7 P V. S. M M I L M C C 2018: Case Concerning The Jurisdiction, Prisoners of War, Damages and Consular Relation

TEAM CODE: 1518

7TH PROFESSOR V. S. MANI MEMORIAL INTERNATIONAL LAW MOOT COURT COMPETITION

2018
Case Concerning the Jurisdiction, Prisoners of War, Damages and Consular Relation

MARSHAL
(APPLICANT)
v.
ARYAN
(RESPONDENT)
On Submission to the International Court of Justice

The Peace Palace, The Hague, Netherlands
Memorial on behalf of Applicant
1
7TH PROFESSOR V. S. MANI MEMORIAL INTERNATIONAL LAW MOOT COURT
COMPETITION - 2018
TABLE OF CONTENTS
LIST OF ABBREVIATIONS----------------------------------------------------------------------IV-V
INDEX OF AUTHORITIES--------------------------------------------------------------------VI-XIV
STATEMENT OF JURISDICTION---------------------------------------------------------------xv
QUESTIONS PRESENTED------------------------------------------------------------------------xvi
STATEMENT OF FACTS-------------------------------------------------------------------xvii-xviii
SUMMARY OF ARGUMENTS---------------------------------------------------------------XIX-XX
ARGUMENTS ADVANCED ---------------------------------------------------------------------1-21
ISSUE-I
[1.] WHETHER THE INTERNATIONAL COURT OF JUSTICE HAS JURISDICTION OVER THE CASE? --
--------------------------------------------------------------------------------------------------------------1
[1.1] ICJ has contentious jurisdiction under Art. 36(1) of ICJ statute. --------------------------19
[1.2] ICJ will interpret and apply BA under 36(1) in the present dispute. ----------------------20
[1.3] Consent to submit a dispute under the BA was explicit and free. -------------------------20
[1.4] Aryan is obliged to accept the jurisdiction of the court. ------------------------------------20
[1.5] All issues of the present dispute can be categorised as subject matter arising out of BA. -
-------------------------------------------------------------------------------------------------------------21
ISSUE-II
[2] WHETHER THE TREATMENT METED OUT TO MAJOR DMITRI GODMAN IS BEYOND THE
SCOPE OF THIS COURT’S JURISDICTION? ------------------------------------------------------------22
[2.1] Violation of the Customary International Humanitarian Law. ----------------------------22
[2.1.1] Violation of Jus Cogens norm against torture. ---------------------------------------------24
[2.1.2] Major Dmitri Godman is a person to be protected because he is no longer participating

in hostilities. --------------------------------------------------------------------------------------------26
[2.2] Violation of bilateral and multilateral treaties and convention. ----------------------------26
[2.2.1] Treaty of BA violated. -------------------------------------------------------------------------27
[2.2.2] Violated ICCPR. -------------------------------------------------------------------------------27

COMPETITION - 2018
[2.2.2] Violated ICCPR. ------------------------------------------------------------------------------27
[2.2.3] Violation of ICESCR. ------------------------------------------------------------------------28
[2.2.4] Violated all the Geneva Conventions and Additional protocol 1. ----------------------29
[2.2.5] Violation of other important conventions. --------------------------------------------------29
ISSUE-III
[3] WHETHER PRISONERS OF WAR SHOULD BE RETURNED BACK TO THE ARYAN? -----------30
[3.1] There was an International Armed Conflict between Marshal and Aryan. ---------------30
[3.2] There is no absolute international obligation to return POWs of International armed
conflict. ---------------------------------------------------------------------------------------------------30
[3.2.1] The duty to release and return POWs under Geneva Convention relative to the
Treatment of Prisoners of War. -----------------------------------------------------------------------30
[3.3] There is no substantial proof of consequential inhuman treatment meted out with
POWs. ---------------------------------------------------------------------------------------------------31
[3.3.1]. Marshal actions were necessary. ------------------------------------------------------------32
[3.3.2] Marshal actions were proportionate. -------------------------------------------------------32
[3.3.3] Marshal actions qualify as self-defence. ----------------------------------------------------32
[3.3.4] POWs kept in custody are preventive measure to avoid an armed conflict. -----------33
ISSUE-IV
[4] WHETHER ARYAN IS ENTITLED TO APPROPRIATE DAMAGES? ------------------------------34
[4.1] Act of army are attributable to marshal. ----------------------------------------------------34
[4.2] Acts are internationally wrongful act. -------------------------------------------------------35
[4.2.1] Violation of Customary International Law. ----------------------------------------------36
[4.2.2] Violation of Treaty Law. --------------------------------------------------------------------37
[4.3] Monitory Loss. -----------------------------------------------------------------------------------38
[4.4] Harm to the territorial integrity, security, and International standing--------------------38
ISSUE-V
III
MEMORIAL ON BEHALF OF APPLICANT
COMPETITION - 2018
[5] WHETHER THE MARSHAL HAS VIOLATED INTERNATIONAL LAW BY DENYING CONSULAR
ACCESS TO MR. ALEX? -------------------------------------------------------------------------------37
[5.1] Right to consular access should be in conformity with the laws and rules of receiving
State. ------------------------------------------------------------------------------------------------------37
[5.2] VCCR does not apply to espionage. -----------------------------------------------------------37
[5.3] Denial of Treaty Rights in Criminal Cases. ------------------------------------------------------38
[5.4] Threat to sovereignty and National Security. -------------------------------------------------39
[5.5] Mr. Alex right to consular access is restricted by GC III, and AP I. ----------------------40
PRAYER OF RELIEF--------------------------------------------------------------------------------40
IV
COMPETITION - 2018
LIST OF ABBREVIATIONS
Abbreviations/Symbols Explanations
AP-I Additional Protocol 1
AP-II Additional Protocol 2
Anr. Another
ACHR American Convention on Human Rights
ACHPR African Charter on Human and People’s Rights
& And
App. Application
Approx. Approximately
Art. Article
ARISWA Draft Articles for Responsibility of States for
internationally wrongful acts
BA Bortex Agreement
CAT The Convention against torture and other cruel,
and Degrading Treatment or Punishment.
Cl. Clause
CIL Customary International Law
ECHR European Convention on Human Rights
Ed. Edition
Etc. Etcetera
Godman Major Dmitri Godman
HPCR Humanitarian Policy and Conflict Research
HRC Human Right Commission
Ibid Ibidem/ same place
Id. Idem
ICC International Criminal Court
ICJ International Court of Justice
ICCPR International Covenant on Civil and Political
Rights
ICRC International Committee of Red Cross
ICTY International Criminal Tribunal for the former
V
COMPETITION - 2018
Yugoslavia
IHL International Humanitarian Law
ILC International Law Commission
J. Journal
LOC Line of Control
MPEPIL Max Plank Encyclopaedia of Public International
Law
PCIJ Permanent Court of Justice
Pg. Page
Pvt. Private
¶ Paragraph
Supra Above
i.e. That is
UDHR Universal Declaration of Human Rights
UNCTAD United Nation Conference on Trade and
Development
UN. United Nations
U.S. United States
v. Versus
VCCR Vienna Convention on Consular Relation
VCLT Vienna Convention on the Law of treaties
Vol. Volume
VI
COMPETITION - 2018
LIST OF AUTHORITIES
TABLE OF CASES
1. Cambodia v Thailand, Temple of Preah Vihear, [1962] ICJ Rep 6. ------------------------21

2. Caroline v. United States, 11 U.S. 7 Cranch 496 496 (1813). -------------------------------29
3. Cameroon v Nigeria, Land and Maritime Boundary between Cameroon and Nigeria,
[1998] ICJ Rep 275, ICGJ 64 (ICJ 1998), 11th June 1998, International Court of Justice. -
---------------------------------------------------------------------------------------------------------21
4. United Kingdom v. Albania, Corfu Channel, ICJ GL No 1, [1949] ICJ Rep 4. ---------------
--------------------------------------------------------------------------------------------------------33
5. Democratic Republic of the Congo v. Uganda, Armed Activities on the Territory of the
Congo, ICJ GL No 116 (Official Case No) [2005] ICJ Rep 168. ---------------------------20
6. Eritrea v. Ethiopia, ICGJ 350 (PCA 2003). ----------------------------------------------------36
7. Germany v. Poland, Factory at Chorzow,1927 P.C.I.J. (ser. A) No. 9 (July 26). ------------
---------------------------------------------------------------------------------------------------------22
8. Germany v. United States of America, LaGrand, ICGJ 515 (ICJ 2017). -----------------------
--------------------------------------------------------------------------------------------------------38
9. Guerrero v. Colombia, Communication No 45/1979 (Application No), UN Doc
CCPR/C/15/D/45/1979. ---------------------------------------------------------------------------25
10. Hungary v Slovakia, Gabčikovo-Nagymaros Project, ICJ GL No 92 (Official Case No),
[1997] ICJ Rep 7. ----------------------------------------------------------------------------------33
11. India v. Pakistan, Jadhav Case ICGJ 515 (ICJ 2017). ---------------------------------------38
12. Jindal Steel And Power Limited v. M/S. Sap India Pvt. Ltd., Delhi High Court, 29 June,
2015. -------------------------------------------------------------------------------------------------22
13. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J., Advisory
Opinion, 1996, I.C.J.266. --------------------------------------------------------------------------20
14. Nicaragua v. United States, Military and Paramilitary Activities in and Against
Nicaragua, I.C.J. 1984 I.C.J. 39. ----------------------------------------------------------------21
15. Osman v. The United Kingdom, ECHR 28 OCT 1998. ---------------------------------------27
16. Italy v. France, Phosphates in Morocco, 1938 P.C.I.J. (ser. A/B) No. 74 (June 14). --------
---------------------------------------------------------------------------------------------------------33
VII
COMPETITION - 2018
17. Prosecutor v. Delalić (Zejnil) and ors, Appeal Judgment, Case No IT-96-21-A, ICL 96
(ICTY 2001), 20th February 2001, United Nations Security Council [UNSC];
International Criminal Tribunal for the Former Yugoslavia [ICTY]; Appeals Chamber
[ICTY]. ----------------------------------------------------------------------------------------------23
18. Prosecutor v Furundžija (Anto), Trial Judgment, Case No CIHL IT-95-17/1-T, (1999) 38
ILM 317, (2002) 21 ILR 213, [1998] ICTY 3, ICL 17 (ICTY 1998), 10th December 1998,
United Nations Security Council [UNSC]; International Criminal Tribunal for the former
Yugoslavia [ICTY]; Trial Chamber II [ICTY]. ---------------------------------------------------
------------------------------------------------------------------------------------------------23
19. Prosecutor v. Dragoljub Kunarac Radomir Kovac And Zoran Vukovic, (Trial Judgement),
ICTY, IT-96-23-T. -----------------------------------------------------------------23
ARTICLES
1. Charlotta Nilsson, The Legality of Anticipatory Self-Defence in International Law. ----29

