TC: 30

IN THE INTERNATIONAL COURT OF JUSTICE

THE PEACE PALACE
THE HAGUE, NETHERLANDS

QUESTIONS RELATING TO TERRITORIAL DISPUTE BETWEEN REPUBLIC OF YAGISTAN,

STATE OF LOHKAS AND STATE OF SUMIYAN

REPUBLIC OF YAGISTAN AND STATE OF LOHKAS

APPLICANTS
V.
STATE OF SUMIYAN
RESPONDENT

MEMORIAL FOR APPLICANT

RGNUL INTRA MOOT COURT COMPETITION, 2020.

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ................................................................................................ iii

INDEX OF AUTHORITIES ................................................................................................. iv
ISSUES RAISED ............................................................................................................... IX
STATEMENT OF JURISDICTION ....................................................................................... xi
STATEMENT OF FACTS .................................................................................................. xii
SUMMARY OF ARGUMENTS ............................................................................................ xiv
ARGUMENTS ADVANCED ................................................................................................... 1

I. THAT THE TERRITORY OF LAMDO BELONGS TO THE STATE OF LOHKAS.... 1

A. THAT SUMIYAN DOES NOT HAVE A VALID CLAIM OVER LAMDO......................................1

i) That the 1918 Treaty of Attukas is an inconclusive Boundary Agreement concerning the
transfer of Lamdo to the State of Sumiyan. ....................................................................1
ii) That the rule of Utipossidetis juris does not apply in favour of the Sumiyan. ......................2
iii) That acts done by Sumiyan beyond 1918 cannot alter the legal position of Lamdo. ............3
iv) That Sumiyan’s omission precludes itself from laying asuccessful claim over Lamdo. ...........3

B. That LOHKAS HAS A VALID CLAIM OVER THE TERRITORY OF LAMDO.............................5

i) That Lohkas possesses legal title over Lamdo. ................................................................5
ii) That Lohkas exercises effective control over Lamdo by way of Acquisitive Prescription. ......6
iii) That Yagistan’s recognition of the Lohkasi claim on Lamdo consolidates Lohkas’ position
as the title-holder under International Law. ....................................................................6

II. THAT SUMIYAN FLAGRANTLY BREACHED THE PRE-EMPTORY

PROHIBITION ON THE USE OF FORCE AND THREATENED THE
TERRITORIAL SOVEREIGNTY OF YAGISTAN AND LOHKAS. ............................ 7

A. THAT SUMIYAN’S ACTIONS WERE AN UNLAWFUL USE OF FORCE AMOUNTING TO AN

ARMED ATTACK. ...................................................................................................................8

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i) That Sumiyans actions were flagrant violations of the UN Charter, Customary

International Law and its treaty obligations, on aggression and use of force. .......................8
ii) Arguendo that, recourse to force by a State having even a valid claim over a concerned
territory under another State’s illegal occupation violates international law. ......................10

B. THAT YAGISTAN HAD THE LEGAL RIGHT TO ENTER THE TERRITORY OF LAMDO TO

RESTRAIN THE SUMIYAN ARMY. ........................................................................................10

i) That Yagistan’s defensive actions fulfilled all customary elements of the inherent right to self-
defense. ......................................................................................................................11
ii) That Yagistan’s defensive actions are justified and protected under the right to self-defense
under Article 51 of the UN Charter and Article 21, Articles on the Responsibility of
States for Internationally Wrongful Acts. .....................................................................13

PRAYER ................................................................................................................. xxiiiV

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LIST OF ABBREVIATIONS

ABBREVIATIONS EXPANSION

¶ Paragraph

Art. Article

Ed. Edition

G.A. General Assembly

I.C.J. International Court of Justice

I.L.C. International Law Commission

U.N. United Nations

L.J. Law Journal

P.C.I.J. Permanent Court of International Justice

R.I.A.A. Reports of International Arbitral Awards

Rep. Report

Res. Resolution

U.N.T.S. United Nations Treaty Series

v. Versus

VCLT Vienna Convention on Law of Treaties

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INDEX OF AUTHORITIES

- CASES -

S.NO. PARTICULARS AT.

1 Corfu Channel (U.K. v. Albania), Judgment, 1949 I.C.J. Rep. 4 8, 11

(Apr. 9)

2 Delimitation of Maritime Boundary in Gulf of Maine area 4

(Can./U.S.), Judgment, 1984 I.C.J. Rep. 165 (Mar. 30).

3 Fisheries case (U.K. v. Nor.), Judgment, 1951 I.C.J. Rep. 138 4

(Dec. 18).

4 Frontier Dispute (Burk. Faso/ Mali), Judgment, 1986 I.C.J. 2, 5, 6

Rep. 554(Dec. 22).

5 Georgia v. South Carolina, 259 U.S. 572, 42 (1990) 5, 6

6 Island of Palmas Case (U.S. v. Netherlands), II R.I.A.A. 829, 3

845 (Perm. Ct. Arb.1928).

7 Legality of the Threat or Use of Nuclear Weapons, Advisory 11

Opinion, 1996 I.C.J. Rep. 226 (Jul. 8)

8 Maritime Delimitation (Guinea-Bissau v. Senegal), Judgment, 1

1991 I.C.J. Rep. 69 (Nov. 12).

9 Maritime Delimitation in the Black Sea (Rom. v. Ukr.), 2

Judgment, 2009 I.C.J. Rep. 61 (Feb. 3).

10 Military and Paramilitary Activities in and against Nicaragua 8, 10, 12

(Nicar. v. U.S.A), Judgment, 1986 I.C.J. Rep. 14 (Jun. 27);

11 Nuclear Tests (New Zealand v. France), Judgment, 1974 I.C.J. 9

Rep. 253, 267 (Dec. 20).

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12 Oil Platforms (Iran v. US), Judgment, 2003 I.C.J Rep. 161 11, 12
(Nov. 6)

13 Pulp Mills on the River Uruguay (Argentina v. Uruguay), 3

Judgment, 2006 I.C.J. Rep. 113 (Jul. 13).

14 Sovereignty Over Pulau Ligitan And Pulau Sipadan 1, 2, 3

(Indon./Malay.), Judgment, 2002 I.C.J Rep. 625 (Dec. 17).

15 Temple of Preah Vihear (Camb. v. Thai.), Judgment, 1962 4, 5, 6

I.C.J. Rep. 6 (June 15).

16 Territorial and Maritime Dispute (Hond. v. Nicar.), Judgment, 3

1960 I.C.J. Rep. 192, 697–698 (Dec. 23).

17 The Legal Status of Eastern Greenland (Den. v. Nor.), 3

Judgment, 1933 P.C.I.J. (ser. A/B) No. 53 at 45 (Apr. 5).

- BOOKS -

S.NO. PARTICULARS AT.

1 C. GRAY, INTERNATIONAL LAW AND THE USE OF FORCE 11 12

(3rd ed. 2008).

2 C. GREENWOOD, INTERNATIONAL LAW REPORTS 567 (E. 5, 8

Lauterpacht ed., 1990)

3 CHRISTOPHER GREENWOOD, SELF-DEFENSE AND THE 13

CONDUCT OF INTERNATIONAL ARMED CONFLICT, IN
INTERNATIONAL LAW IN A TIME OF PERPLEXITY 273, 275-78
(Yoram Dinstein & Mala Tabory eds., 1989).

