Cyber Attacks Moot 2

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9th RMLNLU SCC OnLine Moot, 2021

Winner Team Memorial - Applicant
PURSUANT TO THE PROCEEDINGS I NSTITUTED UNDER ARTICLE 40 (1) OF THE STATUTE OF

THE I NTERNATIONAL COURT OF JUSTICE
“CASE CONCERNING THE ALSARIAN ELECTIONS”
State of Histanbul … Applicant;
Versus
State of Alsara … Respondent.
WRITTEN SUBMISSION ON BEHALF OF THE APPLICANT
TABLE OF CONTENTS
TABLE OF CONTENTS 1
LIST OF ABBREVIATIONS 3
INDEX OF AUTHORITIES 5
STATEMENT OF JURISDICTION 13
STATEMENT OF FACTS 14
STATEMENT OF ISSUES 16
SUMMARY OF ARGUMENTS 17
ARGUMENTS ADVANCED 19
A. WHETHER THE APPLICANT-STATE HAS VIOLATED THE 19
TERRITORIAL INTEGRITY OR POLITICAL
INDEPENDENCE OF THE RESPONDENT
I. THE ACTIONS OF JUMBO ARE NOT ATTRIBUTABLE TO THE APPLICANT 19
a. Jumbo is not an organ of the Respondent-State 19
b. Jumbo does not satisfy the test of effective control or 20
specific instructions
i. Acts were not carried out under the direction or control 20
of the Applicant State
ii. Acts were not carried out under the instructions of the 21
Applicant-State
II. THE ACTIONS CARRIED OUT IN THE TERRITORY OF THE 22
RESPONDENT ARE NOT IN VIOLATION OF ITS POLITICAL
I NDEPENDENCE
a. The report of the Investigation Committee is unreliable 22
b. There is an absence of force 22
c. The actions complained of do not satisfy the doctrinal 23
criteria of intervention
i. There is no violation of sovereign functions 23
ii. There is no element of coercion by Jumbo 24
d. The actions are a valid form of humanitarian intervention 25
i. The current case satisfies the requirement of 25
humanitarian intervention.
ii. The acts are in consonance with the U.N. Charter 25
B. WHETHER RESPONDENT HAS JURISDICTION TO TRY MS. 26
PANTH AND WHETHER SHE SHOULD BE TRANSFERRED
TO THE CUSTODY OF THE APPLICANT
I. THE RESPONDENT HAS NO LEGITIMATE JURISDICTIONAL CLAIM OVER 26
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THE SUBJECT MATTER

a. The assertion of the Respondent's jurisdiction is 26
illegitimate
b. The Respondent has no substantial link with the subject- 28
matter
II. THE ACTIONS OF THE RESPONDENT ARE IN VIOLATION OF 28
I NTERNATIONAL LAW .
a. The Respondent violated the right to consular access 28
b. The Respondent has breached due process of law.. 30
III. THE CUSTODY OF MS. PANTH SHOULD I MMEDIATELY BE 31
TRANSFERRED TO THE APPLICANT
C. WHETHER THE RESPONDENT HAS VIOLATED THE RIGHT 32
TO FREEDOM OF SPEECH AND EXPRESSION OF MS.
PANTH, A CITIZEN OF THE APPLICANT-STATE
I. §190, A.C.L.C IS IN VIOLATION OF CUSTOMARY I NTERNATIONAL 33
LAW
a. Right to freedom of speech and expression is a facet of 33
customary international law
b. § 190 is inconsonant with the I.C.C.P.R.. 33
i. § 190 does not fulfil the legality principle 33
ii. § 190 does not have a legitimate aim 34
iii. The punishment imposed by § 190 is not necessary 35
II. MR. RAYAN'S STATEMENT ON JUMBO IS WITHIN PERMISSIBLE 36
CONTOURS OF THE RIGHT TO FREEDOM OF SPEECH AND
EXPRESSION
a. Mr. Rayan's statement is entitled to heightened 36
protection
b. Mr. Rayan's statement falls within the exceptions of § 37
190, A.C.L.C..
III. MS. PANTH DOES NOT I NCUR ANY LIABILITY FOR MR. RAYAN'S 38
STATEMENT
PRAYER 39
LIST OF ABBREVIATIONS
& And
§ Section
¶ Paragraph
Art. Article
Afr. Crt. H. African Court on Human and People's Rights
People's R.
Comm'n Commission
Doc. Document
Conf. Conference
E.C.H.R. European Convention on Human Rights
E. Ct. H.R. European Court of Human Rights
ed. Edition
et al. Et alia
E.T.S. European Treaty Series
G.A. General Assembly
Hon'ble Honourable
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I.C.J. International Court of Justice

i.e. That is
I.C.C.P.R. International Covenant on Civil and Political Rights
I.C.E.S.C.R. International Covenant on Economic, Social and Cultural Rights
I.C.S.I.D. International Centre for Settlement of Investment Disputes
Id. The same
I.L.C. International Law Commission
Int'l International
Inter-Am. Ct. Inter-American Court of Human Rights
H.R.
Inter-Am. Inter-American Commission of Human Rights
Cmm'n H.R
J. Journal
L. Law
Ltd. Limited
Neth. Netherlands
No. Number
p. Page
P.C.I.J. Permanent Court of International Justice
R2P Responsibility to Protect
Rep. Reports
Res. Resolution
Rev. Review
U.K. United Kingdom
U.N. United Nations
U.N.T.S. United Nations Treaty Series
U.S. United States of America
U.D.H.R. Universal Declaration of Human Rights
V.C.C.R. Vienna Convention on Consular Relations
V.C.D.R. Vienna Convention on Diplomatic Relations
v. Versus
Y.B. Yearbook
INDEX OF AUTHORITIES
TREATIES & CONVENTIONS
African Charter on Human and Peoples' Rights, Jun. 27, 1981, 30, 31, 33
1950, U.N.T.S. 221.
American Convention on Human Rights, Nov. 22, 1969, 1144 30, 31, 33
U.N.T.S. 123.
Convention Against Torture and other Cruel, Inhuman or Degrading 27
Treatment, Dec. 15, 1989, 1456 U.N.T.S. 85
Convention for the Protection of Human Rights and Fundamental 30, 31, 33
Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221.
Convention on Consular Relations, Apr. 24, 1969, 596 U.N.T.S. 261 29, 31
Convention on Offences Committed on Board Aircraft, Sept. 14, 27
1963, 220 U.N.T.S 10106
Hague Convention for the Suppression of Unlawful Seizure of 27
Aircraft, Dec. 16, 1970, 860 U.N.T.S. 105
International Convention for the Suppression of Terrorist Bombings, 27
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Dec. 15, 1997, 2149 U.N.T.S. 256

International Convention on the Suppression of the Financing of 27
Terrorism, Dec. 09, 1999, 2178 U.N.T.S. 197
International Covenant on Civil and Political Rights, Dec. 16, 1966, 23, 30, 31, 33,
999 U.N.T.S. 17 35
Rome Statute of the International Criminal Court, Jul. 17 1998, 25
2187 U.N.T.S. 3.
U.N. Charter.. 22, 26
U.N. Torture Convention, New York, Dec. 10, 1984, 1465 U.N.T.S. 27
85
I.C.J. & P.C.I.J. CASES
Anglo-Norwegian Fisheries (U.K. v. Norw.), 1951 I.C.J. Rep. 116 27
Application of the Convention on the Prevention and Punishment of 19, 21, 22
the Crime of Genocide (Bosn. & Herz. v. Serb. and Montenegro),
2007 I.C.J. Rep.
Armed Activities on the Territory of the Congo (D.R.C. v. Uganda), 22
Judgment, 2005 I.C.J. Rep.
Avena and Other Mexican Nationals (Mex. v. U.S.), Judgment, 2004 29, 31
I.C.J. 121
Barcelona Traction, Light & Power Co. Ltd. (Belg. v. Spain), 1970 33
I.C.J. Rep. 3
Case Concerning the Arrest Warrant (Dem. Rep. Congo v. Belg.) 28, 31
2002 I.C.J. Rep. 3
Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, 1985 33
I.C.J. Rep.
Corfu Channel, Merits, Judgment, 1949 I.C.J. Rep. 21
Customs Regime between Germany and Austria (Ger. v. Austria), 23
Advisory Opinion 1931 P.C.I.J. (ser. A/B) No. 41, (Sept. 5)
(separate opinion by Anzilotti, J.)
Jadhav case (India v. Pak.), Judgment, I.C.J. Reports 2017 (Jul. 29
2019).
LaGrand Case (Ger. v. U.S.), Judgment, 2001 I.C.J. Rep. 466 29, 31
Legal Consequences of the Construction of a Wall in the Occupied 19
Territories U.N. v. (Israel), 2004 I.C.J. Rep.
Military and Paramilitary Activities in and against Nicaragua (Nicar. 24
v. U.S.A.), Merits, Judgment, 1986 I.C.J. Rep
passim Nationality Decrees Issued in Tunis and Morocco, Advisory
Opinion, 1923 P.C.I.J. (ser. B) No. 4, (7 Feb.).
North Sea Continental Shelf (Ger. v. Den.), Judgment, 1969 I.C.J. 35 28
Rep. 3…………… Nottebohm (Liech. v. Guat.) 1955 I.C.J. Rep. 4.
Oil Platforms (Iran v. U.S.A), Judgment, (2003) I.C.J. Rep. 16 22
The Case of the SS Lotus (Fr. v. Turk.) 1927 P.C.I.J. Reports (ser. 20, 27
A) No. 10
The Mavrommatis Palestine Concessions (Greece v. U.K.), 32
Judgment, 1924 P.C.I.J., Series A, No. 2 (Aug. 30)
United States Diplomatic and Consular Staff in Tehran, Judgment, 21
1908 I.C.J. Rep. 29
E. CT. H.R. CASES
Castells v. Spain, App. No. 11798/85, Eur. Ct. H.R. (1992) 35
Cumpănă and Mazăre v. Romania [GC], 2004-XI Eur. Ct. H.R. 63 36
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Delfi AS v. Estonia [GC], 2015-II Eur. Ct. H.R. 321 34