2. Adam P. Tait, The Legal War: A Justification for Military Action in Iraq. ----------------30
3. Chapter Vi: Pacific Settlement of Disputes, United Nations. --------------------------------19
4. Human Rights Committee General, Comment No. 36 On Art. 6, International Covenant
On Civil Political Rights, On The Right To Life. ----------------------------------------------25
5. Impact of Armed Conflict On Children; United Nations Report. New York. 1996. ------35
6. Draft Article on Responsibility of States for Internationally Wrongful Acts. -----------------
----------------------------------------------------------------------------------25, 29, 30, 31, 33, 36
7. “The Economic Costs of Violence Containment.” The Institute for Economics and Peace.
---------------------------------------------------------------------------------------------------------35
8. T. J. A. Schillings, The Development of the Scope of the Right o Consular Assistance To
Nationals Imprisoned Abroad Under International Law. -------------------------------------40
9. Tejvan pettinger, Economic Impact Of War, (March 31, 2017), www.economicshelp.org.
---------------------------------------------------------------------------------------------------------35
10. A. John Radsan, The Unresolved Equation of Espionage and International Law, Michigan
Journal of International Law, Volume 28|Issue 3. ------------------------------------------------
VIII
COMPETITION - 2018
TREATIES AND CONVENTIONS
1. Charter of the United Nations (1945), 1 U.N.T.S. XVI. --------------------------------------19
2. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Adopted and opened for signature, ratification and accession by General
Assembly resolution 39/46 of 10 December 1984 entry into force 26 June 1987, in
accordance with article 27 (1). ------------------------------------------------------------------27
3. International Covenant on Economic, Social and Cultural Rights, Adopted and opened for
signature, ratification and accession by General Assembly resolution 2200A (XXI). -------
---------------------------------------------------------------------------------------------------------26
4. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field (First Geneva Convention), (1949), 75 UNTS 31. ----23. 26, 34
5. Geneva Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), (1949), 75
UNTS 85. ----------------------------------------------------------------------------------23, 26, 34
6. Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth
Geneva Cogenvention), (1949), 75 UNTS 287. --------------------------------------23, 26, 34
7. Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva
Convention), (1949), 75 UNTS 135. -----------------------------------------------23, 26, 28, 34
8. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I), (1977), 1125 UNTS
3. -----------------------------------------------------------------------------------------------23, 26
9. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of Non-International Armed Conflicts (Protocol II), (977), 1125
UNTS 609. --------------------------------------------------------------------------------------23, 26
10. International Covenant on Civil and Political Rights (1976), 999 U.N.T.S. 171. ------------
-----------------------------------------------------------------------------------------------25, 37, 38
11. Statute of the International Court of Justice, (1946), 33 U.S.T.S. 993. ------------------------
-----------------------------------------------------------------------------------------------19, 21, 33
12. Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400
Grammes Weight. Saint Petersburg, 29 November / 11 December 1868. --------------29
13. Rome Statute of the International Criminal Court, 17 July 1998. -----------------24, 27, 34
14. Vienna Convention on Consular Relations (1967), 596 U.N.T.S. 261. ---------------37, 40
IX
COMPETITION - 2018
15. Vienna Convention on the Law of Treaties (1969), 1155 U.N.T.S. 331. ----------------------
-----------------------------------------------------------------------------------------------21, 23, 24
BOOKS
1. United Nations, Charter of the United Nations and Statute of the International Court of
Justice.
2. Yuval Shany, Questions of Jurisdiction and Admissibility before International Courts
(Hersch Lauterpacht Memorial Lectures).
3. Oliver Dörr , Kirsten Schmalenbach, Vienna Convention on the Law of Treaties: A
Commentary 2012th Edition.
4. Mark Eugen Villiger, Commentary on the 1969 Vienna Convention on the Law of
Treaties.
5. Ian Seiderman, Hierarchy in International Law: The Human Rights Dimension
6. H. Ascensio, Droit international penal.
7. Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian
Law Volume I: Rules.
8. International Committee of the Red Cross, Commentary on the First Geneva Convention :
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field.
9. International Committee of the Red Cross, Commentary on the Second Geneva
Convention: Convention (II) for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea.
10. Draft Committee, Universal Declaration of Human Rights.
11. Sarah Joseph, The International Covenant on Civil and Political Rights: Cases, Materials,
and Commentary.
12. Draft Committee, Handbook on accepting the jurisdiction of the International Court of
Justice.
13. Ian Brownlie, Brownlie’s Principles of Public International Law, 6th ed.
14. International Committee of the Red Cross, Protocols Additional to the Geneva
Conventions of 12 August. Rev. ed. 1949.
15. Malcolm N. Shaw, International Law, 7th Ed.
16. Council of Europe, European Convention on Human Rights.
X
COMPETITION - 2018
17. Charles Pierson (2004). Pre-Emptive Self-Defence in an age of Weapons of Mass
Destruction: Operation Iraqi, Denver Journal of International Law and Policy. University
of Denver.
XI
COMPETITION - 2018
STATEMENT OF JURISDICTION
Marshal [“Applicant”] and Aryan [“Respondent”] submit this dispute to this Honourable
Court, pursuant to Article 36(1) of the Statute of the International Court of Justice and Art.4
of BA. Applicant filed an application instituting proceedings against Respondent, to which
Respondent filed its Preliminary Objection. Applicant and Respondent submitted a Joint
Written Statement to the Registrar, requesting that the Court decide the jurisdictional
questions and merits of this matter based on the rules and principles of general international
law. As well as any applicable treaties, and that the Court to determine the legal
consequences, including the rights and obligations of the Parties, arising from any judgment
on the questions presented in this matter.
XII
COMPETITION - 2018
QUESTION PRESENTED
The Aryan respectfully requests the Court to adjudge:
-I-
Whether the International Court of Justice has jurisdiction over the case?
-II-
Whether the treatment meted out to Major Dmitri Godman is beyond the scope of this court’s
jurisdiction?
-III-
Whether prisoners of war should be returned back to the Aryan?
-IV-
Whether Aryan is entitled to appropriate damages?
-V-
Whether the Marshal has violated International law by denying consular access to Mr. Alex?
XIII
COMPETITION - 2018
STATEMENT OF FACTS
Marshal is a landlocked country. Marshal is ruled by a dictator, General Vadim. Marshal and
Aryan had signed an agreement in 1998 known as Bortex Agreement which demarcated a
new border line between Aryan and Marshal known as Line of Control (LOC) which also
made it mandatory to make the LOC a demilitarized zone.
On the 15th of October 2017, the Aryan army started conducting patrolling operations in the
LOC. Major Dmitri Godman went on to ward off the infiltration attempt by the Aryan army
along with five other soldiers but Aryan army caught them. It led to a war known as Marshal-
Aryan border skirmish. Marshal emerged victorious, annexed the LOC and captured 47000
Prisoners of War (POW) and 100 civilians. The Aryan government requested Marshal to
hand over the Prisoners of War (POW) as well as the civilians captured by them, in exchange
for Major Godman, along with his five soldiers. Marshal refused the offer because of Aryan’s
constant indulgence in unnecessary war and aggression. However, Marshal agreed to release
the civilians expect one namely Mr. Alex, who was detained on the charges of espionage as
he belonged to the Aryan Secret Service.
On 2nd February 2018, the Aryan army sent a parcel to the Marshal border outpost containing
mutilated body parts of all the soldiers captured by Aryan with Major Godman’s name tag
appearing on top enclosed with a letter which stated, “Be prepared, we are going to hit you
soon”. Marshal’s soldiers were gruesomely tortured including mutilation, permanently
disabling or removing an organ and endangering mental and physical health.
General Vadim invoked Article 4, which gives rise to the jurisdiction of ICJ. A notice was
accordingly sent to Aryan for the brutalities committed on Major Dmitri Godman, for
bringing ICJ jurisdiction into the fray. Aryan firmly opposed ICJ jurisdiction and stated that it
doesn’t accept the ICJ’s jurisdiction.
The ICJ has admitted Marshal’s applications to institute written proceedings under Article
36(1) of ICJ statute based on Article 4 of the BA, whereas Aryan filed its objection to the
application with a singular ground that it does not consent to the ICJ’s jurisdiction and would
only appear in court to reiterate the same. Now, the case has been adjudged by ICJ. Both
states are the parties of UDHR, ICCPR, ICESR, all Geneva Conventions, the UN Charter,
Vienna Convention on the Law of Treaties and the ICJ statute.
XIV
COMPETITION - 2018
SUMMARY OF ARGUMENTS
[1.] WHETHER THE INTERNATIONAL COURT OF JUSTICE HAS JURISDICTION OVER THE
CASE?
ICJ has jurisdiction in the present dispute as ICJ has contentious jurisdiction. The jurisdiction
of the court comprises all cases, which the parties refer to it, and all matters specially
provided for in the Charter of United Nations or in treaties and conventions in force. Also due
to BA which is a bilateral treaty specifically concluded for peaceful settlement of jurisdiction,
consent to submit a dispute was explicit and free.
[2.] WHETHER THE TREATMENT METED OUT WITH THE MAJOR DMITRI GODMAN IS
CONTRARY TO THE PRINCIPLES OF THE INTERNATIONAL LAW?
The treatment meted out with the Godman is contrary to the principles of the international
law, because the treatment to Godman violates Customary International Humanitarian Law
by violating Jus Cogens norm against torture, by attacking persons who are recognized as
hors de combat is prohibited and by violating bilateral and multilateral treaties, convention
and Geneva convention and its additional protocol.
[3.] WHETHER MARSHAL IS BOUND TO RETURN THE POW’S?
Marshal is not bound to return the POWs because, there was an International Armed Conflict
between Marshal and Aryan and Geneva Convention apply to all cases of declared war or of
any other armed conflict which may arise between two or more of the High Contracting
Parties. And there is no absolute international obligation to return POWs of International
armed conflict. Also there is no substantial proof of consequential inhuman treatment meted
out with POWs.
[4.] WHETHER MARSHAL IS ENTITLED TO APPROPRIATE DAMAGES?
Marshal is entitled to appropriate damages as the acts of Aryan army are attributable to
Marshal as they constitute a breach of an international obligation of the State. And the acts
are internationally wrongful acts because they violate Customary International Law and
treaty law. Also, Aryan harmed the territorial integrity, security, and International standing,
because of which Marshal seeks damages from Aryan.
XV
COMPETITION - 2018
[5.] WHETHER MARSHAL WAS ABSOLUTELY RIGHT IN ITS PLACE AS PER INTERNATIONAL
LAW TO DENY ARYAN CONSULAR ACCESS TO MR. ALEX?
Marshal was absolutely right in its place as per international law to deny Aryan consular
access to Mr. Alex because right to consular access is not an absolute right as no right can be
absolute, reasonable restrictions can be made. Mr. Alex, was detained on the charges of
espionage as he belonged to the Aryan secret service which is why he is a threat to Marshal.
XVI
COMPETITION - 2018
ARGUMENTS ADVANCED
[1.] WHETHER ICJ HAS JURISDICTION OVER THE CASE?
ICJ has jurisdiction in the present dispute because [1.1] ICJ has contentious jurisdiction under
art. 36(1) of ICJ statute; [1.2] ICJ will interpret and apply BA under 36(1) in the present
dispute; [1.3.] Consent to submit a dispute under the BA was explicit and free; [1.4] All
issues of the present dispute can be categorised as a subject matter arising out of BA; and
[1.5] Aryan cannot claim Article 62 VCLT to escape jurisdiction and obligation under
International law.
[1.1] ICJ HAS CONTENTIOUS JURISDICTION UNDER ART. 36(1) OF ICJ STATUTE.
The jurisdiction of the court comprises all matters specially provided for in the Charter of
United Nations or in treaties and conventions in force.1 International Court of Justice
[hereinafter ICJ] is established with an objective to maintain international peace and security
and to settle international disputes or situations which might lead to a breach of the peace.2
As Marshal and Aryan both are parties to the UN Charter3, therefore, there is a fundamental
obligation on the part of the member states to settle disputes. Marshal and Aryan are party to
the Bortex Agreement [hereinafter BA], United Nations and ICJ statute4, thus, establishing
forum contentious. Contentious jurisdiction allows the courts to decide, in accordance with its
statute and international law, legal disputes submitted to it, which is likely to endanger the
maintenance of International peace and security.5
All state parties to ICJ statute have access to the court6 and all members of UN are
automatically parties to the court.7 The contentious jurisdiction, i.e., forum contentious is
established by Treaty for the purpose of this dispute. In the present dispute, jurisdiction of
ICJ is treaty based.8 Thus, ICJ has jurisdiction in the present dispute.
1
Statute of the International Court of Justice, (1946), 33 U.S.T.S. 993 art. 36(1) [hereinafter ICJ Statute].
2
Charter of the United Nations (1945) [hereinafter UN Charter], 1 U.N.T.S. XVI, art. 1(1).
3
Moot Proposition, ¶ 20.
4
Ibid.
5
Chapter VI: Pacific Settlement of Disputes, Charter of the United Nations, art.35.
6
ICJ Statute, art. 35(1).
7
UN Charter, art. 93(1).
8
General Assembly Resolution, A/68/963, Handbook on accepting the jurisdiction of the International Court of
Justice, pg. 13.
XVII
COMPETITION - 2018
[1.2] ICJ WILL INTERPRET AND APPLY BA UNDER 36(1) IN THE PRESENT DISPUTE.
In the event of irreconcilable differences, or disputes which are of a grave nature, either party
may approach the ICJ.9 BA is a bilateral treaty specifically concluded for peaceful settlement
of jurisdiction over matters described in the scope of this agreement”.10 The task of ICJ is to
respond to parallel legal disputes brought before it.11 Both the state parties decided to include
a compromissory jurisdictional clause conferring the jurisdiction on ICJ.12 Jurisdictional
clause in BA refers to the treaty as a whole13 and thus grants jurisdiction to court on matters
arising directly or indirectly out of the BA.
[1.3] CONSENT TO SUBMIT A DISPUTE UNDER THE BA WAS EXPLICIT AND FREE.
The jurisdiction of the court in contentious proceedings is based on the consent of the states
to which it is open.14 States may decide to include in bilateral treaties on any subject matter a
clause-conferring jurisdiction on the court in respect of disputes relating to the interpretation
or application of that same treaty.15 Through the compromissory clause, the States parties
agree, in advance, to submit to the Court any dispute concerning the implementation and
interpretation of the treaty.16 In this case, Marshal and Aryan have a bilateral agreement in
between them, i.e., BA. At time, the proceedings were filed, the court had jurisdiction and
will continue to have so.17
[1.4] Aryan is obliged to accept the jurisdiction of the court.
Marshal and Aryan are parties to the UN.18 According to the art. 2 para 4 of the UN Charter,
‘all members are under an obligation to refrain in their international relations from the threat
or use of force against the territorial integrity or political independence of any state.19
Estoppel is a general principle of international law.20 Aryan's unprovoked and evident use of
9
BA, art.4.
10
BA, art.4.
11
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, pg.236, ICJ GL No. 95.
12
United Nations, General Assembly, Handbook on accepting the jurisdiction of the International Court of
Justice: model clauses and templates, addressed to the Secretary-General, A/68/963 (24 July 2014), available
from http://undocs.org/A/68/963.
13
Ibid at pg. 16.
14
Basis of Court’s Jurisdiction, ICJ, available at: http://www.icj-cij.org/en/basis-of-jurisdiction#1.
15
HANDBOOK ON ACCEPTING THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE, pg.13, ¶ 44.
16
United Nations Conference on Trade and Development, Course on Dispute Settlement in International Trade,
Investment and Intellectual Property, New York: United Nations, pg. 13.
17
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment,
I.C.J. Reports 2005, p. 168.
18
19
UN Charter, art. 2(4).
20
BROWNLIE'S PRINCIPLES OF PUBLIC INTERNATIONAL LAW 616 (6th ed. 2003).
XVIII
COMPETITION - 2018
force in the LOC contravenes the basic purpose of United Nations,21 i.e., to maintain
International peace and security and to develop friendly relation among nations.22 Estoppel
may be inferred from the conducts declaration and the like made by a state which clearly and
consistently evinced acceptance.23 In the present dispute an estoppels would arise because
both the states had fully made it clear to settle the boundary dispute in the bilateral treaty.24
This is not a case where estoppel or acceptance is arising out of silence.25
In addition to this, consent of a state to be bound by a treaty is expressed at the signature26