4 I. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 8, 12

489-490 (6th ed. 2003).

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5 J. CRAWFORD,BOWNLIE, PRINCIPLES OF PUBLIC 6

INTERNATIONAL LAW 558 (2008).

6 J. SALMON, DICTIONNAIRE DE LA TERMINOLOGIE DU DROIT 5

INTERNATIONAL 1084 (2001).

7 JUDITH GARDAM, NECESSITY, PROPORTIONALITY AND THE 13

USE OF FORCE BY STATES 131 (2004).

8 KEIICHIRO OKIMOTO, THE DISTINCTION AND RELATIONSHIP 12

BETWEEN JUS AD BELLUM AND JUS IN Bello 50-51. (2011)

9 L.F.L. OPPENHEIM, INTERNATIONAL LAW 677 (Robert 7

Jennings & Arthur Watts eds., 1996).

10 MALCOLM N. SHAW, INTERNATIONAL LAW 290 (Sir Robert 2, 6, 7, 9

Jennings ed., 6th ed. 2008).

11 MYRA WILLIAMSON, TERRORISM, WAR AND INTERNATIONAL 12

LAW: THE LEGALITY OF THE USE OF FORCE AGAINST
AFGHANISTAN IN 2001 115 (Ashgate ed., 2009).

12 THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 8

1399 (Bruno Simma & Georg Nolte eds., 2012).

13 TOM RUYS, ARMED ATTACK AND ARTICLE 51 OF THE UN 15

CHARTER: EVOLUTIONS IN CUSTOMARY LAW AND PRACTICE
71 (2010).

14 UNITED NATIONS, REPORTS OF INTERNATIONAL ARBITRAL 11

AWARDS 10 (2005)

- ARTICLES -

S.NO. PARTICULARS AT.

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1 G. Fitzmaurice, The Law and Procedure of the International Court of 3

Justice, 32 BRITISH YEARBOOK OF INTERNATIONAL LAW L.J.20
(1955).

2 I.C. MacGibbon, Some Observations on the Part of Protest in 4

International Law, 30 BRITISH YEAR BOOK OF INTERNATIONAL
LAW L.J. 293, 298 (1953).

3 International Legal Materials, 45 AMERCIAN SOCIETY OF 11

INTERNATIONAL LAW 430,433 (2006)

4 J. A. Green, The 'rationetemporis' elements of self- defence, 2(1) 12

JOURNAL ON THE USE OF FORCE AND INTERNATIONAL LAW,
97-118, 100-108 (2015).

5 J. G. Starke, The Acquisition of Title to Territory by Newly Emerged 7

States, 41 BRITISH YEAR BOOK OF INTERNATIONAL LAW L.J.
413 (1965).

6 J.N. Moore, The secret war in Central America and the Future World 14, 15
Order, 80 A.M. J. INT. L. L.J. 43, 105 (1986).

7 The Chatham House Principles of International Law on the Use of Force 13, 14
in Self-Defence Source, 55(4) THE INTERNATIONAL AND
COMPARATIVE LAW QUARTERLY 963, 964-972 (2006).

- TREATISES AND CONVENTIONS -

S.NO. PARTICULARS AT.

1 Montevideo Convention art.1, Dec. 26, 1934, 165 L.N.T.S. 19. 9

2 Mutual Defense Treaty, Philipines-U.S., Aug. 30, 1951, 3 12

U.S.T. 3947

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3 Statute Of International Court Of Justice, art. 38(1) ¶ 1(d), 7

June 26, 1925, 33 U.N.T.S. 933.

4 Treaty of Friendship, India-Bhutan, Aug. 8, 1949, 32 U.S.T. 12

1935.

5 Vienna Convention on the Law of Treaties art. 31(1), May 23, 2, 7, 14

1969, 1155 U.N.T.S 331.

- UNITED NATIONS DOCUMENTS -

S.NO. PARTICULARS AT.

1 G.A. Res. 2131, Declaration On The Inadmissibility Of 9

Intervention In The Domestic Affairs Of States And The
Protection Of Their Independence And Sovereignty (Dec. 21,
1965).

2 G.A. Res. 2625, Declaration on Principles of International Law 8

concerning Friendly Relations and Cooperation among States
in accordance with the Charter of the United Nations (Oct. 24,
1970).

3 G.A. Res. 3314, art. 3(a), Definition of Aggression, United 9

Nations General Assembly Resolution (Dec. 14, 1974).

4 U.N. Charter art. 51. 15

5 U.N. Doc A/59/2005 (21 Mar., 2005). 13

6 U.N. Doc A/59/565 (2 Dec., 2004). 13

7 U.N. Doc. S/PV.831 (Jul. 17, 1958). 15

th st
8 U.N. SCOR, 13 Sess., 831 mtg., at 5-7 15

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- OTHER DOCUMENTS -

S.NO. PARTICULARS AT.

1 Alessandro M. Amoroso, The Israeli Strikes on Iranian Forces in 10, 11

Syria: a case study on the use of force in defence of annexed territories,
EUROPEAN JOURNAL OF INTERNATIONAL LAW (June 8, 2018).

2 Andrew Rettman, EU Countries back France on Mali air strikes, 15

EU OBSERVER (Jan. 14, 2013, 9:41 AM).

3 The Six-Day War-Introduction, ISRAEL MINISTRY OF FOREIGN 11

AFFAIRS (Nov. 3, 2003).

4 Uganda, Burundi support Kenya action in Somalia, DAILY 15

NATION(Nov. 11, 2011)

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ISSUES RAISED

I. WHETHER THE TERRITORY OF LAMDO BELONGS TO THE STATE OF LOHKAS OR

NOT?

II. WHETHER THE STATE OF SUMIYAN BREACHED THE PRE-EMPTORY PROHIBITION

ON THE USE OF FORCE AND THREATENED THE TERRITORIAL INTEGRITY AND
SOVEREIGNTY OF THE REPUBLIC OF YAGISTAN AND THE STATE OF LOHKAS?

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STATEMENT OF JURISDICTION

THE APPLICANTS AND THE RESPONDENT HUMBLY SUBMIT THE FOLLOWING TERRITORIAL
DISPUTE TO THE INTERNATIONAL COURT OF JUSTICE, IN ACCORDANCE WITH ARTICLE 40(1)
OF THE STATUTE OF THE COURT. IN ACCORDANCE WITH ARTICLE 36(1) OF THE STATUTE OF
THE COURT, EACH PARTY WILL ACCEPT THE JUDGMENT OF THE COURT AS FINAL AND
BINDING.

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STATEMENT OF FACTS

BACKGROUND

There is a disputed territory named Lamdo between the State of Lohkas and State of Sumiyan.
This disputed territory lies near the tri-junction between the aforesaid States and the Republic of
Yagistan.

Both States, Sumiyan and Lohkas claim Lamdo in their own territories. The Republic of Yagistan
itself has no boundary dispute with Sumiyan or Lohkas in Lamdo area but it supports the claim
of State of Lohkas over Lamdo.

