Municipal court has waived immunity to prosecute a State official, the crimes in
Dedere Aut Judicare in International Law, 43 McGill L.J. 613 (1997); Sibylle Kapferer. The interface between
extradition and asylum. UNHCR Department of International Protection, 2003.
75 Prosecutor v. Tihomir Blakic, Case No. IT-95-14-AR, Judgement on the Request of the Republic of Croatia for
e
76 Geneva Convention (IV) Relative to the Protection of Civilian Persons in time of War, Art. 136, Aug. 12, 1949, 6
U.S.T. 3316, 75 U.N.T.S. 135.
77 SOLIS, supra note 64, at 134.
78 UN SCOR, 47th Sess., 3175th mtg. UN Doc. S/RES/808 (Feb. 22, 1993).
79 G.A. Res. 2840 (XXVI), U.N. Doc. A/RES/2840 (Dec. 18, 1971); G.A. Res. 3020 (XXVII), UNAOR, 30 th Sess.,
2114th plen. mtg. at 68, UN Doc. A/RES/3020/(XXVII), (Dec. 3, 1973); G.A. Res. 3074 (XXVIII), UNAOR, 30th
Sess., 2185th plen. mtg. at 78, UN Doc. A/9030/1973, (Nov. 30, 1973).
80 Kapferer, Supra note 74.
81 Torture Convention, Art 8 (2).
82 Jennings, Supra note 3 at 351-355, 1992.

83 Convention on the Repression and Punishment of the Crime of Genocide, art. 4., Dec. 9, 1948, 78 U.N.T.S. 277.
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question were on a massive and systematic scale, often connected to Genocide. 84 The immunity
would thus not apply to Carey as his actions have resulted in a Genocide in Cornucopia.
D.2.1. No personal immunity or functional immunity can be claimed.
In a recent case a court noted that a rule of customary international law was emerging that
appeared to limit such immunity in cases of serious international crimes. 85 The plea of immunity
ratione materiae is not available in respect of an offence committed in the forum state. 86 The
concept of functional immunity if said to be co-existent with the Torture Convention would not
make sense as the torture is bound to be committed and sanctioned by the state officials and the
Torture convention would be rendered redundant.87 This exception could very well extend to
other crime like Genocide and Crimes against humanity.88
3.
THERE HAS BEEN NO BREACH OF INTERNATIONAL INVESTMENT

LAW AND CORNUCOPIA IS NOT LIABLE TO PAY COMPENSATION FOR
ALLEGED BREACH
A. IRONMAIDEA MUST ESTABLISH LOCUS STANDI TO BRING CLAIMS ON BEHALF OF
TROOPER MOBILE:
A.1. STATES CAN EXTEND DIPLOMATIC PROTECTION ONLY TO CORPORATE BODIES
INCORPORATED IN THEIR TERRITORIES:
A corporation is a juridical person distinct from its members. 89 The state of nationality of
shareholders shall not be entitled to provide diplomatic protection to shareholders where the
84 R v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 3), 2 All E.R. 97(1999), 2
W.L.R. 827 (H.L.) at 119 [hereinafter Pinochet]; People of Israel v. Eichmann 36 I.L.R. 306, 377 (Supreme Court of
Israel 1962); R. v. Finta, 1 S.C.R. 701 (Supreme Court of Canada, 1994).
85 Lozano (Mario Luiz) v Italy, Case No 31171/2008; ILDC 1085 (IT 2008) July 24, 2008.
86 Pinochet, Supra note 84.
87 Id.; Joamme Foakes, Immunity for International Crimes? Developments in the Law on Prosecuting Heads of
State
in
Foreign
Courts
(Nov.,
2011,
10.35
A.M.),
http://www.chathamhouse.org/sites/default/files/public/Research/International%20Law/bp1111_foakes.pdf.
88 Akande and Shah, Immunities of State Officials
89 Christopher Stalker, Diplomatic Protection of Private Business Companies: Determining Corporate

