IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE THE HAGUE, THE NETHERLANDS

CASE CONCERNING THE DIFFERENCES BETWEEN THE PARTIES

CONCERNING THE MILITARY ATTACKS BY THE PARTIES AND
BY THE REPUBLIC OF GRASONA

THE STATE OF MAZIA (APPLICANT)

v.
THE REPUBLIC OF GRASONA (RESPONDENT)

MEMORIAL FOR APPLICANT

1ST NALSAR PUBLIC INTERNATIONAL LAW MOOT COURT

COMPETITION 16-18 AUGUST, 2019

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 TABLE OF CONTENTS

1. INDEX OF AUTHORITIES
2. STATEMENT OF JURISDICTION
3. PRESENTED
4. STATEMENT OF FACTS
5. SUMMARY OF ARGUMENTS
6. ARGUMENT

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 INDEX OF AUTHORITIES

Treaties and Conventions

UN Charter

Arts. 8 and 11, ASR(Articles on Responsibility of States for Internationally Wrongful Acts)
ASR Commentaries, p. 47.
U.N. Documents
Friendly Relations Declaration; UN Doc. A/RES/42/22; UN Doc. A/RES/2160(XXI); UN
Doc. A/RES/32/150; UN Doc. A/RES/2936(XXVII); UN Doc. A/RES/107(S-1).
Art. 51, Charter of the UN.

Art. 33(1), Charter of the UN

Mr. Quaison-Sackey, UN Doc. no. S/PV.1024:51 (1962).

Mr. Koroma, UN Doc. no. S/PV.2283:56 (1981) (emphasis added).

Judicial and Arbitral Decisions

Oil Platforms: paras 51, 61–64 and 72; Nicaragua: para. 195
Nicaragua, para. 183; Armed Activities, para. 148; Construction of a Wall (Sep. op.
Elaraby), p. 254; Oil Platforms (Dis. op. Elaraby), p. 291; Oil Platforms (Sep. op.
Kooijmans), para. 46; Oil Platforms (Sep. op. Simma), para. 6; Yearbook of ILC (1996-
II), p. 247.
Nicaragua, paras. 184-185; Corfu Channel, p. 35
Construction of a Wall, para. 139; Nicaragua, paras. 131, 195, 229, 230; Oil Platforms, para.
51; Armed
Activites, para. 146; Zanardi, p. 112; Yee, p. 291; Becker, p. 159

Books, Treatises, Digests, and Restatements

Waldock, p. 235.
Lubell, p. 14.
Lubell, p. 65; Schmitt, p. 20

Essays, Articles, and Journals

International Law Association report on Use of Force (2018) p. 16

Letter from Mr. Webster to Lord Ashburton, August 6, 1842, cited in Lori F. Damrosch et al.,

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International Law: Cases and Materials (2001), p. 923.
Letter from Mr. Webster to Mr. Fox, April 24, 1841, cited in Damrosch et al.,
International Law: Cases and Materials (2001).
Addendum to Report, p. 69.

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 SUMMARY OF ARGUMENTS

Whether Grasona's bombings on the territory of Mazia on 21st July 2017 are in violation
of sovereignty and territorial integrity of Mazia and amounted to the violation of the
provisions of the UN Charter on the use of force and other relevant international law

Grasona's bombings on the territory of Mazia on 21st July 2017 are in violation of sovereignty
and territorial integrity of Mazia and amounted to the violation of the provisions of the UN
Charter. It violated Article 2(4) of the charter that prohibits use of force inconsistent with
purpose of the United Nations. “Using force within the territory of another state-even if the
forcible measures are limited to strikes against a non-state actor-must be considered as within
the notion of force as it exists in Article 2(4) of the Charter.”1. Although there is no reference
to ‘State’ in relation to the armed attack, the language of Article 51 in particular and the
purposes of the UN Charter in general do not provide the possibility of justification for the
right of self-defence against the attacks of the non-state actors unless they are attributable to
the State. Article 33 of the UN Charter obliges states to resolve conflicts peacefully. UN
Charter contains a prohibition on the use of force and a preference for pacific forms of dispute
resolution at its center. Article 2(4) makes it unlawful for member states to use force against
the territorial integrity and political independence of other states or in any manner contrary to
the principles and purposes of the UN Charter. This provision has become part of customary
international law and is regarded as a norm of ius cogens2, applying to non-member states also.
In order to activate a right to use force in self-defense, there must be an armed attack3, at least
the imminent threat. That conditions has not been fulfilled in present situation that deems act
of Grasona illegal and contrary to UN charter and international law.
What, though, is an “armed attack”? The consensus appears to be in favor of requiring the
use of military force of a certain degree of intensity against a state’s territory4, armed
forces or embassies (and in the absence of that state’s consent) and the existence of some sort
of intention on the part of the attacking state to bend the target state to its will.

