THE INTERNATIONAL COURT OF JUSTICE

THE HAGUE, THE NETHERLANDS

QUESTIONS RELATING TO THE MATTERS CONCERNING THE EXPULSION OR

THREAT OF EXPULSION OF CITIZENS OF AMIRA FROM ROPHAN

THE REPUBLIC OF AMIRA

(Applicant)

vs.

THE FEDERATION OF ROPHAN

(Respondent)

MEMORIAL FOR THE RESPONDENT

JUSTITIA MOOT COURT COMPETITION

2020

1
 STATEMENT OF JURISDICTION

By virtue of the Joint Notification and Special Agreement submitted to this Court on 16 March

16 by the Republic of Amira (Applicant) and the Federation of Rophan (Respondent), and in

accordance with Article 40(1) of the Statute of the International Court of Justice, the parties

submit to this Court their differences concerning the expulsion or threat of expulsion of citizens

of Amira from Rophan.

In accord with the Special Agreement notified to the Registrar of the Court on 16 March 2020,

the ICJ is hereby requested to decide the Case of the parties on the basis of the rules and

principles of general international law as well as any applicable treaties, and also to determine

the legal consequences, including the rights and obligations of the Parties, arising from its

Judgment on the questions presented in this Case.

2
 QUESTION PRESENTED

I. WHETHER ROPHAN, IN ISSUING AND IMPLEMENTING THE JOINT STATEMENT

REGARDING THE DEPORTATION OF AMIRAN CITIZNES, ACTED IN VIOLATION OF

INTERNATIONAL LAW.

3
 STATEMENT OF FACTS

REPUBLIC OF AMIRA

The Republic of Amira (Amira) is a large country that lies at the west coast of the Kelvin

Continent. Despite its vast territory, it is still considered to be a developing country because of its huge

population. Amira invested heavily on Information and Communication Technology (ICT) since 1995

and even encouraged its citizens to learn software development. As a result, Amira ranked 7 th on the 2015

Worldwide Information Technology Report.

FEDERATION OF ROPHAN

Federation of Rophan (Rophan) has abundant natural resources however, its ICT infrastructure

still heavily imports its hardware and talent from other countries. For several decades, Rophan has been a

top trading partner of the Federal Republic of Mykinos with their friendly relationship lasting more than

50 years already.

DIPLOMATIC RELATIONS BETWEEN AMIRA AND ROPHAN

Rophan started its diplomatic relationship with Amira only in 1995 after the end of Amira’s Civil

War. The relationship between them was considered to be civil, with officials from both countries often

engaged with rhetoric, with Mykinos fully supporting Rophan’s position against Amira.

ROPHAN’S 2014 HIGHLY CONTENTIOUS ELECTIONS

Rophan’s 2014 highly contentious elections brought to power a government friendly to Amira.

Because of such change, Amira and Rophan drastically experienced a much-improved diplomatic relation

between them. Inclusive to this was the sudden increased inflow of laborers and skilled workers from

Amira, mostly in the ICT Industry.

4
 ROPHAN, THE “HACKING CAPITAL” OF THE WORLD

In 2018, Rophan started gaining ill reputation with news creeping up that Rophan is slowly

becoming the “hacking capital” of the world, where hackers and cyber-terrorists allegedly hold base due

to lax regulations on its ICT industry. It was also reported that crime rates have gone up 15% since 2014

and national surveys reveal that the local populace is blaming it on the increased number of Amirans

working in the country.

HACKING MADE TO THE MINISTRY OF DEFENSE OF MYKINOS

The servers of the Ministry of Defense of Mykinos were hacked, compromising documents

containing state secrets, mostly involving its national security. After the investigation, it was found out

that the hack was done within Rophan and the virus used for the execution of the hacking was traced to a

small company registered under the name of an Amiran company, which incidentally employed

several Rophan workers.

ECONOMIC SANCTIONS IMPOSED BY MYKINOS TO ROPHAN

With this, Mykinos issued a statement denouncing the so-called “cyber-terrorist attack” and

“urged” the government of Rophan to act “appropriately” against Amira. With the Rophan government

failing to perform retaliatory actions against Amira, Mykinos imposed several economic sanctions against

Rophan. Because of all these, civil unrest in Rophan increased. Riots broke out in city centers and citizens

staged mass rallies against Amirans with the slogan: “KICK THEM OUT!”

