Team 220 Memorial for Respondent 030811

220R

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International Court of Justice

February 10

2011 The State of Ardenia v. The State of Rigalia Differences concerning the Zetian Provinces

Memorial For Respondent

Team 220 – Memorial for Respondent 2011

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TABLE OF CONTENTS

STATEMENT OF JURISDICTION.............................................................................................. vi

QUESTIONS PRESENTED ......................................................................................................... vii

STATEMENT OF FACTS .......................................................................................................... viii

SUMMARY OF PLEADINGS.................................................................................................... xiii

PLEADINGS AND AUTHORITIES ............................................................................................. 1

I. THE COURT DOES NOT HAVE JURISDICTION AND DRONE STRIKES ARE NEVERTHELESS CONSISTENT WITH INTERNATIONAL LAW. .................................. 1

A. The Court does not have Jurisdiction to decide on the subject matter of drone strikes within Rigalia and Ardenia ..................................................................................................... 1

B. Rigalia’s use of drone strikes does not per se violate international law ....................... 1

C. Rigalia has an Article 51 right of self-Defense justification for its drone strikes within Ardenia .................................................................................................................................... 6

II. BECAUSE THE ATTACK ON BAKCHAR VALLEY HOSPITAL IS NEITHER ATTRIBUTABLE TO RIGALIA NOR UNLAWFUL AGGRESSION, RIGALIA HAS

NEITHER AN OBLIGATION TO INVESTIGATE THE ATTACK NOR TO COMPENSATE ARDENIA. ........................................................................................................ 8

A. Rigalia owes no obligation to Ardenia since there is no jurisdiction as Morgania is an indispensable party to the dispute. .......................................................................................... 8

B. The attack on Bakchar Valley Hospital cannot be attributed to Rigalia, thus Rigalia owes no obligations regarding the attack upon Ardenia. ........................................................ 9

C. Given its right to self-defense and the discriminatory and proportionate method of attack, Rigalia did not exhibit unlawful aggression and the attack methodologically conformed to International Humanitarian Law. .................................................................... 12

III. RIGALIA’S LIMITED BAN OF THE MAVAZI IS CONSISTENT WITH INTERNATIONAL LAW .......................................................................................................... 15

A. Rigalia Has an Affirmative Duty to Ensure the Rights of All Individuals Subject to Its Jurisdiction Are Protected ..................................................................................................... 15

Team 220 - Memorial for Respondent 2011

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B. Rigalia’s Limited Ban was “Prescribed By Law”, Pursued a Legitimate Aim, and was “Necessary In A Democratic Society.” ................................................................................. 16

IV. ARDENIA BREACHED ITS OBLIGATIONS UNDER THE OECD ANTI-BRIBERY CONVENTION (“THE CONVENTION”) AND THE OECD GUIDELINES

FOR MNES (“THE GUIDELINES”) ....................................................................................... 25

A. Ardenia Breached the Convention by Failing to Provide Legal Assistance to Rigalia in Investigating and Prosecuting MDI .................................................................................. 25

B. Ardenia Breached the MNE Guidelines by Failing to Respond to CRBC’s Complaint 31

CONCLUSION AND PRAYER FOR RELIEF ........................................................................... 34


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INDEX OF AUTHORITIES

Cases

A.T. v. Hungary, CEDAW Comm., U.N. Doc. CEDAW/C/32/D/2/2003 (2005). ....................... 22 Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied

Palestinian Territory 2004 ICJ Rep. (9 July) ....................................................................... 2, 25 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons 1996 ICJ Rep. (8

July)............................................................................................................................................. 2 Ahmad and Ab dol-Hamid v. Denmark, U.N. Human Rights Commitee., U.N. Doc.

CCPR/C/92/D/1487/2006 (2008).............................................................................................. 20 Dahlab v. Switzerland, 2001-V Eur. Ct. H.R. 447........................................................................ 20 Dogru v. France, App. No. 27058/05, 49 Eur. H.R. Rep. 8, 56. ................................................... 17 Handyside v. United Kingdom, 24 Eur. Ct. H.R . (ser. A). ........................................................... 20 Kang v. Korea, UNHRC, U.N. Doc CCPR/C/78/D/878/1999 (2003). ......................................... 19 Länsman and ors v. Finland, U.N. Human Rights Committee, U.N. Doc.

CCPR/C/52/D/511/1992 (1994)................................................................................................ 23 Lovelace v. Canada, UNHRC, U.N. Doc. CCPR/C/13/D/24/1977 (1981). ................................. 23 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States),

I.C.J. Rep. 1984, 392................................................................................................................. 10 Monetary Gold Removed from Rome in 1943, (Italy v. Fr., U.K., and U.S.) I.C.J. Rep., 1954, 19 8 Oil Platforms Case (Iran v. United States), I.C.J. Rep. 2003, 161 ................................................ 13 Osbourne v. Jamaica, U.N. Human Rights Comm., ¶ 9.1, U.N. Doc. CCPR/C/68/D/759/1997

(2000). ....................................................................................................................................... 19 Peck v. United Kingdom, App no. 44647/98, 36 Eur. H. R. Rep. 41, ¶ 11 (2003). ....................... 18 Prince v. South Africa, U.N. Human Rights Comm., U.N. Doc. ............................................ 23, 24 Prosecutor v. Dusko Tadić (Judgment in Sentencing Appeals), IT-94-1-A and IT-94-1-

Abis, International Criminal Tribunal for the former Yugoslavia (ICTY), 26 January 2000. 11, 12

Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 20ct. 1995, IT-94-1-AR72 (RP D6413-D6491) ..................................................... 3

Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgment, (10 Dec. 1998). ........................... 22 Prosecutor v. Tihomir Blaškić (Appeal Judgment), IT-95-14-A, International Criminal Tribunal

for the former Yugoslavia (ICTY), 29 July 2004 ............................................................... 11, 12 Refah Partisi v. Turkey, App. Nos. 41340/98, 41342/98, 41343/98, & 41344/98, 37 Eur. H.R.

Rep. 1, 57 (2003). ..................................................................................................................... 17 Sahin v. Turk., App. No. 44774/98, 41 Eur. Ct. H.Rep. 8 (2004). .................. 16, 17, 19, 20, 21, 23 LG&E Energy Corp. v. Argentine Republic, [ICSID Case No. ARB/02/1] (2007). .................... 28 The Application of the Convention on the Prevention and Punishment of the Crime of Genocide

(Bosnia and Herzegovina v. Serbia and Montenegro), I.C.J. Rep. 2007, 91............................ 11 The Caroline ................................................................................................................................. 14


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The Corfu Channel Case (UK v Alb.), 1949 ICJ Rep. 22 ............................................................... 7 The Gabcikovo-Nagymaros Project, 25 Sept. 1997, I.C.J. Reports 1997, 92 A.J.I.L. 273 (1998).

................................................................................................................................................... 28 United States v. Kay, 359 F.3d 738, (5th Cir. 2004) ..................................................................... 30

Statutes, Treaties, and Conventions

15 U.S.C. § 78dd-1(b) ................................................................................................................... 30 Charter of the United Nations, adopted 24 Oct. 1945, 1 UNTS XVI ........................................... 13 Commentaries on the OECD Anti-Bribery Convention, (“Convention Commentaries”), 21 Nov.

1997, http://www.oecd.org/dataoecd/4/18/38028044.pdf. ............................... 25, 27, 29, 30, 31 Convention on the Elimination of All Forms of Discrimination Against Women (CEAFDAW), 3

Sept. 1981, 1249 U.N.T.S. 13. ............................................................................................ 16, 22 International Covenant on Civil and Political Rights (ICCPR), 23 Mar. 1976, 999 U.N.T.S. 171

........................................................................................................................... 18, 19, 21, 23, 24 International Covenant on Economic, Social, and Cultural Rights (ICESCR), 3 Jan. 1976, 993

U.N.T.S. 3 ........................................................................................................................... 16, 21 OECD Anti-Bribery Convention (“Convention”), 23 May 1997,

http://www.oecd.org/dataoecd/4/18/38028044.pdf .......................................... 25, 26, 27, 28, 32 OECD Guidelines for Multinational Enterprises (“Guidelines”), 27 June 2000,

http://www.oecd.org/dataoecd/4/18/38028044.pdf. ............................................... 29, 31, 32, 33 Recommendation for Further Combating Foreign Bribery (“Recommendation”), 18 Feb. 2010,

http://www.oecd.org/dataoecd/4/18/38028044.pdf. ........................................................... 29, 31 Recommendation of the Council on Bribery and Officially Supported Export Credits

[TD/ECG(2006)24], (2006). ..................................................................................................... 30 stated ............................................................................................................................................. 27 U.N. Human Rights Committee, General Comment 22, (Forty-eighth session, 1993),

“Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies,” U.N. Doc. HRI/GEN/1/Rev.1 at 35 (1994). ............................ 16, 17, 18

UNHRC, General Comment 18, Non-discrimination (Thirty-seventh session, 1989), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 26 (1994). ................................................................. 24

Vienna Convention on the Law of Treaties, May 3, 1969, 1155 U.N.T.S. 331. .......................... 32

Articles and Journals

A. Cassese, “The Nicaragua and Tadić tests revisited in light of the ICJ Judgment on Genocide in Bosnia,” 18 EIJL 649 ............................................................................................................ 11

J. Kittrich, “Can Self-defense Serve as an Appropriate Tool Against International Terrorism?” 61 Me. L. Rev. 133 (2009) ............................................................................................................... 7


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Karima Bennoune, “Secularism and Human Rights: A Contextual Analysis of Headscarves, Religious Expression, and Women’s Equality Under International Law,” 45 Colum. J. Transnat'l L. 367 (2007). ........................................................................................................... 21