Fedchenko v. Russia, App. No. 33333/04, Eur. Ct. H.R. (2010) 35
Gawęda v. Poland, 2002-II Eur. Ct. H.R. 121 34
Handyside v. The United Kingdom, App. No. 5493/72, Eur. Ct. H.R. 37
(1976)
Kaperzynski v. Poland, App. No. 43206/07, Eur. Ct. H.R. (2012) 36
Kita v. Poland, App. No. 57659/00, Eur. Ct. H.R. (2008) 37
Krutov v. Russia, App. No. 15469/04, Eur. Ct. H.R. (2009) 35
Kubaszewski v. Poland, App. No. 571/04, Eur. Ct. H.R. (2010) 35
Lingens v. Austria, App. No. 9815/82, Eur. Ct. H.R. (1986) 37
Lombardo v. Malta, App. No. 7333/06, Eur. Ct. H.R. (2007) 35, 37
Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. 38
Hungary, App. No. 22947/13, Eur. Ct. H.R. (2016)
Mahmudov and Agazade v. Azerbaijan, App. No. 35877/04, Eur. Ct. 36
H.R. (2004)
Raichinov v. Bulgaria, App. No. 47579/99, Eur. Ct. H.R. (2006) 35
Revised Arab Charter on Human Rights, art. 13, May 22, 2004, 12 30
Int'l Hum. Rep. 893
Rotaru v. Romania [GC], 2000-V Eur. Ct. H.R. 111 34
Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], 38
App. No. 931/13, Eur Ct. H.R. (2017)
Sunday Times v. The United Kingdom, App. No. 6538/74, Eur. Ct. 37
H.R. (1979)
Tamiz v. The United Kingdom, App. No. 3877/14, Eur. Ct. H.R.. 38
VgT Tierfabriken v. Switzerland, 2001-VI Eur. Ct. H.R. 245 34
OTHER INTERNATIONAL CASES
Cesar Fierro v. United States, Case 11.331, Inter-Am. Comm'n H.R. 30
Report No. 9, OEA/Ser./L/V/II.114 Doc.70 rev. 1, (2003)
Federal Constitutional Court of the Federal Republic of Germany, 30
First Chamber of the Second Senate, Order No. 2 BvR 1579/11, 5
November 2013..
Electrabel S.A. v. Republic of Hungary. I.C.S.I.D. Case No. 21
ARB/07/19, Award, (Nov. 25, 2015)
Herrera-Ulloa v. Costa Rica, Inter-Am. Ct. H.R. (ser. C) No. 107, 36
(Jul. 2, 2004)
Hulley Enterprises Limited (Cyprus) v. The Russian Federation, PCA 21
Case Rep. (Perm Ct. Arb. 2014
In Lao Holdings N.V. v. Lao People's Democratic Republic, I.C.S.I.D. 21
Case No. ARB(AF)/12/6, Decision on the Merits, (Jun. 10, 2015).
Lohé Issa Konaté v. Burkina Faso, App. No. 004/2013, Afr. Crt. H. 36, 37
People's R. (2014)
Palamara Iribarne v. Chile, Inter-Am. Ct. H.R. (ser. C) No. 135, 36
(Nov. 22, 2005).
Phillips Petroleum Company Iran v. The Islamic Republic of Iran, 21
Iran-U.S. (1989) 21 CTR 79
Prosecutor v. Dusko Tadic, Case. No. IT-94-1-A, Appeal Judgement, 20, 21
(Int'l Crim. Trib. for the Former Yugoslavia, 15 July 1999)
Ricardo Canese v. Paraguay, Inter-Am. Ct. H.R. (ser. C) No. 111, 36
(Aug. 31, 2004).
Ramon Martinez Villareal v. United States, Case 11.753, Inter-Am. 30
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Comm'n H.R., Report No.52/02, Doc.5 rev.1, (2002)

SEDCO, Inc. v. National Iranian Oil Company, 15 Iran-US C.T.R., 23 21
(1987)
Tristán Donoso v. Panama, Inter-Am. Ct. H.R. (ser. C) No. 193, 36
(Jan. 27, 2009)
The Right to Information on Consular Assistance in the Framework 30
of the Guarantees of the Due Process of Law, Advisory Opinion OC-
16/99, Inter-Am. Ct. H.R. (ser. A)
U.N. Human Rights Committee, Saldías López v. Uruguay, U.N. Doc 31
CCPR/C/13/D/52/1979
U.N. Human Rights Committee, Alexander Adonis v. The 36
Philippines, U.N. Doc. CCPR/C/103/D/1815/2008/Rev.1 (Oct. 26,
2011)
Usón Ramírez v. Venezuela, Preliminary Objections, Merits, 34
Reparations, and Costs, Inter-Am. Ct. H.R. (ser. C) No. 207 (Nov.
20, 2009)..
NATIONAL CASES
Calder v. Jones 465 US 783 (1984). 28
G.A. Monterio v. State of Ajmer, AIR 1957 SC 13 37
Garrison v. Louisiana, 379 US 64 (1964) 37
Hanson v. Denckla, 357 US 235 (1958). 28
New York Times v. Sullivan, 376 US 254 (1964) 37
Sharma Transport v. Govt. of A.P., (2002) 2 SCC 188 34
State of T.N. v. K. Shyam Sunder, (2011) 8 SCC 737 34
The Republic v. Lameck Bandawe Phiri, Sentence Hearing No. 30
25/2017, High Ct. of Malawi, Jun. 23, 2017
United States v. Aluminium Co. of Am., 148 F.2d 416, 443-44 (2d 27
Cir. 1945)
United States v. Carolene Products, 304 US 144 (1938) 34
U.N. DOCUMENTS
Dept. of Political Affairs, Principles and Types of UN Electoral 26
Assistance, U.N. Focal Point for Electoral Assistance, U.N. Doc.
FP/01/2012 (May 11, 2012)
G.A. Res. 146 (XXXIV), International Convention Against the 27
Taking of Hostages (Nov. 17, 1979)
G.A. Res. 217 (III) A, Universal Declaration of Human Rights, (Dec. 23, 30, 33
10, 1948)
G.A. Res. 375 (IV), Draft Declaration on Rights and Duties of 24
States, (Dec. 6, 1949).
G.A. Res. 40/144, Declaration on the Human Rights of Individuals 30
Who are not Nationals of the Country in Which they Live, Dec. 13,
1985
G.A. Res. 43/173 Body of Principles for the Protection of All Persons 30
under Any Form of Detention or Imprisonment, 16 (Dec. 9, 1988)
G.A. Res. 56/83, Responsibility of States for internationally 19, 20, 32
wrongful acts (Jan. 28, 2002)
G.A. Res. 60/1, 2005 World Summit Outcome, (Sept. 20, 2005).. 25, 26
G.A. Res. 74/158, Strengthening the role of the United Nations in 26
enhancing periodic and genuine elections and the promotion of
democratization (Jan. 17, 2020)
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U.N. Basic Principles on the Role of Lawyers (1990) 33

U.N. Commission on Human Rights, Status of the International 34, 35
Covenants on Human Rights, U.N. Doc. E/CN.4/1985/4 (Sept. 28,
1984)
U.N. Human Rights Committee, General Comment No. 34, U.N. 34, 35
Doc. CCPR/C/G C/34 (Sept.12, 2011)
U.N. Human Rights Council, Report of the Special Rapporteur on 38
the promotion and protection of the right to freedom of opinion and
expression, U.N. Doc. AHRC/17/27/(May 16, 2011)
U.N. Secretary-General, Implementing the responsibility to protect: 25
Report of the Secretary-General, U.N. Doc. A/63/677 (Jan. 12,
2009)..
U.N.G.A. Res. 2625 (XXV), Declaration on Principles of International 23
Law concerning Friendly Relations and Co-operation among States
in accordance with the Charter of the United Nations (Oct. 24,
1970)
SCHOLARLY ARTICLES
Adele Shank & John Quigley, Foreigners on Texas's Death Row and 31
the Right of Access to a Consul, 26 ST. MARY'S L.J. 719 (1995).
Beckett, The Exercise of Criminal Jurisdiction Over Foreigners, 6 27
Brit. Y.B. Int'l L. 58 (1925)..
FA Mann, The Doctrine of Jurisdiction in International Law, 111 27
RCDAI 92 (1964). 27, 28 Harvard Research on International Law,
Draft Convention on Jurisdiction with Respect to Crime, 445 AM. J.
INT'L L. (1935)..
Jacob Groshek & Karolina Koc-Michalska, Helping populism win? 24
Social media use, filter bubbles, and support for populist
presidential candidates in the 2016 US election campaign I NFO.
COMM'N. & SOC, 12-13 (2017)
Jacqueline Van De Velde, The Law of Cyber Interference in 22
Elections, SSRN, May 15, (2017)
https://ssrn.com/abstract=3043828..
Maria Stavropoulou, The Right Not to Be Displaced, 9 AM. U.J. INT'L 25
L. & POL'Y 689, 689 (1994)..
Maziar Jamnejad and Michael Wood, The Principle of Non- 23, 24
intervention, 22 LEIDEN JOURNAL OF I NTERNATIONAL LAW 345, 355
(2009)
Najeeb Samie, The Doctrine of “Effects” and the Extraterritorial 28
Application of Antitrust Laws, 14 U. MIAMI INTER-AM. L. REV. 23
(1982).
Philip Kunig, Intervention, Prohibition of, MPEPIL, Apr. 2008 23
Ramesh Thakur & Thomas Weiss, ‘R2P: From Idea to Norm and 33
Action?’ GLOB. RESP. TO PROTECT 22, 36 25 Yoram Dinstein, The erga
omnes Applicability of Human Rights, 30(1) Archiv Des
Völkerrechts 16, 18-19 (1992)
BOOKS
ADELHEID PUTTLER, EXTRATERRITORIAL JURISDICTION I N THEORY AND 28
PRACTICE (Karl M. Meessen ed. 1996)..
CEDRIC RYNGAERT, JURISDICTION IN I NTERNATIONAL LAW (2nd ed. 28
2015)..
DEPARTMENT OF DEFENSE, LAW OF WAR MANUAL (2015) (U.S.) 23
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DINAH SHELTON, REMEDIES IN I NTERNATIONAL HUMAN RIGHTS LAW (3rd 32