5
 ROPHAN’S 2019 NATIONAL ELECTIONS

The anti-Amiran sentiments escalated so much so that Rophan’s Democratic Nationalist Party,

who have been very vocal against Amira during the election campaign won the 2019 national elections by

a landslide.

STATEMENT OF ROPHAN’S NEW SECRETARY OF INTERIOR

Not long after assuming office, Rophan's new Secretary of Interior immediately issued a

statement "condemning the continued hacking and continued cyber-terrorism conducted by Amiran

citizens in our land." The Interior Secretary also added that the new government will perform "all

necessary means to protect the safety and security of the country".

THE RESPONSE OF AMIRA

In response, Amira's Foreign Minister made a statement that Rophan's statements are

"discriminatory against the citizens of Amira and the citizens of Amira do not engage in criminal

activity."

DIPLOMATIC NEGOTIATIONS ARRIVED AT AN IMPASSE

To contain the tension, diplomatic means were resorted by both countries. However, after two (2)

months of stalled diplomatic negotiations, the countries arrived at an impasse. Due to this deadlock,

Rophan severed diplomatic ties against Amira, citing the security threat posed by the number of Amirans

working in Rophan, most especially ICT workers that Rophan considers as "criminal hackers".

ROPHAN’S JOINT STATEMENT

After severing diplomatic relations, Rophan, through the Joint Statement of its Secretary of

Justice and Secretary of Interior, advised all Amirans to voluntarily leave the country within 48 hours or

face deportation. The advice also stated that those exempted from this order shall be: (1) dual citizens of

6
Amira and Rophan; (2) citizens of Amira who are married to citizens of Rophan; (3) and citizens of

Amira who have minor children [who are citizens of Rophan] and are living in Rophan.

After the lapse of the 48-hour period, Rophan's deportation agents started issuing notices to

citizens of Amira within the country reminding them to leave or else face detention and eventual

deportation.

RESPONSE OF AMIRA

Amira's foreign minister issued a statement that Rophan's acts against its citizens on forced

deportation violate international law, specifically international humanitarian law and international law

against racial discrimination.

REFERRAL TO THE COURT

Diplomatic solutions having failed, on March 16, 2020, both states jointly submitted the dispute

to the Court by concluding the Special Agreement based on Article 40 (1) of the Statute of the Court.

Rophan likewise agreed to voluntarily stay the implementation of the deportation notices until the

resolution of this case on the merits.

7
 SUMMARY OF PLEADINGS

I. ROPHAN, IN ISSUING AND IMPLEMENTING THE JOINT STATEMENT

REGARDING DEPORTATION OF AMIRAN CITIZENS, DID NOT ACT IN VIOLATION

OF INTERNATIONAL LAW.

8
 MAIN PLEADING

I. ROPHAN, IN ISSUING AND IMPLEMENTING THE JOINT STATEMENT

REGARDING DEPORTATION OF AMIRAN CITIZENS DID NOT ACT IN
VIOLATION OF INTERNATIONAL LAW.
A. Rophan’s conduct does not violate the ICCPR and UN Charter

1. Procedural safeguards during deportation as provided in Article 13 of

International Covenant on Civil and Political Rights (ICCPR) should be set
aside.

The principles of sovereignty,1 non-intervention2, and the prohibition on the threat or use of force 3

are only a few examples where international law accounts for national security. Article 13 of the ICCPR

forbids the arbitrary expulsion of resident aliens and requires such decisions to be able to be appealed and

reviewed. However, particular rights provided to non-citizens in expulsion proceedings can be limited in

circumstances where compelling reasons of national security require. 4 The cyber hacking of

documents of Ministry of Defense of Mykinos within the territory of Rophan 5 is an imminent threat to the

latter’s national security. The hacking within the country of Rophan caused an irreparable damage to the

latter’s reputation and its diplomatic relations with others states, this includes the economic sanctions

imposed by Mykinos to Rophan.

a. Rophan acted with due diligence as part of its state responsibility to prevent
and address adverse impact of cyber hacking.