TREATIES AND AGREEMENTS BETWEEN THE STATES

Treaty of Attukas between State of Sumiyan and imperialist Britain (1918) – This treaty
states that the boundary of Mikashi province (a part of Yagistan) and Betim province (a part of
Sumiyan) shall commence at Mount Lamdo on the Lohkas frontier. Sumiyan asserts that the
starting point of Mikashi-Betim border is Mount Lamdo on the Lohkas frontier and that this
clearly defines the tri-junction point. Sumiyan's claims that Lamdo is located in the Betim
province.

Treaty between State of Lohkas and Republic of Yagistan (1999) - According to this treaty,
both parties agreed that they shall cooperate closely with each other on issues relating to their
national interests and Yagistan also agreed to guide the diplomatic and defense affairs of Lohkas.

Agreement between State of Lohkas and State of Sumiyan (2000) – In 1999, Sumiyan’s
maps started showing Lamdo area as a part of its territory. Hence tensions arose between Lohkas
and Sumiyan. They adopted negotiations and rounds of boundary talks to resolve this issue but
they proved unsuccessful. In the meantime they agreed not to use force against each other.
They also agreed to encourage the peaceful means of settlement of the dispute.

Agreement between Republic of Yagistan and State of Sumiyan (2011) – In this agreement,
the aforesaid states had taken a pledge, not to raise any structure on their respective sides, within
5 kms of their common boundary and also not to use fire arms in case of a situation arises from
their boundary dispute.

PAST MILITARY CONFLICT BETWEEN REPUBLIC OF YAGISTAN AND STATE OF SUMIYAN

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A big military conflict has taken place between the aforesaid parties prior to 2011 in which State
of Sumiyan had encroached upon a huge chunk of Yagistan’s territory in the hilly region of
Meerak province.

FACTS LEADING TO THE DISPUTE

In January of 2019, Sumiyan tried to build ‘pakka bunkers’ and other permanent structures for
their army in the Lamdo area, bordering Yagistan. Lohkas protested against this action of
Sumiyan by asserting its claim on Lamdo.

The action of Sumiyan provoked Yagistan as it considered the Sumiyan’s action a direct threat to
its Sovereignty. Yagistan sent its troops at the site of said constructions in Lamdo to prevent the
Sumiyan army from raising such type of constructions.

Sumiyan protested against the Yagistan’s interference in its territory and the situation converted
in standoff between both armies of Yagistan and Sumiyan.

Lohkas protested against the action of Sumiyan after 10 days of the said standoff, by saying that
Lamdo belongs to Lohkas and the interference in the territory of Sumiyan is illegal and is a threat
to its sovereignty.

THE DISPUTE

All the parties preferred negotiations with each other at military and diplomatic level but could
not solve the territorial dispute. Consequently, all the three parties agreed to resolve the dispute
through the International Court of Justice. The case was filed in the Court and the respective
claims were submitted by the parties and now the matter is fixed for arguments.

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SUMMARY OF ARGUMENTS

I. THAT THE TERRITORY OF LAMDO BELONGS TO THE STATE OF LOHKAS

The territory of Lamdo belongs to Lohkas because: firstly, Sumiyan does not have a valid claim
over the territory of Lamdo, and secondly, Lohkas has a valid claim over the territory of Lamdo.

The first contention is based on a fourfold reasoning, namely that: (i) the 1918 Treaty of Attukas is
an inconclusive Boundary Agreement concerning the transfer of Lamdo to the State of Sumiyan,
(ii) the rule of uti possidetis juris does not apply in favour of Sumiyan, (iii) the acts done by
Sumiyan beyond 1918 cannot alter the legal position of Lamdo, and (iv) Sumiyan’s omission
precludes itself from laying a successful claim over Lamdo.

The second contention is based on a threefold reasoning, namely that: (i) Lohkas possesses legal title over
Lamdo, (ii) Lohkas exercises effective control over Lamdo by way of acquisitive prescription and (iii)
Yagistan’s recognition of the Lohkasi claim on Lamdo consolidates Lohkas’ position as the title-holder
under International Law.

II. THAT SUMIYAN FLAGRANTLY BREACHED THE PRE-EMPTORY PROHIBITION ON

THE USE OF FORCE AND THREATENED THE TERRITORIAL SOVEREIGNTY OF YAGISTAN

AND LOHKAS

It is contended that Sumiyan breached the pre-emptory prohibition on the use of force and
threatened the territorial integrity and sovereignty of Yagistan and Lohkas because: firstly,
Sumiyan’s actions were an unlawful use of force amounting to an armed attack, and secondly,
Yagistan had the legal right to enter the territory of Lamdo to restrain the Sumiyan Army

The first contention is based on a twofold reasoning, namely that: (i) Sumiyans actions were
violative of the UN Charter, customary international law and its treaty obligations on aggression
and use of force and (ii) in arguendo, recourse to force by a State having even a valid claim over
a concerned territory under another State’s illegal occupation violates international law.

The second contention is also based on a twofold reasoning, namely that: (i) Yagistan’s defensive actions
fulfilled all customary elements of the inherent right to self-defense and (ii) Yagistan’s defensive actions
are justified and protected under the right to self-defense under Article 51 of the UN Charter and Article
21, Articles on the Responsibility of States for Internationally Wrongful Acts.

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BODY OF ARGUMENTS

I. THAT THE TERRITORY OF LAMDO BELONGS TO THE STATE OF

LOHKAS

A. THAT SUMIYAN DOES NOT HAVE A VALID CLAIM OVER LAMDO.

i) That the 1918 Treaty of Attukas is an inconclusive Boundary Agreement

concerning the transfer of Lamdo to Sumiyan.

1. The first duty of a tribunal which is called upon to interpret and apply the provisions of a
treaty, is to endeavour to give effect to these in their natural and ordinary meaning in the context
in which they occur.1 The 1918 Treaty of Attukas (‘1918 Treaty’) concluded between Sumiyan
and Britain provides that the boundary between Sumiyan and Yagistan shall commence at Mount
Lamdo.2

2. The plain and ordinary meaning of the operative word commence conveys that the treaty
only sought to define the beginning of the border between the two parties of the treaty. The
mention of Mount Lamdo in the treaty only provides that it shall serve as the beginning point of
the border between the two parties of the treaty. The treaty does not provide the explicit
geographical position of Mount Lamdo, and by extension, that of the whole of Lamdo.

3. Sumiyan claims that by virtue of the 1918 Treaty, not only does Mount Lamdo lay in its
sovereign territory, but also the whole of Lamdo. It is to be duly noted that no map was attached
with the treaty in order for Sumiyan to make its claim. Therefore, the claim that the 1918 treaty
allocated Lamdo to Sumiyan can only be made if this Court interprets this treaty to mean
something which was not intended at the time of the conclusion of the treaty.

4. In the Sovereignty Over Pulau Ligitan And Pulau Sipadan Case, the ICJ made an important
distinction between allocation lines and boundary lines. It observed that a boundary, in the
ordinary meaning of the term, does not have the function of allocating to States parties
sovereignty over territories.3 Moreover, it observed that in the absence of an express provision of
allocation in the text of a treaty, it is difficult to envisage that the States parties could seek to
attribute an additional function to a boundary line.4 It is clear from the factual matrix that

1 Maritime Delimitation (Guinea-Bissau v. Senegal), Judgment 1991 I.C.J. Rep. 69, ¶ 48 (Nov. 12).
2 Moot Proposition, para 2.
3 Sovereignty Over Pulau Ligitan And Pulau Sipadan (Indon./Malay.), Judgment, 2002 I.C.J Rep. 625, ¶ 43 (Dec.

