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AC54

THE 2018 ASIA CUP

INTERNATIONAL LAW MOOT COURT COMPETITION

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE HAGUE, THE NETHERLANDS

CASE CONCERNING THE ARMED ACTIVITIES IN THE BORDER AREA AND

THE GUFA

THE STATE OF ACOTANGO

(APPLICANT)

V.

THE STATE OF RESAGO

(RESPONDENT)

ON SUBMISSION TO INTERNATIONAL COURT OF JUSTICE

2018

MEMORIAL FOR APPLICANT

THE STATE OF ACOTANGO


TABLE OF CONTENTS

TABLE OF CONTENTS ....................................................................................................... ii

SUMMARY OF PLEADING ............................................................................................... iv

MAIN PLEADING ................................................................................................................. 1

I. THE ACTIVITIES UNDERTAKEN BY RESAGO’S ARMY ON OCTOBER 4TH

2017 IN THE PACAYA REGION CONSTITUTED AN ILLEGAL USE OF

FORCE AGAINTS ACOTANGO ............................................................................ 1

A. THE ILLEGAL USE OF FORCE IN INTERNATIONAL LAW .............................. 1

1. THE MEASURE TAKEN BY RESAGO IS NOT RELEVANT WITH

ARTICLE 51 OF THE CHARTER ..................................................................... 1

2. SELF DEFENSE AND TRANSNATIONAL TERRORIST GROUP .............. 3

B. THE ACTIVITIES UNDERTAKEN BY RESAGO’S ARMY ON OCTOBER 4,

2017 IN THE PACAYA REGION CONSTITUTED AN ILLEGAL USE OF FORCE

AGAINST ACOTANGO. ............................................................................................... 5

II. THE BOARDING INSPECTION AND THE DIVERSION OF THE GUFA BY

ACOTANGO ON OCTOBER 20TH 2017 WERE CONSISTENT WITH

INTERNATIONAL LAW ......................................................................................... 8

A. UN CO-OPERATIVE ACTION FROM GUFA IN ACOTANGO EXCLUSIVE

ECONOMIC ZONE ........................................................................................................ 8

1. THE ACT TAKEN BY ACOTANGO SHIP TO INSPECT THE GUFA WAS

BASED FROM THE CONCERN ON THE SECURITY IN THE

ACOTANGO’S EXCLUSIVE ECONOMIC ZONE. ......................................... 8

ii
2. GUFA DIDN’T RESPOND ACOTANGO CONTACT EFFORT WHILE IN

ACOTANGO’S EXCLUSIVE ECONOMIC ZONE .......................................... 9

B. GUFA WAS FOUND BRINGING WEAPON SUPPLY FOR TERRORISM

ACT ................................................................................................................................ 10

iii
SUMMARY OF PLEADING

THE ACTIVITIES UNDERTAKEN BY RESAGO’S ARMY ON OCTOBER 4TH

2017 IN THE PACAYA REGION CONSTITUTED AN ILLEGAL USE OF FORCE

AGAINTS ACOTANGO

The use of force by Resago’s Army in the Pacaya Region is not relevant with the

purpose of Article 51 of the United Nation Charter. According to the Terrorism Support

Prevention Act, the Government of Acotango duly designated the Marapian Liberation Force

(MLF) and the Nazko Assembly for Democracy (NAD) as terrorist organizations in

accordance with the Act. The action of NAD situated in Pacaya Region is an internal affair of

Acotango. Therefore, the act by Resago army to the Pacaya Region constituted violation to

Acotango’s jurisdiction.

Resago claimed that what they did on October 4th, 2017 was a form of self-defense

against NAD’s action in Tepi Region. Another fact besides this, NAD was categorized as a

terrorist organization by Acotango, which can be said it was an armed attack done by non-

state actor. Article 51 applied to attacks by states, although most states understand that it is

not impossible for states to carry out armed attacks through the vehicle of non-state actors.