and established at ratification.27 As soon as consent is established, treaty comes into force
unless the treaty otherwise provided.28 BA is in force since 1998. Every treaty in force is
binding upon the parties to it and must be performed by them in good faith.29 Furthermore,
none of the parties have withdrawn or terminated the treaty with expressed consent.30 Thus, it
continues to apply and govern the present dispute.
[1.5] ALL ISSUES OF THE PRESENT DISPUTE CAN BE CATEGORISED AS SUBJECT MATTER
ARISING OUT OF BA.
The subject matter or ratione materiae of the present dispute is covered by the BA because
the factual and legal questions raised in the present dispute are defined under the constitutive
instrument.31 Aryan claims that Marshal cannot invoke BA because LOC does not exist.32 ICJ
has jurisdiction in all matters specially stipulated in treaties that are in force on the date of
proceedings.33 Art. 62 does not provide a tool for seeking the termination of a boundary.34 As
fundamental change of circumstances cannot be invoked when treaty establishes a
boundary.35 Also, subpara. 2(b) provides for a special case that a party cannot take advantage
21
UN Charter, art. 1(1), 1(2).
22
Ibid.
23
Military and Paramilitary Activities in and against Nicaragua (Nicaragua/U.S.), Merits, 1986 I.C.J. 14.
24
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nig.), 2002 I.C.J. 303 (Order of
Oct. 10), ¶ 303.
25
Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Preliminary Objections, Judgment of
26 May 1961: I.C. J. Reports 1961, pg. 17.
26
Vienna Convention on the Law of Treaties (1969), 1155 U.N.T.S. 331 [hereinafter VCLT], art.12.
27
Ibid at art.14.
28
Ibid at art.27(3).
29
Ibid at art.26.
30
Id, art.54.
31
Yuval Shany, Jurisdiction and Admissibility, pg. 729.
32
Moot proposition, ¶ 18.
33
ICJ statute, art. 36 (1).
34
Statement in Vienna by the Expert Consultant, Sir Humphrey Waldock, OR 1968 Cow 381, ¶ 31.
35
VCLT 1969, art.62(2)(a).
XIX
COMPETITION - 2018
of its own wrong.36 “In the case of Gabcikovo-Nagymaros Project (Hungary/Slovakia) Case,
court has found that both Hungary and Czechoslovakia failed to comply with their
obligations under the 1977 Treaty, this reciprocal wrongful conduct did not bring the treaty to
an end nor justify its termination.37 BA will not apply, if the parties decided to terminate the
treaty by mutual consent”.38 In the present case, fundamental change of circumstances would
not be used as the ground for terminating the treaty as the BA established the boundary, i.e.,
Line of Control (LOC) between Marshal and Aryan. The act of patrolling conducted by the
Aryan39 in the first place, was the breach of the art. 3 of the BA. Hence, the first
Internationally wrongful act was committed by Aryan. Therefore, Aryan cannot terminate the
agreement because it is the party at the breach.40 Thus, article 62(2) stands and BA is still
valid.
36
Statement in Vienna by the Dutch Delegation, OR 1968, ¶.7. See also the Chorzow Factory Case, PCIJ (1927)
Series A No. 9, 31; Kolb, RBDI 33 (2000) 95.
37
Case Concerning the Gabcikovo-Nagymaros Project (Hungaryislovakia) Judgment of 25 September 1997.
38
Gabcikovo-nagymaros project (hungary/slovakia) case, Judgment p.65 ¶ 114, available from http://www.icj-
cij.org/files/case-related/92/092-19970925-jud-01-00-en.pdf.
39
Moot Preposition, ¶ 12.
40
Jindal Steel and Power Limited v. M/S. Sap India Pvt. Ltd. (2015)
XX
COMPETITION - 2018
ISSUE-II
[2.] WHETHER THE TREATMENT METED OUT WITH MAJOR DMITRI