1
See e.g., U.N. Charter art. 2(1); Samantha Besson, Sovereignty, OXFORD PUB. INT’L L. 56 (last updated Apr. 2011)

2
See e.g., U.N. Charter art. 2(7).

3
See U.N. Charter art. 2(4)

4
Article 13, International Covenant on Civil and Political Rights

5
Compromis, ¶ 9

9
 Rule 6 of the Tallinn Manual provides, “a State must exercise due diligence in not allowing its

territory, or territory or cyber infrastructure under its governmental control, to be used for cyber

operations that affect the rights of, and produce serious adverse consequences for, other States.” 6

Rule 23 of Tallin Manual 2.0 provides that a State may act pursuant to the plea of

necessity in response to acts that present a grave and imminent peril, whether cyber in nature or

not, to an essential interest when doing so is the sole means of safeguarding it. 7

The United Nations (UN) Charter, Article 51 provides that "nothing 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." 8 International law recognizes that it would be

contrary to the purposes of the United Nations Charter if a threatened nation were required to

absorb an aggressor's initial and potentially crippling first strike before taking those military

measures necessary to prevent an imminent attack. 9 Article 2(4) of the said Charter provides, "all

Members shall refrain in their international relations from the threat or use of force against the

territorial integrity or political independence of any state, or in any other manner inconsistent

with the Purposes of the United Nations." 10 The International Court of Justice (ICJ) clarified in its

Nicaragua Case, even minor acts of interstate force fall under the general prohibition of article

2(4) of the UN Charter, regardless of whether they also qualify as acts of “aggression”, or as

“armed attacks” entitling the targeted state to resort to force in self-defence. 11

6
TALLINN MANUAL 2.0, supra note 14, at 30 r. 6.

7
TALLINN MANUAL 2.0 Rule 23

8
Id. art. 51

9
Department of the Navy, The Commander's Handbook on the Law of Naval Operations (NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.1),

para. 4.3.2.1 (1995) (emphasis supplied). This publication was formerly designated as NWP-9 (Rev. A) [hereinafter cited as NWP I-14M and

NWP-9 (Rev.A) respectively].

10
U.N. Charter art. 2, para. 4.

11
International Court of Justice, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), merits,

1986, §§ 191 and 195; International law Commission, Report of the International Law Commission on the work of its Thirty-second session, 5

10
 Here, Rophan is a country that lags behind its ICT infrastructure with both hardware and

talent mostly being imported from other countries. 12 Moreover, in 2018, Rophan slowly became

the "hacking capital" of the world, where hackers and cyber-terrorists allegedly hold base due to

lax regulations on Rophan's ICT industry 13. The cyber hacking that compromised documents

containing state secrets, mostly involving national security of Ministry of Defense of Mykinos

within the country of Rophan14 constitutes an imminent threat to the latter’s national security.

A State that faces cyber threats from or attacks by non-State actors can respond as long as
15
the response is lawful within the context of the jus ad bellum. State practice provides firm
16
support for the existence of a right of self-defense against non-State actors. The Caroline

incident formed the historical foundation of the right to self-defense, involved an armed attack by

non-State actors.17 Here, although the cyber-hacking was traced to a small company registered

May–25 July 1980, Official Records of the General Assembly, Thirty-fifth session, Supplement No. 10, UN document A/35/10, 1980, p. 44; Yoram

Dinstein, War, Aggression and Self-Defence, 4th ed., 2005, p. 174ff; Ian Brownlie, International Law and the Use of Force by States, 1963, pp.

363ff, 366.

12
Compromis, ¶ 4

13
Compromis, ¶ 8

14
Compromis, ¶ 9

15
Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, ¶ 191 (June 27) [hereinafter Military and

Paramilitary Activities]. See also Michael N. Schmitt, Cyber Operations in International Law: The Use of Force, Collective Security, Self-

Defense, and Armed Conflict, in COMMITTEE ON DETERRING CYBERATTACKS, NATIONAL RESEARCH COUNCIL, PROCEEDINGS OF A

WORKSHOP ON DETERRING CYBERATTACKS: INFORMING STRATEGIES AND DEVELOPING OPTIONS FOR U.S. POLICY 163 (2010)