M. O� Connell, “The International Law of Drones,” American Society of International Law, November 12, 2010: Volume 14, Issue 36, 3 ............................................................................. 3

P. Alston, “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Study on targeted killings,” Human Rights Council, Fourteenth session, A/HRC/14/24/Add.6................................................................................................................................................. 4, 6

Paul L. McKaskle, “The European Court of Human Rights: What It Is, How It Works and Its Future,” 40 Univ. San. Fran. L. Rev. 1, 47 (2005). .................................................................. 19

Phase 2 Country Monitoring of the OECD Anti-Bribery Convention, OECD, http://www.oecd.org/document/27/0,3343,en_2649_34859_2022939_1_1_1_1,00.html (last visited 10 Jan. 2011).. ............................................................................................................... 25

Sope Williams, “Current Developments Part III: The BAE/Saudi Al-Yamamah Contracts: Implications in Law and Public Procurement,” 57 Int’l & Comp. L.Q. 200 (2008). ............... 26

Susan Rose-Ackerman & Benjamin Billa, “Treaties and National Security,” 40 N.Y.U. J. Int'l L. & Pol. 437 (2008). .................................................................................................................... 27

T. Ruys, “Attacks by Private Actors and the Right of Self-Defense,” 10 JCSECL 289 (2005) . 6, 7 William Abresch, A Human Rights Law of Internal Armed Conflict: The European Court of

Human Rights in Chechnya, , Eur J Int Law (September 2005) 16 (4): 741 .......................... 1, 2

Treatises

David Weissbrodt, International Human Rights: Law Policy, And Process (2009). .................... 16 Harris, D.J., International Law, 6th ed. (London, 2004) ............................................................... 14

Regulations

General Assembly Resolution 2625 (XXV), adopted 24 Oct. 1970 ............................................... 7 General Assembly Resolution 3314 (Defining Aggression), 2319th plenary meeting, 14

December 1974, A/RES/3314(XXIX) ..................................................................................... 12 Security Council Resolution 1368, adopted 12 Sep. 2001............................................................ 13


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STATEMENT OF JURISDICTION

Both Ardenia and Rigalia submitted to the Court’s Article 36(2) compulsory jurisdiction.

However, this jurisdiction is inapplicable to Rigalia’s domestic enforcement of an internal

matter. Thus the Court has no jurisdiction to preside over Ardenia’s first question. Furthermore,

regarding both the first and second questions submitted before the Court, as an indispensible

party to his dispute, the state of Morgania has not been joined. Consequently, the Court lacks

jurisdiction over questions regarding either drone attacks in general or the Bakchar Valley attack

specifically. The preliminary decision of the Court on this issue ignored previous decisions of

the Court with regard to assessing whether a party is indispensible to a dispute. Regarding the

question of Rigalia’s Mavazi ban, under article 36(2)(b), (c), and (d), the Court has the authority

to decide whether Rigalian action truly contravenes international law. On the question of

Ardenia’s OECD Anti-Bribery Convention violations, the Court is within its purview to decide

this issue under article 36(2)(a). Both Ardenia and Rigalia are states party to the Anti-Bribery

Convention.


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QUESTIONS PRESENTED

I. Whether Rigalia’s Predator Drone strikes against Zetian terrorists in Rigalia and

Ardenia are consistent with Rigalia’s rights under international law.

II. Whether the attack on the Bakchar Valley hospital was attributable to Rigalia and if

so whether it was an act of aggression or part of a legitimate and proportionate

operation to defend against Zetian terrorists.

III. Whether Rigalia’s limited ban of the Mavazi for Zetian women and girls is consistent

with international law.

IV. Whether Ardenia’s failure to cooperate with Rigalia to investigate and prosecute the

alleged corruption constituted a breach of the Anti-Bribery Convention, and whether

the failure of the Ardenian NCP to respond to the complaint by the CRBC constituted

a breach of the OECD Decision on MNE Guidelines.


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STATEMENT OF FACTS

Background

Rigalia and Ardenia are neighboring states. Rigalia is a developing nation with an ethnic

minority population in the mountainous, underdeveloped Northern Provinces (“NP”) called

Zetians. While Rigalia has a central government, NP is difficult to manage and is mostly

governed by Zetian tribal councils, whose rules are not legally binding but are almost always

followed.

Zetians practice the Masinto religion, which requires females over the age of 14 to wear a

Mavazi head covering that conceals the entire head and face. The Mavazi conceals the identity

of the wearer, and women who refuse to wear it are banished from the Zetian communities and

may also be severely punished. Zetian women are denied the privilege to drive or secure

employment. Further, in violation of Rigalian law, Zetian girls are often wed at the ages of eight

or nine.

Ardenia is located on the northern border of Rigalia. While most of Ardenia is

flourishing, the Zetian tribal areas in SP (“SP”) remain underdeveloped, and the women endure

the same limitations as in NP. Ardenia’s government is decentralized, reserving matters of

national importance for the central government. Zetians are traditionally nomadic, moved

between Ardenia and Rigalia, and accordingly, are full citizens of both states. Most Zetians now

live in settled communities in one state or the other.

The Zetian Democratic Party (“ZDP”), which represents more than 75% of Zetians in

Rigalian seeks to unite the Rigalian and Ardenian Zetian tribal provinces into one state. While

Ardenian Zetians have not joined the succession effort, they are typically sympathetic.


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The Coltan Mining Operation

Rigalia and Ardenia historically experienced positive economic relations. In 1994, Leo

Bikra, President of the Rigalia state-owned Rigalian Refining Inc. (“RRI”) opened bidding to

companies from both states for a mining contract in the lucrative coltan mines of NP. In 1997,

the contract was awarded to Ardenian state-owned Mineral Dynamics Incorporated (“MDI”).

MDI has been known to make contributions to Zetian Refugee Fund (“ZRF”). ZRF is a

charity incorporated in Ardenia, founded by Bikra’s nephew Clyde Zangara and its board is

comprised of known ZDP members.

In 2002, MDI’s Moria Mine contract was extended 10 years. Media allegation attribute the

renewal to MDI’s offer of $10 million in cash payments to the ZRF and shares held in trust for

Zangara. Further, there are allegations that MDI transporters paid undocumented fees to Zetian

tribal councils for site protection and assurances of product delivery to RRI.

From May 3-5, 2008, the Joint Tribal Council held a meeting in NP to prepare a demand for

increased shares of mining revenues. ZDP council members called for Northern Province

independence. On May 5, 2008 the Council issued a Manifesto that called for more autonomy

for Zetian tribal lands with the goal of independence, more revenues from the mines, and respect

for the Zetian way of life.

Rigalian President Khutai asked the Ministry of Justice to investigate the bribery allegations

against MDI. A former MDI employee anonymously substantiated the media allegations,

implicating Bikra, Zangara, and ZRF. While the employee could not confirm specific payments,

he did reveal that it was common for MDI to ensure cooperation from local communities.


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On April 30, 2009, Rigalia sent a request for mutual legal assistance (“MLA”) to Ardenia

requesting financial documents that may reveal transactions between MDI, ZRF, Zangara, and

tribal councils. Ardenia never responded to Rigalia’s request.

On March 23-24, 2010, at the OECD Working Group on Bribery meeting, Rigalia inquired

about the pending MLA request. Ardenia claimed it did not reject Rigalia’s request, but was

trying to find a way to satisfy it, since Ardenia’s legislation did not allow authorities to access

certain bank records. Ardenia also claimed that the communications between ZRF and tribal

councils were not relevant to the investigation.

After Ardenia initiated the investigation, MDI hosted lavish events and pressured the

Ardenian government to drop the investigation. On June 3, 2009, Ardenia dropped the

investigation, stating it was for national security reasons. However, President Arwen hinted to

the media that it was partially due to the cost of the investigation. On July 1, 2009, the CRBC, a

Rigalian NGO, filed a complaint with Ardenia against MDI and RRI for violation of their OECD

obligations. Ardenia’s NCP refused to examine the complaint, believing it should be dealt with

by Rigalia and that the MNE Guidelines did not apply to RRI. CRBC requested a meeting with

all parties involved to explore ways to resolve the issues, including cooperation between the

NCPs of both states. Ardenia’s NCP never responded.

The Zetian Situation

Most of ZRF’s board members are known supporters of ZDP and have supported Zetian

separatism. In response to the Zetian tribal council Manifesto, Khutai stated a goal towards

modernizing NP and eliminating customs that oppressed females. As a result, fighting broke out

in NP and Ardenian supporters marched to show solidarity with Rigalian Zetians. They waved a

proposed Zetian flag, which bore ZDP’s colors. ZDP member tribal council leaders launched


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violent attacks against Rigalia, in which many lives were lost. A suicide bomber, responsible for

the destruction of a school and hospital, was a man wearing a Mavazi to disguise his identity.

Thereafter, Rigalia enacted a Mavazi ban to eliminate further vulnerability.

President Arwen of Ardenia responded to the Zetian Manifesto by dedicating resources to Zetian

schools and agricultural subsidies and supporting women who chose to wear the Mavazi.

Arwen allegedly met secretly with the Zetian separatists and agreed to support a future

Zetian state located on Rigalian territory in exchange for nonviolence and non-secession against

Ardenia. Rigalian Zetians held secret meetings in Ardenia to secure humanitarian funds from the

International Loan Syndicate Associate (ILSA).