ed., 1999)
I AN BROWNLIE, PRINCIPLES OF PUBLIC I NTERNATIONAL LAW (2nd ed. 27
1973)
I AN BROWNLIE, SYSTEM OF THE LAW OF NATIONS: STATE RESPONSIBILITY, 19
PART I, (1983)
I NTERNATIONAL COMMISSION ON I NTERVENTION AND STATE SOVEREIGNTY, 25
THE RESPONSIBILITY TO PROTECT 33 (2001)
I NTERNATIONAL GROUPS OF EXPERTS, TALLINN MANUAL 2.0 ON THE 19
I NTERNATIONAL LAW APPLICABLE TO CYBER OPERATIONS (Michael N.
Schmitt & Liis Vihul eds., 2017) 20 JAMES CRAWFORD, STATE
RESPONSIBILITY: THE GENERAL PART (2013)
JAMES PATTISON, HUMANITARIAN I NTERVENTION AND THE RESPONSIBILITY 25
TO PROTECT (2010)..
JOHN QUIGLEY, CONSULAR ACCESS AS A HUMAN RIGHT (Cambridge 30
University Press, 2018).
NIHAL JAYAWICKRAMA, THE JUDICIAL APPLICATION OF HUMAN RIGHTS LAW , 35
(2002)
R.Y. JENNINGS AND A.D. WATTS, OPPENHEIM'S I NTERNATIONAL LAW (9th 23
edn, 2008).
THE CHARTER OF THE UNITED NATIONS: A COMMENTARY (Bruno Simma 26
et. al. eds., 3d ed. 2012)
OTHER AUTHORITIES
Ambeyi Ligabo, Freimut Duve, Eduardo Bertoni, JOINT 36
DECLARATION, ORGANISATION OF AMERICAN STATES (last visited Jan.
28, 2021),
http://www.oas.org/en/iachr/expression/showarticle.asp?
artID=87&lID=1
Andy Greenburg, Everything We Know About Russian Election- 24
Hacking, WIRED (June 9, 2017),
https://www.wired.com/story/russia-election-hacking-playbook/..
Australia's International Cyber Engagement Strategy, Gov.Au (last 30
visited Jan 25, 2021) www.dfat.gov.au/publications/international-
relations/international-cyber-
engagementstrategy/aices/chapters/annexes.html#Annex-A 24
Bulg. Const..
Canadian Charter of Rights and Freedoms, Part I of the Constitution 33
Act, 1982, being Schedule B to the Canada Act, 1982, (U.K.)
China CONST.. 30
Elizabeth Gibney, The scant science behind Cambridge Analytica's 24
controversial marketing techniques, NATURE (Mar. 29, 2018)
https://www.nature.com/articles/d41586-018-03880-4..
Eric Lipton, David E. Sanger and Scott Shane, The Perfect Weapon: 24
How Russian Cyberpower Invaded the U.S., N.Y. TIMES (Dec. 13,
2016), http://www.nytimes.com/2016/12/13/us/politics/russia-
hack-election-dnc
Est. CONST.. 30
Frank La Rue, Dunja Mijatović, Catalina Botero Marino, Faith Pansy 38
Tlakula, JOINT DECLARATION ON FREEDOM OF EXPRESSION AND
THE INTERNET, ORGANISATION FOR SECURITY AND CO-OPERATION IN
EUROPE (June 1, 2011),
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https://www.osce.org/files/f/documents/e/9/78309.pdf
Guy. CONST.. 30
Hung. CONST.. 30
IIL, 19th Comm'n (Maarten Bos, Rapporteur), Draft Resolution on 28
the Extraterritorial Jurisdiction of States, art 2(4), 65 Y.B INST.
INT'L L. 174 (1993)..
I NDIA CONST 33
International Association of Penal Law, Draft Resolution 7, 85 29
Revenue Internationale De Droit Penal (2014)..
Lat. CONST.. 30
Lith. CONST.. 30
Mark Clayton, Ukraine election narrowly avoided ‘wanton 24
destruction’ from hackers, Passcode (June 17, 2014)
https://www.csmonitor.com/World/Passcode/2014/0617/Ukraine-
election-narrowly-avoided-wanton-destruction-from-hackers..
Mark Warren, Individual Consular Rights: Foreign Law and Practice, 30
HUMAN RIGHTS RESEARCH http://users.xplornet.com/mwarren/..
Michael Schmitt, Foreign Cyber Interference in Elections: An 24
International Law Primer, Part I, EJIL, (Oct.16, 2020)
www.ejiltalk.org/foreign-cyber-interference-in-electioninternational-
law-primer-part-i/
Opinion of the Inter-American Juridical Committee in Response to 27
Resolution 3375/96 of the General Assembly of the Organization 35
ILM 1329
Pol. CONST.. 30
Port. CONST.. 30
RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS OF THE UNITED 27
STATES § 402(1)(C) (AM. LAW INST. 1990)..
Rom. CONST.. 30
Russian Central Election Commission comes under cyberattack, RT 24
(18 Mar, 2018) https://on.rt.com/91bq.
S. Kor. CONST.. 30
Terrorism and Human Rights, Rep. Inter-Am. Ct. H.R 31
(OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr.)
The Application of International Law to State Activity in 20
Cyberspace, MIN. FOREIGN AFF. & TRADE (Dec. 1, 2020)
https://www.mfat.govt.nz/en/media-and-resources/ministry-
statements-and-speeches/cyber-il
Trial for International Crimes, OAS Res. 1/03, Preamble Oct. 24, 29
2003
U.S. CONST 33
STATEMENT OF JURISDICTION
The State of Histanbul and the State of Alsara appear before the International Court
of Justice in accordance with Article 40(1) of the Statute of the International Court of
Justice, read with Article 1 of the Optional Protocol to the Vienna Convention on
Consular Relations, through submission of a Compromis for resolution of all the
differences between them concerning the case of Alsarian Elections.
This Court has jurisdiction over the dispute pursuant to Article 36(1) of its Statute,
as both parties have agreed that this Court will adjudicate the dispute under its
jurisdiction. The parties concluded this Compromis in The Hague, The Netherlands and
jointly notified this Court of their special agreement on 28th February, 2021.
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The State of Histanbul and the State of Alsara agree to accept the Court's decision
as final and binding on them and commit to comply with it in its entirety and in good
faith.
STATEMENT OF FACTS
Introduction
Histanbul, Vangal, and Alsara are three democratic nations situated in the continent
of Panlaysia. Alsarian People's Congress (APC) has been in power in Alsara for the past
three decades. The Siman community is an ethnic minority in Alsara as well as
Histanbul. The community is well-represented in the Histanbul government, and is
considered powerful. Simans in Histanbul have been extremely critical of the
incumbent Alsarian government and have been actively involved in creating pressure
groups to expose the human rights violations in Alsara. Jumbo is a popular online
social networking service, co-founded by Zafran and Panth, citizens of Vangal and
Histanbul respectively. Its server lies partly in Histanbul and partly in Vangal. Several
government companies of Histanbul are shareholders of Jumbo, with a total
shareholding of 45%. Jumbo came up with a referral scheme to increase its
membership, which included filling up a survey where some personal information is
sought. This is an entirely voluntary process and individuals can opt-out at any time.
NRIN and Subsequent Protests
A law passed on April 14, 2020 in Alsara mandated all residents to enrol in a
National Register, which would generate a National Register Identity Number (NRIN).
This law required Alsarians to prove that they or their ancestors have been residents of
Alsara since January 1, 1961. It was believed that this law specifically targeted
minority communities, as a large percentage had immigrated to Alsara from
neighbouring nations. It was also criticized because it was believed that the cut-off
date would deprive many immigrants who formed the minority group in Alsara from
social benefits and perhaps citizenship.
In July, 2020, Alsara witnessed unprecedented civil society movement against
NRIN through peaceful means, led by the Alsaran Independent Coalition (AIC). The
internal strife boiled over to Jumbo, which was accused by Krashian United Front
(KUF) of being biased towards the critics of NRIN as many accounts of KUF members
were suspended for engaging in abusive and hate speech. Jumbo released a statement
about how it is extremely committed to upholding free speech, ensuring diversity and
plurality, and that the suspension of accounts was in compliance with Jumbo's terms
and international free speech standards.
Arrests of Mr. Rayan and Ms. Panth
Elections were due in Alsara and voting was to begin from February 14, 2021. In
the midst of this strife, Panth visited Alsara on February 10, 2021, to promote Jumbo's
digital initiatives. Two days before the commencement of voting, Rayan, a member of
AIC, published a statement on his account on Jumbo. He alleged that the Prime
Minister of Alsara was guilty of corruption and had misappropriated public funds
amounting to 10,000,000 anaa. This statement was picked up by newspapers and
other media platforms across the globe. The next day, Panth and Rayan were arrested
for the offence of criminal defamation under § 190 of Alsara Criminal Law Code, the
maximum penalty for which is ten years of rigorous imprisonment. The Consulate of
Histanbul in Alsara was denied the permission to meet Panth, who was held in judicial
custody after the arrest, on February 13, 2021.
Report of the Investigation Committee
After the arrests, amidst a public outcry, an Investigation Committee was
constituted by the Alsarian government. According to its report, Jumbo had been
involved in using the data of Alsarian citizens to create psychographic profiles of its
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users. This profile, according to the report, was used to target Alsarian citizens with
negative opinions about APC. It was stated that based on their search history,
Alsarians were also shown information about ‘Protest against NR’ events, and that
there is enough evidence to presume that data was being shared by Jumbo with
opposition parties in Alsara to help them target voters.
Statements by Histanbul and Alsara
The Ministry of Externals Affairs of Histanbul released a statement saying that
Panth's arrest was an affront to the freedom of expression and the action of the Alsara
is in violation of international law. It further said that any allegations of wrongful
conduct by Panth needed to be investigated in a fair manner, and demanded that her
custody be handed over to Histanbul where she would be tried for any alleged
offences. Alsara responded to this by saying that it was well within its rights to arrest
Panth and that Histanbul had interfered with its political independence by trying to
manipulate the elections through its agent, Jumbo. Alsara demanded a public apology
and a cessation of any activities infringing on its sovereignty.
The Proceedings
Histanbul and Alsara initiated several diplomatic negotiations to settle their
disputes. However, all such efforts failed and as a result, the Parties agreed to submit
the matters of dispute to the International Court of Justice under the Special
Agreement.
STATEMENT OF ISSUES
A. WHETHER THE APPLICANT HAS VIOLATED THE TERRITORIAL INTEGRITY
OR POLITICAL INDEPENDENCE OF THE RESPONDENT?
B. WHETHER THE RESPONDENT HAS JURISDICTION TO TRY MS. PANTH AND
WHETHER SHE SHOULD BE TRANSFERRED TO THE CUSTODY OF THE
APPLICANT?
C. WHETHER THE RESPONDENT HAS VIOLATED THE RIGHT TO FREEDOM OF
SPEECH AND EXPRESSION OF MS. PANTH, A CITIZEN OF THE APPLICANT-
STATE?
SUMMARY OF ARGUMENTS
A. WHETHER THE APPLICANT HAS VIOLATED THE TERRITORIAL INTEGRITY
OR POLITICAL INDEPENDENCE OF THE RESPONDENT?
It is submitted that the Applicant has not violated the territorial integrity and
political independence of the Respondent-State. This is submitted as firstly, the
actions of Jumbo are not attributable to the Applicant-State as Jumbo has not acted as
an agent, or under the control and instructions of the Applicant-State. Secondly, the
acts of Jumbo themselves do not constitute a violation of the prohibition of non-
intervention, as firstly, the actions are in consonance with the U.N. Charter and
secondly, the actions do not constitute a prohibited intervention. Finally, it is
submitted that arguendo the actions of Jumbo constitute a prohibited intervention, the
same is a justified intervention under the Responsibility to Protect.
APPLICANT?
It is submitted that the Respondent has no legitimate jurisdictional claim to try Ms.
Panth under § 190, A.C.L.C and her custody should immediately be transferred to the
Applicant-State. By charging and arresting Ms. Panth, the Respondent has attempted
to assert passive personality jurisdiction. It is contended that the said principle of
jurisdiction has not received sanction under international law and is highly
controversial. Its applicability to the present case is illegitimate insofar as state
practice and opinio juris reflect that it is applicable only to heinous and pernicious
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offences like war crimes, terrorism, torture, hijacking and trafficking; and not to
ordinary crimes and torts. It is contended that the Respondent does not have a
substantial link with the subject-matter, as whatever conduct can be attributed to Ms.
Panth as an intermediary, does not satisfy the effects test. Further, by denying
consular access, the Respondent has violated international law. Article 36 of the
V.C.C.R confers consular access not only as a diplomatic right to the sending State but
also as an individual human right to the detenu. The actions of the Respondent have
breached due process of law and Ms. Panth's right to defence, thereby causing
egregious violation of the I.C.C.P.R. This raises serious apprehensions that Ms. Panth
would be subject to prejudice and denial of justice at the hands of the Respondent.
The Articles on State Responsibility enable the Applicant seeks relief for violating of its
rights by the Respondent by way of restitutio in integrum, whereby the custody of Ms.
Panth should be transferred to the Applicant-State.
STATE?
It is submitted that the Respondent has violated Ms. Panth's right to freedom of
speech and expression by arresting her for the criminal offence of defamation. The
asseverations in this regard are that the right to freedom of speech and expression is a
principle of customary international law and that § 190, A.C.L.C. is inconsonant with
the I.C.C.P.R. It does not fulfil the legality principle; it has no legitimate purpose; and
it is not a necessary imposition by any means, with a maximum sentence of ten years
of rigorous imprisonment. It is also contended that Mr. Rayan's statement on Jumbo
forms political speech which is entitled to heightened protection as per international
free speech principles, and further, it falls under the exceptions of the penal provision.
Lastly, it is submitted that arguendo Mr. Rayan does incur any liability for his actions,
the same cannot extend to Ms. Panth due to the fact that Jumbo is not a publisher of
the content and intermediary liability in cases of online defamation only applies when
the online intermediary is a publisher.
ARGUMENTS ADVANCED
A. WHETHER THE APPLICANT-STATE HAS VIOLATED THE POLITICAL
INDEPENDENCE OF THE RESPONDENT-STATE?
1. As per the Articles on Responsibility of States for Internationally Wrongful Acts,
(hereinafter “State Responsibility Articles”), to attach responsibility to a State for a
wrongful act, the act should fulfil two criteria: firstly, it should be attributable to the
State, and secondly, it should constitute a breach of international law.1 It is contended
that the current situation does not satisfy either criteria, and thus the Applicant entails
no liability.
I. THE ACTIONS OF JUMBO ARE NOT ATTRIBUTABLE TO THE APPLICANT.
2. For the Applicant to be internationally responsible, the conduct which has
allegedly committed a breach of international law has to be attributable to the
Applicant-State.2 Internationally, only the conduct of the organs of government, or of
other de facto agents of the State, are attributed to that State.3 The actions of non-
State actors such as Jumbo are not governed by the principle of territorial integrity
and political independence.4 Therefore, it is humbly submitted that the actions of
Jumbo are not attributable to the Applicant-State as Jumbo is not a State agent:
firstly, Jumbo is not an organ of the Applicant; and secondly, the conditions under
Article 8 of the State Responsibility Articles are unfulfilled.
a. Jumbo is not an organ of the Applicant-State.
3. As per this Hon'ble Court, the actions of organs of a State are directly
attributable to a State, yet for something to be an organ of the State requires it to be
under the “complete dependence” of the State.5 Only in exceptional cases should the
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conduct of private individuals or entities be equated to the conduct of an organ of the

