THE 2015 PHILIP C. JESSUP INTERNATIONAL LAW

MOOT COURT COMPETION

Case concerning the Frost Files

THE STATE OF AMESTONIA

APPLICANT

V.

THE FEDERAL REPUBLIC OF RIESLAND

RESPONDENT

2015

On Submission to the International Court of Justice

The Peace Palace, The Hague, The Netherlands

MEMORIAL FOR THE RESPONDENT

i

TABLE OF CONTENTS

Table of Contents. i

Index of Authorities. iii

Questions Presented vi

Statement of Facts................ vii

Summary of Pleadings................ ix

Pleadings 1

I. THE ILLICITLY-OBTAINED DOCUMENTS PUBLISHED IN THE WEBSITE OF

THE AMES POST ARE INADMISSIBLE BEFORE THE COURT AND DO NOT

EVIDENCE ANY BREACH BY RIESLAND OF INTERNATIONAL OBLIGATION

OWED TO AMESTONIA........ 1

1. The evidences presented by the State of Amestonia were illegally obtained and

inadmissible to the ICJ, therefore Riesland does not have an international obligation owed

to Amestonia and does not violate any provisions in the international

law................................................................................................................................... 1

A. Riesland did not violate any international obligation because there is no law

governing surveillance activities 1

B. The evidence presented to the court should not be admitted 2

II. THE EXPROPRIATION OF VoRs PROPERTIES AND THE ARREST OF ITS

EMPLOYEE VIOLATE THE BROADCASTING TREATY AND THE

INTERNATIONAL LAW 4

A. Amestonia has no legal basis to terminate the Broadcasting Treaty. Therefore, the

expropriation of VoRs properties and the arrest of its employees violated the

international law............... 4

1. Amestonia unilaterally terminated the Broadcasting Treaty based on reasons

other than the provision of the Treaty... 4

2. Both the person of the employees and VoRs property is inviolable 5

ii

3. Amestonia did not follow the international procedure in for ascertaining the

invalidity or termination of the treaty 7

III. REISLANDS DETENTION OF JOSEPH KAFKER UNDER THE TERRORISM ACT

IS CONSISTENT WITH ITS OBLIGATION UNDER INTERNATIONAL LAW 8

A. Kafker committed an act in violation of the Terrorism Act which is in accordance with

the International Law 8

1. The Terrorism Act is in accordance with the International Law 8

2. Joseph Kafker committed an act in violation of Terrorism Act.. 9

3. The detention of Joseph Kafker is lawful... 9

4. The release of Kafker, as demanded by Amestonia, cannot be

given away.. 10

IV. THE CYBER-ATTACKS AGAINST THE COMPUTER SYSTEMS OF THE AMES

POST AND CHESTER & WALSINGHAM CANNOT BE ATTRIBUTED TO THE

FEDERAL REPUBLIC OF RIESLAND. 11

A. The cyber-attacks cannot be attributed to Riesland, and in any event did not constitute

an internationally wrongful act 11

B. There are no sufficient evidence to support Amestonias claim that the cyber-attacks on

The Ames Post and Chester & Walsingham were orchestrated by Riesland 12

1. Cyber-attacks can only be attributed to a foreign sovereign State if there is

clear and convincing evidence 12

2. There are no established cyber-borders between countries which is why the

origin of cyber-attacks cannot be accurately traced.. 13

C. Cyber-attack or cyber-force is not within the purview of the prohibition against threat

or use of force under international law 14

D. Assuming that it was Riesland that launched the cyber-attacks on The Ames Post and

Chester & Walsingham, the latter are justified pursuant to the International

Telecommunications Law. 15

Prayer for Relief. 17

iii

INDEX OF AUTHORITIES

I.C.J AND P.C.I.J. CASES

Case Concerning the United States Diplomatic and Consular Staff in Tehran (US vs. Iran),