Khutai declared war against the Zetian secession movement, and based on Rigalia’s

inability to resolve the Zetian situation and Ardenia’s lack of cooperation, Khutai sought

assistance from President Ratko of Morgania. Ratko agreed to launch a Predators Drone attack

that would reach the mountainous terrain inhabited by the Zetian secessionists. The drones were

deployed on Ratko’s orders to Fort Raucus, a Morganian leased air force base in Rigalia. The

drones were launched under the order of Morganian soldiers and were operated by the

Morganian army in Morganville who received targeting information from informants recruited

and paid by Rigalia.

In a successful effort to eliminate a top ZDP official, Adar Bermal, the drone attack also

killed his family and struck the Bakchar Valley hospital next to Bermal’s home in Ardenia. The

Morganian drone operator was distracted by a call from an informant about another strike, and

the operator launched missiles at the hospital instead of at Bermal’s residence. Rigalia’s defense

minister denied targeting innocent civilians and emphasized that instructions were given to

Morgania to avoid unnecessary and disproportionate military actions. While Ardenia


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disapproved of the drone attacks against Zetians on Ardenian soil, Khutai maintained that the use

of drones was within Rigalia’s rights and the incident at the hospital was an unfortunate

consequence of Rigalia’s right to defend itself against terrorists.

In an effort to resolve their differences, diplomats from Rigalia and Ardenia met to

discuss the Zetian situation and the corruption issues. The states were unable to reach an

agreement, and thus turned to the International Court of Justice.


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SUMMARY OF PLEADINGS

If attributed to Rigalia, the employment of drone attacks are not within the jurisdictional

purview of the Court since Rigalia has exercised its sovereignty in an internal matter. While

both states agreed to the compulsory jurisdiction of the Court under article 36(2), this is only for

matters that do not concern the sovereignty and internal affairs of a state. Rigalia endeavored to

secure itself against a threat posed by ZDP non-state terrorist group. ZDP fits the mold cast by

other terrorist groups in Chechnya, Israel and Sri Lanka for which targeted killing through

military operations is permitted under international humanitarian law. Should the Court decide

otherwise, however, the drone attacks are legal and justified under Rigalia’s article 51 right to

self-defense. In the face of Ardenia’s failure to assist in curbing this threat, as is required in The

Corfu Case, Rigalia has accordingly planned all drone attacks discriminatorily according to

international humanitarian law by selecting a legitimate target group.

Rigalia is moreover not responsible for the specific attack on Bakchar Valley and thus

owes no obligation to investigate the incident or compensate Ardenia. Pursuant to the Draft

Articles on State Responsibility, the Morganian command and military structure are the organs to

which the attack can be attributed. Under this Court’s effective control test, Morganian

personnel was responsible for ordering the attack and for executing and monitoring its

implementation. Rigalia nevertheless had the right of self-defense against the threat posed by

ZDP terrorists. In identifying and attacking Adar Bermal as a specific military target in the

Bakchar Valley, this right was exercised appropriately and pursuant to international legal

principles of necessity. Because Morganian pilot-error was the cause-in-fact of the civilian

deaths and because the restrictions on self-defense sought to protect against attacks are designed

to be wantonly destructive, Rigalia should not be punished for the tragic execution of the attack.


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Concerning the ban on Mavazis, Rigalia is acting under to the domestic sovereignty

referenced in the first question and pursuant to its obligations to protect Rigalian citizens from

terrorist threats. These threats are exacerbated by the use of Mavazis in ZDP attacks. As the

domestic law restricting Mavazi use is sufficiently restricted to ensure the legitimate aim of

public safety, and not restricting private religious expression, this measure does not contravene

Rigalia’s obligations under the International Covenant on Civil and Political Rights (“ICCPR”).

In addition, Rigalia’s ban complies with its obligations under the Convention on the Elimination

of All Forms of Discrimination against Women (“CEDAW”) to combat the oppression of

women in the Zetian community.

Ardenia breached its obligations under the Organisation for Economic Co-operation and

Development (“OECD”) Convention on Combating Bribery of Foreign Public Officials in

International Business Transactions (“Anti-Bribery Convention”) by failing to cooperate with

Rigalia’s request for Mutual Legal Assistance (“MLA”). Bank statements and other records that

could implicate MDI and its leadership were critical to Rigalia’s bribery investigation and should

have been forwarded. Additionally, Ardenia breached its obligations by dropping the

investigation into MDI. Even if a national security exception is implicit, it does not apply here.

Ardenia breached customary international law by unilaterally determining this threat to national

security. More likely, Ardenian claims under national security are a pre-textual attempt to

sidestep the fact that through lobbying pressure, Ardenia unjustifiably allowed itself to be

influenced by national economic interest. Furthermore, MDI’s activities are sufficiently

indicative of bribery given that there are various allegations implicating MDI, RRI and ZDF

leadership. Moreover, the Anti-Bribery Convention’s broad definition of foreign counties and

officials categorizes Zetian tribal leaders as foreign public officials. Despite not being a part of


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Rigalia’s centralized government, the tribal councils were nevertheless instrumental in MDI’s

alleged corruption scheme. Alleged payments made by MDI and its intermediaries are not

excusable as small facilitation payments, as MDI’s unrecorded payments addressed such dubious

expenses as “protection” and “product delivery.” Ardenia’s failure to respond to the Committee

for Responsible Business Conduct’s (“CRBC”) requests further violates Ardenia’s OECD

obligations under the Decision on MNE Guidelines because Ardenia was obligated to promptly

cooperate in combating international bribery, and at a minimum, meet with the Rigalian NCP to

resolve jurisdictional disputes.

Team 220 – Memorial for Respondent 2011

1

PLEADINGS AND AUTHORITIES

I. THE COURT DOES NOT HAVE JURISDICTION AND DRONE STRIKES ARE NEVERTHELESS CONSISTENT WITH INTERNATIONAL LAW.

A. The Court does not have Jurisdiction to decide on the subject matter of drone strikes within Rigalia and Ardenia

According to Article 36(2), the Court's jurisdiction is limited to those matters affecting: a. the

interpretation of a treaty; b. any question of international law; c. the existence of any fact which,

if established, would constitute a breach of an international obligation; d. the nature or extent of

the reparation to be made for the breach of an international obligation.

First, the use of drones within Rigalia is a purely domestic issue, not involving a treaty

violation. Secondly, since Rigalia's use of drones was entirely limited to within its borders, it is

a domestic law enforcement action to restore order within the state, not a question of

international law. Thirdly, Rigalia acted consistently with international obligations and rights to

defend and preserve the existence of the state. All states under the doctrine of sovereignty have a

right to take measures regarding their domestic policies independent of international scrutiny.

B. Rigalia’s use of drone strikes does not per se violate international law

Assuming that the Court has jurisdiction to decide the issue, the law applicable to the attacks

against the Zetian terrorists is international humanitarian law and not human rights law. The

accepted doctrine is that, in situations of armed conflict, humanitarian law serves as a lex

specialis to human rights law.1 If a state were to launch artillery into a gathering of its citizens, it

has been generally accepted that the legality of the attack, would be determined not by

1 William Abresch, “A Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya,” Eur J Int Law (September 2005) 16 (4): 741-767, 742


2

interpreting human rights law but by applying international humanitarian law.2 Unlike human

rights law, it allows for the incidental deprivation of life and liberty as long as this does not result

from an arbitrary and indiscriminate attack. This Court has found that “whether a particular loss

of life, through the use of a certain weapon in warfare, is to be considered an arbitrary

deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the

law applicable in armed conflict and not deduced from the terms of the Covenant itself”.3

ZDP launched several bombing attacks against the citizens of Rigalia, resulting in hundreds of

deaths and injuries.4 Rigalia’s drone use, while resulting in the incidental loss of life, was not

carried out arbitrarily but was the result of targeted actions based on credible information. Thus

they were neither arbitrary nor indiscriminate. Accordingly, there was no violation of

international humanitarian law5.

In order to apply the body of law termed "international humanitarian law" to a particular

situation, it must first be determined that there was, in fact, an "armed conflict", whether of an

internal or international nature.6 Armed conflicts are determined not by declarations but by

organized armed fighting, intense enough to justify killing under a lower standard of necessity

2 Id.

3 Id. See also, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons 1996 ICJ Rep. (8 July), ¶s. 24–25; see also, Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory 2004 ICJ Rep. (9 July), ¶s. 102, 105.

4 Compromis, ¶ 15.

5 See part II C below.

6 ICTY, Delalic Judgment, 16 Nov. 1998, ¶ 182.


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than is permitted to police.7 In defining an armed conflict, the court in Delalic adopted the

decision of the Appeals Chamber in Tadic, “an armed conflict exists whenever there is a resort to

armed force between States or protracted armed violence between governmental authorities and

organized armed groups or between such groups within state”.8 In order to distinguish from cases

of civil unrest or terrorist activities, the emphasis is on the protracted extent of the armed

violence and the extent of organization of the parties involved.9 ZDP is a very organized group

funded by ZRF.10 They can therefore maintain their structure and fund their attacks. ZDP has

additionally represented themselves as a group in their meetings among tribal leaders. The

attacks carried out by the group have been deadly, rising above the level of the requirement of

less forceful police responses. Thus the response can be classified as an armed attack.

1. Rigalia’s use of drone strikes in Rigalia are targeted killings, supported by its Article 51 right to self defense

Rigalia’s use of drones does not violate international human rights law obligation under

any of the treaties to which it is party, specifically the United Nations Charter11, and Additional

7 M. O� Connell, “The International Law of Drones,” American Society of International Law, November 12, 2010: Volume 14, Issue 36, 3.

8 ICTY, Delalic Judgment, 16 Nov. 1998, ¶ 183. See also, The Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 20ct. 1995, IT-94-1-AR72 (RP D6413-D6491).