GODMAN IS CONTRARY TO THE PRINCIPLES OF THE INTERNATIONAL
LAW?
The treatment meted out with the Godman is contrary to the principles of the international
law, because [2.1] The treatment to Godman violates Customary International Humanitarian
Law; and [2.2] The treatment to Godman violates bilateral and multilateral treaties and
convention.
[2.1] VIOLATION OF THE CUSTOMARY INTERNATIONAL HUMANITARIAN LAW.
Torture, cruel or inhuman treatment and outrages upon personal dignity, in particular
humiliating and degrading treatment, are prohibited.41 POW’s even when wounded, must be
protected and may not, under any circumstances, be killed.42 Prohibition is grounded in a
widespread International practice but Godman has been treated inhumanely43, which is why
there is a Violation of Customary International Humanitarian Law by the Aryan. Delalic44,
Furundzija45 and Kunarac case46 have also recognized that severe physical or mental harm
cannot be inflicted on POW’s because it is a violation of Customary Humanitarian Law.
[2.1.1] Violation of Jus Cogens norm against torture.
‘Every human being has the inherent right to life. Law shall protect this right. No one shall be
arbitrarily deprived of his life’.47 The right to life is a norm of jus cogens, as are the
prohibitions against torture. Jus cogens refer to certain fundamental, overriding principles of
international law, from which no derogation is ever permitted.48 Prohibition on torture is part
of customary international law and has become a peremptory norm.49 In case of the
41
Customary International Humanitarian Law (2005) [hereinafter, CIHL], rule 90.
42
CIHL, rule 89.
43
Moot Preposition, ¶ 14, ¶ 15.
44
Prosecutor v Delalić (Zejnil) and ors, Appeal Judgment, Case No IT-96-21-A, ICL 96 (ICTY 2001), 20th
February 2001, United Nations Security Council [UNSC]; International Criminal Tribunal for the Former
Yugoslavia [ICTY]; Appeals Chamber [ICTY].
45
Prosecutor v Furundžija (Anto), Trial Judgment, Case No CIHL IT-95-17/1-T, (1999) 38 ILM 317, (2002) 21
ILR 213, [1998] ICTY 3, ICL 17 (ICTY 1998), 10th December 1998, United Nations Security Council [UNSC];
International Criminal Tribunal for the former Yugoslavia [ICTY]; Trial Chamber II [ICTY].
46
Prosecutor v. Dragoljub Kunarac (Trial Judgement), ICTY, IT-96-23-T.
47
International Covenant on Civil and Political Rights, art. 6(1).
48
VCLT, art. 53.
49
Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports
2012, p.422, ¶ 99.
XXI
COMPETITION - 2018
Prosecutor v. Anto Furundzija50, the International Criminal Tribunal for the former
Yugoslavia (ICTY) suggested obiter dictum that the violation of jus cogens norm, such as the
prohibition against torture, had direct legal consequences for the legal character of all official
domestic actions relating to the violation.51 Similarly in the present case, Godman, along with
five soldiers, were tortured and then, ultimately killed and mutilated.52 This kind of treatment
is against the principle of Jus cogens and hence, Aryan has violated jus cogens norm by
treating Godman inhumanely.
[2.1.2] Godman is a person to be protected because he is no longer participating in