1980, ICJ REP. 1 (Judgment of May 24).. 3

Case of Chorzow Factory, 1928 P.C.I.J. (Ser. A) No. 17 6

Corfu Channel Case, supra, fn. 51, Merits, ICJ Reports (1949), pp. 4-34.. 2

INTERNATIONAL AGREEMENTS

Convention against Terrorist Bombings, Article 13 (1) (1997).. 10

Council of Europe Convention on Prevention of Terrorism Art. 5 (2005) 8

Council of Europe Convention on Prevention of Terrorism Art. 6 (2005) 8

European Convention on Human Rights, Art. 5 (1950).. 8, 10

European Convention on Human Rights Art. 5 (1c) UN Charter, Chapter VI,

Art. 33 (1950).. 7, 9

International Covenant on Civil and Political Rights, Article 4 (1966). 10

International Covenant on Civil and Political Rights, Article 9 (1966). 9

Protocol to the Convention of Human Rights and Fundamental Freedoms

Art. 1 (1950). 8

Vienna Convention on the Law of Treaties between States and International

Organizations, Article 26 (1986). 6

Vienna Convention on the Law of Treaties between States and International

Organizations, Article 31 (1) (1986) 5, 14

Vienna Convention on the Law of Treaties between States and International

Organizations, Article 48 (1986). 7

Vienna Convention on the Law of Treaties between States and International

Organizations, Art. 60 (1) (1986). 5

Vienna Convention on the Law of Treaties between States and International

Organizations, Art. 65 (1) (1986) 6, 7

iv

Vienna Convention on the Law of Treaties between States and International

Organizations, Art. 66 (1) (1986). 7

UNITED NATIONS AND OTHER DOCUMENTS

Articles on State Responsibility, Article 2. 11

Constitution of the International Telecommunications Union, pmbl.,

(Dec. 22, 1992) 15

(Acts adopted pursuant to Title VI of the Treaty on European Union) COUNCIL

FRAMEWORK DECISION of 13 June 2002 on combating terrorism.. 9

IBA of Rules, Article 9.1 (2010).. 2

Nicaragua judgment, par. 195... 15

Tallinn Manual on the International Law Applicable to Cyber Warfare,

Rule 7 (2009).......................................................................................................................... 11

Principle of Pacta Sunt Servanda.... 6

UN Charter International Evidentiary Standard.. 12

United Nations Charter, Article 2 par. 4... 14

OTHER REFERENCES

ANTHONY AUST, HANDBOOK OF INTERNATIONAL LAW, pp 238-39

(explained the concept of material breach in Vienna Convention 60/3b (2007)..... 5

GEOFFREY B. DEMAREST, ESPIONAGE IN INTERNATIONAL LAW 14, pp. 347

(1996).. 7

GLENN SULMASY & JOHN YOO, COUNTERINTUITIVE: INTELLIGENCE

OPERATIONS AND INTERNATIONAL LAW, 28 MICH. J. INTL L. 14, 628

(2007) 7

Guillame Lovet, Fighting Cybercrime: Technical, Juridical, and Ethical Challenges,

(2015) 13

Ian Traynor, Russia Accused of Unleashing Cyberwar to Disable Estonia, (2007).. 13

v

JEFFREY H. SMITH, SYMPOSIUM, STATE INTELLIGENCE GATHERING AND

INTERNATIONAL LAW: KEYNOTE ADDRESS, 86, pp. 544 (2007) 7

Kristin M. Finklea, The Interplay of Borders, Turf, Cyberspace, and Jurisdiction: Issues

Confronting U.S. Law Enforcement, (2013). 13

Kosovo Advisory Opinion, par. 56.. 12

LASSA OPPENHEIM, INTERNATIONAL LAW: A TREATISE (1920) 7

Mary Ellen OConnell, International Law: Meeting Summary - Cyber Security and

International Law, (2012)13, 14

COMPROMIS

Compromis Annex, (excerpts from preamble) (2015).. 5

Compromis 12 (2015) 9

Compromis 22 (2015) 16

Compromis 29-30 (2015).. 4

Compromis 36 (2015) 8, 9

Compromis Annex 1, Art. 36 (2015) 5

Compromis Annex Art. 14 (a) (2015).. 5

Compromis Annex Art. 15 (a) (2015).. 5

vi

QUESTIONS PRESENTED

I. Whether the illicitly-obtained documents published in the website of The Ames

Post are inadmissible before the court and if they evidence any breach by Riesland

of international obligation owed to Amestonia.

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

consistent with international law.

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

its obligation under international law.

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

attributable to Riesland and constitute internationally wrongful act.

vii

STATEMENT OF FACTS

INTRODUCTION

Neighboring states, Amestonia and 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 others territory. In accordance with the treaty, Riesland established a

division of its television corporation, The Voice of Riesland (VoR) in Amestonia. One

of VoRs 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 cause harmful effect on bees that

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.

viii

KEY FIGURES OF THE COMPROMIS

Former intelligence analyst of Riesland, Frederico Frost, revealed sensitive

information relating to the long-term secret Rielands 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

Amestonias 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 with Margaret

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 & Walsingham law firm and through The Ames Post newspaper who published

the 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 &

Walsingham 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.

ix

SUMMARY OF PLEADINGS

I. ADMISSIBILITY OF SURVEILLANCE INFORMATION AS EVIDENCE

Rieslands surveillance acts do not violate any international law. Surveillance and

espionage are practiced throughout history by any sovereignty, therefore supporting the

legitimacy of spying and surveillance activities as part of the international customary

law, a set of unwritten international common law principles.

Evidences gathered by Amestonia are stolen surveillance information allegedly

originating from Rieslands Surveillance Bureau. Such evidence should not be admitted

in a court of justice because it raises doubt as to the integrity and validity of the evidence,

especially since its highly-confidential information.

II. THE LEGALITY OF AMESTONIAS TERMINATION OF THE TREATY

Amestonia is not entitled to automatically and arbitrarily terminate the treaty. The

treaty states that it can only be terminated when the station cannot function as

envisaged in the treaty. By interpreting the phrases ordinary meaning in good faith, it

is clear that The Voice of Riesland (VoR) did not violate any provision and the alleged

offense does not constitute a material breach as defined by the Vienna Convention.

