TEAM CODE: TEAM OF IMPACT (33)

B EFORE THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PLACE

THE HAGUE , THE NETHERLANDS

APPLICANT: UNITED REPUBLIC OF ARITON

RESPONDENT: DEMOCRATIC STATE OF RAZON

WRITTEN SUBMISSION FOR THE APPLICANT

INTER BATCH MOOT COURT COMPETITION

2020
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TABLE OF CONTENTS

INDEX OF AUTHORITIES 03

MEASURES AT ISSUES 06

STATEMENT OF FACTS 07

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INDEX OF AUTHORITIES

Cases

1. Colombia v. Peru
2. Erika Feller, Volker Türk and Frances Nicholson
3. Bosnia and Herzegovina v. Yugoslavia
4. Islamic Republic of Iran v. United States of America (1996n12 December General
List No. 90)
5. Netherlands v. Belgium(Series A/B No 70 - Series C No 8I)
6. Nicaragua v. United States (27 JUNE 1986 JUDGMENT)

Conventions, Acts, Legal Decisions

1. The Universal Declaration of Human Rights(UDHR)

2. The International Covenant on Economic, Social and Cultural rights (ICESCR)
3. International Health Regulations 2005(IHR)
4. Charter of The United Nations
5. The Convention Relating to The Status of Refugees
6. Permanent Court of International Justice(PCIJ)
7. Protocol relating to an amendment to the I Convention on International Civil Aviation
8. The Chicago Convention

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Books, Journal, Articles and Others

1. What is the Universal Declaration of Human Rights?

2. Definition of non-political crime
3. Värk, René. "Diplomatic Asylum: Theory, Practice and the Case of Julian Assange."

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MEASURES AT ISSUES

a. Razon violated international law by applying its entry regulation to Ariton, and is thus
obligated to compensate it for the resulting economic losses;

b. Razon violated international law by failing to hand over Ms. Sakura to the Aritonian
authorities after they requested her surrender on 9 June 2018;

c. The Court may not exercise jurisdiction over Razon’s counter-claim concerning the
Amaterasu Airways aircraft; and

d. Even if the Court were to exercise jurisdiction over the counter-claim, Ariton did not
violate international law by shooting down the aircraft.

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STATEMENT OF FACTS

There are two countries called Ariton and Razon. They are both developed, democratic
nations. But their economic source is different. They do not allow their citizens to have dual
citizenship. Ariton is famous for tourism. An average of nine million tourists come here and
the sector earns 7.5 billion euros every year. 65% of these tourists are related to the Razon. In
March 2018, the first C-VID-18 virus was created in Sato. And six people are died. A total of
22 organizations including NBL and CBI started research work to develop the virus vaccine.
All NBL employees have to make an unpublished agreement. The virus is transmitted from
the human to the human body. On April 20, 2018, WHO declared the virus a public health
emergency of international concern. Razon has six rules for non-Razonian citizens to enter to
protect their country's citizens from the virus. And the president of the Razon, Orochimaru,
addressed the nation's cause and explained the six rules. To prevent the spread of the virus,
Razon’s Health Minister, Sasuke Uchiha has been informed of the WHO and encouraged
other countries to do so. On the other hand, Aritton did not give entry regulation to prevent
the virus. As of May 15, 2018, 15,274 people were infected and 212 people died in 65
countries in C-VID-18. 3 June 2018, Ms. Sakura published in a tweet that eight NBL officials
had C-VID-18 symptoms and NBL officials keep it a secret. The Ariton police went to Ms.
Sakura’s house to catch her, but Ms. Sakura's life was threatened and she ran through the
back door and he took refuge in the consulate of Razon. Video conferencing between
President Orochimaru of Razon and Prime Minister Tsunade of Ariton on 4 June 2018. And
Prime Minister Tsunade acknowledges that two NBL officials are C-VID-18 positive. Then
Razon declared Ariton is a high-risk country. Ariton filed three charges against Ms. Sakura's
for tweet. Ariton claims Razon violated international law by using entry regulation. Ariton
demands to remove their country names from the list of high-risk countries. Interpol warns
Rezon and Aritton about Akatsuki. On June 26, the Air Force of Ariton crashed an
Amaterasu Airways aircraft. Tsunade said, our air force failed to contact the pilot of the
plane. So, our air force crashed that plane. Ariton filed a case against Razon. Rezon wants to
defend against Ariton. And Ariton demanded a counter.

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SUMMARY OF ARGUMENTS

1. Though WHO did not recommend any restriction upon travel and trade , Razon
implemented such drastic measure, when they were requested by the WHO to
reconsider the application of its 22 April regulation, Razon declined to revoke
their entry regulation. This international legal instrument, IHR (International
Health Regulations) aims to strike a balance among states parties: in order to
avoid affected states from underreacting and unaffected states are required to
avoid overreacting and significantly interfering with international traffic and trade.
So, it is undebatable that their implementation of travel restriction is not in
compliance with “scientific principles”, “scientific evidence” of Article 43 of
IHR, and as for “advice from WHO” mentioned in the same article, from
paragraph 8 and 14 of the agreed compromise we come across the information
that, WHO expressly recommended not to implement any sort of restriction on
travel and trade and when Razon did implemented such restriction, WHO
furthermore requested Razon to reconsider their implementation of restriction on
travel and trade. Hence it is liquido patetrare that Razon is in direct violation of
Article 3 (2) of IHR.Secondly, under Article 43(1) any additional health measures
implemented by countries shall not be more restrictive of international traffic and
not more invasive or intrusive to persons than reasonably available alternatives.
But even though they had alternative measures at their hand they took the
unproportionate decision to implement travel restriction.Article 3(1) of the IHR
(International Health Regulations) firmly requires all additional health measures
to be implemented with full respect for the dignity, human rights and fundamental
freedoms of persons, which in turn must reflect the international law principles of
necessity, legitimacy, and proportionality that govern limitations to and
derogations from rights and freedoms. The regulation implemented by Razon
which is given in paragraph 10 of the agreed compromise, in its section 1 has
expressly mentioned that no foreigners that is non Razonian is allowed to enter
their territory if they are from a high risk country, here it is to be noted that they
did not follow any certain mechanism to determine whether a country is a high
risk territory, and the individuals from that country were under prohibition to enter