Personality for International Law Purpose, 61.3 BYBIL (1990).
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injury is to the corporation.90 The right to protect the companys interest belongs only to the State
where the company is incorporated91 and registered92 and not to the State to which the
shareholders belong.93
A.2. IRONMAIDEA LACKS LOCUS STANDI TO REPRESENT TROOPER MOBILE:
It is submitted that TM, is a registered legal entity of Foofistan (majority shareholder with 55%
of the shares) and can only be represented by Foofistan. Ironmaidea is precluded from bringing a
claim on behalf of TM as it is not its national.
A.3. ASSUMING
THAT
TROOPER MOBILE
IS A
NOT ADMISSIBLE TO DUE TO RULE ON
NATIONAL
OF IRONMAIDEA, THE
CLAIM
IS
EXHAUSTION OF LOCAL REMEDIES:
The international minimum standard is a norm of customary international law which governs the
treatment of aliens. Violation of this norm endangers the international responsibility of the host
State and may open the way for international action on behalf of the injured alien provided that
the alien has exhausted local remedies.94 State responsibility may not be invoked if available and
effective local remedy has not been exhausted. 95 The rule of exhaustion of local remedies applies
when the state is complaining of injury of its nationals. 96 No international claim in respect of an
injury to a national may be presented before that national has exhausted local remedies. 97
Therefore, it follows that if Trooper Mobile is a national of Ironmaidea (by extension of
diplomatic protection), it must first exhaust local remedies.
90 Draft Articles on Diplomatic Protection art. 11, Geneva, Switzerland, Rep. of Intl Law Commn, 58 th Sess., May
1-June 9&July 3 to Aug. 11, 2006 [hereinafter Draft Articles on Diplomatic Protection].
91 Draft Articles on Diplomatic Protection, art. 9, Supra note 87.

92 Barcelona Traction, Supra note at 3, 42.
93 Claim of Kunhardt & Co., Mixed Claim Commission United States-Venezuela, 9 RIAA 172 (Feb. 17, 1903).
94 OECD Directorate for Financial and Enterprise Affairs, Working Papers on International Investment, 8, No.
2004/3, Fair and Equitable Treatment Standard in International Investment Law, September 2004.
95 ILC Commentary 2001, p. 305.
96 Heathrow Airport User Charges Arbitration, 102 ILR, pp. 215, 277 ff.
97 Draft Articles on Diplomatic Protection, art. 14 (supra note 86); Ambatielos Arbitration case, 12 RIAA 83
(1956).
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A.4. NO BILATERAL INVESTMENT TREATY SUBSISTS BETWEEN IRONMAIDEA AND