9 ICTY, Delalic Judgment, 16 Nov. 1998, ¶ 184.

10 Compromis, ¶ 12.

11 Particularly, art. 1(2) and art. 55.


4

Protocol II of the Geneva Convention (APII)12. Article 51 of the UN Charter provides a state

with the right of self-defense when attacked. The article offers no distinction between state and

non-state actors and does not limit its justification of self-defense in response to actions initiated

by a state.13 Indeed, under international humanitarian law (IHL), any combatants directly

participating in an armed conflict may be killed, and states have no obligation to warn targets or

to attempt arrest.14 Killing direct participants in an armed conflict without trial may be permitted

by IHL, provided the concomitant laws and principles governing the conduct of hostilities are

respected.15 The customary law for states such as Russia16, and Israel17 and Sri Lanka18 in

neutralizing suspected terrorists is to resort to targeted killings.

12 Article 1: Material Field of Application – APII covers armed conflicts “which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.”

13 J.J. Paust, “Self-defense Targetings of Non-state Actors and Permissibility of U.S. Use of Drones in Pakistan,” 19 J. Transnat'l L. & Pol'y 237.

14 Targeted Killings, International Humanitarian Law Research Initiative, IHL Primer Series, #3, May 2008.

15 Id.

16 Russia has reportedly deployed “seek and destroy” groups of army commandoes to “hunt down groups of insurgents” and has justified reported targeted killings in Chechnya as necessitated by Russia’s fight against terrorism. See also P. Alston, “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Study on targeted killings,” Human Rights Council, Fourteenth session, A/HRC/14/24/Add.6, ¶ 23.

17 Israeli targeted killings have included members of various groups, including Fatah, Hamas, and Islamic Jihad, who, Israeli authorities claimed, were involved in planning and carrying out attacks against Israeli civilians. See also, Targeted Killings, above, at ¶ 15.


5

The attacks against targeted ZDP members responsible for planning attacks against

Rigalia were carried out by trained military personnel, after gathering credible intelligence.19

Rigalia’s use of drones thus cannot violate international law per se because its use was targeted

discriminatorily. The incidental loss of civilian life during the targeted killing of a ZDP terrorist

leader cannot by itself lead to a finding that drone usage itself violates international law.

2. ZDP is a non-state armed group engaged in a non-international armed conflict with Rigalia

In international armed conflict, combatants may be targeted at any time and any place,

(subject to the other requirements of IHL. Under the IHL applicable to non-international armed

conflict, the rules are less clear. However, the definition of “combatant” is not as clear. States are

permitted to attack only civilians who “directly participate in hostilities” (DPH).20 Therefore a

resolution defining ZDP as a non-state armed group is necessary in justifying Rigalia’s attack

against them. Under treaty21 and customary international law, the elements which would point to

the existence of a non-international armed conflict against a non-state armed group are spelled

out below. First, the non-state armed group must be identifiable as such, based on criteria that

are objective and verifiable. 22 Here ZDP is the armed group responsible for the armed attacks.23

18 See id. at ¶ 7. Killings in 2005 to 2008 by both Sri Lankan government forces and the opposition LTTE group of individuals identified by each side as collaborating with the other.


20 AP I, art. 48; AP I, art. 51(2) (defining lawful targets). See also Targeted Killings, at ¶ 58.

21 See specifically, Geneva Convention, and GC AP II.

22 For a detailed analysis of the relevant Geneva Convention provisions, see Targeted Killings, ¶ 52 (2010). See also GC Art. 3 and AP II.

23 Compromis ¶ 18.


6

Identification of an armed group is necessary for IHL to apply meaningfully, so enabling states

to comply with their obligation to distinguish between legitimate targets and civilians.

Second, there must be a minimal threshold of intensity and duration.24 The bombings

carried out by ZDP – which on one occasion killed more than 130 Rigalian citizens – do rise

above the level of a mere internal unrest.25 Several more attacks have also been carried out,

making the attacks more than merely isolated, but a consistently sustained armed attack against

Rigalia triggering a right to self-defense.

Third, the territorial confines of the conflict must be clearly defined.26 The Rigalian

attacks have been targeted to include only the members of ZDP responsible for planning the

attacks, and have been carried out, with one exception, inside Rigalia’s borders.

C. Rigalia has an Article 51 right of self-Defense justification for its drone strikes within Ardenia

Central to the state’s duty to act to prevent armed attacks launched from within its state

across its borders, is the due diligence rule. In accordance with this rule, whenever a state is

under a duty to protect, this duty has to be carried out with due diligence. If not, the state will

have committed an internationally wrongful act, entailing state responsibility.27 International law

has long recognized that states have a duty to protect other states from attacks conducted by

24 For a detailed analysis of the relevant Geneva Convention provisions, see Targeted Killings, supra, note 21, ¶ 52 (2010). See also GC Art. 3 and AP II.

25 Supra, note 23.

26 For a detailed analysis of the relevant Geneva Convention provisions, see Targeted Killings, at ¶s 52 (2010). See also GC Art. 3 and AP II.

27 T. Ruys, “Attacks by Private Actors and the Right of Self-Defense,” 10 JCSECL 289, 305 (2005)


7

private individuals from their territory by combating the hostile use of force of private

individuals against foreign states.28 This duty flows from the Declaration on Friendly Relations,29

which proclaims that 'no State shall organize, assist, foment, finance, incite or tolerate

subversive, terrorist or armed activities directed towards the violent overthrow of the regime of

another State, or interfere in civil strife in another State'.30 The inability or unwillingness of a

state to meet its international legal obligations cannot be expected to impair the essential interest

of the threatened state and deprive it of the right to respond by forcible measures.31 In its Corfu

Channel opinion of 1949, the Court stated that every state is under an obligation "not to allow

knowingly its territory to be used for acts in a manner contrary to the rights of other states."32

There have been reports of meetings being held within Ardenia by ZDP.33 These

meetings have reportedly included agreements reached with the Ardenian president herself.34

Ardenia has neither pursued nor arrested any of ZDP leaders responsible for the deadly attacks

on the Rigalian population. As a result of Ardenia’s inability and unwillingness to act against

ZDP, Rigalia is well within its article 51 right of self-defense to defend itself from uncurbed acts

of terrorism planned and launched from within Ardenia. Rigalia has exercised discretion and

limited its strikes to ZDP targets, not at the Ardenian people and their government.

28 Id. See also The Corfu Channel Case (UK v Alb.), 1949 ICJ Rep. 22.

29 General Assembly Resolution 2625 (XXV), adopted 24 Oct. 1970.

30 Supra, note 26.

31 J. Kittrich, “Can Self-defense Serve as an Appropriate Tool Against International Terrorism?” 61 Me. L. Rev. 133, 235 (2009).

32 Id. See also Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 22 (Apr. 9).

33 Compromis ¶ 19.

34 Id., at ¶ 20.


8

II. BECAUSE THE ATTACK ON BAKCHAR VALLEY HOSPITAL IS NEITHER ATTRIBUTABLE TO RIGALIA NOR UNLAWFUL AGGRESSION, RIGALIA HAS NEITHER AN OBLIGATION TO INVESTIGATE THE ATTACK NOR TO COMPENSATE ARDENIA.

Notwithstanding arguments made above as to the legality of Rigalian drone strikes, the

Bakchar Valley attack cannot be attributed to Rigalia. First, the Court has no jurisdiction to

decide the issue without Morgania; second, under treaty law and general customs and principles

of international law, the attack on Bakchar Valley Hospital cannot be attributed to Rigalia; and

third, this attack violates neither the prohibition against aggression nor international

humanitarian law. Accordingly, this Court cannot find in favor of Ardenia.

A. Rigalia owes no obligation to Ardenia since there is no jurisdiction as Morgania is an indispensable party to the dispute.

This Court is requested to revisit the issue of Morgania as an indispensable party. In

Monetary Gold Removed from Rome in 1943,35 the Court determined that in order for a state to

be an indispensable party, the interests of that state ought to be affected by the Court’s decision

and this state should also provide the basis for the subject matter of that proceeding36. As with

Albania in that case, this Court should rule Morgania an indispensable party given that Morgania

equally did not concede jurisdiction. Ardenia’s application should thus be dismissed. Also,

resolution for Ardenia affects only Morgania because Rigalia has no active drone program of its

own, nor does it have any drone operator personnel within its military structure. Morgania is

thus both the only state that is granting the Court subject-matter jurisdiction and the only state

35 Italy v. Fr., U.K., and U.S., I.C.J. Rep., 1954, 19 36 I.C.J. Rep. 1954, 19 at 32.


9

that will be affected by any ruling on the legality of drones generally and the legality of the

specific drone strike incident.

B. The attack on Bakchar Valley Hospital cannot be attributed to Rigalia, thus Rigalia owes no obligations regarding the attack upon Ardenia.

Without prejudice to the argument that Rigalia employed drone attacks in concordance

with international law, the principles of state attribution emblazoned in the Draft Articles on

State Responsibility [hereafter Draft Articles]37 as well as custom extant in case law demonstrate

that the attack on Bakchar Valley is not attributable to Rigalia. Accordingly, Rigalia is not

responsible for investigating the attack or compensating Ardenia for the loss of civilian lives.

Predator drones were flown into the mountainous region in Southern Ardenia in an effort

to eliminate a key target in the leadership of ZDP.38 This attack on Bakchar Valley was

conducted by Morganian predator drones that were additionally operated “under the supervision

of Morganian soldiers.”39 Under the Draft Articles, the exclusive control of the operation of the

drone, as well as the fact that telemetry from drone-strikes was analyzed from a screen in

Morgania40, demonstrate that Morgania, and not Rigalia, controlled the predator drone

responsible for the attack on the hospital. As adopted by the International Law Commission, the

Draft Articles are strong indicia of customary law pursuant to article 38(1)(d) of the Court’s

Statute. Article 4 of the Draft Articles provides that where there is “conduct of any state organ”,

37 Draft Articles on Responsibility of States for internationally wrongful acts, adopted by the International Law Commission at its 53rd session (2001).