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Razon without an prior determination that whether they are carrying the virus or
not shows their xenophobic behavior while implementing a public health and
foreign policy. The no-harm principle requires States to prevent, stop and redress
significant transboundary harm to other States or their populations originating
from or crossing their territory or any other area under their jurisdiction or control
according to Article 2 of Draft Articles on Prevention.
2. When Ms. Sakura seek asylum from Razon, Razon grant asylum to Ms. Sakura.
The decision of granting diplomatic asylum involves derogation from the
sovereignty of the receiving state as it intervenes in internal affairs of the
receiving state whereas diplomats are not obliged to grant asylum or to assist in
the course of justice in their host state . Article 4 of the Vienna Convention on
Diplomatic Relations declares, that the States Parties to the present Covenant
recognize that, in the enjoyment of those rights provided by the State in
conformity with the present Covenant, the State may subject such rights only to
such limitations as are determined by law only in so far as this may be compatible
with the nature of these rights and solely for the purpose of promoting the general
welfare in a democratic society. If any one State violates another State’s
sovereignty or fails to comply with its regulations within its territory, that State
shall be liable for violation of International Law.
3. The court has no jurisdiction over Razon’s counter-claim concerning the
Amaterasu Airways aircraft because firstly, the Amaterasu Airways aircraft issue
is fully a domestic matter and secondly, Razon’s counter-claim is free from forum
prorogatum principle.Early in the morning of 26 June, an Amaterasu Airways
aircraft crashed into a forest in Ariton, between Mohawk Province and Konoha.
The principle of non-intervention in the internal affairs of States also signifies that
a State should not otherwise intervene in a dictatorial way in the internal affairs of
other States. The ICJ Rules of Court provides for the doctrine of forum
prorogatum and states that when an application is made by a state against another
state whose consent is yet to be given, no action shall be taken unless the state
against which the application is made consents to the jurisdiction of the court for
the purposes of the case. It is submitted that the consent of the state to the Court’s
jurisdiction may be established by means of acts subsequent to the initiation of the
proceedings to avoid the impression that the Court is extending its jurisdiction by
means of fiction and that there must be a showing that such consent is voluntary
and indisputable.
4. For the purposes of the present Convention, a peremptory norm of general
international law is a norm accepted and recognized by the international
community of States as a whole as a norm from which no derogation is permitted

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and which can be modified only by a subsequent norm of general international

law having the same character. Article 3bs of Convention on International Civil
Aviation states that, the contracting States recognize that every State must refrain
from resorting to the use of weapons against civil aircraft in flight and that, in case
of interception, the lives of persons on board and the safety of aircraft must not be
endangered. Article 1 of the Convention on International Civil Aviation states
that, the contracting States recognize that every State has complete and exclusive
sovereignty over the airspace above its territory. Irrespective of whether non-
international armed conflict qualifies as a "war" within the meaning of article 89
of the Chicago Convention, it could still be argued that the respective provisions
of international humanitarian law regarding non-international armed conflict, as a
lex specialis in times of armed conflict, derogate from the provisions of the
Convention. And an event of endangering the lives of thousands of people, would
in substance qualify as an emergency situation within the meaning of article 4 of
the ICCPR, article 15 of the ECHR, and article 89 of the Chicago Convention, this
would only be of relevance if one accepts a de facto state of emergency not
requiring a formal declaration as foreseen in these articles.According to the
second sentence of article 3bis(a), the shooting down of a civil airliner is
seemingly only permissible in cases of self-defense within the meaning of Article
51 of the UN Charter.

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LEGAL PLEADINGS

Issue 1

Razon violated international law by applying its entry regulation to Ariton, and is thus
obligated to compensate it for the resulting economic losses.

On 22 April, 2018 Razon published a regulation governing entry into the country, specifically
to address the J-VID-18 public health emergency. 1 Even though WHO did not recommend
any restriction upon travel and trade2, Razon implemented such drastic measure, when they
were requested by the WHO to reconsider the application of its 22 April regulation, Razon
declined to revoke their entry regulation. 3

A. The travel restriction imposed by Razon is under violation of IHR (International

Health Regulations).