The definition of aggression refers to the “sending by or on behalf of a State of armed bands,

groups, irregulars, or mercenaries” as acts that can amount aggression. From here, it can be

concluded that the action done by NAD in Tepi Region was not an armed attack due to the

fact that Acotango never send its army to do anything in Tepi Region.

Analyzing the Article 51 of the Charter, it could be recognized easily the intention of

those who created it, emphasizing the collective security system which gets activated at the

moment when state submitted a report to the Security Council that used force in self-defense.

From that moment on, the Council is authorized to take all necessary measures against the

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aggressor. On the other hand, only the provided report by the state to the Council that acts on

behalf of the right of self-defense does not necessarily mean that the use of force is legally

permissible. It means that Security Council is obligated to carry out investigative measures

and to make decision about the legal permissibility of the force used in self-defense.

THE BOARDING INSPECTION AND THE DIVERSION OF THE GUFA BY

ACOTANGO ON OCTOBER 20TH, 2017 WERE CONSISTENT WITH

INTERNATIONAL LAW

The inspection on Gufa was based on Article 73 United Nation Convention on the Law

of the Sea that stated a boarding, inspection, arrest, and judicial proceedings are allowed to do

by coastal state also the other state ship although have freedom of navigation on the Exclusive

Economic Zone (EEZ), they have to respect the coastal state sovereign rights while sailing in

coastal the contiguous zone and EEZ regimes of coastal state. The coastal state also has a right

to question every activity that is happening in their EEZ and the other state must answer it

with a good will which was not done by Gufa while it was questioned by the Arenales about

their destination, also there are information about a Resago-registered ship was suspicion

bringing supply for MLF, so the Arenales has a right to do an inspection to secure the security

and sovereignty of the Acotango.

After the inspection, the Gufa was founded bringing weapon and cash for supplying

the MLF terrorist and violates Article 1 and Article 2 of International Convention for the

Suppression of the Financing of Terrorism that their action caused indiscriminate killing and

violence dozens of Acotango civilians for assisting terrorism action.

v
MAIN PLEADING

I. THE ACTIVITIES UNDERTAKEN BY RESAGO’S ARMY ON OCTOBER

4TH, 2017 IN THE PACAYA REGION CONSTITUTED AN ILLEGAL USE OF

FORCE AGAINTS ACOTANGO

A. THE ILLEGAL USE OF FORCE IN INTERNATIONAL LAW

1. THE MEASURES TAKEN BY RESAGO IS NOT RELEVANT WITH

ARTICLE 51 OF THE CHARTER

On the October 1st, 2017, Prime Minister Zapatera of Ressago issued the following

statement concerning the violation conducted by NAD. The Government of Resago will take

necessary measures for self-defense in accordance with Article 51 of the Charter of The

United Nations.1 On October 4th, 2017, the Resago Army Special Forces intruded into the

Pacaya Region.

Article 51 of United Nations Charter states that, “Nothing in the present Charter shall

impair the inherent right of individual or collective self-defense if an armed conflict occurs

against a member of United Nations, until the Security Council has taken the measures

necessary to maintain international peace and security. Take at any time such action as it

deems necessary in order to maintain or restore international peace and security.”2 Members

have the obligations as stated in Article 2 and Article 4 to refrain from the use of force. If

"Armed Attack" called an illegal armed it means that any illegal armed attack, even a small

1
Problem. Para. 10
2
Art. 51, Charter of the United Nations, 24 October 1945, 1 UNTS XVI
border incident; necessity or proportionality are no conditions for the exercise of self-defense

under Article 51.3

The use of force by Resago’s Army in the Pacaya Region is not relevant to the purpose

of Article 51 of the United Nation Charter. According to the Terrorism Support Prevention

Act, the Government of Acotango duly designated the MLF and the NAD as terrorist

organizations in accordance with the Act. The action of NAD situated in Pacaya Region is an

internal affair of Acotango. In accordance with the Charter of the United Nations, that no State

has the right to intervent directly or indirectly for any reason whatsoever in the internal or

external affairs of any other State, further the fundamental principle of the Charter of the