CORNUCOPIA:
State responsibility requires a legal obligation in force between two states, 98 to which States have
expressed consent to be bound.99The objective of concluding investment agreements is to avoid
he deficient rules of Customary International Law.100 Investment treaty norms should not be
construed in analogy to customary rules if it was the very intention of the concluded treaty to
superpose these particular customary rules; lex specialis, takes precedence over arguments from
the more general norm.101 It is submitted that the two States had extensively negotiated a bilateral
investment treaty, intending to be bound by a special agreement, distinct and uniquely
constructed to meet the trading terms of the party states. However, as no treaty was concluded,
no breach of laws contemplated to be a specific agreement has occurred.
B. IN ARGUENDO, THERE WAS NO BREACH OF INTERNATIONAL INVESTMENT LAW:
B.1. THE SCARE ACT IS PROTECTED UNDER SECURITY MEASURES OF THE GENERAL
AGREEMENT ON TRADE IN SERVICES:
The General Agreement on Trade in Services (hereinafter GATS) provides that States,
onsidering essential security interests102 can implement necessary measures103 to maintain public
order or to protect human life for the preservation of the fundamental interests of a society, as
reflected in public policy and law.104
98 Hermann Mosler, The International Society as a Legal Community, 140 BRILL 157 (1980); E. Jimenez de Ar
echaga, International Responsibility, 531 Manual of Public International Law, 531-534(1968).
99 Vienna Convention on the Law of Treaties, art.11 & 12, opened for signature 23 May 1969, 1155 UNTS 331, (in
force 27 January 1980) [hereinafter VCLT].
100 Zachary Dogulas, The Hybrid Foundations of Investment Treaty Arbitration, 74 BYIL 152 (2003).
101 Report of the Study Group of the ILC, Fragmentation of International Law: Difficulties Arising from the
Diversification and Expansion of International Law, Rep. on its 54 th Sess., UN Doc. A/CN.4/L.682, 123 (Apr. 13,
2006) [hereinafter Fragmentation Report].
102 General Agreement on Trade in Services, art.11 (Jan. 1, 1995) 1869 UNTS 183; 33 ILM 1167 (1994).
103 Appellate Body Report, United StatesMeasures Affecting Cross Border Supply of Gambling and Betting
Services (April 20, 2005), WT/DS285/AB/R.
104Id.
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It is submitted that the SCARE Act was enacted in light of serious security circumstances, aimed
at protecting the sovereignty of Cornucopia from terrorist operations of the BFG. The
cooperation of Icarus Telecommunications and subsequent jamming is justified as an essential
security interest.
B.2. THE JAMMING OF TOWERS DOES NOT GIVE RISE TO EXPROPRIATION:
Expropriation, be it directly,105 or indirectly, by measures resulting in a substantial deprivation of
the use and value of the investment even though the actual title of the asset remains with the
investor.106 Measures taken on a non-discriminatory basis for the public good, public purpose, 107
judicial liquidation and similar measures108 would not constitute unlawful expropriation.109
The jamming of the towers in 2012 was done based on earlier success in combating BFG in
2009. International law recognizes the right of the state to take measures to protect its security
interests notwithstanding trade agreement provisions.110 The release of the list of numbers and the
measures taken under the SCARE Act are protected under the well-established principle of a
sovereigns right to take necessary steps to protect its population.111
105 See Sempra Energy International v Argentine Republic, Award, ICSID Case No. ARB/02/16, IIC 304 (2007).
106 Indirect Expropriation and the Right to Regulate in International Investment Law, OECD Working Paper
on International Investment No 2004/4 (September 2004).
107 Santa Elena v. Costa Rica 39 ILM, 2000 1317, 1329; See also, Too v. Greater Modesto Insurance Associates 23
IranUS Cl. Trib. Rep. 378 (Dec. 29, 1989); Methanexv. USA 44 ILM 1345 (2005); Salukav. Czech Republic,
Partial Award, UNCITRAL 230 (Mar. 17, 2006) [hereinafter Saluka].
108 Certain German Interests in Polish Upper Silesia (Germany v. Poland), Merits, 1926, PCIJ, (Ser. A), No. 7,
22, (May 25).
109 UN General Assembly, Charter of Economic Rights and Duties of States: resolution adopted by the General
Assembly, art. 2 (2) (c), UN Doc A/RES/29/3281, (Dec. 12, 1974).
110
Art
2,
Art
10,
Agreement
on
Technical
Barriers
to
Trade,
available
at:
http://www.wto.org/english/docs_e/legal_e/17-tbt.pdf; Article 73, Agreement on Trade Related Aspects of
Intellectual Property Rights, available at: http://www.wto.org/english/docs_e/legal_e/27-trips.pdf; 11, General
Agreement on Trade in Services.
111 Iqbal, Zareen, Democratic Republic of Congo (DRC): MONUC's Impending Withdrawal, International Institute
for Justice and Development, (April 29, 2010); United Nations General Assembly, World Summit Outcome, U.N.
Doc. A/Res/60/1 (2005), U.N. SCOR, 60 thSess. of the provisional agenda, 3988th mtg., at 17;The Protection of
Civilians in Armed Conflict, United Nations Security Council, SC Res 1674 (2006), U.N. Doc. S/RES/1674 (Apr.
28, 2006).
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B.3. THERE IS NO BREACH OF FAIR AND EQUITABLE TREATMENT STANDARD:

The fair and equitable treatment standard is recognized in law relating to transnational
corporations.112It contemplates the protection of the investors legitimate expectation 113 and
stability of the legal and business framework in the state. 114 Lack of a fair,115 predictable116 and
stable framework117 for investment is contrary to legitimate expectations of the investor (upon
which the foreign investor was induced to invest)118and commitments made by the host State,119
and are breaches of fair and equitable treatment standards.120
It is submitted that the investment made by Ironmaidea in Trooper Mobile was in violation of
agreements with Cornucopia with regards to the telecom industry, and Ironmaidea is foreclosed
from bringing this claim due to its own unequitable conduct. Notwithstanding this, the
investment (widely regarded as silly money) made in Trooper Mobile was done so as to prevent
112 See Draft United Nations Code of Conduct on Transnational Corporations 1983, UNCTAD, International
Investment Instruments: A Compendium, UNCTAD, Geneva, 1996, Vol. I, p. 4
; R DOLZER & M STEVENS, BILATERAL INVESTMENT TREATIES 59 (Martinus Nijhoff, ed., 1995); BG Group Plc. v
Argentine Republic, (UNCITRAL Rules), IIC 321 (2007), . 275310.
113 Saluka, Supra note 100, at 230; LCIA rule, article 15.6, 302.
114 LG&E International Inc. v. Argentine Republic, ICSID Case No. ARB/02/1, IIC 152 12 (2006).
115 Parkerings-Compagniet v. Republic of Lithuania, Award, ICSID Case No ARB/05/8, IIC 302 (2007),
332; CMS Gas Transmission Company v. Argentine Republic, Annulment proceedings, ICSID Case No. Arb/01/8,
277 (Sept. 25, 2007).
116 Azurix Corp v. Argentine Republic, Award ICSID Case No. ARB/01/12, IIC 24 (2006), 360; MTD Equity and
FTD Chile S.A v. Republic of Chile Award ICSID Case No. ARB/01/7, IIC 174 (2004), 109-113; Saluka Supra
note 100, at 300.
117 Occidental Exploration and Production Company v. Republic of Ecuador, Final Award, LCIA Case No UN
3467, IIC 202d (2004), 183; Eureko BV v. Poland, UNCITRAL, Partial Award, 231-35 (Aug. 19, 2005);
International Thunderbird Gamign Corp. v. Mexico, UNCITRAL, Partial Award 147 (Jan. 26, 2006); Metalpar SA
and Buen Aire SA v. Argentina, ICSID Case No. ARB/03/5, Award, at 182-88 (June 6, 2008); Walter Bau AG v.
Thailand, UNCITRAL, Award, 12.1 (July1, 2009).
118 CME Czech Republic BV (The Netherlands) v. Czech Republic, UNCITRAL rules, Partial Award, IIC 61
(2001) [hereinafter CME Czech Republic].
119 CME Czech Republic, Supra note 111, at 61; PSEG Global, Inc., and Konya Ingin Electrik Uretimve Ticaret
Limited Sirketi v. Republic of Turkey, Award, ICSID Case No. ARB/02/5, IIC 198 253254 (2007); Saluka
Supra note 100, at 230.
120 CMS Gas Transmission, ICSID Case No. ARB/01/8 at 276; See also, Occidental Exploration, LCIA Case No.
UN 3467 at 183.
17 | P A G E
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the growth of Cornucopian enterprises. No commitments guaranteeing a national treatment