hostilities.
Attacking persons who are recognized as hors de combat is prohibited.53 A person hors de
combat is who is in the power of an adverse party.54 Persons hors de combat must be treated
humanely.55 Persons taking no active part in the hostilities, including members of armed
forces who have laid down their arms and those placed hors de combat by sickness, wounds,
detention, or any other cause, shall in all circumstances be treated humanely. 56 Violence to
life and person, in particular murder of all kinds, mutilation, cruel treatment and torture shall
remain prohibited.57
[2.2] VIOLATION OF BILATERAL AND MULTILATERAL TREATIES AND CONVENTION.
Godman, along with five other soldiers, was hors de combat. They were treated inhumanely58
by the Aryan army which is prohibited under common art. 3 of Geneva Convention.59
50
Prosecutor v. Anto Furundzija (Trial Judgement), IT-95-17/1-T, International Criminal Tribunal for the
former Yugoslavia (ICTY), 10 December 1998, available at:
http://www.refworld.org/cases,ICTY,40276a8a4.html.
51
See Also I.D. Selderman, Hierarchy In International Law. The Human Rights Dimension (2001), At 58:
Dupuy. ‘Normesinternationalespenales Et Droit Imperative (Jus Cogens)’. In H. Ascendo (Ed.), Droit
International Penal (2000) 80.
52
53
CIHL, Rule 47(a); Hague Regulations, art. 23(c); Additional Protocol I, Art. 41(1) & art. 85(3)(e); ICC
Statute, Art.8(2)(b) (VI).
54
CIHL, Rule 47(a).
55
Rule 87, CIHL; Lieber Code, Article 76 (Cited In Vol. II, Ch. 32, § 215);
Brussels Declaration, Article 23, Third graph Oxford Manual, art.63; Hague Regulations, art.4, Second
¶graph; Geneva Conventions, Common art. 3;
First Geneva Convention, Article 12, First ¶graph; Second Geneva Convention, art.12, First ¶graph; Third
Geneva Convention, art.13; Fourth Geneva Convention, art.5 & 27, First ¶graph. Additional Protocol I, Article
75(1); Additional Protocol II, art. 4(1).
56
Geneva Convention Common art. 3.
57
Ibid.
58
59
Supra note 32.
XXII
COMPETITION - 2018
[2.2.1] Treaty of BA violated.
“Every Treaty in force is binding upon the parties to it and must be performed by them in
good faith.”60 Aryan has failed to interpret BA in good faith and conducted patrolling
operation in the demilitarized LOC which was forbidden in the Agreement61 which directly
defeated the object and purpose62 of the BA. Firstly, that the agreement shall govern all the
actions of Marshal and Aryan with respect to LOC63 and to resolve all the disputes or
conflicts that arise between them64. The agreement made it mandatory to keep the LOC a
demilitarized zone.65 The parties to this Agreement shall ensure peace in the demilitarized
LOC and shall not indulge in any act of aggression without a fair warning to each other. 66 No
warning was ever given by Aryan before conducting patrolling operations in the LOC.
There is a breach of an international obligation by a State when an act of that State is not in
conformity with what is required of it by that obligation. 67 Therefore, Aryan has violated the
BA by conducting patrolling operations in LOC.
[2.2.2] Violated ICCPR.
Art. 6 of the ICCPR recognizes and protects the right to life of all human beings. 68 It is the
supreme right from which no derogation is permitted69 even in situations of armed conflict
and other public emergencies.70 Para 1 of art. 6 of the covenant provides that no one shall be
arbitrarily deprived of his life and that the right shall be protected by law.71 Deprivation of
life involves a deliberate72 or otherwise foreseeable and preventable life-terminating harm or
injury, caused by an act or omission.73 It goes beyond injury to bodily or mental integrity or
threat thereto, which are prohibited by art. 9, para 1.74 No derogation from ‘right to life’75 and
60
VCLT, Art. 26.
61
BA Article 3.
62
Malcolm Shaw, Treaty, International Relations, www.britannica.com.
63
Annexure-1, the BA of 1998, ¶.1.
64
Annexure-1-The BA of 1998 Art. 2.
65
Moot Preposition, ¶ 5.
66
Annexure-1-The BA of 1998, Art. 3.
67
Chapter 3 Rd., Responsibility of States for Internationally Wrongful Acts 2001, Art. 12.
68
ICCPR, Article 6.
69
General Comment 6, ¶1; See also: Communication No. R.11/45, Suarez De Guerrero V. Colombia, Views
Adopted On 31 March 1982, ¶13.1; See also: Communication No. 146/1983, Baboeram Adhin V Suriname,
Views Adopted On 4 April 1985, ¶ 14.3.
70
Human Rights Committee General, Comment No. 36 On Art. 6, International Covenant On Civil & Political
Rights, On The Right To Life- Revised Draft By The Repertoire.
71
Ibid at ¶. 4.
72
Communication No. R.11/45, Suarez De Guerrero V. Colombia, Views Adopted On 31 March 1982, ¶ 13.2.
73
Ibid.
74
General Comment 35, ¶ 9.
XXIII
COMPETITION - 2018
‘right against torture’76even in the time of public emergency.77All persons deprived of their
liberty shall be treated with humanity and with respect for the inherent dignity of the human
person.78 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.79 Godman was inhumanely treated and killed by the Aryan army which violated
his right to life80 and right against torture81 protected under ICCPR. Hence, Aryan has
violated ICCPR.
[2.2.3] Violation of ICESCR.
‘No restriction upon or derogation from any of the fundamental human rights recognized or
existing in any country in virtue of law, conventions, regulations or custom’.82 Aryan has
tortured and killed Godman, which violated his right to life and right against torture. Hence,
Aryan has violated ICESCR.
[2.2.4] Violated the Geneva Conventions and Additional protocol 1.
“The High Contracting Parties undertake to respect and to ensure respect for the present
Convention in all circumstances”.83 In addition to the provisions which shall be implemented
in peacetime, the present Convention shall apply to all cases of declared war or of any other
armed conflict which may arise between two or more of the High Contracting Parties. 84
‘Prisoners of war must at all times be humanely treated.85Any unlawful act or omission by the
Detaining Power causing death or seriously endangering the health of a prisoner of war in its
custody is prohibited and will be regarded as a serious breach of the present Convention.86
Wilful killing, torture or inhuman treatment, wilfully causing great suffering or serious injury
to body or health are considered as the grave breaches Geneva conventions and additional
protocol 1.87 Mutilation is prohibited88and it constitutes a war crime in international armed
75
Art.6, ICCPR.
76
Art. 7, ICCPR.
77
Art. 4, ICCPR.
78
CCPR General Comment No. 20: Art. 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading
Treatment or Punishment).
79
Art.7, ICCPR; Art. 5, UDHR.
80
ICCPR, Art.6.
81
Ibid at Art.7
82
Art. 5(2), ICESCR.
83
Common Article 1 of All the GC.
84
Common Article 2(1) of All the GC.
85
Third Geneva Convention, Art. 13.
86
Ibid.
87
First Geneva Convention, Article 50; See also:Second Geneva Convention, Article 51; Third Geneva
Convention, Article 130; See also:Fourth Geneva Convention, Article 147; AP 1- Article-11 & Article 85.
88
Third Geneva Convention, Article 13; See also:Fourth Geneva Convention, Article 32, Additional Protocol I;
Article 75(2); Additional Protocol II, Article 4(2).
XXIV
COMPETITION - 2018
conflicts under the Statute of the International Criminal Court.89 Here, we can establish from
the facts that Aryan gruesomely tortured, killed and mutilated Godman and other five
captured POWs90 which is a violation of all the Geneva Conventions and additional
protocols.
[2.2.5] Violation of other important conventions.
Everyone has the right to life.91 No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.92States parties have the duty to refrain from engaging in
conduct resulting in arbitrary deprivation of life.93No one shall be arbitrarily deprived of his
life.94 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.95 Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment prevents torture by instructing each state party to have a systematic
review on interrogation rules and methods for the treatment of persons subjected to
detention.96 Here, we can establish from the facts that Aryan gruesomely tortured, killed and
mutilated Godman and other five captured POWs97 which is prohibited under all the above
mentioned human rights convention. Aryan has violated its obligations under UDHR, ACHR,
ACHPR, ECHR and UNCAT.
89
ICC Statute, Article 8(2) (B) (X) & (E) (Xi).
90
91
UDHR, Art. 3.
92
UDHR, Art. 5.
93
Cf. Osman V UK, Judgment of The ECtHR Of 28 Oct. 1998, ¶ 116
94
American Convention on Human Rights, Art. 4; See also:African Charter on Human & Peoples' Rights, Art.4;
European Convention on Human Rights, Art. 2.
95
ACHR, Art. 5; See also:ACHPR, Art. 5; See also: European Convention on Human Rights; Art. 3.
96
Convention Against Torture & Other Cruel, Inhuman Or Degrading Treatment Or Punishment, Art. 11.
97
XXV
COMPETITION - 2018
ISSUE-III
[3.] WHETHER MARSHAL IS BOUND TO RETURN THE PRISONERS OF WAR?
Marshal is not bound to return the POWs because [3.1] There was an International Armed
Conflict between Marshal and Aryan; [3.2] There is no absolute international obligation to
return POWs of International armed conflict; and [3.3] There is no substantial proof of
consequential inhuman treatment meted out with POWs.
[3.1] THERE WAS AN INTERNATIONAL ARMED CONFLICT BETWEEN MARSHAL AND ARYAN.
Geneva Convention shall apply to all cases of declared war or of any other armed conflict
which may arise between two or more of the High Contracting Parties, even if the state of
war is not recognized by one of them.98 In order for armed violence to qualify as international
armed conflict, the hostilities should occur between two or more states as the opposing
parties.99 The comment provided by the International Committee of the Red Cross over
common art. 2 of the 1949 Geneva Convention can be considered a valid one: “Any
difference arising between two States and leading to the intervention of armed forces is an
armed conflict”.100 Marshal and Aryan are two independent and sovereign states. A war
broke out between them known as Marshal- Aryan border skirmish.101Hostilities have
occurred between two states. Therefore, this armed conflict qualifies as an International
Armed Conflict.
[3.2] THERE IS NO ABSOLUTE INTERNATIONAL OBLIGATION TO RETURN POWS OF
INTERNATIONAL ARMED CONFLICT.
[3.2.1] The duty to release and return POWs under Geneva Convention relative to the
Treatment of Prisoners of War.
The Third Geneva Convention and CIHL require the release and repatriation of prisoners of
war without delay after the cessation of active hostilities.102 The Hague Regulations provide
for the obligation to repatriate prisoners of war as soon as possible after the conclusion of
98
Geneva Conventions Iv Of 1949, Common Article 2.
99
10-12-2012 Interview, Internal Conflicts Or Other Situations Of Violence – What Is The Difference For
Victims? https://www.icrc.org/eng/resources/documents/interview/2012/12-10-niac-non-international-armed-
conflict.htm .
100
Commentary Of 1952,Convention (I) For The Amelioration Of The Condition Of The Wounded & Sick In
Armed Forces In The Field. Geneva, 12 August 1949. Ihl-Databases.Icrc.Org.
101
102
Third Geneva Convention, Art. 118; See also: CIHL, Rule 128.
XXVI
COMPETITION - 2018
peace.103 Peace agreement is an Agreement to come to peace and end conflict (between
government, countries, etc.).104 Active hostilities will officially end after the conclusion of
peace treaty which has not been signed between the Marshal and Aryan. Practice indicates
that release often occurs under an agreement at the end of a conflict based on bilateral
exchange.105 Aryan has already killed the six captured POWs of the Marshal106. Hence, no
bilateral exchange can possibly happen and repatriation of POWs is restricted by National
law of the Marshal. Thus, Marshal is not bound to return the POWs.
[3.3] THERE IS NO SUBSTANTIAL PROOF OF CONSEQUENTIAL INHUMAN TREATMENT METED

OUT WITH POWS.
In the cases, The Prosecutor v. Mathieu Ngudjolo Chui, The Prosecutor v. Callixte
Mbarushimana and in Prithipal Singh and Others v. State of Punjab And Another, the
accused were acquitted giving the benefit of doubt as the other party failed to adduce any
“substantial evidence”. Similarly, in the present Aryan’s failed to prove that consequential
inhuman treatment was meted out with the POWs of Aryan.
[3.3.1]. Marshal actions were necessary.
Necessity may not be invoked unless the act is the only way for the State to safeguard an
essential interest against a grave and imminent peril.107 In Caroline case of 1842, it was
argued that, there must be shown "a necessity of self-defence. . . instant, overwhelming,
leaving no choice of means, and no moment for deliberation. 108It also confirmed that ‘the
only legitimate object which states should endeavour to accomplish during war is to weaken
the military forces of the enemy’.109It was necessary and in the interest of the Marshal to
capture POWs to immediately end the hostilities and to weaken the military forces of Aryan.
103
Hague Regulations, Art. 20.
104
Definition In Collins Dictionary.
105
E.G., Agreement On The Military Aspects Of The Peace Settlement Annexed To The Dayton Accords,
Article 9; See also: Agreement Between Croatia & The Socialist Federal Republic Of Yugoslavia On The
Exchange Of Prisoners, 1-2; See also: Protocol To The Moscow Agreement On A Cease-Fire In Chechnya, Art;
See also: Ashgabat Protocol On Prisoner Exchange In Tajikistan, 1.
106
107
Draft Articles on Responsibility of States for Internationally Wrongful Acts 2001, Art. 25(A).
108
Caroline Case of 1842,
109
St. Petersburg Declaration of 1868.
XXVII
COMPETITION - 2018
[3.3.2] Marshal actions were proportionate.
The principle of proportionality focuses, therefore, on the relationship between the objective
whose achievement is being attempted, and the means used to achieve it.110In the present
case, detaining 47000 POWs are the best proportionate step to restrain the activities of Aryan
strictly.
[3.3.3] Marshal actions qualify as self-defence.
The terms "anticipatory self-defence", "pre-emptive self-defence" and "pre-emption"

