2016 Jessup Memorial (Applicant) by Sui Generis

8/19/2019 2016 Jessup Memorial (Applicant) by Sui Generis

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THE 2015 PHILIP C. JESSUP INTERNATIONAL LAW

MOOT COURT COMPETITION

CASE CONCERNING THE FROST FILES

BETWEEN

THE STATE OF AMESTONIA

(APPLICANT)

AND

THE FEDERAL REPUBLIC OF RIESLAND

(RESPONDENT)

FIRST TERM 2015


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On Submission to the International Court of Justice

The Peace Palace, The Hague, The Netherlands

MEMORIAL FOR THE APPLICANT


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QUESTION PRESENTED

I. Whether the electronic surveillance programs of Reisland violate international law.

II. Whether the documents published on the website of The Ames Post are admissible to

the court.

III. Whether the expropriation of the VoR property and arrest of its employees are

consistent with international law.

IV. Whether the detention of Joseph Kafker under the terrorism act is consistent with its

obligation under international law.

V. Whether the cyberattacks on The Ames Post and Chester & Walsingham are

attributable to Riesland and constitute international wrongful act


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STATEMENT OF THE FACTS

INTRODUCTION

Neighboring states, Amestonia & Riesland, established good relations with

each other and cooperated in different areas.

Riesland produced chemicals for boosting seeds’ yield named NEONICS which was

used in Amestonia.

States signed the treaty which allowed each state to establish the broadcasting

facilities on the other’s territory. In accordance with the treaty Riesland established adivision of its television corporation, The Voice of Riesland (VoR) in Amestonia. One

of VoR’s most popular shows was “Tea time with Margaret”, featuring interviews with

leading Amestonian politicians and business leaders.

PROBLEM

Eventually it has been discovered that NEONICS causes harmful effect on beesthat might lead to catastrophic consequences for the environment. A number of

ecological activists have joined forces in order to attract public attention to this issue.

One of the groups, THE HIVE, has been claimed to practice violent actions.

Supposedly, this group committed firing of warehouses with barrels with the chemical

and in other means blackmailed government to make them stop the production and

utilization of NEONICS. In return, Riesland started anti-terrorist operations, including

gathering information about such activists. In particular, Riesland detained the former

Amestonian politician, Joseph Kafker and alleged that he was one of the key figures in

THE HIVE.


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KEY FIGURE OF THE COMPROMIS

Former intelligence analyst of Riesland, Frederico Frost, revealed sensitive

information relating to the long-term secret Rieland’s intelligence operations in

Amestonia. In particular, a set of documents released a covert operation called “The

Verisimo Program”, in which a surveillance device of Riesland copied information

from Amestonia’s internet and telephone communications traffic. Another document

noted that the premises of the VoR station were used by Riesland to collect intelligence

on Amestonian public figures and private sector leaders: during the “Tea withMargaret Show” their mobile phones have been collected for the purpose of installing

a rootkit malware. The whistle-blower distributed information with the legal support

from Chester & Walsinham law firm and through The Ames Post newspaper who

published leaked materials.

CRISIS

After the leak, Amestonia expropriated the property of the VoR and arrested its

employees, suspecting them of espionage. At the same time, the computers networks

of The Ames Post and Chester & Walsinham have been hacked and disabled. Riesland

is suspected in conducting these cyber-attacks. The States have referred all matters in

their dispute to the International Court of Justice.


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SUMMARY OF PLEADINGS

I. THE ADMISSIBILTY OF FROST FILES AS EVIDENCE

The documents published on the website of The Ames Post should be admitted

as evidence. The evidence clearly establish Riesland’s mass electronic surveillance

program in Amestonia’s territory. Denial of the evidence’d admissibility would clearly

deny Amestonia and its citizen to protect the inherect right which was clearly violated

by Rieslands surveillance activities.

In considering whether evidence should be admitted or not, the court should

give more weight to its relevance and substance of the evidence itself and not on the

presumption of doubtfulness because of its source.

II. THE VALIDITY OF THE SEIZURE OF VoR’s PROPERTIES AND THE

ARREST OF ITS EMPLOYEES

The State of Amestonia as a state exercised its police power and seized VoR’s

properties and arrests its employees. The international law cannot deny a state of this

right on its own sovereignty. Denying such action would deny a state of it political and

social personality.