16
See, e.g., DINSTEIN, supra note 13, at 214; Christopher Greenwood, International Law and the Preemptive Use of Force: Afghanistan, al

Qaeda, and Iraq, 4 SAN DIEGO INTERNA- TIONAL LAW JOURNAL 7, 17 (2003) (discussing the effects of attacks made by non-State actors);

Sean D. Murphy, The International Legality of US Military Cross-Border Operations from Afghanistan into Pakistan, in THE WAR IN

AFGHANISTAN: A LEGAL ANALYSIS 109, 126 (Michael N. Schmitt ed., 2009) (Vol. 85, U.S. Naval War College International Law Studies)

(“While this area of the law remains somewhat uncertain, the dominant trend in contemporary interstate relations seems to favor the view that

States accept or at least tolerate acts of self-defense against a non-State actor.”); Raphaël Van Steenberghe, Self-Defence in Response to Attacks

by Non-state Actors in the Light of Recent State Practice: A Step Forward?, 23 LEIDEN JOURNAL OF INTERNATIONAL LAW 183, 184 (2010)

(concluding that recent State practice suggests that attacks committed by non-State actors alone constitute armed at- tacks under Article 51).

17
19. S.C. Res. 1368, ¶ 1, U.N. Doc. S/RES/1368 (Sept. 12, 2001).

11
 under the name of an Amiran Company18, Rophan can regard the act as a threat to international

peace and security.

Articles 2(4) and 51 of the UN Charter also focus on the violation and defense of rights-

specifically, a state's right of sovereign dominion. Such an approach ties the concept of force to

improper interference with the rights of other states, focusing on the object and specific character

of a state's actions rather than a narrow set of means or their coercive effect. 19

Further, under the convention dealing with migrant workers, two articles allow the

exception only if no other treaty rights are violated; another article permits individuals to be

expelled on national security grounds, but they must be informed of this action in a language they

can understand.20

To reiterate, Rophan, through the Joint Statement of its Secretary of Justice and Secretary

of Interior, advised all Amirans to voluntarily leave the country within 48 hours or face

deportation.21

b. Irreparable damage to Rophan’s reputation and its diplomatic relations with

other States.

For several decades, Rophan has been a top trading partner of the Federal Republic of

Mykinos, a world power on the opposite side of the Roikken Ocean to the west of Amira. Their

friendly relationship has lasted for more than fifty (50) years already with both countries deep
18
Compromis, ¶ 9

19
As Quincy Wright explained in 1960: Domain, like property in systems of national law, implies the right to use, enjoy and transfer without

interference from others, and the obligation to each state to respect the domain of others. The precise definition of this obligation is the major

contribution which international law can make toward maintaining the peaceful co-existence of states. Quincy Wright, Subversive Intervention,

54 AM. J. INT'L L. 521, 528 (1960).

20
Migrant Workers Convention, supra note 67. Only six articles include R national security exceptions with wording similar to the CRC. Id. arts.

8, 13, 22, 26, 39, 40. Two articles require the national security exception to be consistent with the other rights recognized in the Convention. Id.

arts. 8, 39. Article 22 requires that the decision to expel individuals be communicated in a language these individuals can understand. National

security can be invoked as an excuse for not giving reasons or for denying review, but only if the national security concerns are “compelling.”

Id. art. 22(3)-(4).

21
Para 13,Compromis

12
 into cultural and economic exchange with each other. 22 The cyber hacking that involves the

national security of Mykinos within the country of Rophan 23 caused irreparable damage to

Rophan’s reputation. Mykinos imposed several economic sanctions against Rophan government

when it did not perform retaliatory actions against Amira 24, civil unrest in Rophan increased.