traditionally refers to a state's right to strike first in self-defence when faced with imminent
attack.111 In order to justify such an action, the Caroline test112 has two distinct requirements:
the use of force must be necessary because the threat is imminent and thus pursuing peaceful
alternatives is not an option (necessity); the response must be proportionate to the threat
(proportionality).113
The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of
self-defence taken in conformity with the Charter of the United Nations.114Nothing in the
present Charter shall impair the inherent right of individual or collective self-defence if an
armed attack occurs against a Member of the United Nations. 115Under Article 51 of the UN
Charter and under CIL – self-defence is only available against a use of force that amounts to
an armed attack (Para 211).116
Since, the POWs were captured as a measure of self-defence. Hence, the actions of Marshal
qualify as self-defence.
[3.3.4] POWs kept in custody are preventive measure to avoid an armed conflict.
The most basic, and in principle, least controversial purpose for holding Prisoners of War in
continuing custody is to prevent them from re-joining their comrades-in-arms.117 Releasing
110
Beit Sourik Village Council V. The Government of Israel, HCJ 2056/04, pg. 24, ¶ 40.
111
Charles Pierson (2004). "Pre-Emptive Self-Défense In An Age Of Weapons Of Mass Destruction: Operation
Iraqi Freedom". Denver Journal Of International Law & Policy. University Of Denver.
112
Charlotta Nilsson, The Legality of Anticipatory Self-Defence in International Law.
113
The Legal War: A Justification For Military Action In Iraq, Gonzaga Journal Of International Law,
Archived From The Original On 2010-01-16.
114
Draft Articles on Responsibility Of States For Internationally Wrongful Acts 2001, Art. 25.
115
UN Charter, Art. 51.
116
Nicaragua v. United States Of America - Military & military Activities In & Against Nicaragua - Judgment
Of 27 June 1986 - Merits - Judgments [1986] ICJ 1; ICJ Reports 1986, P 14; [1986] ICJ Rep 14 (27 June 1986).
117
Convention Relative to The Treatment of Prisoners Of War. Geneva, 27 July 1929.
XXVIII
COMPETITION - 2018
and repatriating Prisoners of War who are still capable of serving before the end of hostilities
might strengthen the enemy by increasing its numbers and prolong the duration of the war.118
The Aryan sent the parcel to the Marshal of the mutilated body parts of all the soldiers
captured by them with an enclosed letter containing two lines as follows ‘Be prepared, we
are going to hit you soon’.119From the above facts, it can be established that, if POWs are
repatriated to Aryan, then Aryan can seek revenge by attacking Marshal’s again. Therefore,
keeping POWs in the permanent captivity would be preventive measure to avoid another
armed conflict.
118
Ibid.
119
XXIX
COMPETITION - 2018
ISSUE-IV
[4.] MARSHAL IS ENTITLED TO APPROPRIATE DAMAGES?
Marshal is entitled to appropriate damages because, [4.1] Acts of Aryan army are attributable
to Marshal. [4.2] Acts are internationally wrongful acts because they Violate of Customary
International Law and Violate treaty law.
[4.1] ACT OF ARYAN ARMY ARE ATTRIBUTABLE TO MARSHAL.
There is an internationally wrongful act of a State when conduct consisting of an action or

omission is attributable to the State under international law and constitutes a breach of an
international obligation of the State.120 The condition for the existence of an internationally
wrongful act of the State is that the conduct attributable to the State should constitute a
breach of an international obligation of that State121.
Sometimes an act can be attributed the state if it knew or must have known.122 States can only
act by and through their agents.123 Thus the question is which persons should be considered
as acting on behalf of the state. In the “Rainbow Warrior” case,124 the arbitral tribunal
stressed, “any violation by a State of any obligation, of whatever origin, gives rise to State
responsibility”.125 If the legal acts in question are imputable to state, they are regarded as acts
attributed to state.126 In the present case, acts of taking POW’s, killing soldiers, torturing
them127 and denial of consular access128 are all internationally wrongful act which can be
attributed to Aryan.
Aryan failed to fulfil the obligations under the BA, therefore giving rise to the state
responsibility. Since Aryan has killed six soldiers of Marshal without any legal proceedings
and without any intimation, Aryan is subjected to pay the damages which are to be calculated
120
Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries 2001, Art.2
121
Article 2(7) of Draft articles on Responsibility of States for Internationally Wrongful Acts, with
commentaries 2001.
122
Corfu Channel, United Kingdom v. Albania, Judgment, Compensation, (1949) ICJ Rep 244, ICGJ 201 (ICJ
1949), 15th December 1949.
123
German Settlers in Pol &, Advisory opinion, 1923, PCIJ.
124
6 Cases Concerning The Difference Between New Zeal & France Concerning The Interpretation Or
Application Of Two Agreements Concluded On 9 July 1986 Between The Two States & Which Related To The
Problems Arising From The Rainbow Warrior Affair, UNRIAA, Vol. XX (Sales No. E/F.93.V.3), P. 215
(1990).
125
Ibid at page 251, ¶ 75.
126
U.S Diplomatic & consular staff in Tehran case & Dickson Car Wheel Company Case.
127
Moot proposition, ¶ 15.
128
XXX
COMPETITION - 2018
based on settled conventions under International law with respect to the loss suffered by
Marshal.
[4.2] ACTS ARE INTERNATIONALLY WRONGFUL ACT.
Article 1 states the basic principle underlying the articles as a whole, which is that a breach of
international law by a state entails its international responsibility. An internationally wrongful
act of a state may consist in one or more actions or omissions or a combination of both.
Whether there has been an internationally wrongful act depends, first, on the requirements of
the obligation which is said to have been breached and, secondly, on the framework
conditions for such an act, which are set out in part one. The term “International
responsibility” covers the new legal relations which arise under international law by reason of
the internationally wrongful act of a state. The content of these new legal relations is
specified in part two.129
Every internationally wrongful act of a state entails the international responsibility of that
state130. In the phosphates in morocco case, PCIJ affirmed that when a state commits an
internationally wrongful act against another state international responsibility is established
“immediately as between the two states131. ICJ has applied the principle on several
occasions, for example in the Corfu channel case132 , in the military and paramilitary
activities in and against Nicaragua case133 and in the gabˇcíkovo-nagymaros project case134.
It is also stated that and on the interpretation of peace treaties (second phase)135, in which it
stated that “refusal to fulfil a treaty obligation involves international responsibility” 136 arbitral
tribunals have repeatedly affirmed the principle, for example in the claims of Italian nationals
resident in Peru cases137 in the Dickson car wheel company case,138 in the international
129
Article 1 of Draft article on responsibility of state for internationally wrongful acts, with commentaries
2001.
130
Draft article on responsibility of state for internationally wrongful acts, with commentaries 2001.
131
Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No. 74; See also: S.S. “Wimbledon”, 1923,
P.C.I.J., Series A, No. 1, p. 15, at p. 30; See also: Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927,
P.C.I.J., Series A, No. 9, p. 21; See also: Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, p. 29.
132
Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, p. 4, at p. 23.
133
Military &¶military Activities in & against Nicaragua (Nicaragua v. United States of America), Merits,
Judgment, I.C.J. Reports 1986, p. 14, at p. 142, ¶. 283, & p. 149, ¶. 292.
134
Gabˇcíkovo-Nagymaros Project (see footnote 27 above), at p. 38, ¶. 47.
135
Interpretation of Peace Treaties with Bulgaria, Hungary & Romania, Second Phase, Advisory Opinion, I.C.J.
Reports 1950, p. 221.
136
Article 1 Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries
2001.
137
Seven of these awards rendered in 1901 reiterated that “a universally recognized principle of international
law states that the State is responsible for the violations of the law of nations committed by its agents”
XXXI
COMPETITION - 2018
fisheries company case139in the British claims in the Spanish zone of morocco case140 and in
the Armstrong cork company case.141 In the “Rainbow Warrior” case,142 the arbitral tribunal
stressed “any violation by a State of any obligation, of whatever origin, gives rise to State
responsibility”143
Thus the term “international responsibility” in article 1 covers the relations which arise under
international law from the internationally wrongful act of a State, whether such relations are
limited to the wrongdoing State and one injured State or whether they extend also to other
States or indeed to other subjects of international law, and whether they are centred on
obligations of restitution or compensation or also give the injured State the possibility of
responding by way of countermeasures.144
[4.2.1] Violation of Customary International Law
a. International wrongful act under the Geneva Conventions. Prisoners of war must at
all times be humanely treated.145“Cruel treatment and torture” and “outrages upon
personal dignity, in particular humiliating and degrading treatment” of civilians, are
prohibited.146 Torture and cruel treatment are also prohibited by specific provisions of the
four Geneva Conventions.147 In addition, “torture or inhuman treatment” and “wilfully
causing great suffering or serious injury to body or health” constitute grave breaches of
the Geneva Conventions and are war crimes under the Statute of the International
(UNRIAA, vol. XV (Sales No. 66.V.3), pp. 399 (Chiessa claim), 401 (Sessarego claim), 404 (Sanguinetti
claim), 407 (Vercelli claim), 408 (Queirolo claim), 409 (Roggero claim), & 411 (Miglia claim)).
138
Dickson Car Wheel Company (U.S.A.) v. United Mexican States, UNRIAA, vol. IV (Sales No. 1951.V.1),
p. 669, at p. 678 (1931).
139
International Fisheries Company (U.S.A.) v. United Mexican States, Ibid at p. 691, at p. 701 (1931).
140
According to the arbitrator, Max Huber, it is an indisputable principle that “responsibility is the necessary
corollary of rights; See also: All international rights entail international responsibility”, UNRIAA, vol. II (Sales
No. 1949.V.1), p. 615, at p. 641 (1925).
141
According to the Italian-United States Conciliation Commission, no State may “escape the responsibility
arising out of the exercise of an illicit action from the viewpoint of the general principles of international law”,
UNRIAA, vol. XIV (Sales No. 65.V.4), p. 159, at p. 163 (1953).
142
6 Case concerning the difference between New Zeal&& France concerning the interpretation or application
of two agreements concluded on 9 July 1986 between the two States & which related to the problems arising
from the Rainbow Warrior affair, UNRIAA, vol. XX (Sales No. E/F.93.V.3), p. 215 (1990).
143
Ibid at p. 251, ¶. 75
144
Article 1 (5) of Draft articles on Responsibility of States for Internationally Wrongful Acts, with
commentaries 2001.
145
Third Geneva Convention, Art 13.
146
Geneva Conventions, Common Article 3
147
First Geneva Convention, Article 12, (“Torture”); See also: Second Geneva Convention, Article 12,
(“Torture”); See also: Third Geneva Convention, Article 17, (“Physical Or Mental Torture”) Article 87,
(“Torture Or Cruelty”) & Article 89 (“Inhuman, Brutal Or Dangerous” Disciplinary Punishment); See also:
Fourth Geneva Convention, Article 32 (“Torture” & “Other Measures Of Brutality”).
XXXII
COMPETITION - 2018
Criminal Court.148 There were evidences of gruesome torture of soldiers, committed by
Aryan, including mutilation, permanently disabling or removing an organ and
endangering mental and physical health.149 From the above facts, we can establish that
Aryan has violated all the Geneva Conventions and hence, should compensate for the
same.
b. International wrongful acts under International Covenant on Civil and Political