Under Article 21 of the WHO’s Constitution, the World Health Assembly can adopt
regulations on specific issues that are legally binding on its member states by a majority
vote.4 In accordance with the constitution of WHO, the IHR is a binding set of international
rules that aim to prevent, protect against, control and provide a public health response to the
international spread of disease.5 This international legal instrument, IHR (International Health
Regulations) aims to strike a balance among states parties: in order to avoid affected states
from underreacting and unaffected states are required to avoid overreacting and significantly
interfering with international traffic and trade. The WHO director-general can declare a
PHEIC and then issue temporary recommendations for an internationally coordinated
response to prevent and reduce the disease’s spread.6 As affirmed in the IHR, these temporary
recommendations aim to prevent and control the disease’s international spread while
avoiding unnecessary interference with international traffic and trade.7

I. The travel restriction imposed by Razon is in violation of article 43 of

IHR (International Health Regulations).

1
Paragraph 10 of the agreed fact sheet
2
Paragraph 8 of the agreed fact sheet
3
Paragraph 14 of the agreed fact sheet
4
Article 21 of the Constitution of the World Health Organization
5
Article 2 of the IHR (International Health Regulations) 2005
6
WHO, IHR Procedures and Implementation (2005)
7
Article 2 of the IHR (International Health Regulations) 2005

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Firstly, under Article 43(2), countries cannot implement additional health measures
exclusively as a precaution but must rather ground their decision making in “scientific
principles”, “scientific evidence”, and “advice from WHO”. 8 Here, Razon failed to fulfil the
requirements of Article 43 (2) as the best available scientific evidence manifestly
demonstrates that the harms of travel restrictions outweigh their benefits. A study of the
temporary flight bans in the United States following the terrorist attacks of 11 September
2001 provided researchers with a natural experiment for examining the influence of air travel
on the spread of influenza. 9 Researchers discovered that the reduced population movement
did not stop that season’s flu outbreak but, instead, delayed it in the United States by
approximately one month — a delay that was not observed in France where no flight bans
10
were instituted. Also, Public health experts have spoken out about the typical
ineffectiveness of international travel restrictions to control disease transmission and about
how they can be detrimental to disease prevention efforts. 11 For example, challenges in
tracking disease transmission are further exacerbated when individuals resort to illegal and
unmonitored travel methods that prevent data collection on transnational movements. 12 Dr.
Thomas Frieden, director of the US Centers for Disease Control and Prevention during the
2014–16 Ebola outbreak, further argued that isolating states would actually increase the risk
of disease transmissions because states might hide cases to avoid the economic consequences
of travel restrictions.13 So, it is undebatable that their implementation of travel restriction is
not in compliance with “scientific principles”, “scientific evidence” of Article 43 of IHR, and
as for “advice from WHO” mentioned in the same article, from paragraph 8 and 14 of the
agreed compromise we come across the information that, WHO expressly recommended not
to implement any sort of restriction on travel and trade and when Razon did implemented
such restriction, WHO furthermore requested Razon to reconsider their implementation of
restriction on travel and trade. Hence it is liquido patetrare that Razon is in direct violation of
Article 3 (2) of IHR.

8
Article 43(2) of the IHR (International Health Regulations) 2005
9
John S Brownstein, Cecily J Wolfe & Kenneth D Mandl, “Empirical Evidence for the Effect of Airline Travel on
Inter-Regional Influenza Spread in the United States” (2006) 3:10 PLoS Med 1826
10
Ibid at 1832.
11
Isabelle Nuttall, Ebola Travel: Vigilance, Not Bans, Commentary (5 November 2014), online: WHO
<http://www.who.int/mediacentre/commentaries/ebola-travel/en/>.
12
Julia Belluz & Steven Hoffman, “The Evidence on Travel Bans for Diseases like Ebola Is Clear: They Don’t
Work,” Vox (18 October 2014), online: <http://www.vox.com>
13
Thomas Frieden, “CDC Director: Why I Don’t Support a Travel Ban to Combat Ebola Outbreak,” Commentary
(13 October 2014), online: Centers for Disease Control and Prevention <http://www.blogs.cdc.gov>.

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Secondly, under Article 43(1) any additional health measures implemented by countries shall
not be more restrictive of international traffic and not more invasive or intrusive to persons
than reasonably available alternatives. 14 Here, Razon had so many other more effective
measures that they could have taken to protect their citizens. e.g., risk communication,
surveillance, patient management, and screening at ports of entry and exit. But even though
they had alternative measures at their hand they took the unproportionate decision to
implement travel restriction.

II. The travel restriction imposed by Razon is in violation of article 3(1) of

IHR (International Health Regulations).

Article 3(1) of the IHR (International Health Regulations) firmly requires all additional health
measures to be implemented with full respect for the dignity, human rights and fundamental
freedoms of persons, 15 which in turn must reflect the international law principles of necessity,
legitimacy, and proportionality that govern limitations to and derogations from rights and
16
freedoms. Here, Razon has violated the principle of necessity, legitimacy and
proportionality as we have proven that the implementation of travel and trade restriction was
an unnecessary step taken in the name of self-protection. Under no circumstances should
public health or foreign policy decisions be based on the racism and xenophobia. 17 The entry
regulation implemented by Razon was extremely xenophobic. The term xenophobia means an
unreasonable fear of foreigners. It is to be distinguished from an ordinary distrust of
strangers. Xenophobia is an attitude against persons who are defined as different to oneself
(‘others’), using real or mythical criteria. Therefore, xenophobia is not a medical
phenomenon, but describes a mental reservation or political conviction against certain
human. 18 The regulation implemented by Razon which is given in paragraph 10 of the agreed
compromise, in its section 1 has expressly mentioned that no foreigners that is non Razonian
is allowed to enter their territory if they are from a high risk country, here it is to be noted
that they did not follow any certain mechanism to determine whether a country is a high risk
territory, and the individuals from that country were under prohibition to enter Razon without