These actions are not in contravention of a the Broadcasting treaty, because it is a

a direct result of Riesland’s contravention of the existing agreement which depreived

VoR and its employee of the immunities granted to them by the Treaty. It is also the

duty of a state to protect itself and its citizen from constant violation of their human

right resulting from the surveillance activities exercised by Riesland in guise of a treaty.


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III. THE LEGALITY OF JOSEPH KAFKER’S ARREST

The arrest in subsequent detention of Joseph Kafker is a grave abuse of authority

resulting to violation of the person’s human rights. Kafker’s right to liberty was clearly

violated when he was arrested and detained without an arrest and an ambiguous crime

charged to him.

Kafker’s right for a speedy trial and a competent counsel was also clearly denied

by the Tribunal. It is a clear violation of a persons right if a trial is being postponed with

no apparent reason and a counsel is provided with the approval of the accusing party.

IV. THE ATTRIBUTION OF CYBER-ATTACKS ON REISLAND

The cyber attacks against The Ames Post and Chester & Walsingham are

attributable to Riesland, the attacked originating from its territory. It is immaterial

whether the actor or the recipient of the attack is a state or non-state, because the cyber-

attack is clearly political and concerns national security. Therefore Amestoni8 is entiled

to conduct their own investigation and to demand Riesland to abide by its duty and to

ensure that the non-state actors responsible will not remain unpunished.

Conpensation of the loss obtained from the cyber-attack and if Riesland

continues to deny Amestonia of just compensation for the said offense, then it would

tantamount to a statement resounding around the globe, that cyber-attacks to foreign

states are tolerable.


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PLEADINGS

I.

THE AMES POST DOCUMENTS PUBLISHED IN THEIR WEBSITE ARE

ADMISSIBLE EVIDENCE BEFORE THE COURT.

1.

Riesland’s surveillance activities violated the international Law and its

international obligation to Amestonia.

One of the most fundamental and widely accepted Customary

International Law norms requires all states to respect one another’s

territorial and political integrity; this requirement applies only to state’s

physical incursion into another states’ territory, but also in its interference

with another state’s internal or external affairs.1

Riesland’s for decades has conducted surveillance activities on

Amestonia’s territory. First, a waterproof recording pod was installed on

the undersea fiber optic cable that was the primary backbone for

Amestonia’s international internet and telephone communications traffic.2

Then the Voice of Riesland (VoR), collects intelligence on high ranking

Amestonian public figures and private sector leaders by interviewing

them in a TV show and installing a malware on their personal electronic

devices allowing full remote access of such devices.3

Such programs threaten the national security of the applicant and will

deteriorate the applicant’s foreign relations and standing. Such activities

also violate the inherent right of every individual to privacy, home,family, correspondence and protection from attacks upon his honor and

1 Military and Paramilitary Activities in and against Nicaragua (Nicar v. U.S.), Judgment (Merits), 1986 I.C.J. 160

, para. 202 (June 27)2 Compromis P22 3 Compromis P25


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reputation.4 Everyone has right to the protection of the law against such

interference or attacks.5

2.

The documents presented published in The Ames Post are evidence of

Riesland’s violation of international law and should therefore be

admissible to the court.

The Court shall determine whether the parties should present their

arguments before or after the production of the evidence, the parties shall,

however, retain the right to comment on the evidence given.6 The tribunal

must decide whether, based on evidence submitted by the parties, a

particular claim or defense has been established. This discretionary

authority by its nature invites an entirely personal assessment of evidence

by the tribunal.7 The documents published in The Ames Post regardless of

the nature of its acquisition should be admitted or at the very least

examined by the court.

In the case of The Prosecutor v. Ayyash, the international tribunal submits that

the database of the US diplomatic cables provided by WikiLeaks is an

invaluable and, in fact, undreamt-of source of documentation which any

individual interested in seeking the truth in terms of international

relations, be it ajournalist, a historian or a judge, cannot disregard.