State,6 as mere ownership of an entity by a State will not render it an organ.7
Complete dependence requires that the entity in question must be so closely
connected to a State that it appears nothing more than the State's agent.8 Yet in the
current case, Jumbo is not completely dependent on the Applicant-State as firstly,
Jumbo was founded by citizens of different nations and thus is not a creation solely of
Histanbul, and secondly, the servers of Jumbo are physically located partly outside of
Histanbul. Since a State can exert sovereignty over its own territory,9 Jumbo cannot be
said to be under the complete dependence of Histanbul, as doing so implies a lack of
territorial sovereignty on part of Vangal. Thirdly, the Applicant-State only owns a 45%
stake in Jumbo, and therefore, Jumbo is only partially financially dependent on the
Applicant-State.
b. Jumbo does not satisfy the test of effective control or specific instructions.
4. As per Article 8 of the State Responsibility Articles, the actions of private parties
are attributable to States only if they have been carried out under the instruction,
direction or control of that State.10 It is pertinent to note that there is no pre-emptive
due diligence responsibility in cyber law.11
i. Acts were not carried out under the direction or control of the Applicant-State.
5. The test for such attribution under “control” is of “effective control” to be
exercised by the State over the private party.12 Effective control denotes control
exercised by the State to be so deeply pervasive within “all fields” of functioning of the
concerned non-State actor.13 Reflecting the same, the standard of control required for
any form non-armed/non-military private entity is much higher than that of private
entities engaged in armed activities, requiring a standard of control higher than
“effective control”.14 This is in clear contrast to the current case, wherein Jumbo is only
partly financed by the Histanbul government, and is located only partly within the
territory of Histanbul.15 In supplementation to the same, as per this Hon'ble Court,
control involving financing, organizing, training, as well as planning of operations is
not sufficient to impute complete control.16
6. Additionally, the Applicant-State's 45% shareholding does not constitute
effective control. It is established judicial practice that control exercised by mere
ownership of a corporate-entity by a State, is not a sufficient basis to attribute the
conduct of such company to it.17 The required degree of control is much higher than
mere influence exerted by way of control and ownership.18 Only when such corporate
entities exercise public powers, is the conduct of the entity attributed to the State.19
Simple financial contribution does not render a private entity a de facto State agent.20
Therefore, since the Applicant-State does not exercise any control other than its 45%
shareholding and part-hosting of servers, the test of effective control is not satisfied.
ii. Acts were not carried out under the instructions of the Applicant-State.
7. In the current case, this Hon'ble Court is concerned not with whether the current
issue can be characterized as international, but rather, whether specifically the
Applicant-State's responsibility is engaged,21 calling for a higher scrutiny. In the case
of Jumbo, there needs to be a) proof of specific instructions b) in respect of each and
every operation undertaken by Jumbo.22 In this regard, claims should be substantiated
via direct evidence, failing which they are mere allegations.23 Yet in the current case,
there is no evidence, explicit or implicit, regarding specific instructions being given by
the Applicant-State to Jumbo for any act complained of. Additionally, the Applicant
has openly expressed its willingness to put Ms. Panth through a free and fair
investigation, as well as a trial,24 which belies any intention to be complicit to Jumbo's
alleged conduct. Furthermore, the existence of the Siman minority within the
Applicant-State cannot serve as sufficient circumstantial evidence of specific
instructions. In such cases where the alleged conduct of the non-State actor is extra-
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territorial, “more extensive and compelling evidence” to support the claim of control is
required.25 In circumstances where the information before the Court does not suffice to
establish with certainty such a fact, the Court has dismissed the allegation in its
entirety.26 Therefore, in the current case there is a clear lack of corroborative and
direct evidence to establish specific instructions and thus, the actions of Jumbo are not
attributable.
II. THE ACTIONS CARRIED OUT IN THE TERRITORY OF THE RESPONDENT ARE NOT IN
VIOLATION OF ITS POLITICAL INDEPENDENCE.
8. Without prejudice to the preceding argument that the actions of Jumbo are not
attributable to the Applicant-State, it is submitted that Jumbo's functioning as a social
media site does not constitute a violation of the Respondent's political independence
or territorial integrity. This is submitted based on two reasons: firstly, the report of the
Respondent-State's IC is unreliable, secondly, actions of Jumbo do not constitute
“force” and thirdly, Jumbo's actions do not satisfy the test of intervention as evolved
by this Hon'ble Court.
a. The report of the Investigation Committee is unreliable.
9. In the current case, the Respondent has constituted an investigative committee
(IC) to investigate the conduct of Jumbo in the Alsarian elections. It is submitted that
the report of the IC, alleging various forms of misconduct by Jumbo, is an unreliable
piece of evidence and should not be taken as a proof of facts. It has been noted by
this Hon'ble Court itself that it will treat with caution materials prepared specifically for
a case, as well as materials emanating from a single source.27 Additionally, the value
of specific reports depends on a) the neutrality of the source, b) the process of its
generation and c) the character of the report, such as statements against interests.28
However in the current case, the IC report has been prepared from a single source,
which is undoubtedly not neutral, and is in consonance with the interests of the
source.29 Therefore, the IC report is an unreliable piece of evidence.
b. There is an absence of force.
10. Without prejudice to the unreliability of the IC report, it is contended that the
acts of Jumbo do not constitute a prohibited intervention, as they do not constitute
force. The intervention that the U.N. Charter prohibits deals only with the threat or use
of force, thereby only relating to acts of armed aggression.30 Force in international law
is generally understood to be a kinetic act, i.e. a physical act akin to a weaponised
aggression.31 Additionally, all uses of force do not constitute an armed attack and
thus, “force” has to be of a sufficiently grave nature to incur international
responsibility.32 Yet Jumbo's actions are intangible in nature, and thus cannot
constitute force. Cyber operations that involve, or are otherwise analogous to economic
or political coercion, even if impinging on political independence, do not constitute
force even if carried out.33 This is also reflected in international state practice wherein
cyber-attacks are labelled as a use of force in extremely clear cut examples, e.g.
causing a nuclear meltdown, causing airplane crashes and disrupting dam operations
that flood cities.34 Therefore, the acts complained of by the Respondent are not a
violation of the U.N. Charter.
c. The actions complained of do not satisfy the doctrinal criteria of
intervention.
11. Lastly, the acts carried out by Jumbo fall short of the standard of intervention
enunciated in customary international law.35 As per the standard evolved by this
Hon'ble Court, an intervention into the domestic affairs of another country is wrongful
only if the intervention seeks to undermine the sovereign right of a State, by way of
coercion.36 Interference pure and simple is not intervention.37 Other instances of
interference, illustrated in sweeping declarations like the Draft Declaration on the
Inadmissibility of Intervention and Interference in the Internal Affairs of States, do not
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amount to customary law as they are not reflective of international consensus.38

Therefore, it is submitted that the accusations of the Respondent-State fall short of
satisfying the test of intervention as neither is Jumbo attempting to undermine a
sovereign right, nor is there any element of coercion.
i. There is no violation of sovereign functions.
12. Sovereignty refers to a supreme authority within a territory.39 An intervention is
prohibited only when it “occurs in fields of State affairs which are solely the
responsibility of inner State actors.”40 In the current case, arguendo, the most
egregious act committed by Jumbo is the influencing of popular opinion in respect of a
certain ideology. Yet this cannot be a usurpation of the Respondent's essential
functions, as to imply that a State has the sovereign right to control the opinion of its
populace would be in violation of international human rights, which provide for the
freedom of opinion.41 The domaine réservé of States is determined by an inability of
international law, and not the positive ability of States, to govern them.42 Therefore,
had Jumbo sought to prevent or hinder the conduct of elections, as in the case of the
US,43 France,44 Ukraine45 and Russia,46 Jumbo would be preventing the Respondent's
free choice of the procedure of holding elections. However, since the function of a
sovereign stops only with the procedure of elections, and does not include directing
the will of its subjects, Jumbo's acts have not violated the Respondent's domaine
réservé.
ii. There is no element of coercion by Jumbo.
13. Additionally, there is no element of coercion by Jumbo to the Respondent in the
current case. Coercion forms the very essence of, prohibited intervention,47 and is
directed towards a State, i.e. coercion seeks to force States to make choices that they
otherwise would not have.48 Coercion should be of such a forceful nature that it shall
“effectively deprive another state of the ability to control, decide, or govern matters of
an inherently sovereign nature”.49 Yet in the current case, there is no deprivation for
the Respondent for the ability to control or decide the form of its government, or the
manner, or the time for holding elections. Additionally, coercion seeks to hinder the
sovereign will in such a manner that no complete free will exists of a State, in a way
that the pressure exerted cannot be reasonably resisted.50 Yet Jumbo's actions do not
prevent or affect the exercise of any choice by the Respondent government, and thus
are not coercive in nature. Even if this Hon'ble Court were to assume that coercion
exists with regards to the Alsarian citizens, firstly, the citizens of a State are a
fundamentally distinct concept from the State itself and thus coercion of its citizens
will not count as coercion of the State,51 and secondly, there is no empirical evidence
of a substantial effect of social media in influencing votes towards a certain
candidate.52 Therefore, it is humbly submitted before that Jumbo's actions in the case
concerning the Alsarian elections cannot be said to be coercive in nature, nor do they
amount to undermining any sovereign right of the Respondent, thereby failing the
twin-test for non-intervention.
III. THE ACTIONS ARE A VALID FORM OF HUMANITARIAN I NTERVENTION.
14. It is submitted that the actions complained of by the Respondent-State
constitute a valid form of humanitarian intervention, which has been legitimized by
the responsibility to protect (R2P).53 R2P has received widespread acceptance within
international law as being an extension of already existing customary law regarding
international crimes, and has been adopted as part of the largest gathering of Heads of
State and Government in history.54 Crimes against humanity in general, or any acts
that have the effect of mass-displacement are international rights issues outside of
sovereignty, on account of their effect on international peace.55 Over such crimes, a
general responsibility to protect exists for the entire international community.56 This is
also reflected in recent international practice.57
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i. The current case satisfies the requirement of humanitarian intervention.

