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

QUESTION PRESENTED

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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.

STATEMENT OF THE FACTS

INTRODUCTION

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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 a division 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 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.

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

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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 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 &

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.

PLEADINGS

I. ADMISSIBILITY OF SURVEILLANCE INFORMATION AS

EVIDENCE

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Riesland’s surveillance acts does 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 Riesland’s 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 it’s a highly-confidential information.

II. THE LEGALITY OF AMESTONIA’S 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

phrase’s 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 Riesland’s properties and the arrest of VoR’s employee’s

violating rights inherent to Riesland and its agents.

III. THE VALIDITY OF JOSEPH KAFKER’S 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 Riesland’s territory. Thus, necessary measures to ensure that an Act of

Terrorism will be prevented were applied by The Republic of Riesland.

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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 right as a person

was either violated or neglected.

IV. THE ATTRIBUTABILY 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 Riesland’s 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 Walshigsham is committing serious threat

to peace, public order and human right by publicly divulging highly

confidential information.

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