United Nations that all States have the duty not to threaten or use force against the sovereignty,

political independence or territorial integrity of other States.4 Bearing in mind that the

establishment, maintenance and strengthening of international peace and security are founded

upon freedom, equality, self-determination and independence, respect for the sovereignty of

States, as well as permanent sovereignty of States over their natural resources, irrespective of

their political, economic or social systems or the levels of their development.5 Considering

that full observance of the principle of non-intervention and non-interference in the internal

and external affairs of States is of the greatest importance for the maintenance of international

peace and security and for the fulfilment of the purposes and principles of the Charter of the

United Nations, therefore, the act by Resago army to the Pacaya Region constituted violation

to Acotango’s jurisdiction.

3
Kunz, J. (1947). Individual and Collective Self-Defense in Art. 51 of the Charter of the
United Nations. American Journal of International Law, 41(4), 872-879. doi:10.2307/2193095
4
A/RES/36/103
5
Ibid.

2
2. SELF DEFENSE AND TRANSNATIONAL TERRORIST GROUP

Resago claimed that what they did on October 4th, 2017 was a form of self-defense

against NAD’s action in Tepi Region. Another fact besides this, NAD was categorized as a

terrorist organization by Acotango, which can be said it was an armed attack done by a non-

state actor. To prove that the act of NAD is not attributed to Acotango’s Government, we

should look at International Law Commission Draft Article on State Responsibility Article 3

with Article 4 until 10, that explained about the elements of an internationally wrongful act of

a State. Based on this, the allegation filed to Acotango desecrate the international law cannot

be proved occupying in Article 11 “Conduct which is not attributable to a State under the

preceding articles shall nevertheless be considered an act of that State under international

law if and to the extent that the State acknowledges and adopts the conduct in question as its

own.”6 So, the act by NAD is an armed attack done by a non-state actor, referring to Article

11, Acotango has signed The Terrorism Support Prevention Act and the NAD as terrorist

organizations in accordance with the Act. Article 51 applied to attacks by states, although most

states understand that it is not impossible for states to carry out armed attacks through the

vehicle of non-state actors. The definition of aggression refers to the “sending by or on behalf

of a State of armed bands, groups, irregulars, or mercenaries” as acts that can amount to

aggression.7 From here, it can be concluded that the action done by NAD in Tepi Region was

not an armed attack due to the fact that Acotango never sends its army to do anything in Tepi

Region.

The first approach to self-defense against non-state attacks relies heavily on the law of

state responsibility in order to identify the state responsible for the armed attack.8 Self-defense

according to this approach is an inter-state affair involving the state that suffers an armed

6
International Law Commission Draft Article on State Responsibility 2001
7
General Assembly. RES. 3314 (XXIX) 1974
8
Art. 51 UN Charter.

3
attack and the state responsible for the attack. The ‘Responsibilization’ of self-defense is

performed through the device of attribution as formulated in the law of state responsibility.9

This approach is most evident in the ICJ’s Wall in the Occupied Palestinian Territory Advisory

Opinion where the Court opined that the inherent right of self-defense exists ‘in the case of

armed attack by one State against another State.’10 If the attacks against a state is not imputable

to a foreign state, self-defense is not relevant. Conversely, if an attack is not attributed to a

state, the victim state cannot use defensive force against another state or on its territory unless

the use of force is authorized by the Security Council11 or is requested by the territorial state12.

The acts of the non-state actors must be under the control of the authority government

of the state. Thus, it can be concluded that the act of NAD still not a form of armed attack

under the Government of Acotango and of course, since it is not an armed attack held by non-

state actors under the control of a state government, the act of Resago can’t be called as a self-

defense.