14
Article 43(1) of the IHR (International Health Regulations) 2005
15
Article 3(1) of the IHR (International Health Regulations) 2005
16
Takahashi Y. Proportionality. In: Shelton D, ed. Oxford Handbook of International Human Rights Law. Oxford:
Oxford University Press, 2013: 449.
17
Yeung J. As the coronavirus spreads, fear is fueling racism and xenophobia. CNN, Jan 31, 2020.
https://edition.cnn.com/2020/01/31/asia/wuhancoronavirus-racism-fear-intl-hnk/index.html (accessed Feb
11, 2020)
18
https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e892

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an prior determination that whether they are carrying the virus or not shows their xenophobic
behavior while implementing a public health and foreign policy.

B. The travel restriction imposed by Razon is in violation of the no-harm principle.

The no-harm principle requires States to prevent, stop and redress significant transboundary
harm to other States or their populations originating from or crossing their territory or any
other area under their jurisdiction or control19 according to Article 2 of Draft Articles on
Prevention. As other due diligence duties, the no-harm principle does not require States to
actually prevent or stop the harm from happening. Instead, it requires them to attempt to do
so, or to minimize the risk thereof, to the best of their abilities. 20 The obligation arises from
the moment States know or should have known about the harm or the risk thereof. 21 The no-
harm principle requires States to act regardless of who is responsible for the harm: a State or
a non-State entity. It covers both unlawful and lawful activities causing harm, such as an
accident or a natural disaster. The no-harm principle has been articulated in seminal cases
such as Alabama, Trail Smelter, Nuclear Weapons and Pulp Mills, as well as in the work of
the ILC on the 2001 Draft Articles on the Prevention of Transboundary Harm.

Razon has violated this principle by implementing travel restriction which caused Ariton not
only financial harm, but also violated various human rights of citizens of Ariton and other
individuals.

C. The travel restriction imposed by Razon is in violation of The Right to Life.

I. The travel restriction imposed by Razon is in violation of Article 6 (1) of

the International Covenant on Civil and Political Rights.

Under Article 6 (1) of the International Covenant on Civil and Political Rights, every human
being has the inherent right to life. This right shall be protected by law. No one shall be
arbitrarily deprived of his life. 22 Whilst violations of this right are most commonly associated
with the arbitrary use of lethal force by the military or law enforcement authorities, as per the

19
Article 2 of Draft articles on Prevention of Transboundary Harm from Hazardous Activities 2001
20
Article 3 of Draft articles on Prevention of Transboundary Harm from Hazardous Activities 2001
21
Article 3 of Draft articles on Prevention of Transboundary Harm from Hazardous Activities 2001
22
Article 6 (1) of the International Covenant on Civil and Political Rights

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decision of Hristozov et al. v Bulgaria these instances do not exhaust the range of possible
violations of the right. States’ acts and omissions with respect to health care policy may well
constitute violations of the right to life. 23 States parties must respect the right to life and have
the duty to refrain from engaging in conduct resulting in arbitrary deprivation of life. 24

As per the agreed compromise, the entry regulation directly prohibiting foreign individuals
from infected countries even from landing at their airport 25, and the fact that a portion of
tourists having a connection to Razon leaving early with the fear that they will be left
stranded when Razon enlists Ariton in high-risk country26, goes on to prove that Razon did
not put in any consideration to the fact that the life of individuals in an infected zone will be
at risk. And by preventing flights from infected zones to land at their airport27, delayed the
evacuation flights thus putting individuals at risk. And according to L.C.B. v UK, Brincat et
al. v Malta and Ximenes-Lopes v Brazil, States have a positive duty to protect and ensure the
right to life, i.e. adopt the measures necessary to safeguard the life of individuals, and thus to
do all they can to prevent such individuals’ life from being ‘avoidably put at risk. 28 The
Human Rights Committee in General comment No. 36 (2018) on article 6 of the International
Covenant on Civil and Political Rights, on the right to life, more broadly, underlined that
States’ duty to protect life requires them to adopt ‘appropriate measures to address the
general conditions in society that may give rise to direct threats to life’, including life-
threatening diseases. 29

Thus, the positive duty to protect human life involves advance planning and immediate
responses to prevent, stop or at the very least mitigate the spread of life-threatening diseases
like J-VID-18, in which Razon has failed to comply.

II. The travel restriction imposed by Razon is in violation of Article 12 of

the International Covenant on Civil and Political Rights.

According to Article 12(1) of the International Covenant on Economic, Social and Cultural
Rights, States Parties to the present Covenant recognize the right of everyone to the

23
Hristozov et al. v Bulgaria
24
General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on
the right to life
25
Section 4 of the entry regulation of 22 April mentioned in paragraph 10 of the agreed fact sheet.
26
Paragraph 30 of the agreed fact sheet
27
Section 4 of the entry regulation of 22 April mentioned in paragraph 10 of the agreed fact sheet.
28
ECtHR, L.C.B. v UK, § 36; Brincat et al. v Malta, §§ 79-80; cf. also IACtHR, Ximenes-Lopes v Brazil, §§ 89-90
29
General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on
the right to life