In the event that Amestonia intend to terminate the treaty, such termination

should follow the international procedure set by the Vienna Convention. None of the

procedure was observed and Amestonia rather sought for a solution using at gunpoint

remedies resulting to the undue expropriation of Rieslands properties and the arrest of

VoRs employees violating rights inherent to Riesland and its agents.

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III. THE VALIDITY OF JOSEPH KAFKERS ARREST AND DETENTION

The arrest and detention of Joseph Kafker is valid and in accordance with the

international law. There were reasonable grounds to raise a question as to a possible

commission or provocation of an act of terrorism in Rieslands territory. Thus, necessary

measures to ensure that an Act of Terrorism will be prevented were applied by The

Federal Republic of Riesland.

The arrest of Joseph Kafker was lawful and his detention was made to bring him

to a competent court and to prevent him from committing other offence and fleeing right

after. None of his inherent rights as a person was either violated or neglected.

IV. THE ATTRIBUTION OF CYBER-ATTACKS TO RIESLAND

There are no clear and convincing evidence to establish that Riesland committed

a cybercrime. The evidence presented does not carry enough weight, such evidence is

hard to find and prove and will take more time and resources than a simple analysis of

easily manipulated IP address. There are no clear cyber borders between countries and

therefore cyber-attacks are not accurately traceable. In addition, even if the identity of the

cyber hacker can be ascertained properly, it will be more difficult to establish Rieslands

connection and responsibility.

Assuming arguendo that Riesland indeed launched a cyber-attack, it is justified and

within the established provisions of the International Telecommunications Law. The

Union grants a state the right to cut-off any non-state from circulating dangerous

information for security purposes. The Ames Post and Chester and Walsingsham were

committing serious threat to peace, public order and human right by publicly divulging

highly confidential information.

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PLEADINGS

I. THE ILLICITLY-OBTAINED DOCUMENTS PUBLISHED IN THE WEBSITE

OF THE AMES POST ARE INADMISSIBLE BEFORE THE COURT AND DO

NOT EVIDENCE ANY BREACH BY RIESLAND OF INTERNATIONAL

OBLIGATION OWED TO AMESTONIA.

1. The evidences presented by the State of Amestonia were illegally

obtained and inadmissible to the ICJ, therefore Riesland does not have

an international obligation owed to Amestonia and does not violate any

provisions in the international law.

A. Riesland did not violate any international obligation because there is no law

governing surveillance activities.

There is a lacuna in the international law regarding espionage. There is no

law prohibiting the act of acquiring foreign intelligence in the international law.

Lacuna is an empty space in the law with no regulations applicable or an absent

part in a law or another written document such as contract. In other words it

denotes an instance when there is no controlling law or contractual provisions.

Espionage or spying is as old as the governments.

It is submitted to before this honorable court that the Secret Surveillance

Program of the respondent state is subject to several limitations provided on

Section 32 of the SSBA. Considering the differences which has arisen between

the two states concerning the legality of certain alleged acts of espionage, the

reasonable limitations can be put in the interests of the sovereignty and integrity

of Riesland, the security of the state, friendly relation with foreign states, public

order, decency and morality or in relation to contempt of court, defamation or

incitement to an offense.

Espionage is often part of an institutional effort by a government or

commercial concern. However, the term is generally associated with state spying

on potential or actual enemies primarily for military purposes.

2

Customary International Law refers to the norms and practices of nations,

apart from treaties or other written agreements. Within the regime of

international law, it is law inferred from a general and consistent practice of

states followed by them from a sense of legal obligation. It is in effect, a body of

unwritten international common law principles. It is therefore clear that the

respondent state does not violate international law.

B. The evidence presented to the court should not be admitted.

The Arbitral Tribunal shall, at the request of the Party or on its own

motion, exclude from evidence or production any Document, statement, oral

testimony or inspection for any of the following reasons: lack of sufficient

relevance to the case or materiality to its outcome; any need to protect the

confidentiality of a Document created or statement or oral communication made

in connection with and for the purpose of settlement negotiations; the

expectations of the Parties and their advisors at the time the legal impediment or

privilege is said to have arisen; any possible waiver of any applicable legal

impediment or privilege by virtue of consent, earlier disclosure, affirmative use

of the Document, statement, oral communication or advice contained therein, or

otherwise; and the need to maintain fairness and equality as between the Parties,

particularly if they are subject to different legal or ethical rules.1

Article 38 par. 1 of the ICJ Statute recognized privileges of inadmissibility

of evidence such business secrets or privileges of certain professionals, such as

lawyers, priests or physicians. Furthermore, the ICTY has recognized certain

privileges concerning was correspondents and the ICRC. Another instance is

evidence inadmissible for reasons being illegally obtained.

In the CORFU CHANNEL CASE,2 the Court was also confronted with the

question whether illegally obtained evidence was admissible. The United

Kingdom had carried out minesweeping operations in Albanian waters of the

Strait of Corfu although Albania has protested against such actions. The United

1 Article 9.1, IBA of Rules 2 Corfu Channel Case, supra, fn. 51, Merits, ICJ Reports (1949), pp. 4-34

3

Kingdom sought to justify its actions by an alleged right of a State to secure

possession of evidence in the territory of another State, in order to submit it to an

international tribunal and thus facilitate its task. Although the Court rejected

this argument and held that the United Kingdom had violated Albanias

sovereignty, it did not treat the evidence obtained in the operation as

inadmissible. One possible reason for this decision is that Albania has not

specifically challenge the admissibility of the evidence; another is that the Court

in fact did not consider the illegality of the action to secure the evidence as a

reason for its exclusion. The latter proposition, while supported in legal

literature, is, however, at least problematic where evidence has been obtained by

breach of jus cogens.