17). [hereinafter ‘Indo/Malay case’]

4 Id.

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Sumiyan and Britain sought to delimit a boundary via the instrument of the 1918 Treaty.5
However, such delimitation is unclear and imprecise.

5. It is submitted that the object and purpose6 of the treaty was not to allocate the territory
of Lamdo in this respective case. Furthermore, if the intention of Britain was to allocate Lamdo
to Sumiyan, an indication supporting the same should have been made as part of the 1918
Treaty. The ICJ, while interpreting a boundary agreement has previously held that the silence of
a treaty regarding the allocation of a territory supports the contention that such allocation was
not within the object and purpose at the time of the conclusion of such treaty. 7 Similarly, in
Romania v. Ukraine, the ICJ refused to establish a boundary because of the absence of an express
provision relating to boundary delimitation in a treaty.8

6. Therefore, it is submitted that the mere presence of a treaty cannot and does not delimit
the boundary between Sumiyan and Yagistan, let alone allocate the territory of Lamdo.

ii) That the rule of uti possidetis juris does not apply in favour of Sumiyan.

7. Uti possedetis juris a general principle of international law as observed by the ICJ in Burkina
Faso v. Mali.9 This doctrine, used during the decolonization process, posits that boundaries
existing at the moment of independence cannot be altered unless the relevant parties consent to
change.10 The doctrine is based on the principle of the intangibility of frontiers inherited from
colonisation.11

8. Sumiyan contends that by virtue of the 1918 Treaty, it inherited the territory of Lamdo
from Britain. The rule of uti possedetis juris can only apply in situations where such borders have
been existing at the time of independence. It is hereby submitted that at the time of
decolonisation in 1918, Lamdo was not included as part of Sumiyan and therefore, such borders
favouring Sumiyan never existed. Moreover, it is submitted that since the territory of Lamdo was
and continues to remain an integral part of Lohkas, the rule applies in favour of the Applicant.
In order to substantiate this claim, it is submitted that a) the applicant has been showing Lamdo

5 Moot Proposition, para 2.

6 Vienna Convention on the Law of Treaties art. 31(1), May 23, 1969, 1155 U.N.T.S 331.
7 Indo/Malay case, supra note 3, at ¶ 42 (Dec. 17).
8 Maritime Delimitation in the Black Sea (Rom. v. Ukr.), Judgment, 2009 I.C.J. Rep. 61, ¶ 70 (Feb. 3).
9 Frontier Dispute (Burk. Faso/ Mali), Judgment, 1986 I.C.J. Rep. 554, ¶ 20 (Dec. 22). [hereinafter ‘Frontier

Dispute’]
10 MALCOLM N. SHAW, INTERNATIONAL LAW 290 (Sir Robert Jennings ed., 6th ed. 2008).
11 Frontier Dispute, supra note 9; 80 C. GREENWOOD, INTERNATIONAL LAW REPORTS 462 (E. Lauterpacht ed.,

1989).

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in its maps since before 1918, and b) the Lohkasis people have been using the territory of Lamdo
for cattle grazing since before the time of decolonisation.

iii) That acts done by Sumiyan beyond 1918 cannot alter the legal position of Lamdo.

9. A procedural principle in dispute settlement that has come to be transposed to the field
of territorial disputes involves the ascertainment of the date on which the dispute crystallised.
International tribunals in the Island of Palmas12 case and the Eastern Greenland13 case have
recognised the rule of critical date concerning territorial or maritime disputes. The rule posits
that there exists a determining moment at which it might be inferred that the rights of the parties
have crystallised so that acts after that date cannot alter the legal position.14 Such a moment, for
instance, is the date of a particular treaty15 where its provisions are at issue or the date of
occupation of territory.16 The procedural rule is used so parties do not act in relation to the
territory simply with the belief that they are reinforcing their claim over the title of the territory.

10. It is submitted that Sumiyan started asserting is claim over Lamdo by virtue of the 1918
Treaty. The signing of a treaty, thus crystallised this dispute thereby marking the signing of the
1918 treaty as the critical date. This Court, therefore, cannot take into consideration acts having
taken place after the date on which the dispute crystallized unless such acts are a normal
continuation of prior acts and are not undertaken for the purpose of improving the legal position
of the Party which relies on them.17 It is submitted that Sumiyan’s claim of its Forward Army’s
march18 over Lamdo after 1918 is not an act which signifies the Respondent’s sovereign function
over Lamdo. Such acts, as the ICJ held in Pedra Blanca, are in general meaningless19 and in any
case, the burden of proving the same lies on the party asserting such a claim.20

iv) That Sumiyan’s omission precludes itself from laying asuccessful claim over Lamdo.

11. The Applicant has been showing Lamdo as part of its own territory in its maps since
before the 1918 Treaty.21 Despite this, the State of Sumiyan failed to raise any argument or lodge
any protest with the Applicant for eighty-one years until 1999. It is contended that such failure

12 Island of Palmas Case (U.S. v. Netherlands), II R.I.A.A. 829, 845 (Perm. Ct. Arb.1928).
13 The Legal Status of Eastern Greenland (Den. v. Nor.), Judgment, 1933 P.C.I.J. (ser. A/B) No. 53 at 45 (Apr. 5).
14 G. Fitzmaurice, The Law and Procedure of the International Court of Justice, 32 BRITISH YEARBOOK OF INTERNATIONAL

LAW L.J.20 (1955).

15 Supra note 12.
16 Supra note 13.
17 Indo/Malay case, supra note 3, at 682, ¶ 135.
18 Moot Proposition, The Claims of Sumiyan (d).
19 Territorial and Maritime Dispute (Hond. v. Nicar.), Judgment, 1960 I.C.J. Rep. 192, 697–698, ¶ 117. (Dec. 23).
20 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 2006 I.C.J. Rep. 113, ¶162 (Jul. 13).
21 Moot proposition, The Claims of Lohkas (b).

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on part of Sumiyan precludes it from raising a claim over Lamdo, in accordance with the rule of
acquiescence.

12. A protest relating to territorial disputes constitutes a formal objection by which the
protesting State makes it known that it does not recognize the legality of the acts against which
the protest is directed, that it does not acquiesce in the situation which such acts threaten to
create, and that it has no intention of abandoning its own rights in the premises.22 The
hypersensitiveness of States to protest against every actual or potential threat to their rights,
serves only to accentuate the significance of failure to protest in appropriate circumstances.23 The
ICJ defined acquiescence as tacit recognition manifested by unilateral conduct which the other
party may interpret as consent.24 In the Temple of Preah Vihear case, the ICJ dealt with questions of
boundary delimitation as a consequence of decolonisation. The Court held that a State’s failure
to register a protest in an occasion that called for a protest in order to affirm or preserve title in
the face of an obvious rival claim amounted to a tacit recognition.25

13. The elapsing of time is an essential aspect of state acquiescence. In the Fisheries case, the
ICJ held that although the Norwegian practice of consistently and uninterruptedly using straight
baselines dated back to 1869, the United Kingdom had only protested formally in 1933. 26 In the
Temple case, the ICJ observed that the Thai authorities were aware of the map (establishing rival
claim) since 1908 and never protested its contents until as late as 1958.27

14. Sumiyan in this case did not protest against the release of maps by Lohkas showing
Lamdo be an integral part of its territory. No protests, direct or indirect were lodged either
before or after the date of crystallisation of the dispute. Such omission amounts to a tacit
recognition on part of Sumiyan. Moreover, the only protest came about in the form of counter-
maps eighty-one years after the date of crystallisation. Therefore, it is submitted that such
omission precludes Sumiyan from laying a successful claim over Lamdo due to (a) failure to
register protest and (b) release of counter-maps eighty-one years after the date of crystallisation.