9
Tsagourias, Nicholas. “Self-Defense against Non-state Actors: The Interaction between Self-
Defense as a Primary Rule and Self-Defense as a Secondary Rule” Leiden Journal of
International Law, 2016.
10
Legal Consequences of the Construction of a Wall in the Palestinian Occupied Territories
(Advisory Opinion), 9 July 2004, [2004] ICJ Rep. para. 139; Case concerning Oil Platforms
(Islamic Republic of Iran v. United States of America), Judgment of 12 December 1996,
[1996] ICJ Rep. at 803, para. 51: ‘. . . the United States has to show that attacks had been made
upon it for which Iran was responsible’. Also ibid., para. 61.
11
It should be noted that United Nation Doc. Security Council Res. 2249 (2015) did not
authorize strikes against ISIL in Syria but, instead, endorsed the legal justifications offered by
states such as self-defense or consent. D. Akande and M. Milanovic, ‘The Constructive
Ambiguity of the Security Council’s ISIL Resolution’, EJIL Talk!, 21 November 2015,
available at www.ejiltalk.org/the-constructive-ambiguity-of-the-security-councils-isis-
resolution/.
12
M.E. O’Connell, ‘Dangerous Departures’ (2013) 107 AJIL 380, at 380, 383; D. Tladi, ‘The
Nonconsenting Innocent State: The Problem with Bethlehem’s Principle’ (2013) 107 AJIL
570, at 572; C. Antonopoulos, ‘Force by Armed Groups as Armed Attack and the Broadening
of Self-Defense’, (2008) 55 Neth. ILRev 159, at 169–71.

4
B. THE ACTIVITIES UNDERTAKEN BY RESAGO’S ARMY ON OCTOBER 4,

2017 IN THE PACAYA REGION CONSTITUTED AN ILLEGAL USE OF

FORCE AGAINST ACOTANGO.

Only security Council has the exclusive right of using force, as being written in Article

42 (Chapter VII), “The Security Council may take action by air, sea, or land forces as may be

necessary to maintain or restore international peace and security. Such action may include

demonstrations, blockade, and other operations by air, sea, or land forces of Members of the

UN.” This article was made in order to exist sovereign who will use force to impose peace

and security in that part of the world where peace, stability and security are violated.13

Analyzing the Article 51 of the Charter, it could be recognized the intention of those

who created it, emphasizing the collective security system which gets activated at the moment

when state submitted a report to the Security Council that used force in self-defense. From that

moment on, the Council is authorized to take all necessary measures against the aggressor. On

the other hand, the provided report by the state to do the right of self-defense to the Council

does not always mean that the use of force is legally permissible.14 It means that Security

Council is obligated to carry out investigative measures and to make a decision about the legal

permissibility of the force used in self-defense.

As stated above, Articles 42 and 51 are the central grant role of the Security Council,

in terms of using force in international relations. Article 24 reaffirms the primary responsibility

of the Council for the maintenance of international peace and security. It is stated that: “(…)

to ensure prompt and effective action by the United Nations, its members confer on the

Security Council primary responsibility for the maintenance of international peace and

13
Journal of Liberty and International Affairs. Vol. 1 No. 2, 2015. Milorad Petreski, MA.
14
Hadzi Janev 2009, 20-21

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security, and agree that in carrying out its duties under this responsibility the Security Council

acts on their behalf.”15

An assessment of the lawfulness of a threat made in self defense requires a

determination of the “type” of delict that may be responded to with a countervailing threat.

There are numerous options available and little guidance as to which of these options are

appropriate. As such, a conclusion must be reached based upon a combination of common

sense and our pervading analogy with forcible self-defense.

The following represent the possibilities of prior wrongs in reponse to which a threat

of force could be potentially lawful: (1) A grave use of force/an armed attack; (2) A “less

grave” use of force; (3) A threat of imminent grave force/a threatened armed attack that is

imminent; (4) A threat of imminent “less grave” force; (4) A threat of non-imminent grave

force; (5) A threat of non-imminent “less grave” force. 16

As previously noted, according to the ICJ, a threat of force is lawful only if the use of

the threatened force would be lawful.17 Therefore, a threat of force may be lawful if taken in

response to actions that can be classified as falling under numbers (1) or (3) on the above list.