In the CASE CONCERNING UNITED STATES DIPLOMATIC AND

CONSULAR STAFF IN TEHRAN (UNITED STATES V. IRAN), MEMORIAL OF

THE GOVERNMENT OF THE UNITED STATES OF AMERICA,3 some student

militants who seized the American Embassy in Tehran and detained their

members, have implied that some of the members of the US Embassy may have

engage in functions (specifically, information-gathering or intelligence work).

This coupled with their ideology that the US Embassys operations regarding a

State Department report on the Kurdish insurrection or on the anti-Khomeini

Islamic terrorist group Forqan was proof that the United States was in contact

with these movements.

Any meeting between an Iranian official and embassy employees was

proof of the formers treason and the latters espionage. However some of the

materials circulated as evidence within Iran has been consist of the most

transparent forgeries, after a month of going through the embassys files.The US

contended that the Iranians actions of seizing and using the Embassys premises

for the purpose of gaining evidence against the Embassy are not contemplated

by Article 3 of the Vienna Convention on Diplomatic Relations. Such actions

justify Irans failure to accord inviolability to United States diplomatic agents

and premises under Articles 22 and 29-35 of the Vienna Convention on

3 Case Concerning the United States Diplomatic and Consular Staff in Tehran (US vs. Iran), 1980, ICJ REP. 1 (Judgment of May 24)

4

Diplomatic Relations. Even if the government of Iran had proved to the Court

through the evidences obtained as the result of such action had proven that the

US Embassy and its members had violated one or more obligations under

Vienna Convention, there would be no ground for finding that such violations

excuses Iran from legal obligations.

In this case the ICJ, highlighted the importance ascribed to the

international diplomatic function and to the immunity without which it cannot

be effectively performed. The admissibility of any evidence gained unlawfully

by a violation of diplomatic premises is certain to jeopardize existing

international orders. At least for embassies if not for many areas, any illegally

obtained evidence should be deemed inadmissible.

Therefore following the precedent of the said cases the agents for the

respondent contend that since the evidence presented by the applicant illegally

acquired the respondent does not have an international obligation owed to the

applicant.

II. THE EXPROPRIATION OF VoRs PROPERTIES AND THE ARREST OF ITS

EMPLOYEE VIOLATE THE BROADCASTING TREATY AND THE

INTERNATIONAL LAW.

A. Amestonia has no legal basis to terminate the Broadcasting Treaty, the

expropriation therefore of VoRs properties and the arrest of its employees

violated the international law.

1. Amestonia unilaterally terminated the Broadcasting Treaty based on reasons other

than the provision of the Treaty.

Based on the documents published in The Ames Post, President Hale, declared

that cessation of VoRs operation as a station and unilaterally declares the

termination of the Broadcasting Treaty.4 The documents and information obtained

by Amestonia from Frost is without prejudice. Frost had a clear intention in

4 Compromis 29-30 (2015)

5

committing treason against his own country. This will clearly violate the Treason

Act of Riesland. Citing the Logan Act 1799 of the US Government, the law was

created to forbid unauthorized citizens from negotiating with foreign governments

having a dispute with the U.S. It was intended to prevent the undermining of the

government's position. This directly violated the Broadcasting treaty which states

that privileges and immunities shall only cease upon the cessation of the stations

function as envisage in the Treaty.5 The phrase function as envisage is not clearly

defined in the treaty. Therefore, interpretation of that phrase shall be in good faith in

accordance with the ordinary meaning to be given to the terms of the treaty in their

context and in the light of its object and purpose.6 Hence, such function should

ordinarily mean to offer radio and television channels/shows that will reflect the

two nations dynamic political, cultural and artistic activity.7

Application of the provisions of international law yields the same conclusion.

Republic of Riesland did not commit a material breach of duties to entitle Amestonia

to terminate the Treaty.8 A material breach of a treaty consists in the violation of a

provision essential to the accomplishment of the object or purpose of the treaty.9 The

alleged surveillance will not limit VoRs ability to produce the same brand of service

and entertainment it has been providing Amestonia for the last 22 years.

2. Both the person of the employees and VoRs property is inviolable. The acts of

Amestonia violates the generally accepted principles of International Law.