1
International Law Association report on Use of Force (2018) p. 16
2
(Nicaragua, para. 190)
3
Oil Platforms: paras 51, 61–64 and 72; Nicaragua: para. 195
4
(Nicaragua: 191 and 195; Oil Platforms: 63–64; Brownlie 1963: 278)
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 ARGUMENTS

Whether Grasona's bombings on the territory of Mazia on 21st July 2017 are in violation of
sovereignty and territorial integrity of Mazia and amounted to the violation of the provisions
of the UN Charter on the use of force and other relevant international law

GRASONA CARRIED OUT AN UNLAWFUL ATTACK AGAINST MAZIA Commented [Ed1]: What is the purpose of this
argument? You have argued a breach of 2(4) below, and the
Mazia submits that the armed operation carried out by Grasona constituted a use of force within issue does not require you to analyse the legality of an
attack under humanitarian law.
the meaning of Art. 2(4) of the Charter of the UN (2.1). The use of force against Mazia was
not in conformity with Art. 51 of the Charter of the UN and cannot be justified as self-defence
While some exceptions to sovereignty have been acknowledged, international law is still based
on the idea that nation-states have the inalienable right to resolve domestic issues and take
independent decisions in their relations with other nations. This idea is enshrined in Article
2(7) of the UN Charter. The prohibition contained in Article 2(7) applies only to the UN, and
not to the actual member-states. Commented [Ed2]: Irrelevant. Do not conflate non-
intervention with the prohibition against the use of force.
First, the state seeking to exercise force in self-defense would need to demonstrate necessity.
As Webster explained in a letter to Lord Ashburton, a special British representative to
Washington, the state would have to demonstrate that the “necessity of that self-defense is
instant, overwhelming, and leaving no choice of means, and no moment of deliberation.”5 In Commented [Ed3]: Is the Caroline test, dated from the
early 19th century, still applicable in today’s age of ICBMs
other words, the state would need to show that the use of force by the other state was and nuclear weapons?

imminent and that there was essentially nothing but forcible action that would forestall such
attack Second, the state using force in self-defense would be obliged to respond in a manner
proportionate to the threat. In making the argument to the British, Webster explained that, in
order for Canada’s action to be permissible, it would be necessary to prove that “the local
authorities of Canada, even supposing the necessity of the moment authorized them to enter
the territories of the United States at all, did nothing unreasonable or excessive; since the act,
justified by the necessity of self-defense, must be limited by that necessity, and kept clearly
within it.”6 Commented [Ed4]: The argument has no analysis or
conclusion wrt the facts.

5
Letter from Mr. Webster to Lord Ashburton, August 6, 1842, cited in Lori F.
Damrosch et al., International Law: Cases and Materials (2001), p. 923.
6
Letter from Mr. Webster to Mr. Fox, April 24, 1841, cited in Damrosch et al., International
Law: Cases and Materials (2001).

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THE GRASONA OPERATION CONSTITUTED A USE OF FORCE WITHIN THE
MEANING OF ART. 2(4) OF THE CHARTER OF THE UN

Art. 2(4) of the Charter of the UN, the prohibition to use force or threat of force, is declared a
cornerstone of the Charter of the UN and regarded as ius cogens by the ICJ and the
ILC(International Law Commission) 7. The relevance of the principles of non-use of force and
non-intervention have been emphasised thoroughly in ICJ8 judgements and GA Resolutions.9
Art. 2(4) is a strict prohibition; an incursion into the territory of another State constitutes an
infringement of Art. 2(4), even if it is not intended to deprive that State of part of its territory
and if the invading troops are meant to withdraw immediately after completing a temporary
and limited operation.10 In order for the force used against a State to be illegitimate, force has
to be aimed towards the territorial integrity or political independence of said State. The standard Commented [Ed5]: […] and it must not fall under any of
the exceptions to the rule under CIL and the Charter.
of using forcible measures encompass sending undercover agents to kill an individual, therefore
Commented [Ed6]: Requires more legal weight than a
a covert military mission into another State satisfies the conditions of a forcible measure.11 38(1)(d).