Riots broke out in city centers and citizens staged mass rallies against Amirans. 25

Moreover, the imposition of several economic sanctions by its top trading partner would

have macroeconomic consequences against Rophan. Macroeconomic repercussions of sanctions

generally include high inflation, lowered purchasing power, and a reduction in access to essential

goods.26 High inflation and the unavailability of external finance following the imposition of

sanctions caused Sudan’s annual gross domestic product to decline. 27 Malnourishment among

children increased from five percent to twenty-three percent in Haiti following sanctions. 28 The

decline in economic activities, 29 the inefficient allocation and utilization of resources, the unequal

distribution of facilities and budget cuts in the health sector, 30 result in the spread of diseases,

some of which become untreatable due to lack of access to clean water, sufficient food, and life-

22
Para 5, Compromis

23
Compromis, ¶ 9

24
Para 9, Compromis

25
Para 10, Compromis

26
Ioana Petrescu, The Humanitarian Impact of Economic Sanctions, 10 EUROPOLITY 205, 205–06 (2016).

27
1 SUZAN ADAM MOHAMMED HAMID, THE RAMIFICATIONS OF ECONOMIC SANCTIONS ON HEALTH SERVICE SYSTEM: A

COMPARATIVE STUDY OF SUDAN HEALTH SERVICE SYSTEM BEFORE AND AFTER ECONOMIC SANCTIONS 35 (2012).

28
Richard Garfield, The Silently, Deadly Remedy, 14 F. APPLIED RES. & PUB. POL’Y 52, 55 (1999).

29
U.N. OFF. FOR THE COORDINATION OF HUMANITARIAN AFF. & UNICEF, Economic Sanctions, Health, and Welfare in the Federal

Republic of Yugoslavia 1990–2000, 28 (May 25, 2001) (“In 1991, prior to sanctions, trade averaged US $800 million per month. In 1994 it had

declined to a low of US $200 million per month.”).

30
Garfield, Devin, & Fausey, supra note 28, at 465.

13
 saving medicine.31 As an example, economic sanctions against Burma caused thousands of

layoffs, including 100,000 women working in the textile industry and forced many unemployed

women to engage in prostitution.32

The economic sanctions imposed by Mykinos against Rophan have high probability to

result in macroeconomic consequences that would affect its whole economic interest.

2. Rophan has the right to expel Amirans or any alien in its territory

The right of expulsion has been characterized as an inherent attribute of the sovereignty

of every State.33 A state can exercise its sovereignty over cyber infrastructure within its territorial
31
HAMID, supra note 121, at 2.

32
Donald M. Seekins, Burma and U.S. Sanctions: Punishing an Authoritarian Regime, 45 ASIAN SURV. 437, 442 (2005).

33
“The power to expel aliens rests upon the same foundation and is justified by the same reasons as the power to exclude, namely: the

sovereignty of the state, its right of self-preservation, and its public interests.” Edwin M. Borchard, The Diplomatic Protection of Citizens

Abroad or the Law of International Claims, New York, The Banks Law Publishing Co., 1915, p. 48. “The right of a state to expel, at will, aliens,

whose presence is regarded as undesirable, is, like the right to refuse admission of aliens, considered as an attribute of the sovereignty of the

state, and is not limited even by treaties which guarantee the right of residence to the nationals of other contracting states (Fong Yue Ting v.

U.S., 149, U.S. 698 (1892)).” Shigeru Oda, “The Individual in International Law”, in Max Sørensen (dir.) Manual of Public International Law,

New York, St. Martin’s Press, 1968, pp. 469- 530, at p. 482. “The competence to expel is usually accepted by States, by international tribunals,

and by writers as the necessary concomitant of the State’s powers in regard to the admission and exclusion of aliens. It is frequently justified by

reference to the public interests of the State and as an incident of sovereignty.” Guy S. Goodwin-Gill, International Law and the Movement of

Persons between States, Oxford, Clarendon Press, 1978, p. 203 (citations omitted). “A state is under no duty, in the absence of treaty

obligations, to admit aliens to its territory. If it does admit them, it may do so on such terms and conditions as may be deemed by it to be

consonant with its national interests. Likewise a state may deport from its territory aliens whose presence therein may be regarded by it as

undesirable. These are incidents of sovereignty.” Green Haywood Hackworth, Digest of International Law, vol. III, chapters IX – XI,

Washington, Government Printing Office, 1942, vol. III, p. 717. “The right of expelling foreigners is also generally held to be an attribute or

incident of sovereignty, and is probably practiced, to a greater or less extent, by all political communities.” Amos S. Hershey, The Essentials of

International Public Law and Organization, rev. ed., New York, The Macmillan Company, 1927, p. 374 (citations contra omitted). “Just as a