agreement or market access (both of which are specific agreements found in express treaty
obligations) are known to subsist between the two countries, based on which Ironmaidea can be
said to have been induced to invest in this sector, thus rendering the grounds for legitimate
expectation baseless.
4. CORNUCOPIA HAS NOT FAILED TO TAKE ADEQUATE DUE DILIGENCE
AND IS NOT LIABLE TO MAKE REPARATIONS FOR DAMAGE CAUSED
A. THE RESPONDENT IS FORECLOSED FROM BRINGING THIS CLAIM BEFORE THE
COURT:
State responsibility in Customary International Law121 is to be seen in light of circumstances like
consent.122 The COMA Riverside Factory was set up under joint ownership of both states and the
primary beneficiary of this agreement was Ironmaidea, to whom 90% of all the dioxin produced
by COMA would be exported. Due diligence requires all appropriate measures to prevent and
minimize risk, with co-operation of other states where necessary.123The bombings were executed
by terrorists who had direct assistance from Ironmaidea, thus foreclosing it from bringing a claim
against Cornucopia for collateral consequences of activities of the terrorists to whom it had given
assistance.
121 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, 1996 ICJ 266;
GabkovoNagymaros``` (Hungary v. Slovakia), 1972 ICJ 7 (Sept. 9)[Hereinafter GabkovoNagymaros ].
122 Draft Articles on Responsibility of States for Internationally Wrongful Acts Chapter V,, in Report of the
International Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43,
UN Doc. A/56/10 (2001), reprinted in [2001] 2 Y.B. INTL L. COMMN 26, UN Doc. A/CN.4/SER.A/2001/Add. 1
(Part 2).
123 Draft Articles on Prevention of Transboundary Harm from Hazardous Activities art. 3- 7, Report of the ILC on
its 53rd Session, 159, UN Doc. A/56/10.
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B. EVEN IF THIS CLAIM IS ADMISSIBLE, THERE WAS NO BREACH OF INTERNATIONAL

LAW DUE TO INADEQUATE DUE DILIGENCE
B.1. ADEQUACY OF DUE DILIGENCE CANNOT BE BROUGHT BEFORE THIS COURT:
International Law requires states to conduct assessments 124 for both domestic and transnational
environment.125 This has been reiterated by the International Law Commission, 126 and enjoys
widespread recognition. Even if due diligence is an internationally accepted mandate before
taking up any activity;127 this court cannot review the adequacy of such an assessment. 128 In
Request for an Examination of the Situation Case,129 ICJ did not make a judgment on this point
for want of jurisdiction to test adequacy of due diligence.
B.2. IN ARGUENDO, DUE DILIGENCE WAS CARRIED OUT IN THE FACTORY
It is submitted that under the Environmental Due Diligence on Schemes Act (hereinafter
EDDOSA), proper due diligence was carried out by the authorities, over a period of seven
months. Concerns of environmental groups, civil society, political parties and local population
were taken into account, after which a license for operations was granted. The factory in 2003
was faced with flooding following unusually heavy rains. The prescribed emergency procedures
were followed, and the leak was quickly contained. Thus, there were proper procedures in place
if an unfortunate emergency occurred, in accordance with the duty on the part of a state within
whose territory an emergency originates to immediately take all practicable measures
necessitated by the circumstances to prevent, mitigate, and eliminate harmful effects of the
emergency.130
124 United Nations Conference on Environment & Development, Rio de Janerio, Braz., June 3-14, 1992, Rio
Declaration on Environment and Development Principle 17, U.N. Doc. A/CONF.151/26 (Vol. I), 1992 [hereinafter
Rio Declaration, 1992.].
125 GabkovoNagymaros, Supra note 121.

126Draft Articles on International Liability, Art. 11, UN Doc A/CN 4/ 428 (1990).
127 GabkovoNagymaros Supra note 121.
128 MOX Plant Case, Provisional Measures, ITLOS Case No. 10 (2001); Pulp Mills on the River Uruguay
(Argentina v Uruguay), 2006 ICJ 113 (April 20).
129Request for an Examination of the Situation in Accordance with the Courts Judgment in the Nuclear Tests
Case, ICJ Reports 288 (1995).
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C. STATES ARE NOT RESPONSIBLE FOR ACTS OF NON-STATE ACTORS:

C.1. STATES ARE NOT RESPONSIBLE FOR ACTS OF TERRORISTS:
States are not liable for the conduct of private actors, 131 and non-state actors.132Any breach must
be attributable to the State,
133
and no liability lies for the actions of rioters or rebels 134 causing
loss or damage.135 State responsibility may co-exist with individual responsibility,136 and the act
in question must be attributable to the conduct of any organ of the state. 137 State responsibility is
attracted only when the state controls or directs the non-state actors and such actors become the
states de facto agents.138 Such effective control requires the state to participate in the planning,
direction, support and execution of specific instructions or directions from the host state relating
to the illegal act.139 Only when a state actively participates in an act of terrorism, or fails to
130 ILC Draft Articles on the Law of the Non-Navigational Uses of International Watercourses art. 28, U.N.
GAOR, 49th Sess., Supp. No. 10, at 197, U.N. Doc. A/49/10 (1994).
131 Art 11, 1980, 2 Y.B. I.L.C. 31 (1981).