15. The R2P allows humanitarian intervention in cases of crimes against humanity
and ethnic cleansing.58 Such acts have to be “large-scale”, which can include a
number of small events.59 This is satisfied, as crimes against humanity include the
systematic deportation or forcible transportation of a civilian population as well as
persecution of ethnic minorities.60 Presently, the Respondent-State has repeatedly
engaged in human rights violations of minorities, and recent legislation by the State
has the probable effect of denying citizenship to such minorities,61 thereby leading to a
forceful deportation/displacement of minorities residing in the Respondent-State.
Thus, the actions of the Respondent-State constitute crimes against humanity, which
enables the Applicant-State to engage in humanitarian intervention.
ii. The acts are in consonance with the U.N. Charter.
16. Humanitarian intervention has to be in consonance with the principles of the
U.N. Charter.62 However, the U.N. Charter requires Security Council authorization only
in cases of force, as the U.N. Charter prohibits only the use, or threat, of force against
the sovereignty of States.63 As previously stated, actions of Jumbo, whatever they may
be, do not constitute force. Additionally, the U.N. Charter itself places an obligation
onto member-states to promote human rights and international peace.64 The actions of
Jumbo amplify the voices of minorities in the Respondent-State and promote
democratic forms of peaceful dissent to persons already interested in doing so, and are
in consonance with the U.N.'s policies on electoral assistance.65 Therefore, the acts of
Jumbo promote the purposes of the U.N. Charter while also not violating the same,
and thus are a valid form of humanitarian intervention.
APPLICANT?
17. It is submitted that the Respondent has violated multiple international laws
and obligations by denying consular access to Ms. Panth, a citizen of the Applicant-
State. Further, the Respondent has no jurisdiction to try her and for such lack thereof,
the custody of Ms. Panth should immediately be transferred to the Applicant. This
averment will be established by a three-fold submission: firstly, the Respondent has
no legitimate jurisdictional claim over the subject-matter; secondly, the actions of the
Respondent are in violation of international law; and lastly, the custody of Ms. Panth
should be transferred to the Applicant.
I. THE RESPONDENT HAS NO LEGITIMATE JURISDICTIONAL CLAIM OVER THE SUBJECT MATTER
18. The Respondent, in charging and arresting Ms. Panth under their criminal law,
has unjustly exercised passive personality jurisdiction and as such, has no legitimate
jurisdictional claim over the subject-matter. This averment will be two-fold: firstly, the
assertion of passive personality jurisdiction is illegitimate under international law
principles; and secondly, the Respondent does not have a substantial link with the
subject-matter of jurisdiction.
a. The assertion of the Respondent's jurisdiction is illegitimate.
19. It is submitted that the arrest of Ms. Panth for criminal defamation is an
assertion of passive personality jurisdiction by the Respondent. The passive
personality jurisdiction allows a State to exercise jurisdiction over an act committed by
an individual outside of its territory because the victim is one of that country's
nationals.66 The sovereign asserting jurisdiction is concerned with the crime's effect,
rather than where it occurs.67 However, this claim to jurisdiction has not received
international sanction,68 and is the most controversial of all the bases of jurisdiction in
international law.69 Several dissenting opinions in the Lotus case rejected the passive
personality principle categorically.70 It has been said to be the most difficult principle
to justify even in theory because accepting it would only invite controversy without
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serving a useful objective.71 It should be treated as an excess of jurisdiction.72

20. Though the principle has gained acceptance over the decades, state practice in
context of passive personality jurisdiction has only been applied to heinous offences
like international terrorism,73 hijacking,74 taking hostages75 and torture.76 Assertion of
passive personality jurisdiction has not been accepted for ordinary torts and crimes.77
While it can be argued that preventing impunity is in the international community's
interest, this does not hold true for common crimes such as defamation (more
specifically to the present case—intermediary liability for it) since it is not a crime that
violates erga omnes obligations of a State.
21. Moreover, the reliance placed on SS Lotus by the States asserting over-reaching
jurisdiction, has been vehemently criticized in doctrine.78 Its emphasis on plenary
State discretion is contradicted by the approach of the Court in Anglo Norwegian
Fisheries79 and Nottebohm,80 which concerned comparable competencies of the States.
Following Arrest Warrant81 there are hints that it has been reversed, emerging from
the assertion of Wyngaert J:“… the Lotus test is too liberal and given the growing
complexity of contemporary international intercourse, a more restrictive approach
should be adopted today”. Therefore, it is submitted that the assertion of passive
personality jurisdiction to try Ms. Panth for her role as an intermediary, is not
sanctioned by international law.
b. The Respondent has no substantial link with the subject-matter.
22. States are generally considered to be authorized to exercise jurisdiction if they
can advance a legitimate interest based on personal or territorial connections of the
matter to be regulated.82 It is unclear whether the nationality of the victim constitutes
a sufficient jurisdictional link under international law.83 However, in assertions of
extraterritorial jurisdiction, this link is the effect of the conduct in the State. The
effects doctrine was developed to reach aliens abroad whose conduct occurs beyond
the borders of the enforcing State but has an effect within the State.84 It is contended
that whatever conduct is attributed to Ms. Panth for the statement published by Mr.
Rayan, does not satisfy the effects test.
23. In cases involving strictly criminal consequences within a State's territory, it is
generally expected not only that the effect on the prosecuting State would be
“primary, direct, and substantial”,85 but also that criminal intent can be established.86
For adjudging jurisdiction in cyberspace offences, courts have adopted a tighter
version of the effects test, which is “intentional targeting”.87 The U.S. Supreme Court
affirmed that personal jurisdiction would exist over a defendant only if their conduct
was “expressly aimed”88 or “purposefully directed”89 towards the forum State. As an
intermediary, Ms. Panth is only responsible for regulating content on Jumbo, which is
evident from the prior suspension of certain accounts.90 However, such responsibility
does not extend to affirming the veracity of the content published, and since Ms. Panth
was not the author of the statement, she did not specifically direct it at users.
24. In this context, it has been asserted that States should exercise restraint in
applying the effect theory in situations in which the effect is not ‘pushed’ by a
perpetrator into the State, but ‘pulled’ into it by an individual in that State.91 This is
prima facie discernible in the present case. The allegedly defamatory statement had
been posted on Jumbo by a citizen of the Respondent-State itself, thereby “pulling”
the effect within the territory.
II. THE ACTIONS OF THE RESPONDENT ARE IN VIOLATION OF I NTERNATIONAL LAW .
25. In case of a jurisdictional conflict, a State cannot prevail its jurisdiction, unless
it has the capacity to effectively and fairly adjudicate the matter; can guarantee the
application of rules of due process for the alleged perpetrators; and there is an
effective will to bring them to justice.92 However, the actions of the Respondent
corroborate the assumption that Ms. Panth would be subject to prejudice and denial of
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justice in its custody. This submissions in this regard are that firstly, the Respondent
violated the right to consular access; secondly, consular access is an important
principle of due process when the proceedings include aliens; and lastly, Ms. Panth is
subject to prejudice and false implication during the trial.
a. The Respondent has violated the right to consular access.
26. It is an undisputed fact between the two parties that post the arrest of Ms.
Panth, she was kept in judicial custody by the Respondent and the Consulate of the
Applicant-State was denied permission to meet her.93 Article 36 of the V.C.C.R.
requires a nation arresting or detaining a foreign national to afford the detainee access
to his or her consulate and to notify the foreign national the right of consular access.94
27. Article 36 of the V.C.C.R. has been held to create individual rights for those
detained or facing charges outside their own country and accord diplomatic rights to
the sending State.95 Even serious allegations like that of espionage and terrorism do
not excuse the accused person from the protection granted by the V.C.C.R.96 and the
necessity of consular communication has been recognised by the U.N. General
Assembly.97 The requirement of strict protection of consular rights is widely reflected
in state practice. 28 States have recognized a constitutional right to consular
protection,98 and other States recognize the right to consular assistance in their
policies for nationals detained abroad.99
28. It is submitted that the Respondent has egregiously violated its international
obligation under the V.C.C.R by denying consular access to Ms. Panth and has hence
committed an international wrong.
b. The Respondent has breached due process of law.
29. The principles of due process, which have now been expressly recognised in the
I.C.C.P.R.,100 U.D.H.R.101 and various other international treaties,102 can fairly be
considered a universal obligation upon all States erga omnes. The Inter-American
Court on Human Rights103 and the Inter-American Commission on Human Rights has
treated the State's obligation under Article 36 as constituting a fundamental
component of the due process standards.104 Several countries have equated the right
to consular access with the rights of due process, attorney representation and the right
to remain silent.105 Domestic courts in Germany106 and Malawi107 have held that a
violation of the right to consular access is a violation of due process and frustrates the
defendant's right to a fair trial.
30. Moreover, in relation to a foreign national, consular practice has established the
need for consular access to render meaningful the right to a fair and impartial trial,
and the right to defend oneself against criminal charges, including the right to engage
a lawyer of one's own choice in a foreign country.108 The right to be defended by a
lawyer of one's own choice is contained in the I.C.C.P.R.109 , the E.C.H.R.110 , African
Charter111 and American Convention on Human Rights.112 Without being able to talk to
a consul, most foreign nationals would not know the best route to take with their case,
since people facing charges outside their country confront additional challenges
because of their lack of familiarity with the legal system.113 It is to be noted that the
right to self-representation means that an accused cannot be forced to accept a State-
appointed counsel.114 This requirement has also been upheld in multiple human rights
case-laws115 and the Inter-American Commission on Human Rights has indicated that
the right to be defended by a lawyer of one's own choice can never be dispensed
with.116
31. Further, it is submitted that the Applicant is well within its right to submit a
claim in its own name and request this court to rule on the violations of its right, and
the individual right of Ms. Panth.117 The I.C.J. has held that the rule on exhaustion of
local remedies is not applicable when a State invokes direct violation of its rights. In
such cases, the State is not bound to wait until domestic proceedings have been
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completed by its injured national.118