Grasonanian forces, forcefully and without Mazia’s explicit consent entered the sovereign
territory (Airspace) as well as bombed the territory of Mazia on 21 July 2017, using military
equipment and displayed a great level of violence by bombing that led to death of civilians .
During the limited short-term operation, the territorial integrity and national security of Commented [Ed7]: Relevance?

Mazia was harmed. Grasona carried out a military operation using forcible measures without
any prior notifications. Therefore, the conditions of an illegitimate use of force have been Commented [Ed8]: What is the relevance of this? Would
prior notifications legitimise the act?
satisfied.
Commented [Ed9]: Analyse the exceptions first before
THE USE OF FORCE BY GRASONA DID NOT MEET THE REQUIREMENTS OF declaring it as illegitimate.

SELF-DEFENCE
The right to self-defence is contained in Art. 51 of the Charter of the UN. The main condition for
invoking the right to self-defence is the existence of an armed attack against a State12. The Commented [Ed10]: What about an impending armed
attack?

7
Nicaragua, para. 183; Armed Activities, para. 148; Construction of a Wall (Sep. op. Elaraby), p. 254; Oil
Platforms (Dis. op. Elaraby), p. 291; Oil Platforms (Sep. op. Kooijmans), para. 46; Oil Platforms (Sep. op.
Simma), para. 6; Yearbook of ILC (1996-II), p. 247.
8
Nicaragua, paras. 184-185; Corfu Channel, p. 35.
9
Friendly Relations Declaration; UN Doc. A/RES/42/22; UN Doc. A/RES/2160(XXI); UN Doc.
A/RES/32/150; UN Doc. A/RES/2936(XXVII); UN Doc. A/RES/107(S-1).
10
„The ICJ construes the prohibition to use force as a strict prohibition and there is no sign in its jurisprudence
of any support for the argument that the prohibition of the use of force in Article 2(4) should be construed to
allow exceptions going beyond self-defence, such as limited military operations which do not aim to overthrow
the government or to seize the territory of a foreign State and which further the purposes of the UN“
Commentary of the Charter of the UN, p. 123; Gray (2013) p 9-10.
11
Lubell, p. 14.
12
Art. 51, Charter of the UN.

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practice of the ICJ and the teachings of the most highly qualified publicists have widely and
repeatedly supported the position that an attack has to be attributable to a State for it to be
considered an armed attack in the meaning of Art. 51 of the Charter of the UN. 13 In the present
case, an act or omission is attributable to the State when the attributing conduct is directed or
controlled by State, or when the conduct is acknowledged and adopted by a State as its own. 14

In order to attribute conduct to a State through Art. 8 of the ASR(articles on Responsibility of

States for Internationally Wrongful Acts) , the person or group of persons has to either be acting
on the instructions of, or under the direction or control of, that State in carrying out the conduct.
This is most commonly achieved through recruiting or instigating private persons or groups of
private individuals who remain outside the official structure of the State. 15 In the present case, a
link between the suicide bombers and Mazia cannot be established as their affiliation with Mazia
is not established so the tests of effective control and overall control would fail to demonstrate a Commented [Ed11]: This is an evidentiary question. The
legal standard relating to this is found in Oil Platforms.
sufficient link between the suicide bombers and Mazia. Furthermore The 1965 Declaration on Should have been added.
the Inadmissibility of Intervention in the Domestic Affairs of States46 emphasised that: Commented [Ed12]: Requires analysis. What is the
threshold of effective control, and of overall control.
[n]o state has the right to intervene, directly or indirectly, for any reason whatsoever, in the
internal or external affairs of any other state. Consequently, armed intervention and all other
forms of interference or attempted threats against the personality of the state or against its
political, economic and cultural elements, are condemned16 Commented [Ed13]: Irrelevant.

Self defence may be exercised only against a state not a non state actor, It may be exercised only Commented [Ed14]: Out of place.

against the state, non state actors are not counted as attackers.17

IN ANY EVENT, GRASONA DID NOT FOLLOW THE PRINCIPLES OF NECESSITY

AND PROPORTIONALITY IN EXERCISING SELF-DEFENCE UNDER ART. 51 OF
THE CHARTER OF THE UN

If the court should find that Grasona exercised legitimate self-defence, the principles of Commented [Ed15]: Incorrectly constructed.
To be a legitimate exercise of self-defence, necessity and
necessity and proportionality were not followed. As part of customary international law, self proportionality must be satisfied.
Ie, mere existence of an armed attack is not enough.
It should have been worded as –
If the court should find that the preconditions for the
exercise of self-defence were present, Grasona still did not
exercise self-defence as P and N were not followed.
13
Construction of a Wall, para. 139; Nicaragua, paras. 131, 195, 229, 230; Oil Platforms, para. 51; Armed
Activites, para. 146; Zanardi, p. 112; Yee, p. 291; Becker, p. 159.
14
Arts. 8 and 11, ASR.
15
ASR Commentaries, p. 47.
16
General Assembly resolution 2131 (XX).
17
Terrorism and the Right of Self-Defense.” The American Journal of International Law, vol. 95, no. 4, 2001, pp.
839–843.