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enjoyment of the highest attainable standard of physical and mental health. 30 And Article
12(2) makes explicit what was already possible to read into the preceding provision, namely
that the steps to be taken by the States Parties to the present Covenant to achieve the full
realization of this right shall include those necessary for […] (b) The improvement of all
aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of
epidemic, endemic, occupational and other diseases; (d) The creation of conditions which
would assure to all medical service and medical attention in the event of sickness. 31 With
similar language, the right to health is recognized inter alia in Article 11 of the European
Social Charter, in Article 16 of the African Charter of Human and Peoples’ Rights and in
Article 10 of the Additional Protocol to the American Convention on Human Rights in the
Area of Economic, Social and Cultural Rights. 32 But Razon with its entry restriction has
made it difficult for health care workers and supplies could reach affected regions. The WHO
committee has stated that such travel restrictions would have on affected states, including
hindering medical relief groups from travelling to affected areas; preventing access to
supplies, food, and medical equipment; causing economic hardships on affected states;
exacerbating uncontrolled migration; and fueling disproportionate fear and stigma. 33 Thus the
travel restriction implemented by the Ranvstayan authority has violated the right to health of
the individuals of infected regions.

D. Razon is obligated to compensate it for the resulting economic losses of Ariton.

I. Ariton suffered financial loss due to the travel restrictions imposed by

Razon.

The international law of State responsibility determines the consequences that ensue when a
State commits an internationally wrongful act. This law is largely codified in the International
Law Commission (ILC) Articles on State Responsibility, drafted over decades by the ILC and
accepted by the United Nations (UN) General Assembly.

30
Article 12(1) of the International Covenant on Economic, Social and Cultural Rights
31
Article 12(2) of the International Covenant on Economic, Social and Cultural Rights
32
Article 11 of the European Social Charter, Article 16 of the African Charter of Human and Peoples’ Rights,
Article 10 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic,
Social and Cultural Rights.
33
WHO, Statement on the 4th Meeting of the IHR Emergency Committee on the 2014 Ebola Outbreak in West
Africa (21 January 2015), online: <http://www.who.int/mediacentre/news/statements/2015/ebola-4th-ihr-
meeting/en/>

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Entry regulation to a country which is desperately developing vaccine for the crisis that
became a severe threat for the world shows the lack of sincerity in taking measures as serious
as this which entirely cause Ariton to shatter its economic gains and further leaving the
territory as restricted, therefore discouraging any sort of further connection with Ariton.
Razon’s restriction clearly is the only reason for Ariton devastating loss at a time of crisis like
this.

The prevention of adverse impacts on people is the main purpose of human rights due
diligence. It concerns risks to people and ensures that no measures shall be taken in adverse
to the interests of basic human rights.

State responsibility arises only when there is an act or omission attributable to a State and that
act or omission constitutes a breach of an international obligation of the State. It is the
primary obligation that must be interpreted and applied, determining the substance of the
conduct required, the standard to be observed and the result to be achieved, if any. Thus,
whether or not there has been a breach of an obligation depends on the precise terms of the
obligation, its interpretation and application, taking into account its object and purpose and
the facts of the case. 34

Clearly it is the entry restriction that is behind the actual losses suffered by Ariton.

II. Razon is obliged to compensate under principle of state responsibility.

Every internationally wrongful act of a State entails the international responsibility of that
State.35 There is an internationally wrongful act of a State when conduct consisting of an
action or omission: (a) is attributable to the State under international law; and (b) constitutes
a breach of an international obligation of the State.36

According to WHO Director General’s communication that Razon’s entry regulation was not
in conformity with the international law requirements clearly suggests that Razon was acting
in excess of their necessity to cause damage to Ariton knowing the facts of ongoing situation
around. There is a breach of an international obligation by a State when an act of that State is

34
Commentaries, ILC Articles on State Responsibility (n. 1 above), commentary to Article 12, para.
35
Article 1 of the Responsibility of the State for its international wrongful acts.
36
Article 2 of the Responsibility of the State for its international wrongful acts.

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not in conformity with what is required of it by that obligation, regardless of its origin or
character.37

According to ILC’s 1996 draft Rules on State Responsibility every act by a state which is
wrongful under some primary rule of international law imposes international responsibility
on that state. The essential principle contained in the actual notion of an illegal act is that
reparation must as far as possibly wipe out all the consequences of the illegal act and re-
establish the situation which would, in all probability, have existed if that act had not been
committed. 38 State practice and judicial and arbitral decisions require to provide full
reparation for an internationally wrongful act.39

In its commentary to Article 36 of the Articles on State Responsibility which deals with
compensation the International Law Commission notes that “of the various forms of
reparation, compensation is perhaps the most commonly sought in international practice. 40

Issue 2

Razon violated international law by failing to hand over Ms. Sakura to the Ariton
authorities after they requested her surrender on 9 June 2018.

When the NBL personnel assigned to its vaccine project, all employees are required to sign a
non-disclosure agreement where the condition is that the personnel will not disclose or
divulge any information concerning the laboratory. 41 But Ms. Sakura, the personnel of NBL
project, published the information of laboratory. 42 Then she escapes from Ariton and seek
asylum from Razon. Then Aritonian authority request for Ms. Sakura surrender.43 But Razon
failed to hand over Ms. Sakura which is violation of international law. 44

A. Razon is unilaterally incapable of qualifying the offence for the purpose of

granting asylum.