132 Jennings, Supra note 3 at 502-503, 1992.
133 Chorzow Factory (Germany v. Poland) 1927 P.C.I.J (ser. A) No. 9 (July 26, 1927).
134 Home Missionary Society Claim (USA v. Grt. Britain), 6 RIAA 42 (Dec. 18, 1920) [hereinafter Home
Missionary Society Claim]
135 Id; Youmans [Thomas H. Youmans (USA) v. United Mexican States), 4 RIAA 110 (Nov. 23, 1926); Herd Case,
4 RIAA 653 (1930).
136 Andre Nollkaemper, Concurrence between Individual Responsibility and State Responsibility in International
Law, 52 ICLQ 615 (2003).
137 Difference Relating to Immunity from Legal Process of a Special Rapporteur, Advisory Opinion,1999, ICJ 62,
87 (April 29), See also e.g. OSPAR (Ireland v. UK), Final Award, (July 2, 2003), 144;MasseyCase( ), 4RIAA 155
(1927);Salvador Commercial Company, 15 RIAA 477 (1902).
138 Draft Articles on Responsibility of States for Internationally Wrongful Acts art. 8, in Report of the International
Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess.,Supp. No. 10, at 43, UN Doc.
A/56/10 (2001), reprinted in [2001] 2 Y.B. INTL L. COMMN 26, UN Doc. A/CN.4/SER.A/2001/Add. 1 (Part 2).

20 | P A G E
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prevent a terrorist offence, or fails to extradite a terrorist actor to prosecution, then even one act
of terrorism would attract liability.140 This position is also found in Case law.141
C.2 THE EXPLOSION AT THE FACTORY IS IMPUTABLE TO TERRORISTS AND NOT
CORNUCOPIA THUS ABSOLVING CORNUCOPIA OF LIABILITY:
The act must be imputable to the State 142 and there must be clear and convincing evidence to
support findings to attract liability.143 Where direct evidence is unavailable, circumstantial
evidence may be considered.144 The party asserting a fact must prove it. 145Notwithstanding this
point on burden of proof, it is submitted that the bombings were carried out by terrorists of the
BGF, who had become violent post the unlawful intervention by Ironmaidea. The bombs at the
factory were crude bombs, (modus operandi peculiar to the BFG) specifically targeted at state
owned enterprises. Any violation by a state gives rise to state responsibility and consequently to
the duty of reparation i.e., responsibility results in the duty to make reparation if an obligation in
question is not met.146 If a state has taken appropriate actions against terrorist threats emanating
from its territory but terrorists there still succeed in carrying out an attack, the former state
cannot be deemed responsible. States can be held responsible only for those acts or omissions
which it is culpable for.147 Therefore in the present Case, Cornucopia cannot be made liable for
the acts of terrorists in its territory or the consequences of such acts, as all necessary defense
measures were undertaken.
140 International Convention on the Suppression of Terrorist Bombings, adopted by the General Assembly, 9
December 1999, UN Doc A/RES/54/109 (1997).
141 US Diplomatic and Consular Staff in Tehran (US v Iran), Merits, 1979 I.C.J. 23 (May 24).
142Aerial Incident (Israel v. Bulgaria), 1955, ICJ 127, (July 27).
143 Partial Award, Prisoners of War, Eritreas Claim 17, 1 July 2003, . 46, 49, and Partial Award, Civilian Claims,
Ethiopias Claim 5, 17 December 2004, . 35.
144 Corfu Channel, Supra note 5, at 34.