The documents published in The Ames Post are substantial evidence and is

admissible before the Court to protect the inherent rights of Amestonia as

a country and its citizen. No one shall be subjected to arbitrary

4 Art. 12, Universal Declaration of Human rights.5 Article 17 The International Covenant on Civil and Political Rights 19666 Article 58, International Court of Justice Rules of Court (1978) 7 Admissibility and Presentation of Evidence by George C. Ecomon pp. 3


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interference with his privacy, family, home or correspondence, nor to

attacks upon his honor and reputation.8 The relevance of the evidence on

the issue presented should weight more than the technicalities presented

on its inadmissibility.

II. THE SEIZURE OF THE VOICE OF RIESLAND DID NOT VIOLATE THE

BROADCASTING TREATY AND INTERNATIONAL LAW

A.

The seizure of the Voice of Riesland station and its equipment are in

accordance with Amestonia’s international law obligation.

Amestonia is exercising police power in the seizure of VoR’s facilities and

the arrest of its employees. It is the sovereign right of a State, under

international law, to deprive owners, including aliens, of property which

is within its territory in the pursuit of its political, social or economic ends.

To deny such a right would be attempt to interfere with its powers to

regulate – by virtue of its independence and autonomy, equally

recognized by international law – its political and social existence.9

The premises of the station must not be used in any manner incompatible

with the station’s functions as envisaged in the present Treaty, in other

rules of general international law, or in any other agreements in force

between the Parties hereto.10 The documents published in The Ames Post

clearly stated that VoR’s premises had been used to promote its

surveillance activities on Amestonian soil.

8 Article 12 UN’s Universal declaration of Human Rights 9 OECD Draft Convention on Foreign Property10 Broadcasting Treaty, Article 23


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The duty to compensate is not applicable to normal regulation. The State

of Amestionia is merely exercising its police power. “Every natural or

legal person is entitled to the peaceful enjoyment of its possessions. No

one should be deprived of his possessions except in the public interest andsubject to the conditions provided for by the law and by the general

principles of international law. The proceeding provisions shall not,

however, in any way impair the right of a state to enforce such laws as it

deems necessary to control the use of property in accordance with the

general interest or to secure the payment of taxes or other contributions or

penalties.11

B. The arrest of Margaret Mayer and the two other employees of the Voice

of Riesland did not violate the Broadcasting treaty

Margaret Mayer and the two other employees committed acts that is in

contravention of the Broadcasting Treaty. They violated the inherent

rights of its guest to privacy and protection from attacks on their honor

when they used their position to hack into the individual’s electronic

devices which then provided the Bureau full remote access to the devices.

At this point the station cease to operate as envisaged in the treaty, and

the immunities and

III. THE DETENTION OF JOSEPH KAFKER BY THE RESPONDENT VIOLATESTHE PRINCIPLES OF INTERNATIONAL LAW

1.

The detention of Joseph Kafker violates the International Law

11 European Convention of Human Rights are included in Article 1 of Protocol 1, concluded in 1952


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Everyone has the right to liberty and security of person. No one shall be subjected to

arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and

in accordance with such procedure as are established by law.12 The arrest and subsequent

detention of Joseph Kafker is both a question of lawfulness and arbitrariness of the arrest.

A lawful arrest must not only be “lawful” but also “reasonable” and “necessary”

in all the circumstances for the aforementioned purposes. It is for the State party

concerned to show that these factors are present in the particular case.13 As to the

principle of legality, it is held that “it’s a violation if an individual is arrested or

detained on grounds which are not clearly established in domestic legislation”.14 With

regard to the meaning of ‘arbitrariness’ is not to be equated with ‘against the law’, but

must be interpreted more broadly to include elements of inappropriateness,

injustice, lack of predictability and due process of law. This means that the remand in

custody pursuant to lawful arrest must not only be lawful but reasonable in the

circumstances. Remand in custody must further be necessary in all the

circumstances, for example, to prevent flight, interference with evidence or the

recurrence of crime”15

In the case of Mukong, the applicant alleged that he had been arbitrarily arrested

and detained for several months, an allegation rejected by the State party on the basis

that the arrest and detention had been carried out in accordance with the domestic law

of Cameroon. The Committee concluded that article 9(1) had been violated, since the

author’s detention “was neither reasonable nor necessary in the circumstances of the

case”. For instance, the State party had not shown that the remand in custody was