This result appears logical and generally concurs with the ICJ’s position on the lawfulness of

threats of force.

But the application of the imminence criterion can be difficult in practice. A classic

example is the Israeli attack on a nuclear plant in Iraq in 1981. On June, 7th 1981 Israel bombed

a research center near Baghdad, destroying the Osirak nuclear reactor which, it said, was

developing nuclear bombs that would have been ready for use against Israel in 1985. The

15
Journal of Liberty and International Affairs. Vol. 1 No. 2, 2015. Milorad Petreski, MA.
16
The threat of Force as an Action in Self Defense Under International Law, James A. Green
and Francis Grimal.
17
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ¶
47 (July 8).

6
Security Council, after extended debate,18 unanimously and strongly condemned ‘the military

attack by Israel in clear violation of the Charter of the United Nations and the norms of

international conduct.’19 The debate focused on the necessity of Israel’s action. It was agreed

that Israel had failed to exhaust all peaceful means for resolution of the matter. Israel had also

failed to produce evidence that it was threatened with an imminent attack.

The context of contemporary threats ‘imminence cannot be construed by reference to

a temporal criterion only, but must reflect the wider circumstance of the threat.’ A key element

is whether ‘It is believed that any further delay in countering the intended attack will result in

the inability of the defending state effectively to defend itself against the attack. In this sense

necessity will determine imminence.’

The Leiden Policy Recommendations20 set the matter is a wider context. They

“recognize that the use of force is measure of last resort to be employed only where absolutely

necessary” and that “States and the Security Council should give priority, wherever possible,

to law enforcement measures.”21 They emphasize the need for as much transparency as

possible.22 They give emphasis to the role of the Security Council.23 On the requirement of

imminence in the context of the terrorist attacks, they say:

“Whether an attack may be regarded as imminent falls to be assessed by reference to

the immediacy of the attack, its nature and gravity. There must be a reasonable and objective

for concluding that at an attack will be launched, while bearing in mind that terrorist typically

relies on the unpredictability of attacks in order to spread terror among civilians. Armed force

18
S/PV. 2280-2288.
19
Security Council resolution 487 (1981) of 19 June 1981.
20
Note 38.
21
Ibid., principle 30.
22
Ibid., passim.
23
Ibid., principles 34-37; M.Wood, “The Role of The United Nation Security Council in
relation to the Use of Force against Terrorist” in L. van den Herik, N. Schrijver, note 38; L.
Sievers, S. Daws, The Procedure of the UN Security Council (4th ed., 2014)

7
may only be used when it is anticipated that delay would results in an inability by the

threatened state effectively to avert the attack.”24

II. THE BOARDING INSPECTION AND THE DIVERSION OF THE GUFA BY

ACOTANGO ON OCTOBER 20TH 2017 WERE CONSISTENT WITH

INTERNATIONAL LAW

A. UN CO-OPERATIVE ACTION FROM GUFA IN ACOTANGO EXCLUSIVE

ECONOMIC ZONE

1. THE ACT TAKEN BY ACOTANGO SHIP TO INSPECTING THE GUFA

WAS BASED FROM THE CONCERN ON THE SECURITY IN THE

ACOTANGO’S EXCLUSIVE ECONOMIC ZONE.