145 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), 2007 ICJ 43 . 204 (Feb 26).
146 Spanish Zone of Morocco Claims (Grt. Britain v. Spain), 2 RIAA 615 (1923).
147 G.A. Christenson, Attributing Acts of Omission to the State, 12Michigan Journal of International Law, 316-317
(1991); R.J. Erickson, Legitimate Use of Military Force against State Sponsored International Terrorism, AIR
UNIV MAXWELL AFB AL,100-103, 1989.
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D. CORNUCOPIA IS NOT STRICTLY LIABLE FOR DAMAGE CAUSED TO IRONMAIDEA

A general principle of strict liability,148 particularly in hazardous activities149 has been applied in
matters of transboundary damage only in peculiar circumstances. In Gut Dam Arbitration
Case150, the award was given not on the basis of strict liability, but on a specific indemnity clause
in the agreement between the two states. Thus, in absence of a special agreement to indemnify,
Cornucopia cannot be made liable to Ironmaidea.
E. THE BREACH OF THE DAM WAS FORCE MAJEURE
Force majeure has long been accepted as precluding wrongfulness.151To attract this defense, there
has to be a constraint which the state was unable to avoid152 or to oppose by its own power.153 The
conduct of the state is involuntary or at least involves no element of free choice. 154 The bombing
of the factories in the present case was unexpected and consequential flooding could not have
been foreseen and was beyond the reasonable control of Cornucopia.
148See G. Handl, State Liability, 33 AJIL 53.053.43 (1939).

149RENLEFEBER, TRANSBOUNDARY ENVIRONMENTAL INTERFERENCE AND THE ORIGIN OF STATE LIABILITY, 182183, (Kluwer Law International, 1996).
150 Canadian claim (Canada v. USSR), 18 ILM 899, 902 (Feb. 8, 1992).
151 Yearbook of the ILC, 1961, vol. II, p. 46 and ILC Commentary 2001, p. 183.
152 Gill Arbitration (France v. Mexico), 5 RIAA 159 (1931).
153Yearbook of the ILC, 1979, vol. II, p. 133.
154 Commentary on the Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, 2001,
Report of the ILC on its 53rd Session, A/56/10, at 183.
22 | P A G E
PRAYER
PRAYER
For the foregoing reasons, the State of Ironmaidea respectfully requests the honorable Court to
adjudicate and declare that:
I.
II.
The use of force by Ironmaidea is unlawful and does not violate International Law.
Minister Maynard Carey is guilty of Crimes committed against Cornucopias citizens. He
III.
should be either prosecuted for crime of aggression or be extradited to Cornucopia.

Cornucopia has not breached International Investment Law and is no liable to pay any
IV.
compensation.
Cornucopia has not failed to take adequate Due Diligence in respect of the COMA
riverside factory and is not liable to make reparations for damage so caused in the
territory of Ironmaidea.
The Applicant State additionally prays that the Court may grant any provisional relief that it may
deem fit. The Court may also make any such order as it may deem fit in terms of equity, justice
and due conscience.
And for this act of kindness the Applicant State shall as duty bound ever humbly pray.
All of which is respectfully submitted,

.
(Agents for the Applicant State)
XIX | P A G E

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TEAM CODE

BEFORE THE INTERNATIONAL COURT OF JUSTICE

CASE CONCERNING MILITARY ACTIVITES IN BAYSEA

15TH D.M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE

(THE RESPONDENT STATE)

SUBMITTED IN THE REGISTRY OF THE COURT

MEMORIAL ON BEHALF OF APPLICANT

SOVEREIGNTY AND INTEGRITY ENSHRINED IN INTERNATIONAL LAW..........................................1

IRONMAIDEAS MILITARY INTERVENTION IS EQUIVALENT TO AN ACT OF AGGRESSION AND

VIOLATES INTERNATIONAL LAW........................................................................................4

IRONMAIDEAS ACTIONS CANNOT BE JUSTIFIED EVEN ON THE GROUND OF

ARGUENDO, EVEN IF RIGHT OF HUMANITARIAN INTERVENTION EXISTS, IRONMAIDEAS

ACTION DOES NOT SATISFY ITS CRITERIA....................................................................................5