“necessary ... to prevent flight, interference with evidence or the recurrence of crime”

but had “merely contended that the author’s arrest and detention were clearly

12 Article 9(1) of the International Covenant on Civil and Political Rights13 Communication No. 305/1988,H. van Alphen v. the Netherlands (Views adopted on 23 July 1990), in UN

doc.GAOR, A/45/40 (vol. II), p. 115, para. 5.8;

14 Communicaton No. 702/1996, C. McLawrence v. Jamaica (Views adopted on 18 July 1997), in UN doc. GAOR

, A/52/40 (vol. II), pp. 230-231, para. 5.5.15 Communication No. 458/1991, A. W. Mukong v. Cameroon (Views adopted on 21 July 1994), in UN doc. GAOR

, A/49/40 (vol. II), p. 181, para. 9.8.


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justified by reference to” article 19(3) of the Covenant, which allows for restrictions on

the right to freedom of expression. However, the Committee considered that “national

unity under difficult political circumstances cannot be achieved by attempting to

Puzzle advocacy of multi-party democracy, democratic tenets and human rights”,and that the author’s right to freedom of expression had therefore been violated.16

In this case, the arrest is clearly arbitrary and its legality is highly questionable.

First there is no warrant when he was arrested after he delivered his speech in

Riesland’s largest law school. 17 Second there are no direct evidence with regard to

Joseph Kafker’s involvement with a terrorist Group.

2.

Joseph Kafker was not given a fair Trial by the National Security Tribunal

Everyone detained shall be entitled to trial within “a reasonable time” or to

release pending trial18 as well as the right to defend himself or to be assisted by counsel

as prescribed by law19 This is a logical protection in view both of the fact that everyone

charged with a crime has the right to be presumed innocent until proved guilty and of

the fact that deprivation of liberty must be an exceptional measure.

In this case, Riesland violated Joseph Kafker’s right on a speedy trial when the

trial is being suspended every 21 days by the national security tribunal and being

continuously detained without any charge in a maximum-security facility. and be

assisted by a counsel of his own initiative. Hi right to be assisted by a counsel on hi

own descrition and initiative was also violated. The state of Riesland arbitrarily

provide Kafker with a group of special counsel selected with their approval.

16 Ibid. 17 Compromis 3218 Article 9(3) of the International Covenant on Civil and Political Rights19Article 5(4) of the European Convention on Human Rights.


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IV. THE CYBER-ATTACKS AGAINST THE AMES POST AND CHESTER &

WALSINGHAM ARE ATTRIBUTABLE TO RIESLAND, AND CONSTITUTE AN

INTERNATIONALLY WRONGFUL ACT FOR WHICH AMESTONIA IS ENTITLED

TO COMPENSATION.

A.

The cyber-attacks are attributable to Riesland and constitute aninternationally wrongful act.

A.

Cyber-attacks are prohibited under the 1982 UNCLOS.

Any threat or use of force against the sovereignty, territorial integrity or

political independence of the coastal State, or in any other manner in

violation of the principles of international law embodied in the Charter of

the United Nations; any act aimed at collecting information to the prejudice

of the defence or security of the coastal State; any act of propaganda aimed

at affecting the defence or security of the coastal State; any act aimed at

interfering with any systems of communication or any other facilities or

installations of the coastal State.20

The foregoing provisions made it clear that the State of Amestonia is entitled to

compensation from Riesland. Not only did Riesland threaten the security of the

former, they also collected information at the expense of the other state to further

their own political whims. Although not stated directly, the cyber-territory of

Amestonia is impliedly a part of its sovereignty territory, as a State’s jurisdiction

can be construed not only that as territorial, fluvial or aerial; it spreads more vastly

than as ordinary interpreted, which includes its cyber domains.

The evidences presented by Amestonia carry enough weight to pin the cyber-

attacks on Riesland. The computer world may have an advanced berth but since

experts performed the analyses and investigation with regard the launched cyber-

attacks, there can be no mistake that the IP address was indeed used within

Riesland’s jurisdiction. Further, there are no other parties involved that may have

20 The 1982 United Nations Convention on the Law of the Sea, particularly Articles 19,109 and 11


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orchestrated the cyber-attacks. Recalling past events, Riesland claims that an influx

of information was stolen from them; those which are being published by The Ames

Post and Chester & Walsingham. If we are to scrutinize carefully the circumstances,

and add-in the evidences gathered, Riesland has all means and motive toorchestrate the subject cyber-attacks.