Rights. Every human being has the inherent right to life.150 No one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment. 151All persons deprived
of their liberty shall be treated with humanity and with respect for the inherent dignity of
the human person.152 pows’ survival and well-being considered as the principal objective
of humanitarian rule.153 Aryan has treated Godman, along with five other soldiers,
inhumanely and ultimately killed them. Godman right to life and right against the torture
has been violated.
[4.2.2] Violation of Treaty Law.
As per stated in the Article 3, “The parties to this Agreement shall ensure peace in the
demilitarized LOC and shall not indulge in any act of aggression without a fair warning to
each other”.154 It is prohibited for the Parties to the conflict to extend their military operations
to zones on which they have conferred by agreement the status of demilitarized zone.155Aryan
army has conducted patrolling operations in the LOC156 even when it is forbidden under BA
and AP 1. From the above facts it can be established that the Applicant should compensate to
Respondent as it violated the BA and Additional Protocol 1.
[4.3] MONITORY LOSS
War has serious economic costs – loss of buildings, infrastructure, a decline in the working
population, uncertainty, rise in debt and disruption to normal economic activity.157There has
148
First Geneva Convention, Article 50; Third Geneva Convention, Article 130; Fourth Geneva Convention,
Article 147; ICC Statute, Article 8(2)(A)(II) & (III) & (C)(I)
149
Moot Proposition, ¶ 15
150
International Covenant On Civil & Political Rights, Article6
151
International Covenant On Civil & Political Rights, Article 7.
152
International Covenant On Civil & Political Rights, Article 10.
153
Eritrea v. Ethiopia, Judgement.
154
BA, Article 3.
155
AP 1, Art. 60.
156
157
Tejvan pettinger, Economic Impact Of War, (March 31, 2017), www.economicshelp.org
XXXIII
COMPETITION - 2018
been a huge monitory the loss, the money invested on arms and ammunition.158When people
become misplaced, they cannot continue to work or keep their businesses open, causing
damages to the economy of countries involved.159 In addition, moral injury160 suffered by the
victim and their families for which Marshal is asking for pecuniary compensation. The
widespread trauma caused by these atrocities and suffering of the civilian population is
another legacy of these conflicts, the following creates extensive emotional and psychological
stress161
[4.4] HARM TO THE TERRITORIAL INTEGRITY, SECURITY, AND INTERNATIONAL STANDING
The internal disturbance in the law and order of because of the full-fledged war within the
territory known as Aryan boarder skirmish which lasted from 20th October 2017 to 25
December 2017.162 The citizens had to suffer. The fog of war Chaos and confusion, present
during war and other forms of armed conflict, made it difficult to obtain accurate information
on the resulting population health consequences. The State responsible for an internationally
wrongful act is under an obligation to compensate for the damage caused thereby, insofar as
such damage is not made good by restitution. The compensation shall cover any financially
assessable damage including loss of profits insofar as it is established.163 In Eritrea v.
Ethiopia case the commission awarded compensation for mental and emotional harm
suffered by prisoners of war164
Marshal demands that all such actions must be ceased and that Aryan has an obligation to pay
reparations to the government for damage to their people, property, and economy.
158
Moot Preposition, ¶ 5
159
“The Economic Costs of Violence & Containment.” The Institute For Economics & Peace
160
Article 36, ILC Articles on State Responsibility, Op. Cit. (Note 1).
161
Impact Of Armed Conflict On Children". United Nations Report. New York. 1996.
162
Moot Preposition, ¶ 9
163
Responsibility of States For Internationally Wrongful Acts, Art. 36.
164
Eritreaâs Damages Claims, Supra Note 23, At 230, 238.
XXXIV
COMPETITION - 2018
ISSUE-V
[5.] Whether Marshal is right in its place as per international law to deny Aryan
consular access to Mr. Alex?
Marshal is right in its place as per international law to deny Aryan consular access to Mr.
Alex because [1.] Right to consular access should be in conformity with the laws and rules of
receiving State [2.] VCCR does not apply to espionage, [3.] Denial of Treaty Rights in
Criminal Cases , [4.] Threat to sovereignty and National Security, [5.] Alex right to consular
access is restricted by GC III and AP I.
[5.1] RIGHT TO CONSULAR ACCESS SHOULD BE IN CONFORMITY WITH THE LAWS AND RULES
OF RECEIVING STATE.
Article 36(2) of the Vienna Convention provides that the right to consular access shall be
exercised in conformity with the laws and regulations of the receiving State.165 In the context
of a foreign national in detention, the relevant laws and regulations contemplated by Article
36(2)166 are those that may affect the exercise of specific rights under Article 36(1), of
Vienna convention on consular relation167. Thus, visits to persons in custody or imprisoned
'are permissible in conformity with the provisions of the
code of criminal procedure and prison regulations.168
Accordingly, in many cases it may be difficult to say with any certainty whether, if contested,
a given treaty would be held under national law to fall within an internal limitation, or
whether an international tribunal would hold the internal provision to be one that is
"notorious" and "clear" for the purposes of international law.169
There is no suggestion whatever that any State Party thought that the proviso in Article 36(2)
in any way required remedies in the criminal justice process for failures to inform detained
foreign nationals that they could request consular assistance,170 In the instant case, Marshal
165
Counter memorial submitted by the United State of America (LaGrand case) ¶ 79(2).
166
Vienna convention on consular relation art. 36, cl. 2.
167
Counter memorial submitted by the United State of America (LaGrand case) ¶79(2).
168
Draft Articles on Consular Relations, with commentaries 1961, article 36, ¶(5).
169
Draft Articles On the Law of Treaties With Commentaries 1966 Article (43).
170
Counter memorial submitted by the United State of America (LaGrand case) ¶80(3).
XXXV
COMPETITION - 2018
has applied domestic laws in particular the rule of “procedural default”171, the effect of which
is that no remedy is immediately available to Mr. Alex.
[5.2] VCCR DOES NOT APPLY TO ESPIONAGE.
Vienna convention on consular relation is unlikely to apply in the context of a spy/terrorist

sent by a State to engage in acts of terror.172 Espionage consists of activities of spies. A spy is
any person who, acting clandestinely173 or on false pretences obtains or endeavors to obtain
information of military value in territory controlled by the enemy, with the intention of
communicating it to the opposing Party.174 However, the definition of espionage is not
limited to members of the armed forces. It also includes civilian who engage in act of
espionage175.
If an individual is accused of espionage, terrorism, consular access which may involve