32. Should a State party to the I.C.C.P.R. decide to withhold consular protection
from an individual on the grounds of their purported crime, this would violate both the
State's obligation to protect the right to life and the prohibition against
discrimination.119 Therefore, by denying consular access, the Respondent has not only
caused a serious affront to the due process of law, but also violated her right to
defence. This constitutes an egregious violation to Article 14 of the I.C.C.P.R. as well
has V.C.C.R.
IV. THE CUSTODY OF MS. PANTH SHOULD I MMEDIATELY BE TRANSFERRED TO THE APPLICANT
33. It is submitted that the Respondent has knowingly, wilfully, and brazenly
violated the provisions of Article 36 of the V.C.C.R as well as Article 14 of the
I.C.C.P.R., thereby violating the protected rights of Ms. Panth and the Applicant. Of all
the breaches of international law that give rise to State Responsibility, those involving
injury to aliens are the closest to modern international human rights violations.120 For
such violation of international obligations by the Respondent, consequences must
follow, based on the principles of State Responsibility.
34. Further, international law on diplomatic protection provides an exception to the
concept of non-State interference if a State acts to prevent the denial of justice in
relation to its own nationals.121 The actions of the Respondent raise serious
apprehensions that Ms. Panth would be subject to arbitrary treatment and denial of
justice. The report prepared by an investigation committee by the government levels
several serious and inauthentic allegations against Jumbo, which can be used to the
prejudice of Ms. Panth to falsely incriminate her for their political advantage.
35. The Applicant seeks relief for such violation of its rights by way of restitutio in
integrum. Restitution can take the form of material restoration or return of territory,
persons or property, or the reversal of some juridical act or some combination of
them.122 Material restitution includes the release of detained individuals and the
handing over to a State of an individual arrested in its territory.123 The U.N. H.R.C. has,
in cases where allegations of violation of the I.C.C.P.R. were established, applied
principles of State Responsibility by ordering the release of the detenu whose rights
were violated.124 The Applicant claims immediate transfer of custody of Ms. Panth, to
prevent her from being subject to arbitrary treatment and denial of justice. Any
alleged misconduct of Ms. Panth needs to be investigated in a fair and neutral manner,
for which she would be tried by the Applicant.
STATE?
36. It is submitted that Ms. Panth's arrest by the Respondent-State for the offence
of criminal defamation violates her right to the freedom of speech and expression. The
asseverations of the Applicant are that firstly, the law applicable in the Respondent-
State is in violation of customary international law; secondly, the statement published
by Mr. Rayan on Jumbo is within the permissible contours of the right to freedom of
speech and expression; and lastly, Ms. Panth does not incur any liability for Mr.
Rayan's statements.
I. § 190, A.C.L.C. IS IN VIOLATION OF CUSTOMARY I NTERNATIONAL LAW .
37. It is the submission of the Applicant that § 190 inherently casts a chilling effect
on the right to freedom of speech and expression. The submissions in this regard are
that firstly, the right to freedom of speech and expression is a facet of customary
international law; and secondly, § 190 of the A.C.L.C. is inconsonant with the
principles of the I.C.C.P.R.
a. Right to freedom of speech and expression is a facet of customary
international law.
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38. Customary international law requires the co-existence of settled State practice
and opinio juris.125 The right to freedom of expression, including the rights to receive
and impart information “regardless of frontiers,” is embodied in both the U.D.H.R. and
the I.C.C.P.R.126 There exists a corpus of regional instruments which seek to protect
this right.127 The willingness of States to submit to reports by the U.N. Special
Rapporteur and a majority of States providing constitutional protection for the freedom
of expression indicates strong opinio juris.128 This, along with the freedom of
expression being an erga omnes obligation,129 establishes that the freedom of
expression is customary international law.
b. § 190 is inconsonant with the I.C.C.P.R.
39. The I.C.C.P.R. sets out the touchstone of the three-part test to adjudge whether
the restrictions on this freedom are valid.130 § 190 is inconsonant with the I.C.C.P.R.
insofar as firstly, it does not fulfil the legality principle; secondly, it does not have a
legitimate aim; and thirdly, the punishment imposed by § 190 is not necessary.
i. §190 does not fulfil the legality principle.
40. A restriction on the freedom expression must be provided for by national law of
general application; shall not be arbitrary or unreasonable; must be clear and
accessible to everyone; and shall have adequate safeguards against illegal or abusive
imposition.131 According to the E. Ct. H.R., the legality principle is fulfilled if the
restriction is founded in domestic law; duly published; not suffering from vagueness;
and meeting the test of foreseeability.132 Without causing prejudice to the argument
that Mr. Rayan's statement is excepted by § 190, it is submitted that the law is
imprecise, arbitrary and unreasonable.
41. Criminal laws are required to use strict, unequivocal terms which clearly
establish the elements of said incriminatory behaviour, and define what is not
punishable, as well as the illicit behaviour which may be punishable.133 The lack of a
specification relating to whether the accused has to attribute facts which damage the
honour of an individual, or whether it suffices simply to give an offensive or
disparaging opinion, without attributing any illicit acts, for the criminal imputation,
was why the Inter-Am. Ct. H.R. declared a law invalid.134
42. Furthermore, any restriction on the right to the freedom of speech and
expression must be formulated with such specific precision which allows any individual
to regulate their behaviour accordingly and to a reasonable degree.135 Something is
arbitrary when done in an unreasonable manner, or without an adequate determining
principle, or depending on the will alone,136 or has no rational basis.137 This reflects the
need for any restriction posed on the freedom of speech to expression to both be
foreseeable and lacking in arbitrariness.
43. § 190 does not, in a manner that could allow Mr. Rayan to reasonably foresee
the consequences of his actions, define whether the law prohibits the attribution of
facts or a merely disparaging comment would attract the imputation of defamation.
Despite other exceptions, the lack of protection for the expression of truth renders the
exposing of proven illicit acts by the Prime Minister, as defamatory. Therefore, even if
Mr. Rayan's statement was true, there is no way for him to make it without attracting
either an imputation or prosecution, or even a conviction under § 190, making it an
unreasonable law.
ii. §190 does not have a legitimate aim.
44. The legitimate purpose behind posing any restriction on the freedom of speech
and expression has been defined in the I.C.C.P.R. to include respect for rights and
reputations of others.138 It is the contended that the application of § 190 in the
present matter, to arrest Ms. Panth and Mr. Rayan for allegedly defaming the Prime
Minister of the Respondent-State, indicates that the provision is not pursuant to the
legitimate aims set out in the I.C.C.P.R. but purposefully worded in order to give it a
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character of desacato laws when need be.

45. Restrictions on the freedom of expression must be applied only for those
purposes for which they were prescribed and must be directly related to the specific
need on which they are predicated.139 All public figures, including those exercising the
highest political authority such as heads of State and government, are legitimately
subject to criticism and political opposition.140 This neither threatens the reputation of
these officials, nor does it cause public disorder.141 Furthermore, the exception of truth
is not available to any individual accused of defamation, which is inconsistent with
international standards.142 In the present case, Mr. Rayan and Ms. Panth cannot
escape conviction even if his statement is revealed to be true.
46. The arrest of Mr. Rayan, and in connection to him, of Ms. Panth, is an attempt
of the Respondent to use an imprecise law in order to silence any voices of dissent
which may arise. Consequently, the purpose behind the restriction posed to the
freedom of expression by § 190 of the A.C.L.C. are outside the ambit which has been
provided by the I.C.C.P.R.
iii. The punishment imposed by §190 is not necessary.
47. The last prong of the three-part test requires that any restriction posed on the
freedom of speech and expression must be necessary.143 Necessity encompasses a
pressing public or social need, a legitimate aim, and proportionality to the aim.144
Imprisonment for defamation of public officials is never a necessary or proportionate
infringement to the right to freedom of expression, since there exists a far less
intrusive, i.e., civil defamation remedies.145 There exists near-universal consensus that
criminalization of speech on matters of public concern is permissible only in
exceptional circumstances involving the gravest of threats, such as incitement to
violence or hate speech.146 The E. Ct. H.R. has also emphasised the chilling effect that
the fear of sanctions has on the exercise of the right to freedom of expression.147
48. The U.N. Human Rights Committee has made it clear that a penal code which
criminally penalised libel was incompatible with the I.C.C.P.R.148 Three special
international mandates of the right have issued a joint declaration, reiterating that
criminal defamation is not a justifiable restriction on freedom of expression, and
criminal defamation laws must be abolished and replaced, where necessary, with
appropriate civil defamation laws.149
49. There is no such pressing social or public need which cannot be fulfilled by the
more proportionate civil defamation remedies, which would balance both the right to
reputation and the right to freedom of expression. The consistent and urgent efforts of
the international mandates to call for decriminalization of offence such as offences
show the disproportionality of the punishment. It is thus submitted that the gross
overbreadth of the punishment for criminal defamation in the Respondent-State is
liable to be ruled invalid.
II. MR. RAYAN'S STATEMENT ON JUMBO IS WITHIN PERMISSIBLE CONTOURS OF THE RIGHT TO
FREEDOM OF SPEECH AND EXPRESSION.
50. Mr. Rayan's statement on Jumbo forms reasonable speech within the
permissible contours of the right to freedom of speech and expression. It is submitted
in this regard that firstly, political speech is entitled to heightened protection; and
secondly, Mr. Rayan's statements are exempted by § 190, A.C.L.C.
a. Mr. Rayan's statement is entitled to heightened protection.
51. Freedom of expression in a democratic society must be the subject of a lesser
degree of interference when it occurs in the context of public debate relating to public
figures. People who assume visible public roles must necessarily face a higher degree
of criticism than private citizens; lest public debate be stifled.150 Protected speech
includes vehement, caustic, and unpleasantly sharp remarks on government and
public figures.151 Statements meant to shock, offend, or disturb the State are also
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accorded heightened protection.152

52. When an Applicant published an article on the financial irregularities in the
municipality, it was decided that the thrust of the article was to cast doubt on the
suitability of the local politicians for public office, and that it related to issues of public
interest and concerned specific acts carried out by the local municipality in exercise of
their public mandate, thus being within the acceptable limits of criticism.153 An
impugned statement made in the course of a political debate, even if lacking a clear
basis in fact, is also protected.154
53. Criticisms and allegations levelled against politicians should be tolerated to a
broader extent, as they can always access effective channels of communication to
rebut the same.155 Politicians inevitably and knowingly lay themselves open to a higher
degree of scrutiny from the public, and must consequently display a higher degree of
tolerance.156 Therefore, the heightened protection accorded to political speech extends
to Mr. Rayan's statements.
b. Mr. Rayan's statement falls within the exceptions of § 190, A.C.L.C.
54. The exceptions to the offence of defamation as established by the A.C.L.C. cater
to the statements made by Mr. Rayan on Jumbo and accord him protection under the
law. The Prime Minister of the Respondent-State is a public servant, whose dealings
are a matter of their public conduct. Furthermore, allegations relating to the corruption
and misappropriation of funds by the Prime Minister undoubtedly form a “public
question”.
55. The true test in order to determine whether a person is an officer of the
Government is whether he is in the service or pay of the Government; and whether he
is entrusted with the performance of any public duty.157 In this regard, it can
reasonably be assumed that the Prime Minister of the Respondent-State is
remunerated by the Government—and being entrusted with the performance of
several such duties in which the State, the public, and the community, all have an
interest—is a public servant.
56. Matters of public interest relate to those which affect the public to such an
extent that it may legitimately take an interest in them, which attract its attention, or
which concern it to a significant degree, especially in that they affect the well-being of
citizens or the life of the community. This is also the case with regard to matters which
are capable of giving rise to considerable controversy, which concern an important
social issue, or which involve a problem that the public would have an interest in being
informed about.158
57. Therefore, Mr. Rayan's statement is protected by the exceptions laid down in §
190, apart from the protection extended by international instruments. The statement
is within the permissible contours of the exercise of the freedom of speech and
expression.
III. MS. PANTH DOES NOT I NCUR ANY LIABILITY FOR MR. RAYAN'S STATEMENT.
58. Expecting intermediaries to foresee the possibility of unfiltered comments
amounts to requiring excessive and impracticable forethought capable of undermining
freedom of the right to impart information on the Internet.159 ISPs perform a
significant role in facilitating access to information and debate on a wide range of
political and social issues, and should not be obligated to monitor content or
proactively investigate potential defamatory activity.160
59. In a joint declaration on the freedom of expression and the internet, four
international mandates have said, with respect to intermediary liability, that no one
who provides technical Internet services should be liable for content disseminated by
others. Consideration should be paid to insulating fully other intermediaries, and at
the minimum, they should not be required to monitor user-generated content.161 As
put by the U.N. Special Rapporteur, “No one should be held liable on the Internet of
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which they are not the author.”162