39 Id., at ¶ 29.

40 Id., at ¶ 27.


10

this “shall be considered an organ of that state under international law.” The Morganian

military’s exclusive control of the predator drone makes the attack carried out by that drone the

responsibility of Morgania. While Rigalian informants were responsible for relaying targeting

information to the Morganian drone-operators41, this minor function changes nothing about the

exclusivity of Morganian control of the drone. Ultimately, therefore, the decision made and

action taken occurred exclusively via the Morganian chain of command.

The case law of this Court furthermore demonstrates that effective control of the

operation remained firmly in Morganian hands. In Military and Paramilitary Activities in and

against Nicaragua (Nicaragua v. United States), I.C.J. Rep. 1984, 392 [hereafter Nicaragua], this

Court established the “effective control” test for attributing culpable conduct to a state. In that

case, the Court decided that human rights violations by the Contras were not tantamount to full

US intrusions into a domestic political struggle42, emphasizing that despite receiving subsidies

from the US government, the conduct of the Contras could not be construed as taken on the

behalf of the US43. Similarly, while there may be a benefit from the attack accruing to Rigalia,

only Morgania committed the conduct. A request from President Khutai did not subsume an

order from President Ratko as Commander-in-Chief of Morganian personnel to carry out the

attacks. Moreover, Ardenia over-inflates the relevance of Khutai’s request since Morgania had

its own motivations to attack vis-à-vis the protection of its own citizens and interests44. That

41 Supra, note 38.

42 Military and Paramilitary Activities in and against Nicaragua (Nica. v. US), I.C.J. Rep. 1984, at 48, ¶ 80.

43 Id., at ¶s 109 and 277.

44 Supra, note 38.


11

Rigalian informants provided targeting information is immaterial. While Rigalian informants

may have acted to relay information from the ground to the drone-operators, Morganian drone

operators “[would] then decide [themselves] whether or not to fire the missiles from the

drones.”45 As in Nicaragua, offering support – whether financial or moral – does not take

responsibility away from the actor’s own instrumentality and interest in the action.

The ICTY has developed an “overall control” test which Ardenia may argue for.

However, as seen in cases such as Prosecutor v. Tadić46and Prosecutor v. Blaškić47, this is

concerned with individual and not state responsibility48. Resultantly, as Cassese notes, this Court

has rejected the overall control test for public international law since “the degree of a state’s

involvement in an armed conflict may well differ from that required for state responsibility to

arise.”49 In the same case, this Court also recognized that employing the overall control test for

state responsibility would be to “overly [broaden] the scope of state responsibility beyond the

three standards set out in the [Draft Articles].”50


46 Prosecutor v. Dusko Tadić (Judgment in Sentencing Appeals), IT-94-1-A and IT-94-1-Abis, International Criminal Tribunal for the former Yugoslavia (ICTY), 26 January 2000.

47 Prosecutor v. Tihomir Blaškić (Appeal Judgment), IT-95-14-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 29 July 2004.

48 See id., at ¶ 69.

49 A. Cassese, “The Nicaragua and Tadić tests revisited in light of the ICJ Judgment on Genocide in Bosnia,” 18 Eur J Int Law 649, 651, quoting The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), I.C.J. Rep. 2007, 91 at ¶ 405.

50 Id., 91at ¶ 406.


12

Should this Court nevertheless adopt the overall control test to this situation, given the

tragic and heinous attack on civilians, the attack would still be inattributable to Rigalia. The

ICTY cases focused on the fact that because the orders for committing the atrocities in Bosnia

came from central leadership of commanding the defendants, there was sufficient attribution of

conduct. Unlike Tadić and Blaškić, however, President Khutai’s request and the role played by

the Rigalian informants do not go above Morgania’s dominion over personnel actually involved

in the attack. President Khutai did not provide Rigalian drone operators to President Ratko, nor

did he have any authority over the Morganian drone pilots. Morgania therefore, and not Rigalia,

is responsible for the attack on the Bakchar Valley hospital. Because the drone attack cannot be

attributed to Rigalia, Rigalia owes no duty to Ardenia to investigate the attack or to compensate

Ardenia.

C. Given its right to self-defense and the discriminatory and proportionate method of attack, Rigalia did not exhibit unlawful aggression and the attack methodologically conformed to International Humanitarian Law.

General Assembly Resolution 331451 defines aggression as an act of unlawful aggression

only where the breach of another state’s territorial sovereignty has occurred “in contravention of

the Charter.”52 (Emphasis added). Thus even if the attack is considered part of an international

conflict, Rigalia was justified in attacking Bakchar Valley.

51 General Assembly Resolution 3314 (Defining Aggression), 2319th plenary meeting, 14 Dec. 1974, A/RES/3314(XXIX).

52 Id., at article 2.


13

Under article 51 of the United Nations Charter, Rigalia acted within its “inherent right of

... self-defense”53 in attacking Bakchar Valley in response to a threat. As discussed earlier,

Rigalia made a reasonable and justified assessment that the Zetian Democratic Party (ZDP) is a

terrorist organization threatening the sovereignty and integrity of that state. Following

September 11, United Nations Security Council Resolution 1368 “recognize[ed] the right of all

states” to self-defense against terrorist threats54. In this vein, Rigalia has defended itself55.

ZDP’s claim at legitimacy is controverted by the customary attitudes towards recognizing new

territorial claims. As the Badinter Commission recognized, “the right to self-determination must

not involve changes to [pre-existing borders under the doctrine of uti possidetis juris] except

where the states concerned agree otherwise.”56 As persuasive authority of custom, some weight

should be given to its findings by this Court. Rigalia has not agreed to the secession of the

Northern Provinces, given the economic importance of tantalum deposits in the Northern

Provinces. That Rigalia has defended extraterritorially is inconsequential. In Oil Platforms57

this Court looked to uphold self-defense carried out by the US on Iranian oil platforms where

there was a showing that force was “necessary to protect ... essential security interests.”58 While

the 1955 US-Iran Treaty of Amity, Economic Relations and Consular Rights is not operative

here, as demonstrated by the Court’s opinion, self-defense was additionally justified customarily.

53 Charter of the United Nations, adopted 24 Oct. 1945, 1 UNTS XVI.

54 Security Council Resolution 1368, adopted 12 Sep. 2001.

55 See also question one for the justified Rigalian response and its similarity to other situations.

56 Arbitration Commission, EC Conference on Yugoslavia (Badinter Commission), Opinion No. 2 (concerning self-determination), compromis at ¶ 1.

57 Oil Platforms Case (Iran v. United States), I.C.J. Rep. 2003, 161.

58 Id., at 179.


14

The attack now only remains to be analyzed for its compliance with international

humanitarian law.59 The test for determining the compliance of an attack with international law

lies in whether that attack is necessary, discriminatory and proportionate in nature. Regarding

necessity, the case of The Caroline demonstrates that under international law, the use of force

“justified by the necessity of self-defence, must be limited by that necessity, and kept clearly

within it”60. In that instance, self-defense was justified, given the “overwhelming” nature of the

threat posed by Canadian rebels61. Here, Rigalia sought the use of a drone missile which would

have eliminated an individual threat that had already proved overwhelming. Bermal was rightly

targeted for elimination, given the threat he posed in planning additional suicide bombings and

other acts of terrorism that would further threaten the lives of Rigalian civilians. The fact that

the attack ultimately killed more than just the leader was a result of the human error of the

Morganian operator. This has no bearing on the legality of Rigalia’s decision to act in self-

defense.

In its discriminatory and proportionate nature, the attack on Bakchar Valley also

conformed to international humanitarian law. Paraphrasing article 51(4) of Additional Protocol I

to the Geneva Convention62, a lawful attack is required to (a) be directed at a specific military

target; (b) be through a method of warfare likely to eliminate the target, and (c) have effects

59 Assuming that the attack is not an internal conflict as argued above. See above for a discussion of drone attacks’ compliance with IHL generally.

60 The Caroline, quoted in Harris, D.J., International Law, 6th ed. (London, 2004), 921.

61 Id.

62 International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3.


15

confined to the target. The commentary explains that the purpose of article 51 is the deterrence

of methods adopted in the Second World War whose purpose was to “destroy all life in a

particular area or to raze a town to the ground without this resulting, in most cases, in

any substantial military advantages.”63 This was not Rigalia’s goal. Here, the attack was directed

at a specific military objective, a prominent commander in the Zetian separatist movement.64

Secondly, the drone missile itself was a method of warfare that could be directed specifically.

Finally, the effects of the drone missile would have been contained within the limited objective.

Moreover, as indicated above, that the Morganian operator was distracted by a frantic call from a

Rigalian informant does not absolve the Morganian pilot from responsibility.

Overall, Ardenia’s claim against Rigalia fails because the court lacks jurisdiction to hear

the issue, the attack cannot be attributed to Rigalia and even if it is attributed to Rigalia, Rigalia

had the right to necessary, discriminatory and proportionate use of force through self-defense.

Consequently, Rigalia owes no obligation either to investigate or to compensate for losses as a

result of that attack.