MEMORIAL ON BEHALF OF APPLICANT

D.2. Unilateral Intervention By Ironmaidea In Cornucopia Is Unlawful................................6

MINISTER MAYNARD CAREY

CORNUCOPIAS CITIZENS. HE SHOULD EITHER BE PROSECUTED OR EXTRADITED.....................7

CRIME AGAINST CORNUCOPIAS CITIZENS WAS COMMITTED.............................................7

PRINCIPLE OF RESPONDEAT SUPERIOR IS APPLICABLE.........................................................9

ELEMENTS OF THE CRIME ARE FULFILLED.......................................................................10

MINISTER CARREY IS LIABLE TO BE PROSECUTED OR EXTRADITED................................11

THERE HAS BEEN NO BREACH

INTERNATIONAL INVESTMENT LAW

CORNUCOPIA IS NOT LIABLE TO PAY COMPENSATION FOR ALLEGED BREACH.....................13

IRONMAIDEA MUST ESTABLISH LOCUS STANDI TO BRING CLAIMS ON BEHALF OF

MEMORIAL ON BEHALF OF APPLICANT

LIABLE TO MAKE REPARATIONS FOR DAMAGE CAUSED.........................................................17

EVEN IF THIS CLAIM IS ADMISSIBLE, THERE WAS NO BREACH OF INTERNATIONAL LAW

DUE TO INADEQUATE DUE DILIGENCE........................................................................................18

STATES ARE NOT RESPONSIBLE FOR ACTS OF NON-STATE ACTORS:................................19

CORNUCOPIA IS NOT STRICTLY LIABLE FOR DAMAGE CAUSED TO IRONMAIDEA...........21

THE BREACH OF THE DAM WAS FORCE MAJEURE...........................................................21

MEMORIAL ON BEHALF OF APPLICANT

I.C.J. CASES & REPORTS

MEMORIAL ON BEHALF OF APPLICANT

INTERNATIONAL ARBITRATION AND CLAIMS COMMISSION CASES

MEMORIAL ON BEHALF OF APPLICANT

Santa Elena v. Costa Rica 39 ILM, 2000 1317, 1329

INTERNATIONAL CRIMINAL TRIBUNAL CASES

MEMORIAL ON BEHALF OF APPLICANT

INTERNATIONAL CONVENTIONS TREATIES & RESOLUTIONS

U.N. DOCUMENTS, REPORTS & GENERAL ASSEMBLY RESOLUTIONS

MEMORIAL ON BEHALF OF APPLICANT

Commn, 58th Sess., May 1-June 9&July 3 to Aug. 11, 2006

Y.B. INTL L. COMMN 26, UN Doc. A/CN.4/SER.A/2001/Add. 1 (Part 2).

[2001] 2 Y.B. INTL L. COMMN 26, UN Doc. A/CN.4/SER.A/2001/Add. 1 (Part 2).

Development, Security and

Human Rights for All, 33, UN Doc. A/59/2005 (2005).

United Nations, U.N. Doc. A/RES/2625(XXV) (Oct. 24, 1970)

MEMORIAL ON BEHALF OF APPLICANT

Yearbook of the ILC, 1979, vol. II, p. 133.

London, Sir Arthur Watts et al., 9th Ed., 1994)

UNITED NATIONS: A COMMENTARY

(Oxford University Press, Hermann Mosler et al., IInd edition, 2002)

HUMANITARIAN INTERVENTION: SELECTIVE INDIGNATION, COLLECTIVE ACTION, AND 7

INTERNATIONAL LAW AND ARTICLE 51 OF THE UN CHARTER, 57 (Ant. N. Sakkoulas, 3

NATIONS, 255, Recueil des Cours de lAcadmie de Droit International 9, 49(1995).

UNITED NATIONS SECURITY

COUNCIL, 268(Hart Publishing, 1st ed., 2004)

COMMENTARIES, 188 (Cambridge 5

THE MODERN LAW OF WAR,

283 (Transitional publishers,

WAR, 177 [Martinus 2