The coastal state was allowed take such measures, including boarding, inspection,

arrest and judicial proceedings to conserve the living resource in the exclusive economic

zone.25 The other state although having freedom of navigation in EEZ,26 still need to avoid

activities that unreasonably prejudice the peace, good order or security of the coastal state27

also the exercising the freedoms of navigation and overflight should not interfere with or

endanger the rights of the coastal state and manage its own resources and their environment.28

24
Ibid., principle 46; E. Wilmshurst, “Anticipatory Self-Defense against Terrorists”, in L.
van den Herik, N. Schrijver, note 38.
25
Art. 73 para. 1, United Nations Convention on the Law of the Sea, 10 December 1982,
UNTS 52 [UNCLOS].
26
Art. 87 para. 1, United Nations Convention on the Law of the Sea, 10 December 1982,
UNTS
27
Art. 43-53, United Nations Convention on the Law of the Sea, 10 December 1982, UNTS
39-42 [UNCLOS].
28
Art. 1 para. 2, International Convention for the Suppression of the Financing of
Terrorism, 9 December 1999, UNTS.

8
2. GUFA DID NOT RESPOND ACOTANGO CONTACT EFFORT WHILE
IN ACOTANGO’S EEZ

Every coastal state has a right to question every activity that is happening in their EEZ

and for some particular activities required the “due regard” for the rights and duties of the

coastal state.

Based on the 2005 Protocol to the Rome Convention, article 8, covers the

responsibilities and roles of the master of the ship, flag state and receiving state in delivering

to the authorities of any State Party any person believed to have committed an offense under

the Convention, including the furnishing of evidence pertaining to the alleged offense. A new

article, Article 8bis, in the 2005 Protocol covers cooperation and procedures to be followed if

a State Party desires to board a ship flying the flag of another State Party, outside the territorial

water of any state, when the requesting Party has reasonable grounds to suspect that the ship

or a person on board the ship is, has been, or is about to be, involved in the commission of an

offense under the Convention.

The authorization and cooperation of the flag state is required before such boarding

can take place.29 Such authorization may be made in general or ad hoc. A state party may

notify the IMO Secretary-General that it will grant the authorization to board and search a ship

flying its flag, its cargo and persons on board if there is no response within four hours. A state

party can notify that it authorizes a requesting Party to board and search the ship, its cargo and

persons on board, and to questions the persons on board to determine whether an offense has

been, or is about to be, committed. Finally, a State Party may grant the authorization to board

a ship under its flag requested.

As mentioned by Ms. Koro, the spokesperson of the Acotango Government,

Acotango’s Navy tried to communicate with the authority of Resago and wait for eight hours

29
Article 8 bis, para. 4 b of the 2005 Protocol.

9
without any response. So, they decided to board the ship and inspected it with the master’s

consent. This action is a legal action and does not violate the rules mentioned above.

B. GUFA WAS FOUND BRINGING WEAPON SUPPLY FOR TERRORISM

ACT.

Gufa sailed from Pacaya Region to deliver cash and weapon to the MLF militant.30

This activity did by Gufa was supporting the MLF in their terrorism action and caused

indiscriminate killing and violence dozens of Nazko civilians in Acotango. 31 Any person

commits an offense means, directly or indirectly, unlawfully and wilfully, provides or collects

funds with the intention that they should be used or in the knowledge that they are to be used,

in full or in part.32 Reaffirms its decision that States shall eliminate the supply of weapons,

including small arms and light weapons, to terrorist, as well as its calls for states to find ways

of intensifying and accelerating the exchange of operational information regarding trafficking

in arms.33 The court deemed such “assistance” to be a threat or use of force or...intervention

in the internal affairs of other states”34 it is unlikely that either the provision of weapons or

others forms of logistical support involves the actual use of force.35

30
Art. 1 (1), International Convention for the Suppression of the Financing of Terrorism, 9
December 1999.
31
Art. 2 (1b), International Convention for the Suppression of the Financing of Terrorism, 9
December 1999.
32
Art. 2 (1), International Convention for the Suppression of the Financing of Terrorism, 9
December 1999, UNTS.
33
Security Council Resolution 2220 para.1 2015
34
Nicaragua Case, 1986 I.C.J para. 195.
35
Green James. A. The threat of Force as an Action in Self-Defense Under International
Law 2011

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