compromising evidence which may involve exacerbating the threat for the receiving State
because of coded communication, cannot possibly be anything other than a breach of Article
55,176 which states that Without prejudice to their privileges and immunities, it is the duty of
all persons enjoying such privileges and immunities to respect the laws and regulations of the
receiving State.177 In the present case it is mentioned that marshal agreed to release the
civilians except one namely Mr. Alex, whom they detained on the charges of espionage as he
belonged to the Aryan secret service178.
Pakistan has argued in the Jadhav case that, Article 36 of the Vienna Convention does not
apply to persons suspected of espionage or terrorism.179Therefore, from the above fact, Mr.
Alex should not be granted consular access because he was espionage of the Aryan 180, and
granting consular access to Mr. Alex would only further endanger their nation181 and hence
detention is necessary.
171
LaGrand Case (Germany V. United States Of America) Counter-Memorial Submitted By The United States
Of America 27 March 2000 ¶53.
172
Verbatim record of Pakistan, India vs. Pakistan (Jadhav case), pg.19 ¶1.
173
CIHL rule 107.
174
(Article 29 of the 1907 Hague Regulations, CIHL rule 107) HPCR Manual on International Law Applicable
to Air and Missile Warfare | Section R: Espionage( general rule 118).
175
(HPCR manual on international law applicable to air and missile warfare, 2013), general rule 118.
176
Verbatim record (India vs. Pakistan) Jadhav case page no.21.
177
VCCR, art.55, Cl. 1.
178
Moot preposition ¶ 12.
179
India v. Pakistan (Jhadhav Case), ¶43.
180
Moot Proposition, ¶.12.
181
Moot Proposition ¶.13.
XXXVI
COMPETITION - 2018
[5.3] DENIAL OF TREATY RIGHTS IN CRIMINAL CASES.
Article 36 of the Vienna Convention does not create a binding obligation on a state for
providing consular access to foreign nationals arrested on criminal charges. In fact, the
following paragraph of the said Convention, Article 36 (2) makes it abundantly clear that
this right “shall be exercised in conformity with the laws and regulations of the receiving
State.182” (Substantiate with Avena , LaGranda case and other US cases). The VCCR did
not require states to provide remedies in their respective criminal justice systems when
foreign nationals were not informed of their consular notification rights183
[5.4] THREAT TO SOVEREIGNTY AND NATIONAL SECURITY.
Espionage and gathering intelligence methods violate certain International Law treaties
concerning Human Rights, such as right to privacy and principles set by international law on
non-interference in internal affairs of another state.184 In international law, the principle of
non-intervention includes, but is not limited to, the prohibition of the threat or use of force
against the territorial integrity or political independence of any state.185
Several jurists have recognized that certain acts not involving force
nonetheless constitute intervention. Quincy Wright was of the opinion
that "espionage into official secrets; and other acts within a state's territory forbidden by its
laws" may constitute acts of illegal intervention.186 As the International Court of Justice said
in its 1986 judgment in the Nicaragua case, "the principle of non-intervention involves the
right of every sovereign State to conduct its affairs without outside interference; though
examples of trespass against this principle are not infrequent, the Court considers that it is
part and parcel of customary international law. International law requires political integrity [
... ] to be respected"187 It went on to say that "the principle forbids all States or groups of
States to intervene directly or indirectly in the internal or external affairs of other States" and
that "a prohibited intervention must accordingly be one bearing on matters in which each
182
Draft article on consular access 1961 art. 36 (5)
183
Lagrand case Verbatim Record 2000/28 and Verbatim Record 2000/28-Translation, paragraph 3.1, Nov. 13,
2000 (visited Nov. 22, 2000) http://www.icj-cij.orglicjwww/idocket/igus/iguscrligus-cr2000- 28.html (Nov. 14,
2000) [hereinafter Record 28]
184
A. John Radsan, The Unresolved Equation of Espionage and International Law, Michigan Journal of
International Law, Volume 28|Issue 3. Available at
https://repository.law.umich.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1170&context=mjil.
185
U.N Charter, Art. 2 Cl. 4
186
Quincy Wright, Julius Stone, Richard A. Falk, Roland J. Stanger, Essays on Espionage and International
Law. Available at, https://www.questia.com/library/61631755/essays-on-espionage-and-international-law.
187
Nicaragua case (ICJ Reports 1986, p.106, para. 202).
XXXVII
COMPETITION - 2018
State is permitted, by the principle of State sovereignty, to decide freely. One of these is the
choice of a political, economic, social and cultural system, and the formulation of foreign
policy.188 Therefore, Marshal has a right to deny consular access to Mr. Alex as he is a threat
to the country and permitting consular access would only endanger nation security189.
[5.5] MR. ALEX RIGHT TO CONSULAR ACCESS IS RESTRICTED BY GC III AND AP I.
Under international law, the act of spying, or espionage, describes as an act of information
gathering that is clandestine or takes place under false pretenses. A spy190 caught in the act is
assimilated into the category of saboteur and cannot benefit from the status of prisoner of
war191. The spy must nevertheless be treated with humanity and must not be punished without
a fair and regular trial.192 Customary international humanitarian law prescribes that in the
context of an international armed conflict, combatants who are captured while engaged in
espionage do not have the right to prisoner-of-war status. They may not be convicted or
sentenced without previous trial.193 So, In the instant case Marshal agree to release the
civilians except one namely Mr. Alex, whom they claimed was being detained on the charges
of espionage as he belonged to Aryan secrete survive.194
188
Michael Woods, Non-Intervention (Non-interference in domestic affairs). Available at,
https://pesd.princeton.edu/?q=node/258.
189
Moot preposition paragraph(13).
190
Hague Regulations 1907, Art. 29; CIHL rule 107.
191
Additional Protocol (I) to the Geneva Conventions, 1977, Art. 46, Cl. 3.
192
Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949,
Art. 5 paragraph 3
193
ICRC customary IHL study 2005, Rule 107.
194
Moot preposition, ¶ 12.
XXXVIII
COMPETITION - 2018
PRAYER FOR RELIEF
For the foregoing reasons, Marshal respectfully requests this Court to declare that:
 The ICJ have the jurisdiction to determine the matter.
 The treatment meted out with the Major Dmitri Godman is contrary to the principles of
International Law.
 The unprovoked act on LOC demanded a strict action to be taken from Marshal’s end.
 Marshalis entitled to appropriate damages from the Aryan.
 Marshal was right to deny Aryan the Consular Access to Mr. Alex.
Respectfully Submitted,
Agents for the Marshal.
XXXIX

7 P V. S. M M I L M C C 2018: Case Concerning The Jurisdiction, Prisoners of War, Damages and Consular Relation

Uploaded by

Copyright:

Available Formats

7 P V. S. M M I L M C C 2018: Case Concerning The Jurisdiction, Prisoners of War, Damages and Consular Relation

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

7 P V. S. M M I L M C C 2018: Case Concerning The Jurisdiction, Prisoners of War, Damages and Consular Relation

Uploaded by

Copyright:

Available Formats

TEAM CODE: 1518

7TH PROFESSOR V. S. MANI MEMORIAL INTERNATIONAL LAW MOOT COURT COMPETITION

On Submission to the International Court of Justice

Memorial on behalf of Applicant

ARGUMENTS ADVANCED ---------------------------------------------------------------------1-21

[1.4] Aryan is obliged to accept the jurisdiction of the court. ------------------------------------20

SCOPE OF THIS COURT’S JURISDICTION? ------------------------------------------------------------22

[2.1] Violation of the Customary International Humanitarian Law. ----------------------------22

[2.1.1] Violation of Jus Cogens norm against torture. ---------------------------------------------24

[2.1.2] Major Dmitri Godman is a person to be protected because he is no longer participating

[2.2] Violation of bilateral and multilateral treaties and convention. ----------------------------26

[2.2.1] Treaty of BA violated. -------------------------------------------------------------------------27

[2.2.2] Violated ICCPR. -------------------------------------------------------------------------------27

[2.2.3] Violation of ICESCR. ------------------------------------------------------------------------28

[2.2.5] Violation of other important conventions. --------------------------------------------------29

[3.2] There is no absolute international obligation to return POWs of International armed

Treatment of Prisoners of War. -----------------------------------------------------------------------30

[3.3.1]. Marshal actions were necessary. ------------------------------------------------------------32

[3.3.2] Marshal actions were proportionate. -------------------------------------------------------32

[3.3.3] Marshal actions qualify as self-defence. ----------------------------------------------------32

[4] WHETHER ARYAN IS ENTITLED TO APPROPRIATE DAMAGES? ------------------------------34

[4.1] Act of army are attributable to marshal. ----------------------------------------------------34

[4.2] Acts are internationally wrongful act. -------------------------------------------------------35

[4.2.1] Violation of Customary International Law. ----------------------------------------------36

[4.2.2] Violation of Treaty Law. --------------------------------------------------------------------37

[4.3] Monitory Loss. -----------------------------------------------------------------------------------38

[4.4] Harm to the territorial integrity, security, and International standing--------------------38

[5.2] VCCR does not apply to espionage. -----------------------------------------------------------37

[5.3] Denial of Treaty Rights in Criminal Cases. ------------------------------------------------------38

[5.4] Threat to sovereignty and National Security. -------------------------------------------------39

1. Cambodia v Thailand, Temple of Preah Vihear, [1962] ICJ Rep 6. ------------------------21

1. Charlotta Nilsson, The Legality of Anticipatory Self-Defence in International Law. ----29

CONTRARY TO THE PRINCIPLES OF THE INTERNATIONAL LAW?

[3.] WHETHER MARSHAL IS BOUND TO RETURN THE POW’S?

[4.] WHETHER MARSHAL IS ENTITLED TO APPROPRIATE DAMAGES?

LAW TO DENY ARYAN CONSULAR ACCESS TO MR. ALEX?

[1.] WHETHER ICJ HAS JURISDICTION OVER THE CASE?

[1.4] Aryan is obliged to accept the jurisdiction of the court.

In addition to this, consent of a state to be bound by a treaty is expressed at the signature26

ARISING OUT OF BA.

[2.] WHETHER THE TREATMENT METED OUT WITH MAJOR DMITRI

[2.1.2] Godman is a person to be protected because he is no longer participating in

[2.2] VIOLATION OF BILATERAL AND MULTILATERAL TREATIES AND CONVENTION.

[2.2.2] Violated ICCPR.

[2.2.3] Violation of ICESCR.

[2.2.4] Violated the Geneva Conventions and Additional protocol 1.

[2.2.5] Violation of other important conventions.

[3.] WHETHER MARSHAL IS BOUND TO RETURN THE PRISONERS OF WAR?

[3.2] THERE IS NO ABSOLUTE INTERNATIONAL OBLIGATION TO RETURN POWS OF

INTERNATIONAL ARMED CONFLICT.

[3.3] THERE IS NO SUBSTANTIAL PROOF OF CONSEQUENTIAL INHUMAN TREATMENT METED

[3.3.1]. Marshal actions were necessary.

[3.3.3] Marshal actions qualify as self-defence.

The terms "anticipatory self-defence", "pre-emptive self-defence" and "pre-emption"

continuing custody is to prevent them from re-joining their comrades-in-arms.117 Releasing

[4.] MARSHAL IS ENTITLED TO APPROPRIATE DAMAGES?

[4.1] ACT OF ARYAN ARMY ARE ATTRIBUTABLE TO MARSHAL.

There is an internationally wrongful act of a State when conduct consisting of an action or

[4.2] ACTS ARE INTERNATIONALLY WRONGFUL ACT.