III. RIGALIA’S LIMITED BAN OF THE MAVAZI IS CONSISTENT WITH INTERNATIONAL LAW

A. Rigalia Has an Affirmative Duty to Ensure the Rights of All Individuals Subject to Its Jurisdiction Are Protected

63 Commentary to Additional Protocol I article 51(4).



16

Rigalia’s international obligations require it to take “legislative and other measures”65 to

protect Zetians within its jurisdiction 66 and change the social and cultural patterns of men and

women that promote inferiority of women.67 These obligations apply to tribal members acting

outside state authority.68

B. Rigalia’s Limited Ban was “Prescribed By Law”, Pursued a Legitimate Aim, and was “Necessary In A Democratic Society.”

The Zetian right to believe the Masinto religion is an unlimited human right,69 but the

freedom to manifest the religion is subject to limitations.70 The European Court upheld

restrictions on the right to wear headscarves where the limitation was “prescribed by law,”

pursued a legitimate aim, and “was necessary in a democratic society.” 71 Since the Mavazi is a

65 International Covenant on Civil and Political Rights (ICCPR) art. 2(2), 23 Mar. 1976, 999 U.N.T.S. 171.; International Covenant on Economic, Social, and Cultural Rights (ICESCR) art. 2(1), 3 Jan. 1976, 993 U.N.T.S. 3.; Convention on the Elimination of All Forms of Discrimination Against Women (CEAFDAW) art. 2(a), (b) and (e),3 Sept. 1981, 1249 U.N.T.S. 13.

66 Id.; Compromis, ¶ 8.

67 CEAFDAW, supra note 65, art. 5(a).

68 David Weissbrodt, International Human Rights: Law Policy, And Process, 195 (2009).

69 U.N. Human Rights Committee, General Comment 22, art. 18 ¶ 3 (Forty-eighth session, 1993), “Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies,” U.N. Doc. HRI/GEN/1/Rev.1 at 35 (1994).

70 Id.

71 Sahin v. Turk., App. No. 44774/98, 41 Eur. Ct. H.Rep. 8 (2004).


17

distinctive head covering, a manifestation of religion,72 and wearing it is seen as a religious

obligation,73 interference with this right must meet the three-part test.

1. The Mavazi Ban is “Prescribed by Law.”

“Prescribed by law” requires that an interference has a legal basis in domestic law and a

requisite measure of quality, that the law is accessible to those concerned, and reasonably

foreseeable as to its effects.” 74 “Law” includes both statutory and judge-made law.75 Rigalia’s

democratic Parliament adopted the ban by an overwhelming 275-25 vote, giving it a basis in

domestic law.76

A law is sufficiently foreseeable if the scope of the discretion and manner of its exercise

was sufficiently clear to protect individuals from arbitrary interference.77 The Mavazi law

confers discretion on state agents to define “public” and “public services;”78 however, no more

than in Dogru, where the European Court upheld the school’s ban on headscarves and legislation

merely provided that schools pluralism and state neutrality.79 Here, where individuals cannot

wear the Mavazi outside private areas or they will be unable to receive public services, the law

72 UNHRC, GC22, supra note 69, art 18 ¶ 4.

73 Compromis, ¶ 3.

74 Sahin, supra note 71, at 74.



77 Refah Partisi v. Turkey, App. Nos. 41340/98, 41342/98, 41343/98, & 41344/98, 37 Eur. H.R. Rep. 1, 57 (2003).


79 See Dogru v. France, App. No. 27058/05, 49 Eur. H.R. Rep. 8, 56.


18

provides precision to the scope and consequences of the law and sufficiently protecting against

arbitrary interference.80

2. Rigalia’s Legitimate Aims Fall within the Exhaustive List of Article 18(3) of the ICCPR.81

The Peck court upheld an interference with the right to private life for public safety,

prevention of crime, and protecting the rights of others.82 Due to the violent ZDP campaign’s

actions; kidnappings, bombings causing death to over 155 and injury to 112 civilians, and the use

of the Mavazi to disguise a bomber to escape detection,83 there is a continuing public safety

concern. Since the Mavazi conceals the identity of the wearer,84 the ban protects public safety by

preventing further crimes of terror likely to harm more civilians. The continuing threats on

civilian lives, evidenced by continued tensions between the states,85 creates a greater immediate

threat to public safety than that upheld as legitimate in Peck since there, the interference occurred

after the public safety threat passed.86

Coercion includes utilizing the threat of physical force or penal sanctions to force

individuals to adhere to religious beliefs87 and is barred by Art 18(2) of the ICCPR because it


81 ICCPR, supra note 65, art. 18(3).; UNHRCC22, GC22, supra note 69, art. 18 ¶ 8.

82 Peck v. United Kingdom, App no. 44647/98, 36 Eur. H. R. Rep. 41, ¶ 11 (2003).


84 Compromis, ¶ 3.

85 See Compromis, ¶s 15, 16, 18, 21, 28, 29, 31.

86 Peck, supra note 82, ¶s 12-15.

87 UNHRC, GC22, supra note 69, art. 18 ¶ 5.


19

impairs ones freedom to have a religion of their choice.88 The Human Rights Committee has

held that a coercive system, applied discriminatory to alter one’s political opinion by offering

inducements, violates Article 18 of the ICCPR because it impermissibly limits ones freedom to

manifest a belief of their choice.89 The coercive tribal system discriminatorily requires women

to wear the Mavazi. It is even more coercive than “inducements” as it coerces by threatening

banishment and public flogging,90 forms of corporal punishment, which has been defined as

cruel, inhuman and degrading and violative of Article 7 of the ICCPR.91 This impermissibly

limits Zetian women’s rights of choice. The Mavazi ban’s legitimate aim is to eliminate the

coercive tribal environment and protect women’s freedom.

3. The “Mavazi Ban” is Necessary in Rigalia’s Democratic Society to Achieve “Legitimate Aims.”

The critical inquiry for this requirement is whether the limitations are relevant to the

legitimate aims and proportionate to the alleged harm.92 The “margin of appreciation” allows

differing views in defining what is acceptable under the Convention based on culture, giving the

Court discretion to find practice in violation in one country and acceptable in another.93 For

example, the European Court allowed England a “margin of appreciation” to find a book obscene

88 ICCPR, supra note 65, art.18(2).

89 Kang v. Korea, UNHRC, ¶ 7.2, U.N. Doc CCPR/C/78/D/878/1999 (2003).

90 Compromis, ¶ 3.

91 ICCPR, supra note 65, art.18(2); Osbourne v. Jamaica, U.N. Human Rights Comm., ¶ 9.1, U.N. Doc. CCPR/C/68/D/759/1997 (2000).


93 Paul L. McKaskle, “The European Court of Human Rights: What It Is, How It Works and Its Future,” 40 Univ. San. Fran. L. Rev. 1, 47 (2005).


20

within its culture, while it was circulated in other European countries.94 Since the Mavazi ban

concerns the relationship between Rigalia and religion, and the State is in the best position to

understand the Zetian culture and religion in relation to others, a wide margin of appreciation is

appropriate.95

a. The Mavazi Ban is Consistent with Headscarf Bans Upheld by the European Court

The European Court has held the prohibition of teachers and students from wearing

headscarves proportionate to protecting the rights of students to religious harmony96 and to

upholding secularism, a requisite for a pluralist democracy and essential to effective application

of the European Convention and gender equality.97 Rigalia’s aims are more compelling than

these, since in addition protecting women from coercion, Rigalia seeks to prevent terrorist

attacks aided by the disguise. Since the Mavazi is a symbol of the Zetian people, whose leaders

initiated violence and succession,98 utilization of the symbol constitutes war propaganda, an

incitement to further violence.99 Although Article 20 has a high threshold100 and one individual

using it to incite may not result in an Article 20 violation, the Mavazi use in this context

advocated violence in ZDP campaigns and gave weight to the ban’s appropriateness.

94 Handyside v. United Kingdom, 24 Eur. Ct. H.R . (ser. A).

95 See Sahin, supra note 71, at 101.

96 Dahlab v. Switzerland, 2001-V Eur. Ct. H.R. 447.



99 See Ahmad and Ab dol-Hamid v. Denmark, U.N. Human Rights Commitee., ¶ 4.7, U.N. Doc. CCPR/C/92/D/1487/2006 (2008).

100 Id.


21

Similarly to Sahin, Rigalia is a pluralist state101 where wearing the Mavazi is seen as a

required religious duty.102 In Sahin, the court found it persuasive that political extremists seek to

impose their religious principles on society. 103 In Rigalia however, the practice is beyond mere

imposition, women are forced to comply under threat of physical punishment.104 Thus, if

imposition and proselytizing effects105 are sufficient to warrant a ban, the situation in Rigalia

convincingly justifies a limit on the right to wear the Mavazi.

b. The Right to Manifest Religion and Culture Cannot Supersede the Rights of Others.

Pursuant to Article 5 of the ICCPR, the right to religion, minority culture rights, or self-

determination of the Zetian people,106 cannot sanction “… any act aimed at the destruction of…”

any right or freedom recognized by the ICCPR, “…or their limitation to a greater extent…” than

provided.107 This Article is intended to protect against the misuse of Covenant freedoms “so as

to assault the rights of others, including women.”108 The Convention on the Elimination of All


102 Id. at 108; Compromis, ¶ 3.

103 Id. at 109.



106 ICCPR, supra note 65, art. 1(1); ICESCR, supra note 65, art. 1(1).

107 Id. at art. 5(1).

108 Karima Bennoune, “Secularism and Human Rights: A Contextual Analysis of Headscarves, Religious Expression, and Women’s Equality Under International Law,” 45 Colum. J. Transnat'l L. 367, 405 (2007).