The persons of each stations employees shall be inviolable and they shall not

be liable to any form of arrest or detention.10 The State of Amestonia is bound, in

good faith to carry out these aforementioned treaty obligations. The stations

premises shall likewise be inviolable and the agents of the host country may not

enter without the consent of the head of the station.11 The good faith basis of treaties

5 Compromis Annex 1, Art. 36 (2015) 6 Vienna Convention on the Law of Treaties between States and International Organizations, Article 31 (1) (1986) 7 Compromis Annex, (excerpts from preamble) (2015) 8 Vienna Convention on the Law of Treaties between States and International Organizations Art. 60 (1) (1986) 9 ANTHONY AUST, HANDBOOK OF INTERNATIONAL LAW, pp 238-39 (2007) 10 Compromis Annex Art. 15 (a) (2015) 11 Compromis Annex Art. 14 (a) (2015)

6

implies that a party to the treaty cannot invoke provisions of its municipal law as

justification for a failure to perform.12 The arrest therefore of the three (3) VoR

employees due to suspicion of surveillance activity is a violation of both ether treaty

and the international law.

Every treaty in force is binding upon the parties to it and must be performed

by them in good faith. 13 A party which, under the provisions of the present

convention, invokes either a defect in its consent to be bound by a treaty or a ground

for impeaching the validity of a Treaty, terminating it, withdrawing from it or

suspending its operation, must notify the other parties of its claim. The notification

shall indicate the measure proposed to be taken with respect to the treaty and the

reasons therefor.14

In the Chorzow Factory case15, it was ruled that the taking of alien property in

contravention of a treaty was "unlawful" and "illegal."' This ruling by the Court was

a wholly natural one, because the pacta sunt servanda principle obtains generally, in

so far as it pertains to treaties, in the various areas of the law of nations. And the

Court also pointed out, in its Judgment Number 8 in the Chorzow Factory case, that

the violation of a treaty protecting alien property entails the duty to make reparation

for the damage which has been incurred.

It is a principle of international law that the breach of an engagement involves

an obligation to make reparation in an adequate form. Reparation therefore is the

indispensable complement of a failure to apply a convention and there is no

necessity for this to be stated in the convention itself. The pacta sunt servanda rule,

therefore, protects alien property interests, and the violation of that rule, with regard

to alien property, provides the basis for an international claim. And, as shall be

shown directly, international law dictates that reparation, in these circumstances,

must take the form of restitution in kind, if possible.

12 Principle of Pacta Sunt Servanda 13 Vienna Convention on the Law of Treaties between States and International Organizations, Article 26 (1986) 14 Vienna Convention on the Law of Treaties between States and International Organizations, Article 65.1 (1986) 15 Case of Chorzow Factory, 1928 P.C.I.J. (Ser. A) No. 17

7

Clandestine information gathering will continue to be considered unfriendly

act between nations, but such activity does not violate international law,16 peacetime

spying is not considered wrong morally, politically or legally.17 Espionage is such

a fixture in international affairs, it is fair to say that the practice of states recognizes

espionage as a legitimate function of the state, and therefore it is legal as a matter of

customary international law.18 These practices throughout the history support the

legitimacy of spying and surveillance activities. 19

3. Amestonia did not follow the international procedure in for ascertaining the

invalidity or termination of the treaty.

A State may invoke an error in a treaty as invalidating its consent to be bound

by the treaty if the error relates to a fact or situation which was assumed by that

State to exist at the time when the treaty was concluded and formed an essential

basis of its consent to be bound by the treaty.20 A party who invokes a ground for

impeaching the validity of a Treaty to terminate it must notify the other party. The

notification must indicate the measure proposed to be taken with respect to treaty

and the reason therefor.21 If an objection has been raised by the other party resulting

to a dispute and its continuance will likely endanger the maintenance of peace and

security shall, first of all, seek a solution by negotiation, enquiry, mediation,

arbitration or other peaceful means. 22 In the event that no solution was reach

applying the aforementioned remedies, any of the party in the dispute may, by a

written application, submit to the International Court of Justice (ICJ) for a decision.23

Amestonia did not seek for these remedies and rather applied at gunpoint

remedy to obtain favorable results. In applying such procedure, the applicant

16 GEOFFREY B. DEMAREST, ESPIONAGE IN INTERNATIONAL LAW 14, pp. 347 (1996) 17 LASSA OPPENHEIM, INTERNATIONAL LAW: A TREATISE (1920) 18 JEFFREY H. SMITH, SYMPOSIUM, STATE INTELLIGENCE GATHERING AND INTERNATIONAL LAW: KEYNOTE ADDRESS, 86, pp. 544 (2007) 19 GLENN SULMASY & JOHN YOO, COUNTERINTUITIVE: INTELLIGENCE OPERATIONS AND INTERNATIONAL LAW, 28 MICH. J. INTL L. 14, 628 (2007) 20 Vienna Convention on the Law of Treaties between States and International Organizations, Article 48 (1986) 21 Vienna Convention on the Law of Treaties between States and International Organizations, Art. 65 (1) (1986) 22 European Convention on Human Rights Art. 5 (1c) UN Charter, Chapter VI, Art. 33 (1950) 23 Vienna Convention on the Law of Treaties between States and International Organizations, Art. 66 (1) (1986)

8

violated the employees inherent right to liberty and security 24 and their inviolable

privileges and immunities under the Broadcasting Treaty and the inherent rights of

Riesland for the protection of its properties.25

III. REISLANDS DETENTION OF JOSEPH KAFKER UNDER THE

TERRORISM ACT IS CONSISTENT WITH ITS OBLIGATION UNDER

INTERNATIONAL LAW.