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defence has to satisfy the conditions of necessity and proportionality.18 Necessity is
interpreted as self-defence being the last resort after all peaceful measures have failed.41
Proportionality relates to the size, duration and target of the response. The questions of
necessity and proportionality are dependent on the facts of the particular case.

THE NECESSITY PRINCIPLE

Art. 33(1) of the Charter of the UN stipulates a duty to seek for peaceful means to settle a dispute,
e.g. by a negotiation or by resorting to a regional agency. 19 If a State were able to achieve the
same result by measures not involving the use of armed force, it would have no justification for
20
adopting conduct which contravenes the general prohibition against the use of armed force.
Mazia argues that resorting to a unilateral unauthorized armed operation was not necessary as the
actual threat arising from the bombing was neither existential one that would have not been able
to be solved by a dialogue. Moreover, Grasona had not satisfied every peaceful option in its
disposal. Grasona did not address the issue with the regional organisation with competence of
security matters. It was not necessary for Grasona to carry out an armed operation without the
consent of Mazia. If Grasona believed that further action could be taken by Mazia, it could have
been dealt with through cooperative arrangements. A prior notification or a co-ordinated
operation would have yielded same results. Even a limited use of force not targeted at the
State’s apparatus amounts to a violation of that State’s territorial integrity.Therefore, the
requirement of necessity is not satisfied. Commented [Ed16]: While the points above are all
sound, without supporting state practice it is not as
persuasive.
THE PROPORTIONALITY PRINCIPLE

Should the Court find that Grasona’s use of force was necessary, Mazia submits that the
proportionality principle was not followed. In self-defence, the proportionality requirement is
cognisant of there being an on-going danger which the self-defence is aimed at ending, and the
proportionality and limitation placed upon actions taken in self-defence must therefore be
measured in relation to the achievement of this legitimate aim.21 The intensity of the force used Commented [Ed17]: However, the ICJ seems to have
deviated from this approach. In Nicaragua, the
should be about the same as the intensity defended against . For example in a case of external proportionality was analysed as against the harm suffered.
More support for the proportionality wrt aims theory
should be provided.
18
Shaw, p. 1131; Jennings, p. 82; Kirgis; Nuclear Weapons, para. 41; Nicaragua, para. 176; Armed Activities,
para. 147; Oil Platforms, para.
19
Art. 33(1), Charter of the UN.
20
Addendum to Report, p. 69.
21
Lubell, p. 65; Schmitt, p. 20

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aggression the use of force by the state in its defence should not be more than required to defend
its territory and people, sufficient enough to stop but not more than that. The proportionality
principle has been many times reiterated in General Assembly, especially during time of crisis
such as Cuban missile crisis, “My delegation does not think so, for as I have said earlier,
incontrovertible proof is not yet available as to the offensive character of military
developments in Cuba. Nor can it be argued that the threat was of such a nature as to
warrant action on the scale so far taken, prior to a reference to this Council.”22 Same issue
was also raised by the delegates responding to pre-emptive strikes by Israel,
“the plea of self-defence is untenable where no armed attack has taken place or is
imminent.”14 Quoting from Webster’s letter in the Caroline case, he explained that “[a]s for Commented [Ed18]: Does not convey the same point.

the principle of self-defence, it has long been accepted that, for it to be invoked
or justified, the necessity for action must be instant, overwhelming and leaving
no choice of means and no moment for deliberation.” The Israeli action he continued, “was
carried out in pursuance of policies long considered and prepared and was plainly an act of
aggression.”23 Security Council ended up censuring Israel for its action.
Grasona has failed to meet both tests , imminent threat as well as of proportionality as there
was no threat from the State of Mazia itself but certain non state actors that were not agents
of Mazia so the force that was used was out of proportion and was in violation of
international law

22
Mr. Quaison-Sackey, UN Doc. no. S/PV.1024:51 (1962).
23
Mr. Koroma, UN Doc. no. S/PV.2283:56 (1981) (emphasis added).

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