22 I.C. MacGibbon, Some Observations on the Part of Protest in International Law, 30 BRITISH YEAR BOOK OF
INTERNATIONAL LAW L.J. 293, 298 (1953).
23 Id. at 143, 181-82.
24 Delimitation of Maritime Boundary in Gulf of Maine area (Can./U.S.), Judgment, 1984 I.C.J. Rep. 165, ¶ 130

(Mar. 30).
25 Temple of Preah Vihear (Camb. v. Thai.), Judgment, 1962 I.C.J. Rep. 6, 31 (June 15). [hereinafter ‘Temple Case’];
26 Fisheries case (U.K. v. Nor.), Judgment, 1951 I.C.J. Rep. 138 (Dec. 18).
27 Temple case, supra note 25, at 27-32.

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B. THAT LOHKAS HAS A VALID CLAIM OVER THE TERRITORY OF LAMDO.

i) That Lohkas possesses legal title over Lamdo.

15. Title in the context of territorial disputes refers to the document or any other deeds of
any kind which can prove and establishes the existence of a right.28 It refers to existence of a
right, and the actual source of a right over territory. 29 International tribunals – and national
courts have often relied on acquiescence in order to ascertain the existence of a title and its
strength.30 A State, faced with any act, conduct, representation, or behaviour what so ever
emanating from another State which could claim a title must react immediately in order to
safeguard and reaffirm its title.31 In the Temple of Preah Vihar case, the ICJ held that Thailand’s
failure to react (or protest) to the release of a map that supported the rival Cambodian claim
resulted in acquiescence in favour of the Cambodian titular claim.32

16. Maps have a legal value if it represents the outcome of the parties’ behaviour amounting
to a legal fact modifying or extinguishing a title otherwise established.33 The ICJ has held that
maps can prove title in a territorial dispute34 as well as represent will of the States concerned.35

17. The release of maps by Lohkas showing the territory of Lamdo as an integral part of its
territory establishes legal title over Lamdo. In Dubai/Sharjah Arbitration, it was held that when
one State engages in activity, by means of which it seeks to acquire a right or change an existing
situation, a lack of reaction by another State at whose expense such activity is carried out, will
result in the latter forfeiting the rights which it could have claimed.36 Sumiyan, by not reacting
against the release of said maps forfeited its titular rights over Lamdo as it acquiesced to the
Applicant’s title over it. Courts have consistently held that acquiescence by one party establishes
the title of the other party over a disputed territory.37

18. The release of maps by Lohkas since before 1918 and Sumiyan’s acquiescence of them
represents the will of the parties to this dispute. The Applicant submits that in accordance with
international tribunals’ judicial decisions, the Lohkas possesses titular rights over Lamdo.

28 J. SALMON, DICTIONNAIRE DE LA TERMINOLOGIE DU DROIT INTERNATIONAL 1084 (2001).

29 Frontier Dispute, supra note 9, at ¶ 18.
30 91 C. GREENWOOD, INTERNATIONAL LAW REPORTS 567, ¶ 153 (E. Lauterpacht ed., 1990) [Dubai-Sharjah Border

Arbitration (Dubai/Sharjah), award delivered 19 October 1981]; Georgia v. South Carolina, 259 U.S. 572, 42 (1990);
91 C. GREENWOOD, INTERNATIONAL LAW REPORTS 449 (E. Lauterpacht ed., 1990).
31 Frontier Dispute, supra note 9, at ¶ 364.
32 Temple case, supra note 25, at 23.
33 Temple case, supra note 25, at 33.
34 Frontier Dispute, supra note 9, at ¶ 316.
35 Frontier Dispute, supra note 9, at 582 ¶ 54.
36 Supra note 29.
37 Supra note 29; Temple case, supra note 25; Georgia v. South Carolina, 259 U.S. 572, 42 (1990).

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ii) That Lohkas exercises effective control over Lamdo by way of acquisitive prescription.

19. In addition to Lohkas holding legal title over Lamdo, it exercises effective control over
Lamdo by way of Acquisitive Prescription. It refers to the legitimisation of a doubtful title by the
passage of time and the presumed acquiescence of the former sovereign.38 In acquisitive
prescription, acquiescence must be preceded by a display of State authority along with public,
peaceful, and uninterrupted possession of the territory.39

20. Lohkas exercises effective control over Lamdo by exercising State authority over the
territory. Additionally, Lohkas’ possession of Lamdo has been public, peaceful, and
uninterrupted for more than one-hundred years. This is evidenced by the fact that Sumiyan only
tried to challenge such peaceful possession in 2019 by illegally trying40 to build pakka bunkers. It is
to be noted that such challenge by Sumiyan to Lohkas’ peaceful possession only came one-
century after the date of crystallisation of the dispute [I(A)(iii)]. Additionally, as argued in
[I(A)(i)] and [(I)(B)(i)], Sumiyan’s acquiescence to this prescription is evidenced by its non-
protest to the release of Lohkasi maps showing Lamdo as its integral territory.

21. Therefore, the Applicant submits that in addition to holding a legal title, Lohkas’ exercise
of State authority, continued display of possession, and the Sumiyan’s acquiescence prescribes to
it, the territory of Lamdo.

iii) That Yagistan’s recognition of the Lohkasi claim on Lamdo consolidates Lohkas’
position as the title-holder under international law.

22. The international community has traditionally approached the problem of disputed
territories in terms of recognition, rather than in terms of acquisition of title to territory.41 This
means that states have examined the relevant situation and upon ascertainment of the factual
conditions have accorded recognition to an entity as a subject of international law.42 Oppenheim
has written that it is recognition that constitutes the State, and that the territory of the State is,
upon recognition, accepted as the territory of a valid subject of international law irrespective of
how it may have been acquired.43 By recognition not only is a State with a defined territory

38 Supra note 10, at 504.

39 J. CRAWFORD, BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 558 (2008).
40 Moot Proposition, para 6.
41 Supra note 10, at 492.
42 Id.
43 9 L.F.L. OPPENHEIM, INTERNATIONAL LAW 677 (Robert Jennings & Arthur Watts eds., 1996).

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created, but its title to the territory upon which it is based is also conclusively determined. 44
Bilateral recognition is important as evidence of effective control and should be regarded as part
of that principle.45

23. Yagistan has no territorial dispute in the Lamdo area and recognises the claim of the
Lohkas over it.46 Since Yagistan is a neutral party over the territorial dispute over Lamdo, its
recognition of the Lohkasi claim over Lamdo is a consequence of a careful ascertainment of the
relevant facts relating to the dispute. According to the writings of highly qualified publicists, 47 it is
submitted that Yagistan’s recognition of the Lohkasi claim over Lamdo, a relevant legal title is
created.