A. Kafker committed an act in violation of the Terrorism Act which is in

accordance with the International Law.

1. The Terrorism Act is in accordance with the International Law.

Public provocation to commit a terrorist offence" means the distribution, or

otherwise making available, of a message to the public, with the intent to incite the

commission of a terrorist offence, where such conduct, whether or not directly

advocating terrorist offences, causes a danger that one or more such offences may be

committed. 26 On 2 July 2013, a new website, www.longlivethehive.com was

launched in which, Kafker was a frequent visitor. Kafker used to participate in

online chats and had used to endorse conversations including calls for violent

disruptions to raise public awareness of the neonics controversy.27

The www.longlivethehive.com can be considered as part of the Recruitment

for Terrorism made by Joseph Kafker in violation of Terrorism Act. Recruitment for

terrorism" means to solicit another person to commit or participate in the

commission of a terrorist offence, or to join an association or group, for the purpose

of contributing to the commission of one or more terrorist offences by the association

or the group.28 Environmental activists including Joseph Kafker promoted violent

24 European Convention on Human Rights, Art. 5 (1950) 25 Protocol to the Convention of Human Rights and Fundamental Freedoms Art. 1 (1950) 26 Council of Europe Convention on Prevention of Terrorism Art. 5 (2005) 27 Compromis 36 (2015) 28 Council of Europe Convention on Prevention of Terrorism Art. 6 (2005)

9

actions such as sabotage and arsons in the website www.longlivethehive based on

the evidence gathered by the Bureau.29

2. Joseph Kafker committed an act in violation of Terrorism Act.

Citing the surveillance report from the Bureau, Kafker was considered a

high-level suspect with ties to The Hive, including the planed contamination of a

large shipment of honey with a toxic variant of neonics.30 As a result, The Republic

of Reisland took the necessary measures to ensure that inciting or aiding or abetting

an Act of Terrorism is made punishable.31 Kafker was then arrested due to the

violation of the Terrorist Act.

The lawful arrest or detention of Kafker was effected for the purpose of

bringing him before the competent legal authority on reasonable suspicion of having

committed an offence or when it is reasonably considered necessary to prevent his

committing an offence or fleeing after having done so.32 He was not tortured.33

3. The detention of Joseph Kafker is lawful.

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.34 The Federal Republic of Riesland had established its Terrorism Act of 2003

and has adequately defined its detention powers; it cannot put its national security

at risk by simply following the demands of the State of Amestonia. The Terrorism

Act clearly defines its intent and purpose and is consistent with its obligations under

international law.

Anyone who is deprived of his liberty by arrest or detention shall be entitled

to take proceedings before a court, in order that that court may decide without delay

29 Compromis 12 (2015) 30 Compromis 12 (2015) 31 Compromis 36 (2015) 32 (Acts adopted pursuant to Title VI of the Treaty on European Union) COUNCIL FRAMEWORK DECISION of 13 June 2002 on combating terrorism. 33 European Convention on Human Rights Art. 5 (1c) UN Charter, Chapter VI, Art. 33 (1950) 34 International Covenant on Civil and Political Rights, Article 9 (1966)

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on the lawfulness of his detention and order his release if the detention is not

lawful.35 No court has any authority over Kafkers release because it is only the

Tribunal that has jurisdiction over Kafker. On the 21-day cycle extension of Kafkers

detention, the jurisdiction belongs to the Tribunal and it is up to this competent

court to determine whether his detention is lawful or not. To reiterate, the Republic

is on the defense for its national security. Clearly, the proceedings on Kafker cannot

be disclosed because the National Law of Riesland dictates so. To do otherwise will

be unconstitutional. Article 6 of the European Convention on Human Rights is clear

that judgment shall be pronounced publicly but the press and public may be

excluded from all or part of the trial in the interests of national security or to the

extent strictly necessary in the opinion of the court in special circumstances, here the

national security of Riesland.

In order to meet the requirement of lawfulness, detention must be in

accordance with a procedure prescribed by law. This means that detention must

conform to the substantive and procedural rules of national law or international law

where appropriate.36

4. The release of Kafker, as demanded by Amestonia, cannot be given away.

A person who is being detained or serving a sentence in the territory of one

State Party whose presence in another State Party is requested for purposes of

testimony, identification or otherwise providing assistance in obtaining evidence for

the investigation or prosecution of offences under this Convention may be

transferred if the following conditions are met: (a) The person freely gives his or her

informed consent; (b) The competent authorities of both states agree, subject to such

conditions as those States may deem appropriate.37

Efforts have been made in the mid 2015 but to no avail, therefore no

agreement was upheld. The State of Amestonia demands for self-serving purposes

only. The havoc started within their territory and Riesland will not tolerate the same

to encroach upon its land. The issue started with the use of neonics which the

35 International Covenant on Civil and Political Rights, Article 4 (1966) 36 European Convention on Human Rights, Article 5 (1950) 37 Convention Against Terrorist Bombings, Article 13 (1) (1997)

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Farmers of Amestonia clearly rely on as it increases their production which helps the

said States economy, them being mainly agrarian.