60. Thus, arguendo Mr. Rayan incurs liability in the present case, it does not extend
to Ms. Panth. Ms. Panth cannot incur any liability, as neither she nor Jumbo has
assisted in the publication of Mr. Rayan's statements. Further, since she was arrested
by the next day, there could not have been any time or notice to take down the
content, and holding her accountable would go against the exercise of the freedom of
expression on the Internet.
PRAYER
Wherefore, in light of the issues presented, arguments advanced and authorities
cited, the Applicant respectfully requests the Hon'ble Court to adjudge and declare
that:
A. The Applicant has not violated the territorial integrity or political independence of
the Respondent;
B. The Respondent does not have jurisdiction to try Ms. Panth and has acted in
violation of international law;
C. The Applicant is entitled to restitutio in integrum and the custody of Ms. Panth
should immediately be transferred to the Applicant; and
D. The Respondent not violated the freedom of speech and expression of Ms. Panth.
Respectfully submitted by
COUNSELS FOR THE APPLICANT
1 G.A. Res. 56/83, Responsibility of States for internationally wrongful acts (Jan. 28, 2002).
2 Ibid, art. 2.
3 IAN BROWNLIE SYSTEM OF T HE LAW OF NATIONS STATE RESPONSIBILITY PART I, 132 (1983).
4 Legal Consequences of the Construction of a Wall in the Occupied Territories (U.N. v. Israel), 2004 I.C.J. Rep.
¶ 194.
5Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v.
Serb. and Montenegro), 2007 I.C.J. Rep., ¶ 392.
6
Id, at 43.
7
JAMES CRAWFORD STATE RESPONSIBILITY : T HE GENERAL PART , 118 (2013).
8 Supra note 5, ¶ 392.
9 The Case of the SS Lotus (Fr. v. Turk.) 1927 P.C.I.J. Rep. (ser. A) No. 10, 14-15.
10 Supra note 1, art. 8.
11 The Application of International Law to State Activity in Cyberspace, M. FA. & T (Dec. 1, 2020)
https://www.mfat.govt.nz/en/media-and-resources/ministry-statements-and-speeches/cyber-il/; INTERNATIONAL
GROUPS OF EXPERTS , T ALLINN MANUAL 2.0 ON THE INTERNATIONAL LAW APPLICABLE T O CYBER OPERATIONS 41, ¶42
(Michael N. Schmitt & Liis Vihul eds., 2017).
12
Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.A.), Merits, Judgment, 1986 I.C.J.
Rep., at 14.
13 Id, ¶ 94.
14
Prosecutor v. Dusko Tadic, Case. No. IT-94-1-A, Appeal Judgement, ¶ 137 (Int'l Crim. Trib. for the Former
Yugoslavia, 15 July 1999).
15 Compromis, ¶ 4.
16
Supra note 12, ¶¶ 110 and 115.
17
Hulley Enterprises Limited (Cyprus) v. The Russian Federation, PCA Case Rep. ¶ 113 (Perm Ct. Arb. 2014); In
Lao Holdings N.V. v. Lao People's Democratic Republic, I.C.S.I.D. Case No. ARB(AF)/12/6, Decision on the Merits,
¶ 81 (Jun. 10, 2015); SEDCO, Inc. v. National Iranian Oil Company, 15 Iran-US C.T.R., 23 (1987).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
18 Electrabel S.A. v. Republic of Hungary. I.C.S.I.D. Case No. ARB/07/19, Award, ¶ 7.95 (Nov. 25, 2015).
19
Phillips Petroleum Company Iran v. The Islamic Republic of Iran, Iran-U.S. (1989) 21 C.T.R. 79; Int'l Law
Comm'n, Rep. on the Work of its Fifty-Third Session, ¶ 6, p. 48, U.N. Doc. A/56/10 (2001).
20Vladyslav Lanovoy, The Use of Force by Non-State Actors and the Limits of Attribution of Conduct, 73 EJIL
563, 579 (2017).
21 Supra note 5, ¶¶ 404-406.
22 Supra note 5, ¶ 400.

23 Corfu Channel, Merits, Judgment, 1949 I.C.J. Rep., at 17; Supra note 12, ¶ 111.
24 Compromis, ¶ 14.
25 Supra note 14, ¶ 138.

26 United States Diplomatic and Consular Staff in Tehran, Judgment, 1908 I.C.J. Rep. 29, ¶ 58.
27 Armed Activities on the Territory of the Congo (D.R.C v. Uganda), Judgment, 2005 I.C.J. Rep., ¶ 61.
28 Supra note 5, ¶ 227.

29 Compromis, ¶¶ 2, 3, 12.
30 U.N. Charter art. 2(4).
31 Jacqueline Van De Velde, The Law of Cyber Interference in Elections, SSRN, (May 15, 2017)
https://ssrn.com/abstract=3043828.
32 Oil Platforms (Iran v. U.S.A), Judgment, (2003) I.C.J. Rep. 16, ¶ 51.
33 Supra note 12, at 48.
34 DEPARTMENT OF DEFENSE. LAW OF WAR MANUAL 998 (2015) (U.S.).

35U.N.G.A. Res. 2625 (XXV). Declaration on Principles of International Law concerning Friendly Relations and Co-
operation among States in accordance with the Charter of the United Nations (Oct. 24.1970).
36
Supra note 12, ¶ 205.
37 R.Y. JENNINGS AND A.D. WATTS . OPPENHEIM'S INTERNATIONAL LAW . 428 (9th edn. 2008).
38
Maziai Jamnejad and Michael Wood. The Principle of Non-intervention, 22 LEIDEN JOURNAL OF INTERNATIONAL LAW
345. 355 (2009); Supra note 12. ¶203.
39Customs Regime between Germany and Austria (Ger. v. Austria), Advisory Opinion, 1931 P.C.I.J. (ser. A/B) No.
41, at 57 (Sept. 5) (separate opinion by Anzilotti, J.).
40 Philip Kunig, Intervention, Prohibition of, MPEPIL , Apr. 2008, ¶1.
41G.A. Res. 217 (III) A, Universal Declaration of Human Rights art. 19, (Dec. 10, 1948); G.A. Res. 2200 (XXI) A,
International Covenant on Civil and Political Rights art. 19, (Dec. 16, 1966).
42
Nationality Decrees Issued in Tunis and Morocco, Advisory Opinion, 1923 PCIJ (ser. B) No. 4, at 24 (7 Feb.).
43Eric Lipton, David E. Sanger and Scott Shane, The Perfect Weapon: How Russian Cyberpower Invaded the
U.S., N.Y. Times (Dec. 13, 2016), http://www.nytimes.com/2016/12/13/us/politics/russia-hack-election-dnc.
44
Andy Greenburg, Everything We Know About Russian Election-Hacking, WIRED (June 9, 2017),
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45 Mark Clayton, Ukraine election narrowly avoided ‘wanton destruction’ from hackers, Passcode (June 17, 2014)
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46 Russian Central Election Commission comes under cyberattack, RT (18 Mar, 2018) https://on.rt.com/91bq.
47 Supra note 12, ¶ 205.
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48Michael Schmitt, Foreign Cyber Interference in Elections: An International Law Primer, Part I, EJIL, (Oct.16,
2020) www.ejiltalk.org/foreign-cyber-interference-in-elections-an-international-law-primer-part-i/
49 Australia's International Cyber Engagement Strategy, G. AU (last visited Jan 25, 2021)
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engagementstrategy/aices/chapters/annexes.html#Annex-A.
50 Supra note 38, at 348.
51 G.A. Res. 375 (IV), Draft Declaration on Rights and Duties of States art. 2, (Dec. 6, 1949).
52
Jacob Groshek & Karolina Koc-Michalska, Helping populism win? Social media use, filter bubbles, and support
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Ramesh Thakur & Thomas Weiss, ‘R2P: From Idea to Norm and Action?’ Glob. Resp. Top Rotect 22, 36.
54U.N. Secretary-General, Implementing the responsibility to protect: Report of the Secretary-General, ¶¶ 3-4,
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55
Maria Stavropoulou, The Right Not to Be Displaced, 9 AM. U.J. Int'L L. & P OL ‘y 689, 689 (1994).
56
G.A. Res. 60/1, 2005 World Summit Outcome, (Sep. 20, 2005).
57
JAMES PATTISON, HUMANITARIAN INTERVENTION AND T HE RESPONSIBILITY T O PROTECT 1-2 (2010).
58
59
INTERNATIONAL COMMISSION ON INTERVENTION AND STATE SOVEREIGNTY , T HE RESPONSIBILITY T O PROTECT 33 (2001).
60
Rome Statute of the ICC art. 7, Jul. 17 1998, 2187 U.N.T.S. 3.
61
Compromis, ¶¶ 2, 8.
62
63
U.N. Charter art. 2(4).
64
T HE CHARTER OF THE UNITED NATIONS : A COMMENTARY . 296-297 (Bruno Sinima et. al. eds.. 3d ed. 2012).
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67
United States v. Aluminium Co. of Am., 148 F.2d 416, 443-44 (2d Cir. 1945).
68 Beckett, The Exercise of Criminal Jurisdiction Over Foreigners, 6 Brit. Y.B. Int'l L. 58 (1925).
69 IAN BROWNLIE , PRINCIPLES OF PUBLIC INTERNATIONAL LAW 296 (2nd ed. 1973).
70
The Case of the SS Lotus (Fr. v. Turk.) 1927 P.C.I.J. Reports (ser. A) No. 10, 14-15.
71
Supra note 66, at 597.
72 FA Mann, The Doctrine of Jurisdiction in International Law, 111 RCDAI 92 (1964).
73
International Convention for the Suppression of Terrorist Bombings, Dec. 15, 1997, 2149 U.N.T.S. 256;
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74Hague Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 860 U.N.T.S. 105;
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75 G.A. Res. 146 (XXXIV), International Convention Against the Taking of Hostages, (Nov. 17, 1979).
76
U.N. Torture Convention, New York, Dec. 10, 1984, 1465 U.N.T.S. 85; Convention Against Torture and other
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77 RESTATEMENT (T HIRD ) OF T HE F OREIGN RELATIONS OF T HE UNITED STATES, § 402(1)(C) (AM. LAW INST. 1990).
78 Opinion of the Inter-American Juridical Committee in Response to Resolution 3375/96 of the General Assembly
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79
Anglo-Norwegian Fisheries (U.K. v. Norw.), 1951 I.C.J. Rep. 116, 131 - 4.
80 Nottebohm Case (Liech. v. Guat.), Judgment 1955 I.C.J. Rep. 4, 20.
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82
CEDRIC RYNGAERT, JURISDICTION IN INTERNATIONAL LAW 30 (2nd ed. 2015).
83 FA Mann, The Doctrine of Jurisdiction in International Law, 111 RCDAI 1, 39 (1964).
84 Najeeb Samie, The Doctrine of “Effects” and the Extraterritorial Application of Antitrust Laws, 14 U. Miami
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85
IIL, 19th Comm'n (Maarten Bos, Rapporteur), Draft Resolution on the Extraterritorial Jurisdiction of States, art
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86 ADELHEID PUTTLER EXTRATERRITORIAL JURISDICTION IN T HEORY AND PRACTICE 106-07 (Karl M. Meessen ed. 1996).
87 Calder v. Jones 465 US 783 (1984).
88
Id.
89 Hanson v. Denckla, 357 US 235 (1958).
90 Compromis, ¶ 8.
91
International Association of Penal Law, Draft Resolution 7, 85 Revenue Internationale De Droit Penal (2014).
92 Trial for International Crimes, OAS Res. 1/03, Preamble Oct. 24, 2003.
93 Compromis, ¶11.
94
Convention on Consular Relations, art. 36, Apr. 24, 1969, 596 U.N.T.S. 261.
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96 Jadhav case (India v. Pak.), Judgment, I.C.J. Reports 2017, ¶ 145 (Jul. 2019).
97
G.A. Res. 43/173, Body of Principles for the Protection of All Persons under Any Form of Detention or
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98Bulg. CONST ., art. 25, §5; Est. CONST , art. 13; Hung. CONST , art. 69. §3; Lat. CONST , art. 98: Lith. CONST , art.
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99 OHNUIGLEY ONSULAR CCESS AS AUMA NIGHT
100 International Covenant on Civil and Political Rights art. 14, Dec. 16, 1966, 999 U.N.T.S. 171.
101
G.A. Res. 217(III) A, Universal Declaration on Human Rights art. 10, (Dec. 10, 1948).
102European Convention on Human Rights, art. 6, Nov. 4, 1950, 213 U.N.T.S. 221; American Convention on
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103The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of
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105 Mark Warren, Individual Consular Rights: Foreign Law and Practice, HUMAN RIGHTS RESEARCH
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http://users.xplornet.com/mwarren/.
106Federal Constitutional Court of the Federal Republic of Germany, First Chamber of the Second Senate, Order
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107 The Republic v. Lameck Bandawe Phiri, Sentence Hearing No. 25/2017, High Ct. of Malawi, Jun. 23, 2017.
108 Convention on Consular Relations, art. 36(c), Apr. 24, 1963, 596 U.N.T.S. 261.
109 International Convention on Civil and Political Rights, art. 14(3)(d), Dec. 16, 1966, 999 U.N.T.S. 171.
110 European Convention on Human Rights art. 6(3)(c), Nov. 4, 1950, 213 U.N.T.S. 221.
111 African Charter on Human and Peoples Rights, art. 7(1)(c), Oct. 10, 1986, 1520 U.N.T.S. 217
112 American Convention on Human Rights art. 8(2)(d), July 18, 1978, 1144 U.N.T.S. 123.
Adele Shank & John Quigley, Foreigners on Texas's Death Row and the Right of Access to a Consul, 26 ST.
113
MARY'S L.J. 719 (1995).