22

Forms of Discrimination Against Women Committee has held that “(w)omen’s human rights to

life and to physical and mental integrity cannot be superseded by other rights…” 109

Zetian religious practice cannot sanction the destruction of life or the physical and mental

integrity of women and civilians. To protect the practice from reasonable limitations would be

inconsistent with Article 5, since the ZDP misused the right to religious and cultural

manifestation when a terrorist bombed and killed innocent civilians under the guise of a

Mavazi.110 Under the guise of the Zetian cultural and religious rights, women who do not wear

the Mavazi are inhumanely punished without recourse. Since the tribe sanctions these

punishments,111 and tribal rules have complete practical effect in the region,112 these actions are

analogous to judicially sanctioned violence in violation of a jus cogens human right.113 The right

to religious and cultural manifestation cannot supersede the right to life or freedom from

inhuman treatment. 114

Considering the atrocities that have occurred, the lives lost, and the religious coercion,

the aims are proportionate where Rigalia seeks to modify the social and cultural patterns of

Zetian men and women to eliminate this customary practice that suppresses women.115

109 A.T. v. Hungary, CEDAW Comm., ¶ 9.3 U.N. Doc. CEDAW/C/32/D/2/2003 (2005).




113 Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgment, ¶s 154-5 (10 Dec. 1998). (Affirming that freedom from torture is a jus cogens norm.)

114 See A.T. v. Hungary, supra note 109, ¶ 9.3.

115 See CEAFDAW, supra note 65, art. 5(a).


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c. The Ban Is Not a Substantial Interference of the Zetian Cultural Practice.

A substantial impact on the minority group’s way of life will result in a violation of

Article 27 of the ICCPR, the right of minorities to their own culture, religion, and language.116

The HRC has held that where there is interference with a cultural practice, if there is consultation

in the matter, and limited impact that does not amount to denial of the right, the interference will

not be substantial nor in violation of Article 27.117 In Lovelace, women but not men lost their

rights and status as Indians for marrying non-Indians. The HRC held that culture cannot be used

to justify the discrimination of women, thus there was an Article 27 violation. 118

Rigalia passed the Mavazi ban, demonstrating consultation with the Zetians through

democratic process. Since Zetians are not prevented from performing other religious duties or

from wearing the Mavazi in private, the restriction does not amount to a denial of the right.119

Rather, the ban only amounts to a limited impact on the right, a restriction in public places, and

is not a substantial interference of the Zetian cultural practice.120 Pursuant to Lovelace, cultural

traditions of the Mavazi cannot justify discrimination against Zetian women, including their right

to be free from inhuman treatment and to choose their religious manifestations.

d. If There Is Discrimination, it is Reasonable and Objective.

116 ICCPR, supra note 65, art. 27; Länsman and ors v. Finland, U.N. Human Rights Committee ¶s 9.5-9.6, U.N. Doc. CCPR/C/52/D/511/1992 (1994).

117 Länsman, supra note 116, at ¶s 3.1, 9.6-9.7.

118 Lovelace v. Canada, UNHRC, U.N. Doc. CCPR/C/13/D/24/1977 (1981).

119 See Sahin, supra note 71, at 111.

120 See Prince v. South Africa, U.N. Human Rights Comm., ¶ 7.4, U.N. Doc. CCPR/C/91/D/1474/2006 (2007).; See Länsman, supra note 115, ¶s 9.6-9.7.


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A law that discriminates based on religion or other status will result in an Article 26

violation.121 However, differentiation of treatment will not constitute discrimination if the

criteria for such differentiation are reasonable and objective to achieve an aim under the

Covenant.122 In Prince, the HRC upheld the ban of cannabis, an essential part of the Rastafarian

religion because cannabis has harmful effects and the ban affected all individuals equally.123

The Mavazi is significantly more harmful since it is used as a tool of oppression and

terrorism. Although the ban constitutes differentiation of treatment, affecting the Masintos

disproportionately, the government banned solely the Mavazi because it alone was used as a

disguise by Zetian bombers and continues to be used as a vehicle of religious coercion. Thus, the

criteria for the differentiation are reasonable and objective, as the ban of the Mavazi alone is

relevant to quell these threats. Thus, even if the ban is found facially discriminatory, the aims

sought are legitimate within the Covenant as discussed at length supra124 and justify the state

action.125

121 ICCPR, supra note 65, art. 26.

122 UNHRC, General Comment 18 ¶ 13, Non-discrimination (Thirty-seventh session, 1989), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 26 (1994).

123 Prince, supra note 120, at ¶ 7.5.

124 See supra, § ii. Rigalia’s Legitimate Aims Fall Within the Exhaustive List of Article 18(3) of the ICCPR.

125 UNHRC, GC 18, supra note 122, ¶ 13.


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IV. ARDENIA BREACHED ITS OBLIGATIONS UNDER THE OECD ANTI-BRIBERY CONVENTION (“THE CONVENTION”) AND THE OECD GUIDELINES FOR MNES (“THE GUIDELINES”)

A. Ardenia Breached the Convention by Failing to Provide Legal Assistance to Rigalia in Investigating and Prosecuting MDI

1. Ardenia had a Duty to Cooperate with Rigalia’s Request for MLA

In accordance with Article 9(1) of the Convention, parties must respond promptly to

MLA requests and inform the requesting party of any additional information needed to support

the claim.126 Here, Ardenia never replied to Rigalia’s initial MLA request.127 When asked,

Ardenia stated that it was trying to figure out how to obtain MDI bank records in compliance

with national legislation.128 However, Article 9(3) of the Convention states that parties shall not

decline MLA requests on the grounds of bank secrecy.129 Although Ardenia had a domestic law

that prevented access to certain records,130 and the Convention is not meant to override domestic

obligations, domestic laws must be the functional equivalent of the obligations under

Convention.131 Since Ardenia’s domestic law allowing bank secrecy is in direct opposition to

Article 9(3), Ardenia will likely need to change the law to comply with the Convention.132

126 OECD Anti-Bribery Convention (“Convention”), art. 9(1), 23 May 1997, http://www.oecd.org/dataoecd/4/18/38028044.pdf

127 Compromis at ¶ 23.


129 Convention, supra note 126, art. 9(3).


131 Commentaries on the OECD Anti-Bribery Convention, (“Convention Commentaries”) ¶2, 21 Nov. 1997, http://www.oecd.org/dataoecd/4/18/38028044.pdf.

132 See Compromis at ¶ 24; See also Phase 2 Country Monitoring of the OECD Anti-Bribery Convention, OECD,


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Consequently, because Ardenia’s reason for not responding to the MLA request violates Article

9(3), and domestic laws must be functionally equivalent, Ardenia breached its duty.

2. MDI’s Activities Constituted a Bribe under the Convention

Article 1(1) of the Convention makes it unlawful “to offer, promise or give any undue . . .

advantage, whether directly or through intermediaries, to a foreign public official . . . in order to

obtain or retain business or other improper advantage in the conduct of international business.”

Foreign public officials include officers of public enterprises;133 thus, RRI’s president, Bikra is a

foreign public official under the Convention because he served as an officer of a Rigalian state-

owned enterprise and allegedly received bribes from MDI, an Ardenian state-owned enterprise.

Although the funds went to Zangara and not Bikra directly, Article 1(1) of the

Convention makes it unlawful to give bribes to third parties; this includes relatives and

associates, “as long as the intention behind the bribe is the inducement of the foreign public

official.”134 Allegations in the media that implicated Bikra, Zangara, and ZRF were

substantiated by a former MDI employee.135 Further Rigalia had its own suspicions of

corruption, which led to the initial national investigation. These allegations, coupled with the

fact that Zangara was Bikra’s nephew and ZRF had influence in the Zetian tribal communities

http://www.oecd.org/document/27/0,3343,en_2649_34859_2022939_1_1_1_1,00.html (last visited 10 Jan. 2011).

133 Convention, supra note 126, art. 1(4)(a).

134 Sope Williams, “Current Developments Part III: The BAE/Saudi Al-Yamamah Contracts: Implications in Law and Public Procurement,” 57 Int’l & Comp. L.Q. 200, 205 (2008).



27

where RRI operated, provided sufficient reason to investigate whether the $10 Million MDI held

in trust for Zangara were intended to influence Bikra to renew the RRI contract.

3. Ardenia Breached the Convention by Dropping the MDI Investigation

Article 5 of the Convention requires parties to “seriously investigate” bribery of foreign

public officials.136 Ardenia claimed the investigation was dropped based on national security

interests; however, there is no national security exception to the enforcement of the

Convention.137 When a national security exception is intended in an international agreement, it

is expressly stated.138 Thus, since the Convention does not express a national security exception,

it may be assumed that the parties did not intend for an exception.

Even if there was an implied national security exception, Ardenia did not proffer an

adequate security interest to justify dropping the investigation. The mere mention of national

security cannot invoke an implied exception; otherwise, states could do this anytime compliance

is inconvenient.139 Traditionally, exceptions must be in response to an imminent, emergency

situation involving “hostile actions by others.”140 In The Gabcikovo-Nagymaros Project, this

Court rejected a necessity claim where the party failed to demonstrate an imminent threat to an

136 Convention Commentaries, supra note 131, ¶ 27.

137 See Convention, supra note 126, art. 5.

138 See GATT, art. XXI; NAFTA art. 2102(c); ECHR art. 8(2).

139 Susan Rose-Ackerman & Benjamin Billa, “Treaties and National Security,” 40 N.Y.U. J. Int'l L. & Pol. 437, 447 (2008).

140 Id. at 445.


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essential interest.141 Here, Ardenia’s generic statement provided no justification for the belief

that Ardenia’s national security interests were immediately threatened by the investigation.