37
article 12 of the Responsibility of the State for its international wrongful acts.
38
Factory at Chorzow, Germany V Poland
39
The Netherlands V Russia
40
Article 36 of the Articles on State Responsibility
41
Paragraph no 6 of the fact sheet
42
Paragraph no 18 of the fact sheet
43
Paragraph no 34 of the fact sheet
44
Paragraph no 33 of the fact sheet

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As per the agreed compromise, Aritonian prosecutor’s office formally charged Ms. Sakura
with criminal charges.45 But when Ms. Sakura seek asylum from Razon, Razon grant asylum
to Ms. Sakura.46 Which is unilaterally done by Razon. According to Asylum case (Peru Vs
Colombia), Peru issued an arrest warrant against Victor Raul Haya de la Torre for the crime
of military rebellion, Torre fled to the Colombian embassy in Lima, Peru. And the Colombian
Ambassador confirmed that Torre was granted diplomatic asylum. But the court held that
there was no expressed or implied right of unilateral and definitive qualification of the state
to grant asylum. 47

B. Razons refusal to return Ms. Sakura violates the Vienna Convention on

Consular relations

As Ariton insisted Razon that they surrender Ms. Sakura to their domestic authorities,
particularly in light of the criminal charges recently filed against her by the Prosecutor’s
Office, also suggesting that failing to do so would constitute violation of international law 48.
Razon failing to comply with such instruction strictly imposes a legal liability. Persons
enjoying immunity and privileges under the Vienna Convention are under an obligation to
respect the laws and regulations of the receiving state and also, they are under a duty to not
interfere in the matters concerning the internal affairs of the receiving state49. The decision of
granting diplomatic asylum involves derogation from the sovereignty of the receiving state as
it intervenes in internal affairs of the receiving state50 whereas diplomats are not obliged to
grant asylum or to assist in the course of justice in their host state 51.

Article 4 of the Vienna Convention on Diplomatic Relations declares, that the States
Parties to the present Covenant recognize that, in the enjoyment of those rights provided by
the State in conformity with the present Covenant, the State may subject such rights only to
such limitations as are determined by law only in so far as this may be compatible with the
nature of these rights and solely for the purpose of promoting the general welfare in a
democratic society. This clearly entails that the sending state and its consulates are at all
times under obligation to comply with the regulations and laws of the receiving state.

45
Paragraph no 32 of the fact sheet
46
Paragraph no 25 of the fact sheet
47
Colombia Vs Peru [1950] ICJ 6 (Asylum Case)
48
Para 33 of the Fact Sheet
49
Vienna Convention on Consular Relations Article 55
50
The Asylum Case (Colombia V Peru)
51
The Case of Haya De La Torre

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Whereas diplomatic asylum does not fall within any international instruments, clearly this
idea of asylum does not fall within the diplomatic missions of the sending state. Thus, the
using of consular office to provide shelter to Ms. Sakura is done in a manner incompatible
with the exercise of consular functions 52.

Razon at all times were under an obligation to comply with the rules and regulations of
Ariton and by refusing to surrender Ms. Sakura, razon violated Vienna Convention on
Consular Relations as well as Vienna Convention on Diplomatic Relations. it is well
established that, even for those countries which do recognise diplomatic asylum, it should not
be used for the purposes of escaping the regular processes of the courts53.

C. Razon has violated the UN Charter

States have supreme authority within their territory, the plenitude of internal jurisdiction,
their immunity from other States’ own jurisdiction and their freedom from other States’
intervention on their territory 54 . Sovereignty is the power of a state to do everything
necessary to govern itself, such as making, executing, and applying laws; imposing and
collecting taxes; making war and peace; and forming treaties or engaging in commerce with
foreign nations55. By this power its completely under one States authority and supervision as
to the internal affairs of such State as well as its law-making power and the execution of such
law. If any one State violates another State’s sovereignty or fails to comply with its
regulations within its territory, that State shall be liable for violation of International Law.

Issue 3

The Court may not exercise jurisdiction over Razon’s counter-claim concerning the
Amaterasu Airways aircraft.

52
Article 55 (2) Vienna Convention on Consular Relations
53
British Authorities in the Case of Assange
54
Art. 2 (4) and (7) UN Charter
55
https://legal-dictionary.thefreedictionary.com/State+sovereignty

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The court has no jurisdiction over Razon’s counter-claim concerning the Amaterasu Airways
aircraft because firstly, the Amaterasu Airways aircraft issue is fully a domestic matter and
secondly, Razon’s counter-claim is free from forum prorogatum principle.

A. The Amaterasu Airways Aircraft Issue is under the principle of domaine

réservé

Early in the morning of 26 June, an Amaterasu Airways aircraft crashed into a forest in
Ariton, between Mohawk Province and Konoha. Amaterasu Airways is a low-cost charter
airline privately owned by Aritonian nationals. The plane crash landed in a forest 12
kilometers from the presidential palace in the heart of Konoha56. Here the plane was carrying
Sasuke and Ms. Sakura. Sasuke Uchiha, who had been employed as a pilot for Amaterasu
Airways for three years. 57 Ms. Sakura, formerly a lab technician at National Bioresearch
Laboratory of Ariton.58 Sasuke Uchiha and Ms. Sakura intended to fly to the international
airport at Otoga, Razon but at the end the plane crashed in Ariton. Nevertheless, the subject
matter and raising of the issue were totally a domestic matter59 of Ariton.