Riesland cannot be impugned on whatever internal wars Amestonia is having

with regard to its environmentalists. The attacks clearly are against the use of

neonics and its government must act for an alternative. Riesland being the producer

of neonics, cannot be held at fault if it sees itself at risk for terrorist attack since the

attacks on Amestonia revolves around it.

IV. THE CYBER-ATTACKS AGAINST THE COMPUTER SYSTEMS OF THE

AMES POST AND CHESTER & WALSINGHAM CANNOT BE

ATTRIBUTED TO THE FEDERAL REPUBLIC OF RIESLAND.

A. The cyber-attacks cannot be attributed to Riesland, and in any event did

not constitute an internationally wrongful act.

Attributing a cyber-attack to a certain source and discerning the intent of

assailant are of high significance in cyber-attacks. Ascription of an attack to a

particular suspect allows for a State to not attack an innocent country.

It is a quintessential principle of international law that States bear

responsibility for an act when: (i) the act in question is attributable to the State under

international law; and (ii) it constitutes a breach of an international legal obligation

applicable to that State.38

The mere fact that a cyber-operation has been launched or otherwise

originates from governmental cyber infrastructure is not sufficient evidence for

attributing the operation to that State.39 It merely denotes that the fact that a cyber-

operation has been mounted from government cyber infrastructure is an indication

of that States involvement. However, in and of itself, it does not serve as a legal

basis for taking any action against the State involved or otherwise holding it

responsible for the acts in question.

38 Articles on State Responsibility, Article 2 39 Tallinn Manual on the International Law Applicable to Cyber Warfare, Rule 7 (2009)

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The law of State responsibility extend only to an act, or failure to act, that

violates international law. In other words an act committed by a States organ, or

otherwise attributable to it can only amount to an internationally wrongful act if it

is contrary to international law.40

B. There are no sufficient evidence to support Amestonias claim that the

cyber-attacks on The Ames Post and Chester & Walsingham were

orchestrated by Riesland.

1. Cyber-attacks can only be attributed to a foreign sovereign State if there is clear

and convincing evidence.

The Federal State of Riesland cannot be made liable to the cyber-attacks on

the The Ames Post and Chester & Walsingham. Under the UN Charter, particularly

the rules on international evidentiary standard, for a case with regard cyber-attacks

to prosper, clear and convincing evidence must be established. Generally, a cases of

cyber-attacks is one of those where convincing evidence is hard to find. Proving a

cyber-attacker takes time as well as States resources. 41 The evidence presented by

Amestonia in the form of experts analysis that the IP used for the cyber-attacks was

traced back to within Rieslands territory does not carry enough weight to convict

Riesland of committing a cybercrime. The internet bears a wide berth, if not limitless,

scope of avenues to explore. In this advanced time, there are a lot of talented hackers

that could route IP addresses to other places just to avoid detection or getting

caught.

Lets take for instance the most celebrated cases of cyber-attacks in history.

First is the three-week wave of massive cyber-attacks on the small Baltic country of

Estonia; the first known incidence of such an assault on a state. It caused alarm

across the western alliance, with NATO urgently examining the offensive and its

implications. While planning to raise the issue with the Russian authorities, EU and

NATO officials have been careful not to accuse the Russians directly. If it were

established that Russia is behind the attacks, it would be the first known case of one

40 Kosovo Advisory Opinion, par. 56 41 UN Charter International Evidentiary Standard

13

state targeting another by cyber-warfare. Expert opinion is divided on whether the

identity of the cyber-warriors can be ascertained properly. Mikko Hyppoenen, a

Finnish expert, told the Helsingin Sanomat newspaper that it would be difficult to

prove the Russian state's responsibility, and that it could inflict much more serious

cyber-damage if it chose to.42

There is also the case of Stuxnet: a computer worm whicih infected computers

manufactured by Siemens and used in the Iranian nuclear programme. The worm is

believed by experts to have been created by the United States military with

assistance from Israel and scientists at Siemens. The effect of the worm in Iran was to

cause centrifuges to turn far more rapidly than appropriate. It is believed that 40 per

cent of the computers affected were outside Iran. Stuxnet is said to be the first-

known worm designed to target real-world infrastructure such as power stations,

water plants and industrial units. Ralph Langner, a German computer security

expert, was thought to be convinced that Stuxnet is a government produced worm.

However, no one was able to produce hard evidence to support Langners claim.43

2. There are no established cyber-borders between countries which is why the origin

of cyber-attacks cannot be accurately traced.