24. According to the doctrine of expression unius est exclusion alterius, the careful omission of
any evidence suggesting a third State recognising Sumiyan’s claim over Lamdo is a relevant fact.
Correspondingly, the express mention of Yagistan’s recognition of the Lohkasi claim in the
statement of agreed facts is also a relevant fact. Thus, these two facts, suggest the validity of
Lohkas’ claim over Lamdo.

25. Therefore, it is contended that Yagistan’s recognition of the Lohkasi claim over Lamdo is
(a) an evidence of legal title of Lohkas over Lamdo and (b) is an evidence of effective control
exercised by the Lohkas over Lamdo.

II. THAT SUMIYAN FLAGRANTLY BREACHED THE PRE-EMPTORY

PROHIBITION ON THE USE OF FORCE AND THREATENED THE
TERRITORIAL SOVEREIGNTY OF YAGISTAN AND LOHKAS.

26. The only exceptions to the jus cogens48 prohibition on the use of force49 are twofold,
namely- one, the right to self-defense and two, Security Council (‘UNSC’) authorization under
Chapter VII of the Charter.50 Sans Security Council authorization and the fulfillment of the
mandatory ‘armed attack’ criterion to trigger lawful self-defense, Sumiyan’s invasion and illegal
occupation of Lohkas’ territory by development of military infrastructure on Lohkas’ sovereign
territory51 amounts to a grave breach of the essential foundational pillars of international law. In

44 J. G. Starke, The Acquisition of Title to Territory by Newly Emerged States, 41 BRITISH YEAR BOOK OF INTERNATIONAL
LAW L.J. 413 (1965).
45 Supra note 10, at 521.
46 Moot proposition, para 1.
47 Statute Of International Court Of Justice, art. 38(1) ¶ 1(d), June 26, 1925, 33 U.N.T.S. 933.
48 Supra note 6, at art. 53.
49 I. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 489-490 (6th ed. 2003).
50 2 THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 1399 (Bruno Simma & Georg Nolte eds., 2012).
51 Moot proposition, para 6.

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doing so, the respondent undoubtedly violates cumulatively the preemptory prohibition on the
use of force, the victim State’s territorial sovereignty and it’s right to non-interference in its
domestic affairs - under Article 2(4) of the United Nations Charter (‘UNC’ or ‘the Charter’) and
corresponding customary international law. It is submitted that such (A.) violations amount to
armed attacks and (B.) permit the victim States’ to exercise lawful defensive force to restrain the
attacking State. This is based on the twofold reasoning as argued hereunder.

A. THAT SUMIYAN’S ACTIONS WERE AN UNLAWFUL USE OF FORCE AMOUNTING TO

AN ARMED ATTACK.

i) That Sumiyans actions were flagrant violations of the UN Charter, Customary

International Law and its treaty obligations, on aggression and use of force.

27. Respect by independent states of each other’s territorial sovereignty, is a principle that
constitutes, in the words of this Court, ‘an essential foundation of international relations.’ 52 In
this regard, the bindingness and importance of the prohibition on the use of force against the
territorial integrity and sovereignty of any State under Article 2(4) is well-established in
international law.53 Moreover, the seminal and customary 1970 Declaration on Principles of
International Law54 clarifies as an attribute of Article 2(4), that states must not threaten or use
force to violate existing international frontiers or to solve international disputes. 55 In addition,
Article 2(7) of the Charter coupled with General Assembly Resolution 2131 expressly prohibit
intervention in the internal or external affairs of any other State for any reason whatsoever, in
any form whether direct or indirect.56 Further, under Article 3(a) of General Assembly
Resolution 3314, the invasion of another State’s territory is prohibited and recognized as
aggression at the very least.57

28. Furthermore, in the instant case, the Respondent had international agreements and treaty
obligations with both Lohkas and Yagistan respectively to not use force against them.58 After the

52 Corfu Channel (U.K. v. Albania), Judgment, 1949 I.C.J. Rep. 4 (Apr. 9). [hereinafter ‘Corfu Channel case’];
Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.A), Judgment, 1986 I.C.J. Rep. 14, 109-
110 (Jun. 27); [hereinafter ‘Nicaragua’]; 76 C. GREENWOOD, INTERNATIONAL LAW REPORTS 349, 443-444 (E.
Lauterpacht ed., 1990).
53 Supra note 49.
54 G.A. Res. 2625, Declaration on Principles of International Law concerning Friendly Relations and Cooperation

among States in accordance with the Charter of the United Nations (Oct. 24, 1970).
55 Supra note 10, at 1123.
56 G.A. Res. 2131, Declaration On The Inadmissibility Of Intervention In The Domestic Affairs Of States And The

Protection Of Their Independence And Sovereignty (Dec. 21, 1965).

57 G.A. Res. 3314, art. 3(a), Definition of Aggression, United Nations General Assembly Resolution (Dec. 14,

1974).
58 Moot proposition para 5, para 8.

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failure of boundary talks since 2000, the Respondent expressly agreed not to use force against
Lohkas.59 In the Nuclear Tests Case, this Court recognized the fulfillment of international
agreements in good faith as an indispensable cornerstone of international law.60 Pacta sunt servanda
is also accepted as a customary and general principle of international law. 61 By reneging on its
promise to Lohkas, Sumiya has acted in a bad faith and stands in violation of its international
commitments.62 In addition, per the 2011 Treaty between Yagistan and Sumiyan, the Respondent
was also under express treaty obligation to Yagistan to not raise any structure on its side within 5
kms of the common boundary.63

29. The building of permanent military infrastructure on the sovereign territory of Lohkas
and within 5 kms. of the common boundary with Yagistan was thus, in blatant contravention to
the afore-stated binding tenets of international law. It was also a breach of its international
agreements and clear treaty obligations with Lohkas and Yagistan respectively. Given that
territory is an essential criterion for statehood as per Article 1 of the Montevideo Convention on
the Rights and Duties of States,64 the unlawful presence of Sumiyan on Lohkas’ territory thereby
violated the territorial integrity and sovereignty of Lohkas. Considering the breach of Sumiyan’s
treaty obligation to Yagistan, and its past record of encroachment in Yagistan’s Meerak region,65
this unilateral use of provocative and illegal aggressive force to forcibly change the tri-junction’s
status quo directly threatened the sovereignty of Yagistan.

30. Moreover, it is to be noted that Sumiyan’s action does not fall under any exception
wherein use of force is permissible. Clearly, there was neither Security Council authorization nor
was an ‘armed attack’ mounted on Sumiyan to permit and justify its use of force. It is further
submitted that the Sumiyan’s actions amounted not just to unlawful use of force under the UN
Charter, customary and treaty obligations but fulfilled the requirements of sufficient ‘scale and
gravity’ to be distinguished from minor-border incidents66 and be categorized distinctively as an
‘armed attack’ on Lohkas [II(B)(i)].

31. Clearly, Sumiyan used unjustified and unlawful force amounting to an armed attack by
developing military infrastructure on the sovereign territory of Lohkas. Sumiyan’s action also ran
flagrantly counter to its express commitments and treaty obligations to the Applicants’.

59 Moot proposition, para 5.

60 Nuclear Tests (New Zealand v. France), Judgment, 1974 I.C.J. Rep. 253, 267 (Dec. 20).
61 Supra note 10, at 94.
62 Moot proposition, para 5.
63 Moot proposition, para 8
64 Montevideo Convention art.1, Dec. 26, 1934, 165 L.N.T.S. 19.
65 Moot proposition, para 6.
66 Nicaragua, supra note 52, at ¶195.