The notion of domaine réservé (reserved domain) describes the areas of State activity that are
internal or domestic affairs of a State and are therefore within its domestic jurisdiction or
competence. Article 2 (7) states that the United Nations 60 has no authority to intervene in
matters which are within the domestic jurisdiction of any State. The principle of non-
intervention in the internal affairs of States also signifies that a State should not otherwise
intervene in a dictatorial way in the internal affairs of other States. The principle of non-
intervention involves the right of every sovereign State to conduct its affairs without outside
interference. 61 The ICJ said in Nicaragua that the non-intervention principle is ‘part and
parcel of customary international law’62 .

B. Razon’s counter-claim is free from forum prorogatum principle

The jurisdiction of the International Court of Justice (ICJ) in a contentious case is based
entirely on the consent of states. The doctrine of forum prorogatum affords an informal way
for a state to express consent to the Court's jurisdiction. As traditionally understood, this

56
Para 42 of the Agreed fact sheet
57
Para 43 of the Agreed fact sheet
58
ibid
59
Para 42 of the Agreed fact sheet
60
Article 2 (7) of UN Charter
61
Nicaragua Case
62
Certain Activities Carried Out by Nicaragua In The Border Area (Costa Rica V. Nicaragua), para 202

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doctrine refers to the extension of a court's jurisdiction by agreement of the parties to a case
after proceedings have been instituted. The ICJ Rules of Court provides for the doctrine of
forum prorogatum and states that when an application is made by a state against another state
whose consent is yet to be given, no action shall be taken unless the state against which the
application is made consents to the jurisdiction of the court for the purposes of the case. 63 It is
submitted that the consent of the state to the Court’s jurisdiction may be established by means
of acts subsequent to the initiation of the proceedings 64 to avoid the impression that the Court
is extending its jurisdiction by means of fiction and that there must be a showing that such
consent is voluntary and indisputable. 65 For the doctrine to apply, the consent of the state
must (1) must be explicitly and clearly deduced from the conduct of the state, and (2) the
extent of the consent depends upon the matching of the application made with the expression
by the other party of its consent 66. The application must specify the legal grounds to which
the jurisdiction of the Court is to be based.67

That the aircraft issue is totally a domestic matter, ICJ has no compulsory jurisdiction under
article 36(2) of the statute. Furthermore, when respondent notified the court that it wished to
file a counter- claim against applicant68, the applicant didn’t give any consent over this matter
rather applicant noted its intention to contest the Court’s exercise of jurisdiction over the
counter-claim explicitly. 69

Issue 4

Even if the Court were to exercise jurisdiction over the counter-claim, Ariton did not
violate international law by shooting down the aircraft.

A. The rule against targeting civilian objects "Jus cogens"

"Jus cogens," commonly translated as a “peremptory norm” 70 is defined at Article 53 of the

Vienna Convention on the Law of Treaties of 1969: A treaty is void if, at the time of its
conclusion, it conflicts with a peremptory norm of general international law. For the purposes

63
Art 38 (5), ICJ Rules of Court
64
Shabtai Rosenne, Law and Practice of the International Court (vol 2, M. Nijhoff, 1997), p 672 and S. Yee,
‘Forum Prorogatum in the International Court’, 42 German YIL, 1999, p 147
65
Corfu Channel Case (Preliminary Objection), United Kingdom v. Albania, ICJ Reports, 1948, p 27;
Application of the Genocide Convention, ICJ Reports, 1996, p 595
66
Certain Criminal Proceedings in France, ICJ Press Release, 2007/11
67
Certain Questions of Mutual Assistance in Criminal Matters, ICJ Reports, 2008, par 163
68
Para 50 of the Agreed fact sheet
69
ibid
70
BLACK'S Law DICTIONARY 876 (8th ed. 2004).

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of the present Convention, a peremptory norm of general international law is a norm accepted
and recognized by the international community of States as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm of general
international law having the same character.71

It could be argued that the rule against targeting civilian objects in war, as codified in Article
52 of Protocol I to the Geneva Convention 72 has passed into being a rule of jus cogens.
without an explicit treaty, "natural law," or jus cogens, we are left to investigate whether
there is a common practice or general principle in international law against the shooting down
of civilian aircraft. To answer that question, it is important to note, Mere abstention by states
from the exercise of certain powers need not signify that they regard such exercise as
unlawful. 73 This sentiment was clearly suggested in President Tito's letter, which, despite
issuing orders to his military to change their rules regarding the interception of unarmed
aircraft, asserted unequivocally that Yugoslavia had done nothing in violation of international
law.74

B. Ariton has the authority to shoot down the airplane as per the provisions of
Convention on International Civil Aviation.

I. Ariton is not in violation of Article 3bs of Convention on International Civil

Aviation.

Article 3bs of Convention on International Civil Aviation states that, the contracting States
recognize that every State must refrain from resorting to the use of weapons against civil
aircraft in flight and that, in case of interception, the lives of persons on board and the safety

71
Convention on the Law of Treaties art. 53, May 23, 1969, 1155 U.N.T.S. 331.
72
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims
of International Armed Conflicts (Protocol I) art. 52, June 8, 1977, 1125 U.N.T.S. 3. The full text of that article is
as follows:
1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not
military objectives as defined in paragraph 2.
2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives
are limited to those objects which by their nature, location, purpose or use make an effective contribution to
military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at
the time, offers a definite military advantage.
3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of
worship, a house or other dwelling or a school, is being used to make an effective contribution to military
action, it shall be presumed not to be so used.
73
Lissitzyn, supra note 6, at 585.
74
Id. at 572-73.