114 U.N. Basic Principles on the Role of Lawyers, ¶ 6 (1990)
115 U.N. Human Rights Committee, Saldías López v. Uruguay, U.N. Doc CCPR/C/13/D/52/1979.
116 Terrorism and Human Rights, Rep. Inter-Am. Ct. H.R (OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr., ¶ 53).
117 Supra note 95 [Avena and Other Mexican Nationals (Mex. v. U.S.)].
118 Supra note 95 [LaGrand Case (Ger. v. U.S.)] ¶ 89; Supra note 81.
119Agnes Callamard (Special Rapporteur of Human Rights Council), Extrajudicial, Summary, or Arbitrary
Execution, U.N. Doc. A/74/218 (Jun. 22, 2017).
120 DINAH SHELTON REMEDIES IN INTERNATIONAL HUMAN RIGHTS LAW 35 (3rd ed., 1999).
121The Mavrommatis Palestine Concessions (Greece v. U.K.), Judgment, 1924 P.C.I.J., Series A, No. 2 (Aug. 30);
Factory at Chorzów (Ger. v. Pol.), Judgment, 1927 P.C.I.J., Series A, No. 17, 13 (Sept. 13).
122 Supra note 1, art. 35 § 5.

123 Id.
124Reid v. Jamaica, Communication No. 355/1989, U.N. Doc. CCPR/C/51/D/355/1989(1994); Sergi Euben Lopez
Burgos v. Uruguay, Communication No. R.12/52, U.N. Doc. Supp. No. 40(A/36/40) at 176 (1981).
125Supra note 12, at 145; North Sea Continental Shelf (Ger. v. Den.), Judgment, 1969 I.C.J. Rep. 3; Continental
Shelf (Libyan Arab Jamahiriya/Malta), Judgment, 1985 I.C.J. Rep.
126G.A. Res. 217 (III) A, Universal Declaration of Human Rights art. 19, (Dec. 10, 1948); International Covenant
on Civil and Political Rights art 19(3), Dec. 16, 1966, 999 U.N.T.S. 17.
127
Convention for the Protection of Human Rights and Fundamental Freedoms art 10, Nov. 4, 1950, 213 U.N.T.S.
221; American Convention on Human Rights art. 11, Nov. 22, 1969, 1144 U.N.T.S. 123; African Charter on Human
and Peoples’ Rights art. 9, Jun. 27, 1981, 1950 U.N.T.S. 221.
128U.S. CONST . amend. I, art. 1; Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act, 1982, § 2(b), (U.K.); INDIA CONST . art. 19, § 1, cl. 1.
Barcelona Traction, Light & Power Co. Ltd. (Belg. v. Spain), 1970 I.C.J. Rep. 3; Yoram Dinstein, The erga
129
omnes Applicability of Human Rights, 30(1) Archiv Des Völkerrechts 16, 18-19 (1992).
130 Supra note 126.
131U.N. Commission on Human Rights, Status of the International Covenants on Human Rights, U.N. Doc.
E/CN.4/1985/4 (Sept. 28, 1984).
132Delfi AS v. Estonia [GC], 2015-II Eur. Ct. H.R. 321; VgT Gegen Tierfabriken v. Switzerland, 2001-VI Eur. Ct.
H.R. 245; Rotaru v. Romania [GC], 2000-V Eur. Ct. H.R. 111; Gawęda v. Poland, 2002-II Eur. Ct. H.R. 121.
133Usón Ramírez v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs, Inter-Am. Ct. H.R. (ser.
C) No. 207 (Nov. 20, 2009).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
134 Id, ¶ 56.

135 U.N. Human Rights Committee, General Comment No. 34, ¶ 25, U.N. Doc. CCPR/C/GC/34, (Sept. 12, 2011).
136
State of T.N. v. K. Shyam Sunder, (2011) 8 SCC 737; Sharma Transport v. Govt. of A.P., (2002) 2 SCC 188.
137 United States v. Carolene Products, 304 US 144 (1938).
138 Supra note 126 (I.C.C.P.R.).
139 Supra note 135, ¶ 24.
140 Supra note 135, ¶ 38.

141 NIHAL JAYAWICKRAMA THE JUDICIAL APPLICATION OF HUMAN RIGHTS LAW, 200 (2002).
142 Castells v. Spain, App. No. 11798/85, Eur. Ct. H.R. (1992).
143 Supra note 126.

144 Supra note 131.
145Kubaszewski v. Poland, App. No. 571/04, Eur. Ct. H.R. (2010); Fedchenko v. Russia, App. No. 33333/04, Eur.
Ct. H.R. (2010); Krutov v. Russia, App. No. 15469/04, Eur. Ct. H.R. (2009); Lombardo v. Malta, App. No.
7333/06, Eur. Ct. H.R. (2007); Raichinov v. Bulgaria, App. No. 47579/99, Eur. Ct. H.R. (2006).
146
Lohé Issa Konaté v. Burkina Faso, App. No. 004/2013, Afr. Crt. H. People's R. (2014); Cumpănă and Mazăre
v. Romania [GC], 2004-XI Eur. Ct. H.R. 63; Mahmudov and Agazade v. Azerbaijan, App. No. 35877/04, Eur. Ct.
H.R. (2004); Herrera-Ulloa v. Costa Rica, Inter-Am. Ct. H.R. (ser. C) No. 107, (Jul. 2, 2004); Ricardo Canese v.
Paraguay, Inter-Am. Ct. H.R. (ser. C) No. 111, (Aug. 31, 2004); Palamara Iribarne v. Chile, Inter-Am. Ct. H.R.
(ser. C) No. 135, (Nov. 22, 2005): Tristán Donoso v. Panama, Inter-Am. Ct. H.R. (ser. C) No. 193, (Jan. 27,
2009).
147 Kaperzynski v. Poland, App. No. 43206/07, Eur. Ct. H.R. (2012).
148U.N. Human Rights Committee, Alexander Adonis v. The Philippines, U.N. Doc. CCPR/C/103/D/1815/2008/Rev.1
(Oct. 26, 2011).
149 Ambeyi Ligabo, Freimut Duve, Eduardo Bertoni, JOINT DECLARATION, ORGANISATION OF AMERICAN STATES (last
visited Jan. 28, 2021),http://www.oas.org/en/iachr/expression/showarticle.asp?artID=87&lID=1.
150 Supra note 145 [Lohé Issa Konaté v. Burkina Faso].
151 New York Times v. Sullivan, 376 US 254 (1964); Lingens v. Austria, App. No. 9815/82 Eur. Ct. H.R. (1986).
152
Handyside v. The United Kingdom, App. No. 5493/72, Eur. Ct. H.R. (1976); Sunday Times v. The United
Kingdom, App. No. 6538/74, Eur. Ct. H.R. (1979).
153
Kita v. Poland, App. No. 57659/00, Eur. Ct. H.R. (2008).
154 Supra note 145 [Lombardo v. Malta].
155
Garrison v. Louisiana, 379 US 64 (1964).
156 Supra note 151 [Lingens v. Austria].
157 G.A. Monterio v. State of Ajmer, AIR 1957 SC 13.
158
Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], App. No. 931/13, Eur. Ct. H.R. (2017).
159Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, App. No. 22947/13, Eur. Ct. H.R.
(2016).
160 Tamiz v. The United Kingdom, App. No. 3877/14, Eur. Ct. H.R. (2017).
161
Frank La Rue, Dunja Mijatović, Catalina Botero Marino, Faith Pansy Tlakula, JOINT DECLARATION ON FREEDOM
OF EXPRESSION AND THE INTERNET, ORGANISATION FOR SECURITY AND CO - OPERATION IN EU R O P E (June 1, 2011),
https://www.osce.org/files/f/documents/e/9/78309.pdf.
162
U.N. Human Rights Council, Report of the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression, U.N. Doc. A/HRC/17/27 (16 May, 2011).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
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SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.

Page 1 Monday, March 04, 2024

9th RMLNLU SCC OnLine Moot, 2021

PURSUANT TO THE PROCEEDINGS I NSTITUTED UNDER ARTICLE 40 (1) OF THE STATUTE OF

THE SUBJECT MATTER

I.C.J. International Court of Justice

Dec. 15, 1997, 2149 U.N.T.S. 256

Delfi AS v. Estonia [GC], 2015-II Eur. Ct. H.R. 321 34

Comm'n H.R., Report No.52/02, Doc.5 rev.1, (2002)

U.N. Basic Principles on the Role of Lawyers (1990) 33

DINAH SHELTON, REMEDIES IN I NTERNATIONAL HUMAN RIGHTS LAW (3rd 32

conduct of private individuals or entities be equated to the conduct of an organ of the

amount to customary law as they are not reflective of international consensus.38

i. The current case satisfies the requirement of humanitarian intervention.

serving a useful objective.71 It should be treated as an excess of jurisdiction.72

completed by its injured national.118

character of desacato laws when need be.

accorded heightened protection.152

which they are not the author.”162

22 Supra note 5, ¶ 400.

25 Supra note 14, ¶ 138.

28 Supra note 5, ¶ 227.

34 DEPARTMENT OF DEFENSE. LAW OF WAR MANUAL 998 (2015) (U.S.).

MARY'S L.J. 719 (1995).

122 Supra note 1, art. 35 § 5.

134 Id, ¶ 56.

140 Supra note 135, ¶ 38.

143 Supra note 126.

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