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ii) Arguendo that, recourse to force by a State having even a valid claim over a concerned
territory under another State’s illegal occupation violates international law.

32. It is submitted that even if Sumiyan disputes the Lohkas’ title over the territory of
Lamdo, it had no legal basis to have recourse to force to settle the territorial dispute and recover
territory allegedly occupied by the Yagistan.

33. Adjudicating upon a similar factual situation, the Eritrea-Ethiopia Claims Commission in
its Partial Award on Jus Ad Bello (2005), rejected Eritrea’s defense claim and recognized that
Eritrea’s actions amounted to an ‘armed attack’ on Ethiopia, thereby admitting Ethiopia’s self-
defense action.67 It further held that the practice of States and the writings of eminent publicists
confirm that armed attacks under the pretext of self-defense cannot be invoked to settle
territorial disputes, even if the attacking State has a valid title to the territory. 68 This was held by
the tribunal to ensure that, under the garb of frequent border disputes a large and dangerous
hole is not created in the pre-emptory prohibition on the use of force.69 This position is
recognized as the accepted principle of international law.

34. Accordingly, it is evident that no recourse to force could be had by the Respondent, in
any circumstance, irrespective of whether its title to territory occupied by another State was valid.
Hence, even if the Respondent had a valid claim to Lamdo, it used unlawful force amounting to
armed attack on the Applicants’, and therefore the Applicants’ had the legal right to initiate
defensive action.

B. THAT YAGISTAN HAD THE LEGAL RIGHT TO ENTER THE TERRITORY OF LAMDO
TO RESTRAIN THE SUMIYAN ARMY.

35. Manifestations of disposing international law in the exercise of aggressive force, as used
by the Respondent, have not only to been condemned in judicial decisions 70 and State practice71
as grave violations of international law, but have triggered the initiation of lawful self-defense for

67 Alessandro M. Amoroso, The Israeli Strikes on Iranian Forces in Syria: a case study on the use of force in defence of annexed
territories, EUROPEAN JOURNAL OF INTERNATIONAL LAW (June 8, 2018).https://www.ejiltalk.org/the-israeli-strikes-
on-iranian-forces-in-syria-a-case-study-on-the-use-of-force-in-defence-of-annexed-territories/.
68 26 UNITED NATIONS, REPORTS OF INTERNATIONAL ARBITRAL AWARDS 10 (2005); International Legal Materials, 45

AMERCIAN SOCIETY OF INTERNATIONAL LAW 430,433 (2006); Maritime Boundary Delimitation (Guyana v.
Suriname), 11 R.I.A.A. 370, 23 (Perm. Ct. Arb. 2007).
69 Id.
70 Corfu Channel case, supra note 52, at 35.
71 The Six-Day War-Introduction, ISRAEL MINISTRY OF FOREIGN AFFAIRS (Nov. 3, 2003).

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the victim States by fulfilling the ‘armed attack’ conditio sine qua non.72 It is submitted that the
respondent’s unlawful use of force was of sufficient ‘scale and gravity’ to trigger the right to self-
defense under customary international law and Article 51 of the UN Charter.

i) That Yagistan’s defensive actions fulfilled all customary elements of the inherent right
to self-defense.

36. This court has in numerous adjudications73 emphasized that Article 51, through the
inclusion of the term ‘inherent,’ alludes to the customary right of self-defense of States in
international law. Arising from the oft-cited and customarily binding ‘Caroline’ formulation, the
right to self-defense is conditioned upon three essential standards: (i) armed attack, (ii) necessity
and (iii) proportionality.74 It is submitted that Yagistan in the instant case exercised the
customary right of self-defense and fulfilled all its elements.

37. The notion of armed attack requires a use of force on a relatively large scale, of a
sufficient gravity and having a substantial effect as distinguishable from mere minor frontier
incidents such as the incursion of an armed border patrol into another State’s territory 75.76 The
standard of ‘scale and gravity’ is a flexible one, and is to be determined by the court on a case-to-
case basis.77 However, it is commonly accepted that an invasion or attack by the armed forces of
a State on the territory of another State, represent the classic cases of ‘armed attacks.’ 78 In the
instant case, the invasion of the territorial integrity of Lohkas by the building of military
infrastructure in its territory and within 5 kms of the boundary with Yagistan clearly amounted to
the scale and gravity of armed attack on Lohkas. Such a forceful violation has the impact of
depriving the victim State of its sovereignty and territory, and thus are categorically graver than
minor border incidents.

38. Pursuant to the 1999 Treaty between Lohkas and Yagistan, Yagistan was under treaty
obligation to protect the national interests as well as the diplomatic and defense affairs of
Lohkas.79 Such mutual defense co-operation treaties have been common in international

72 Supra note 67.

73Id. at ¶105; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226 (Jul. 8); Oil
Platforms (Iran v. US), Judgment, 2003 I.C.J Rep. 161, ¶ 51 (Nov. 6). [hereinafter ‘Oil Platforms case’]

74 J. A. Green, The 'rationetemporis' elements of self- defence, 2(1) JOURNAL ON THE USE OF FORCE AND INTERNATIONAL
LAW, 97-118, 100-108 (2015).
75 Supra note 49, at 1409.
76 Nicaragua, supra note 52, at ¶ 191; Oil Platforms case, supra note 73, at ¶ ¶ ¶ ‘s 51, 64, 72.
77 KEIICHIRO OKIMOTO, THE DISTINCTION AND RELATIONSHIP BETWEEN JUS AD BELLUM AND JUS IN Bello 50-51.

(2011).
78 C. GRAY, INTERNATIONAL LAW AND THE USE OF FORCE 11 (3rd ed. 2008).
79 Moot proposition, para 4.

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relations throughout history.80 Therefore, by exercising its lawful right to self-defense in response
to an armed attack on Lohkas, Yagistan, as a responsible and reliable international actor has
fulfilled its treaty commitments to Lohkas.

39. Further, necessity requires that force be exercised as a matter of ‘last resort,’ after having
exhausted all practical and reasonable alternatives.81 As it operates today, the necessity criterion
requires that the responding State show that the extremity of the situation meant that it would
have been wholly unreasonable to expect the responding State to attempt non-forcible measures
of resolution.82 It is submitted that Yagistan’s defensive action had been initiated only after
multiple rounds of boundary talks had failed between Lohkas and Sumiyan in the past.83
Sumiyan’s exercise of unlawful force in contravention to its treaty obligations to the applicants’,
despite affirming its commitment the recourse to peaceful dispute resolution, evidently
necessitated the defensive response from Yagistan. Thus, further non-forceful defensive
responses were not just wholly unreasonable, but would deter the effectiveness of the defense of
the Applicants’ territory and sovereignty.

40. The proportionality condition mandates that the use of defensive force must be
temporally and spatially commensurate to the defensive necessity, and be used only to the extent
of ending the attack or removing the threat.84 In the instant case, the factual matrix explicitly
states that Yagistan sent its troops to the site of the illegal constructions in Lamdo to merely
prevent and restrain the Sumiyan army from raising constructions. 85 Evidently, the defensive
force was temporally exercised immediately after such constructions began and were limited
spatially to site of the said unlawful constructions.86 Clearly, the proportionality requirement
stands fulfilled, as the defensive force resorted to was well-within the bounds of customary
proportionality.