Therefore, even if an implied national security exception exists, Ardenia did not appropriately

establish its need to apply it. Additionally, even when merited, tribunals have found that once an

emergency is over, a state is no longer exempted.142 Thus, if a legitimate reason to postpone the

investigation existed, it still could not be dropped permanently.

Moreover, Ardenia provided reason to believe that national security was a pretext for

economic consideration, which Article 5 explicitly prohibited from being an influential factor.143

Here, President Arwen indicated that the decision to drop the investigation was based on the

potential cost of the investigation and the significant loss of jobs and revenue faced if MDI

withdrew support from the local economy.144 This illustrates that, even if economic interest was

not the sole reason for ending the investigation, it at least influenced the decision in violation of

the Convention.

4. The Transactions between ZRF and the Tribal Councils were Relevant to the Investigation.

Under the Convention, payments constitute a bribe if they are provided to a foreign

public official with intent to receive an undue advantage in the conduct of international

business.145 Further, an MNE may not channel bribes through a third party intermediary, such as

141 The Gabcikovo-Nagymaros Project, 25 Sept. 1997, I.C.J. Reports 1997, 92 A.J.I.L. 273 (1998).

142 See LG&E Energy Corp. v. Argentine Republic, [ICSID Case No. ARB/02/1] (2007).

143 Convention, supra note 126, art. 5.




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ZRF.146 Here, MDI rendered large monetary contributions to ZRF, an organization that had

influence over the Zetian community, and allegations in the media, by the Rigalian government,

and by a former employee implicated MDI and ZRF in undocumented transactions that were

made to ensure MDI’s operation in the Northern Provinces.147 Thus, since MDI made payments

to ZRF and allegations link ZRF to undocumented tribal council payments on behalf of MDI,

these transactions are relevant to the MDI investigation.

Since the transactions between ZRF and the tribal councils were connected to MDI,

Ardenia must fulfill its duty to “seriously investigate credible allegations of bribery of foreign

public officials referred [] by international governmental organisations.”148 First, the request

came from an international governmental organisation, Rigalia’s Ministry of Justice.149 Second,

while the tribal council members may not be considered officials of foreign countries under

customary international law, the Convention has a much broader definition for the purposes of

bribery.150 A foreign country includes organized foreign areas with separate customs, and under

special circumstances, persons who do not formally hold public office may be considered to have

public authority.151 Here, while the Zetian tribal councils of the Northern Provinces are not

formally part of Rigalia’s government, the Zetian community has a different religion and

146 OECD Guidelines for Multinational Enterprises (“Guidelines”), Part I §VI(1), 27 June 2000, http://www.oecd.org/dataoecd/4/18/38028044.pdf.

147 See Compromis, ¶s 12, 22.

148 Recommendation for Further Combating Foreign Bribery (“Recommendation”), XIII(ii), 18 Feb. 2010, http://www.oecd.org/dataoecd/4/18/38028044.pdf.


150 Convention Commentaries, supra note 131, ¶16), ¶18.

151 Id.


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customary practices than other parts of Rigalia.152 Further the tribal councils’ rules govern the

Northern Provinces and are adhered to by citizens in the region.153 Thus, since the councils hold

public authority over a region with unique customs, for purposes of the Convention, its members

are public foreign officials.

Third, Ardenia may not simply dismiss the allegations by generally stating that they are

not credible. According to the Recommendations, Ardenia must perform a critical analysis of

the evidence to determine its credibility.154 Here, Ardenia provided no indication that it launched

an investigation into the allegations against ZRF; Ardenia simply stated the allegations were

irrelevant.155 As required by Article 9, Ardenia should have requested additional documentation

from Rigalia in support of the MLA. Thus, since the allegations against ZRF are linked to MDI,

and the tribal councils may be considered foreign public officials for purposes of the Convention,

Ardenia cannot merely dismiss the claims as irrelevant.

Finally, Ardenia cannot dismiss the transactions as small facilitation payments (“SFPs”).

Although highly discouraged, the Convention does not forbid some SFPs.156 SFPs are narrowly

defined to include only payments made to facilitate a routine government action such as

obtaining a permit or license.157 Most bribe payments are forbidden by the Convention under a

152 See Compromis ¶3, ¶4, ¶6.

153 Id.

154 Recommendation of the Council on Bribery and Officially Supported Export Credits [TD/ECG(2006)24], art. 1(h) n.5 (2006).


156 Convention Commentaries, supra note 131, art. 1(9).

157 Id.; see also15 U.S.C. § 78dd-1(b); United States v. Kay, 359 F.3d 738, 750-51 (5th Cir. 2004) (finding the FCPA SFP exception to be very limited).


31

broader definition of “an offence irrespective of, inter alia, the value of the advantage, its results,

perceptions of local custom, the tolerance of such payments by local authorities, or the alleged

necessity of the payment in order to obtain or retain business or other improper advantage.”158

Here, Ardenia’s legislation allows for SFPs.159 However, the allegations included “protection”

and “product delivery” payments, not merely payments for routine government actions like

expediting the issuance of a permit.160 Thus, because the allegations included payments that may

be forbidden by the Convention, Ardenia was required to investigate these transactions to

determine if they met the very narrow definition of SFPs. Further, even if the payments did meet

the SFP definition, MNEs must accurately account for all payments in their financial records.161

Here, the payments were allegedly undocumented.162 Therefore, even if MDI’s payments were

permissible as facilitation payments, they were unaccounted for, and thus, still fall within the

scope of the MDI investigation.

B. Ardenia Breached the MNE Guidelines by Failing to Respond to CRBC’s Complaint

Ardenia breeched the Guidelines by failing to cooperate with the CRBC. While the

Guidelines provide that issues should first be discussed at the national level before contact is

initiated with foreign National Contact Points (“NCPs”),163 the NCPs in different states have a

158 Convention Commentaries, supra note 131, art. 1(7).



161 Recommendation, supra note 148, § VI(ii).


163 Guidelines, supra note 146, “Part III Commentaries: Commentary on the Implementation Procedures of the OECD Guidelines for Multinational Enterprises,” ¶ 13.


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duty to cooperate with one another on matters covered by the Guidelines.164 Further, the

ultimate purpose of the investigation is to combat bribery,165 and the Vienna Convention on the

Law of Treaties requires treaties to be interpreted in good faith and consistently with the goals

and purpose of the treaty.166 Here, even though Rigalia’s NCP was not contacted, Rigalia’s

Ministry of Defense did initiate a national investigation, which determined the need for MLA

from Ardenia.167 Since Ardenia dropped the MDI investigation and both MDI’s and ZRF’s

transactions and communications that are recorded in Ardenia are a critical part of the

investigation, CRBC deemed it most appropriate for Ardenia’s NCP to conduct the investigation.

Thus, even though the misconduct occurred in Rigalia, Ardenia is in the best position to continue

the investigation, and consistent with the purpose of international cooperation in combating

bribery, Ardenia's NCP had a duty to investigate the claim.

Moreover, even if Ardenia’s NCP had no duty to initiate the investigation, the NCP could

not simply ignore CRBC’s follow-up request for cooperation with Rigalia’s NCP. Article 4(3)

states that “when more than one Party has jurisdiction over an alleged offence . . . the Parties

involved shall, at the request of one of them, consult with a view to determining the most

appropriate jurisdiction for prosecution.”168 Ardenia never responded to CRBC’s request to

164 Guidelines, supra note 146, “Part II: Implementation Procedures of the OECD Guidelines for Multinational Enterprises,” I(2).

165 See Convention, supra note 126, Preamble.

166 See Vienna Convention on the Law of Treaties, art. 26, 31(1), May 3, 1969, 1155 U.N.T.S. 331.

167 Compromis, ¶s 22-23.



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cooperate with the Rigalia’s NCP and discuss ways to resolve the matter.169 Thus, Ardenia

breached its obligation to cooperate with Rigalia.

Further, Ardenia must include RRI in the investigation, because RRI is an MNE. While

the Guidelines suggest that MNEs “usually comprise companies or other entities established in

more than one country,” there is no precise definition and “closer relations with suppliers and

contractors tend to blur the boundaries of the enterprise.”170 Even though RRI is a Rigalia state-

owned enterprise and conducts business in Rigalia, it participated in international business

transactions when it opened its bidding process to enterprises in both Ardenia and Rigalia.

Moreover, because RRI oversaw the extraction site where MDI operated,171 the two companies

are “so linked that they may co-ordinate their operations in various ways.”172 Therefore, because

RRI regularly conducted business with international business partners, it is considered an MNE

under the Convention.


170 Guidelines, supra note 146, Part I: Preface, ¶ 2.

171 Compromis ¶ 10. 172 Guidelines, supra note 146, Part I §I ¶ 3.


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CONCLUSION AND PRAYER FOR RELIEF

The Respondent requests that the ICJ adjudge and declare that:

(a) Rigalia’s Predator Drone strikes against Zetian terrorists in Rigalia and Ardenia are

consistent with Rigalia’s rights under international law;

(b) The attack on the Bakchar Valley hospital was not attributable to Rigalia and Rigalia

has no obligation to investigate the attack or to compensate Ardenia, notwithstanding

that the act was not an act of aggression but part of a legitimate and proportionate

operation to defend against Zetian terrorists;

(c) Rigalia’s limited ban of the Mavazi for Zetian women and girls is consistent with

international law; and

(d) Ardenia’s failure to investigate and prosecute the alleged corruption and to provide

legal assistance to Rigalia constitute breaches of the Anti-Bribery Convention, and

the failure of the Ardenian NCP to respond to the complaint by the CRBC constitutes

a breach of the OECD Decision on MNE Guidelines.

Team 220 Memorial for Respondent 030811

Documents

Transcript of Team 220 Memorial for Respondent 030811