B. Cyber attack constitutes a use of force against another state that is inconsistent

with the purpose of UN.

All members shall refrain in their international relations from the threat or use

of force against the territorial integrity or political independence of any state, or in

any other manner inconsistent with the Purposes of the United Nations. The ICJ held

that interference of whatever form is a use threat of force. This should include cyber-

attack.

Riesland is responsible for any cyber attacks originating from within its

territory, even if they are conducted by non-state actors such as terrorist

organizations.21 Cyber-attack is any aggressive act taken by a state actor in the cyber

domain necessarily involves national security. A cyber-attack’s means can include

any action—hacking , bombing, cutting, infecting, and so forth—but the objective can

only be to undermine or disrupt the function of a computer network.22 Irrespective on

whether the actor is a state or non-state or the attack is directed to the state itself or

person in which the state has an interest with, cyber-attack has a political purpose

that threatens Amestonia’s national security.

It is undeniable that the cyber-attck on The Ames Post and Chester &

Walsingham’s computer system is attributable to Riesland. And it is well established

21 Graham, D. (2010). Cyber threats and the law of war. Journal of National Security Law andPolicy, 4, 87-104.

22 The Law of Cyber-Attack, Oona A. Hathaway, Rebecca Crootof, Philip Levitz, Haley Nix, Aileen

Nowlan, William Perdue, Julia Spiegel, p. 10


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that Amestonia is also a victim to this non-state attack because the information lost in

the attack concerns national security and interest.

It is therefore Amestonia’s right, being a victim of cyber attack, to demand the

territorial state to abide by its duty and to ensure that the non-state actors responsible

will not remain unpunished.23 And initiate its own investigation and if the allegedly

wrong state refuses to cooperate, it receives the status of a sanctuary state and

consequently becomes a potential target for a legitimate use of force by the victim

state.

C. Amestonia’s demand of compensation from Riesland is justified.

Amestonia’s demand of compensation from Riesland is justified because it

appears that the latter violated Article 19(c) of UNCLOS, specifically: (c) any act aimed

at collecting information to the prejudice of the defence or security of the coastal State. The

UN prays that no State resorts to the use of force when retaliating to an offensive

attack of a foreign State. Since cyber-attacks are not within the purview of the

prohibition against ‘threat or use of force’ under international law, it is justified that

Amestonia be granted enough to compensation to whatever losses they may have

incurred. The latter, which Riesland has denied, is the punishment imposed upon the

latter State for breaching Amestonia’s cyber-security and for wiping out information

which they do not have jurisdiction over. If Riesland continues to deny Amestonia of

just compensation for the said offense, then it would tantamount to a statement

resounding around the globe, that cyber-attacks to foreign states are tolerable and are

outside the jurisdiction of International Law.

23 Schmitt, M. (2011). Cyber operations and the jus ad bellum revisited. Villanova LawReview, 56, 569-606.


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PRAYER FOR RELIEF

The State of Amestonia respectfully requests this Honorable Court to adjudge

and declare that:

1. Documents published on the website of The Ames Post are admissible as

evidence before the Court against Riesland’s mass electronic surveillance

programs;

2.

The seizure of the Voice of Riesland station and the arrest of Margaret Mayer

and the two other VoR employees, did not violate the Broadcasting Treaty

and were in accordance with Amestonia’s international law obligation;

3. The detention of Joseph Kafker under the Terrorism Act violated

international law and is therefore entitle to his immediate release, the

disclosure of all information which formed the basis of his apprehension, and

the payment of compensation for his detention; and

4. The cyber-attacks against the computer systems of The Ames Post and

Chester & Walsingham are attributable to Riesland and Amestonia is entitled

to compensation on such internationally wrongful act.

Respectfully submitted,

AGENTS FOR AMESTONIA


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2016 Jessup Memorial (Applicant) by Sui Generis

Documents

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