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of aircraft must not be endangered. 75 The wording of article 3bis, sentence 1 demands
analysis, especially the use of the phrase "must refrain" and the implication that the obligation
not to endanger the lives of persons is limited to cases of interception requires consideration.

The phrase "must refrain" in article 3bis(a) entails a certain ambiguity as to what exactly it
requires from states. Some have pointed out that the common understanding of the word
"refrain" is less emphatic than, for example, "abstain" and that refraining from an action often
means merely its voluntary non-performance. 76 As drafted, the first sentence of article 3bis
limits the obligation not to endanger the lives of persons aboard civil aircraft to situations
where the aircraft is intercepted. Inasmuch as the use of force could exceptionally be
permissible subject to the conditions of the second sentence of article 3bis. The legal forms of
interception foreseen by article 3bis(b) would ipso facto involve the use of some degree of
force against the aircraft without placing its passengers at risk.

And as the fact sheet follows, Lieutenant Kakashi was ordered to fire a short burst at its wing
root area, in the hope that the plane would be forced to land. Apparently, however, the pilot
was unable to maintain control after being hit, and the plane crash landed. 77 From here, it can
be stated that even though Ariton did used force it was in the light of Article 3bs of
Convention on International Civil Aviation.

II. Convention on International Civil Aviation gives Ariton full control over its
territory.

Article 1 of the Convention on International Civil Aviation states that, the contracting States
recognize that every State has complete and exclusive sovereignty over the airspace above its
territory. In accordance with such provision various authors have opined that it does not
encompass protective military acts within state territory against intruding persons or
aircraft. 78 Now in the light of the fact sheet we come to know that, the plane never left
Ariton’s airspace and the Aritonian authority had well reason to believe that it was a terrorist

75
Article 3bs of Convention on International Civil Aviation
76
Cheng, supra note 17, at 61 (referring to definition supplied by Webster's International Dictionary).
77
Paragraph 42 of the agreed fact sheet
78
D.W. BOWETT, SELF-DEFENCE IN INTERNATIONAL LAW 38 (1958); Oscar Schachter, The Right of States to
Use Armed Force, 82 MICH. L. REv. 1620, 1626 (1984); THE CHARTER OF THE UNITED NATIONS-A
COMMENTARY (Bruno Simma et al. eds., 1994), supra note 65, 34. See also the definition of aggression in G.A.
Res. 3314, U.N. GAOR, 29th
Sess., 2319th plen. mtg at art.3(d) (Dec. 14, 1974). Article 3(d) considers an "attack by the armed forces of a
State on the land, sea or air forces, or marine and air fleets of another State" as armed force and prima facie
evidence of an act of aggression in the sense of article 2 of the same resolution.

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attack and was trying to prevent a catastrophic event and protecting its interest while
practicing its absolute authority.

III. The actions of Ariton falls under Article 89 of the convention.

Article 89 of the Chicago Convention provides that in case of war, the provisions of the
Chicago Convention do not affect the freedom of action of any of the contracting states
affected, whether as belligerents or neutrals. The second sentence of article 89 stipulates that
the same principle shall apply in the case of any contracting state which declares a state of
national emergency and notifies the fact to the Council. 79

The threat of civil airliners being converted into air-to-ground weapons, however, is one
stemming from private actors. such action could merely be considered to fall within the
purview of non-international armed conflict. Irrespective of whether non-international armed
conflict qualifies as a "war" within the meaning of article 89 of the Chicago Convention, it
could still be argued that the respective provisions of international humanitarian law
regarding non-international armed conflict, as a lex specialis in times of armed conflict,
derogate from the provisions of the Convention. 80

A mere threat of a single attack might meet the threshold for a non-international armed
conflict under a genuine effect perspective, which could overcome the required degree of
"protracted violence." And an event of endangering the lives of thousands of people, would in
substance qualify as an emergency situation within the meaning of article 4 of the ICCPR,
article 15 of the ECHR, and article 89 of the Chicago Convention, this would only be of
relevance if one accepts a de facto state of emergency not requiring a formal declaration as
foreseen in these articles.

C. The actions of Ariton are in accordance with the UN Charter.

According to the second sentence of article 3bis(a), the shooting down of a civil airliner is
seemingly only permissible in cases of self-defense within the meaning of Article 51 of the
UN Charter.

The use or intended use of a civil aircraft as a weapon of large-scale destruction could
amount to an armed attack, triggering the right to self-defense in accordance with Article 51

79
Article 89 of the Convention on International Civil Aviation
80
Civil Aircraft as Weapons of Large-Scale Destruction: Countermeasures, Article 3BIS of the Chicago
Convention, and the Newly Adopted German "Luftsicherheitsgesetz"

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of the Charter. There is little doubt that the abuse of civil aircraft as weapons against ground
targets, potentially killing thousands of victims and targeting a country's focal points of
economic, military, or political decision-making, amounts to an armed attack as far as the
issue of intensity is concerned.81

81
Another critical issue is whether self-defense may already be resorted to before the first attack has reached
its aim (analysis of the issue, however, would exceed the scope of this Article). See Humphrey M. Waldock, The
Regulation of the Use of Force by Individual States in International Law, 81 RECUEIL DES COURS! ACADtMIE DE
DROIT INTERNATIONAL 498 (1952); BRUNO SIMMA & ALFRED VERDROSS, UNIVERSELLES VOLKERRECHT 288
(1976).

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