80Mutual Defense Treaty, Philipines-U.S., Aug. 30, 1951, 3 U.S.T. 3947; Treaty of Friendship, India-Bhutan, Aug. 8,
1949, 32 U.S.T. 1935.

MYRA WILLIAMSON, TERRORISM, WAR AND INTERNATIONAL LAW: THE LEGALITY OF THE USE OF FORCE
81

AGAINST AFGHANISTAN IN 2001 115 (Ashgate ed., 2009).

82 JUDITH GARDAM, NECESSITY, PROPORTIONALITY AND THE USE OF FORCE BY STATES 131 (2004).
83 Moot proposition, para 5.
84 CHRISTOPHER GREENWOOD, SELF-DEFENSE AND THE CONDUCT OF INTERNATIONAL ARMED CONFLICT, IN
INTERNATIONAL LAW IN A TIME OF PERPLEXITY 273, 275-78 (Yoram Dinstein & Mala Tabory eds., 1989).
85 Moot proposition, para 6.
86 Moot proposition, para 7.

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41. Moreover, the right of anticipatory self-defense as an attribute of the Caroline formula to
prevent ‘imminent’ armed attacks has now acquired widespread acceptance in international law. 87
It has met with approval from scholars and States alike, as can be seen from the Report of the
UN ‘High Level Panel on Threats Challenges and Change’ in 2004 88 and the Secretary General’s
response to this in 2005, entitled ‘In Larger Freedom,’89 both of which endorsed anticipatory
action as lawful when restrained by the ‘imminence’ criterion.

42. Imminence depends upon the nature of the threat, with the geographical situation of the
victim State and the past record of attacks by the attacking State as relevant factors in
determining ‘imminence.’90 In the present case, Sumiyan had a past record of encroaching upon
Yagistan’s territory in the Meerak region and a history of being an unreliable treaty partner which
acts in bad faith.91 The respondents’ breach of its treaty commitment to Yagistan by developing
‘permanent’ structures in Lohkasi territory within 5 kms. of the common boundary, heavily tilted
the geographical situation to favor Sumiyan.92 Further delay in exercising defensive force would
have rendered the applicant unable to effectively defend its sovereignty. Thus, it is submitted
that Yagistan had the legal right to exercise anticipatory self-defense to protect its sovereignty in
response to Sumiyan’s imminent armed attacks.

ii) That Yagistan’s defensive actions are justified and protected under the right to self-
defense under Article 51 of the UN Charter and Article 21 and Articles on the
Responsibility of States for Internationally Wrongful Acts.

43. The right to self-defense under Article 51 of the UN Charter is conditioned on the
occurrence of an ‘armed attack.’ This has been already been established in II(B)(i). There is
however, an additional formal, procedural requirement of reporting to the Security Council the
exercise of defensive force by any UN member State in Article 51 of the Charter. It is contended
that such a requirement is merely directory in nature and not mandatory. This is because, no
corollary reporting requirement exists in the broader right to self-defense under customary
international law. Moreover, Article 31(3)(c) of the VCLT93 explicitly recognizes that relevant

87 The Chatham House Principles of International Law on the Use of Force in Self-Defence Source, 55(4) THE INTERNATIONAL
AND COMPARATIVE LAW QUARTERLY 963, 964-972 (2006).
88 U.N. Doc A/59/565 (2 Dec., 2004).
89 U.N. Doc A/59/2005 (21 Mar., 2005).
90 Supra note 87, at 963, 968.
91 Moot proposition, para 6.
92 Moot proposition, para 8.

93 Supra note 6, at art. 31 ¶ 3(c).

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rules of international law applicable in the relations between the parties as important for the
treaty interpretation process. Since this requirement exists only under the Charter regime, a clear
divergence between customary and conventional obligations exists.94 There is, thus, strong
reason to believe that a harmonious reading of the right under the two regimes would render this
particular Charter requirement as only directory or evidentiary in nature. This conclusion is not
without the support of the Court’s judgment, wherein it concluded that it could only be a
procedural term.95 Judge Schewbel too has stated in his seminal dissent, that “…the measures of
force are not transformed from defensive into aggressive measures by the failure to report.” 96

44. Additionally, since Article 51 prescribes no manner or form of reporting to the Security
Council,97 therefore, the way in which defending states report is also left entirely open by Article
51. For example, the United Kingdom’s ‘report,’ with regard to its collective action in Jordan in
1958, was delivered orally during debates in the Security Council.98 The Applicants’ therefore had
the option of notifying the Council orally if and when the Security Council took up the matter.
Moreover, States have sometimes supported the legality of unilateral interventions that were not
reported to the Council. For example, despite Turkey’s failure to report to the Security Council,
the Netherlands expressed support for Turkey’s self-defense action taken in response to Parti
Karkerani Kurdistan (PKK) attacks in 2008.99 The endorsement of States such as Burundi and
Uganda of Kenya’s unreported self-defense action in Somalia in 2011100 and support from the
European Union and United States for France’s intervention in Mali in 2013 101 provide examples
of States considering self-defense claims to be legally valid even when such claims went
unreported.

45. Wrongfulness of use of force is also precluded under Article 21, ARSIWA in conformity
with the UN Charter. Thus, based on these contentions, it is submitted that the applicant had the
legal right to restrain the restrain the Sumiyan Army from violating the territorial sovereignty and
integrity of the applicants.

94 J.N. Moore, The secret war in Central America and the Future World Order, 80 A.M. J. INT. L. L.J. 43, 105 (1986).

95 Id.
96 Id. at 376.
97 U.N. Charter art. 51.
th st
98 U.N. SCOR, 13 Sess., 831 mtg., at 5-7; U.N. Doc. S/PV.831 (Jul. 17, 1958).
99 TOM RUYS, ARMED ATTACK AND ARTICLE 51 OF THE UN CHARTER: EVOLUTIONS IN CUSTOMARY LAW AND

PRACTICE 71 (2010).
100 Uganda, Burundi support Kenya action in Somalia, DAILY NATION(Nov. 11, 2011).
https://nation.africa/kenya/news/uganda-burundi-support-kenya-action-in-somalia-789884/
101 Andrew Rettman, EU Countries back France on Mali air strikes, EU OBSERVER (Jan. 14, 2013, 9:41 AM).

https://euobserver.com/foreign/118716/

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46. Thus, it is submitted that Yagistan lawfully exercised the right to self-defense in
conformity with the requirements of the UN Charter.

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PRAYER

IN THE LIGHT OF THE CONSIDERATIONS SET OUT ABOVE, LOHKAS AND YAGISTAN
RESPECTFULLY REQUEST THE COURT TO ADJUDGE AND DECLARE THAT THE TITLE AND

SOVEREIGNTY OVER LAMDO BELONGS TO LOHKAS, AND THAT SUMIYAN BREACHED THE PRE-

EMPTORY PROHIBITION ON THE USE OF FORCE AND THREATENED THE TERRITORIAL

SOVEREIGNTY OF YAGISTAN AND LOHKAS.

RESPECTFULLY SUBMITTED

AGENT OF LOHKAS AND YAGISTAN

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