It is widely recognized that the big struggle against cybercrime is severely

hampered because there exist 'no cyber-borders between countries'.44 In the largely

borderless cyber domain, anyone can rely on relative anonymity and a rather

seamless environment to conduct illicit business. Further, in the rapidly evolving

digital age, law enforcement may not have the technological capabilities to keep up

with the pace of criminals. While some crimes are worked under the jurisdiction of a

proprietary agency, others are not investigated under such clear lines. These

investigative overlaps and a lack of data and information sharing can hinder law

enforcement anti-crime efforts.45

42 Ian Traynor, Russia Accused of Unleashing Cyberwar to Disable Estonia, (2007) 43 Mary Ellen OConnell, International Law: Meeting Summary - Cyber Security and International Law, (2012) 44 Guillame Lovet, Fighting Cybercrime: Technical, Juridical, and Ethical Challenges, (2015) 45 Kristin M. Finklea, The Interplay of Borders, Turf, Cyberspace, and Jurisdiction: Issues Confronting U.S. Law Enforcement, (2013)

14

In the case of Georgia v. Russia (2008), it was the first known use of the

internet during a conventional armed conflict to interfere with civilian use of the

internet; it occurred in the 2008 conflict in the Georgian enclave of South Ossetia.

Georgia triggered the conflict by attacking Russian soldiers who were part of a

peacekeeping contingent in South Ossetia under the terms of a Georgia- Russia

treaty of 1991. Georgia claimed that Russia initiated distributed denial of service

(DDoS) attacks against a number of Georgian websites, including government sites,

media sites, and commercial sites. The interference last approximately a month. The

physical fighting had lasted about a week.46 Despite Georgias claim, there was no

real case that prospered because of the argument that there was no existing cyber-

borders between states even today. No state could claim for a breach of cyber-

territory if there is no documented international law that defines what cyber-borders

are.

C. Cyber-attack or cyber-force is not within the purview of the prohibition

against threat or use of force under international law.

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.47 The

question is whether cyber force can be considered a type of force in the sense of

Article 2(4).

The general criteria for the interpretation of treaties are spelt out in the 1969

Vienna Convention on the Law of Treaties (VCLT) which provides that A treaty

shall be interpreted in good faith in accordance with the ordinary meaning to be

given to the terms of the treaty in their context and in the light of its object and

purpose.48 A teleological interpretation of the provision seems to support a narrow

reading of the provision that limits it to armed force.

46 Mary Ellen OConnell, International Law: Meeting Summary - Cyber Security and International Law, (2012) 47 United Nations Charter, Article 2 par. 4 48 The Vienna Convention on the Law of Treaties, Article 31 para. 1 (1969)

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The UN Charter offers no criteria by which to determine when an act

amounts to a use of force. In the Nicaragua case, the International Court of Justice

(ICJ) stated that scale and effects are to be considered when determining whether

particular actions amount to an armed attack. For cyber-attacks to become subject

of use of force, the intensity and impacts must be such that leads to injury or

casualties or extensive destruction of properties and not merely to partial damages

or cyber larceny.49

International law is generally prohibitive in nature. Acts that are not

forbidden are permitted; absent an express treaty or accepted customary law

prohibition, an act is presumptively legal. For instance, international law does not

prohibit propaganda, psychological operations, espionage, or mere economic

pressure per se. Therefore, acts falling into these and other such categories are

presumptively legal. This being so, they are less likely to be considered as uses of

force.

D. Assuming that it was Riesland that launched the cyber-attacks on The Ames

Post and Chester & Walsingham, the latter are justified pursuant to the

International Telecommunications Law.

Cyber-attacks that involve international wire or radio frequency

communications may be subject to telecommunications law. The Unions goal, as

stated in its founding International Telecommunication Convention and

International Telecommunication Constitution, is the preservation of peace and the

social and economic development of all countries . . . by means of efficient

telecommunications services. 50 Member states may cut off any non-state private

telecommunications that may appear dangerous to the security of the State or contrary to its

laws, to public order or to decency. In the case at hand, The Ames Post and Chester and

Walsingham cannot be considered state-owned companies, therefore, assuming that

Riesland really did launch the cyber-attacks, their acts are justified on the ground

that the illicitly-obtained information circulated by the aforementioned companies is

a clear breach of the International Telecommunications Law when it comes to

49 Nicaragua judgment, par. 195 50 Constitution of the International Telecommunications Union, pmbl., (Dec. 22, 1992)

16

circulating dangerous information that may appear to the security of another State.

In fact, a number of countries have already voiced their concern that the continued

uncertainty as to the legality of Rieslands challenged surveillance programs would

hinder their ability to continue to engage and share intelligence with Riesland

without fear of being complicit in human rights abuses. 51 The latter is a clear

manifestation that the acts of The Ames Post and Chester & Walsingham have

contributed to the dangerous position that the Federal Republic of Riesland is facing

today.

51 Compromis 22 (2015)

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PRAYER FOR RELIEF

The Federal Republic of Riesland respectfully requests this Honorable Court

to adjudge and declare that:

1. The documents published in the website of The Ames Post are illicitly

obtained, and are therefore inadmissible before the court and do not evidence any

breach by Riesland of international obligation owed to Amestonia.

2. The Broadcasting Treaty and the International Law have been violated

by the expropriation of VoRs properties and the arrest of its employees.

3. The Terrorism Act is consistent with its obligation under International

Law with regard Reislands detention of Joseph Kafker.

4. The Federal Republic of Riesland cannot be attributed with the cyber-

attacks against the computer systems of The Ames Post and Chester & Walsingham.

Respectfully submitted,

AGENTS FOR RIESLAND