State, in the exercise of its sovereignty, can admit, or deny entry to, an alien, the State can also expel or deport an alien. Such a right is essential

for the protection of the State and for the maintenance of its public order, morality and public health.” Louis B. Sohn and T. Buergenthal (eds.),

The Movement of Persons across Borders, Studies in Transnational Legal Policy, vol. 23, Washington D.C., American Society of International

Law, 1992, p. 89. See also United Nations, “Study on Expulsion of Immigrants”, Secretariat, 10 August 1955, pp. 1-77. (ST/SOA.22 and Corr.2

(replaces Corr.1)), para. 102; and Herbert W. Briggs, The Law of Nations. Cases, Documents and Notes, 2nd ed. New York, Appleton-Century-

Crofts, Inc., 1952, p. 525.

14
 34
borders , and over persons within its territory and with regard to its citizens, outside. The

principle of sovereignty therefore does apply in relation to state’s cyber activities, through the

ability of a state to regulate such matters within its territorial borders and to exercise independent

powers.35

a. Rophan has an inherent right of expulsion under Article 13 ICCPR.

Article 13 of the ICCPR provides that a state party to the present Covenant may lawfully

expel an alien in its territory.36The inherent nature of the right of expulsion as an incident of State

sovereignty was affirmed in a decision adopted by the Mixed Claims Commission Netherlands-

Venezuela in the Maal Case. The Umpire characterized the right of expulsion as “one of the

attributes of sovereignty” and stressed its defensive function: “the right of expulsion is inherent in

all sovereign powers and is one of the attributes of sovereignty, since it exercises it rightfully only

in a proper defense of the country from some danger anticipated or actual.” 37

In the Paquet Case decided by a Mixed Claims Commission Belgium-Venezuela, the

Umpire recognized the right of expulsion while limiting its functions to the protection by a State

of its public order or to the implementation of highly political considerations, as follows: “The

right to expel foreigners from or prohibit their entry into the national territory is generally

recognized … each State reserves to itself the exercise of this right with respect to the person of a

34
Under the Outer Space Treaty, satellites remain under the jurisdiction of the nation that launched them. Thus, a state cyberattack that targeted

another state’s satellite in outer space could constitute interference with the sovereign functions of a state regardless of the fact that the satellite

is located outside the state’s territorial borders.

35
The international group of experts involved in the Tallin Manual 2.0 agreed that “(a) State enjoys sovereignty authority with regard to the

cyber infrastructure…located within its territory” Schmitt (2017), Tallin Manual 2.0 on the International Law Applicable to Cyber Operations,

p.13.

36
Article 13, International Covenant on Civil and Political Rights

37
Maal Case, Mixed Claims Commission Netherlands-Venezuela, 1 June 1903, United Nations, Reports of International Arbitral Awards, vol. X,

pp. 730-733, at p. 731.

15
 foreigner if it considers him dangerous to public order, or for considerations of a high political

character …”.38

The right of expulsion has also been recognized in regional court and commission

decisions. The jurisprudence of the European Court of Human Rights affirms the right of States

to expel aliens for the purpose of preserving public order. In this respect, the Court consistently

refers in its case law to “the Contracting States’ concern to maintain public order, in particular in

exercising their right, as a matter of well-established international law and subject to their treaty

obligations, to control the entry, residence and expulsion of aliens …” 39

b. The government of Rophan can exclude Amirans in its territory through the
action of its legislative department 40.

In the case of Chae Chan Ping v. United States, 130 U.S. 581 May 13, 1889, the Supreme

Court held that through the action of the legislative department, the government can exclude

aliens from its territory. Hence, jurisdiction over its own territory is part of its independence.

Further, the Supreme Court reiterated, “As said by this court in the case of The Exchange, 7

Cranch, 116, 136, speaking by Chief Justice MARSHALL: “The jurisdiction of the nation within

its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not

imposed by itself. Any restriction upon it, deriving validity from an external source, would imply

a diminution of its sovereignty to the extent of the restriction, and an investment of that

sovereignty to the same extent in that power which could impose such restriction. All exceptions,

38
Paquet Case (Expulsion), Mixed Claims Commission Belgium-Venezuela, 1903, United Nations, Reports of International Arbitral Awards, vol.

IX, pp. 323-325, at p. 325 (Filtz, Umpire).

39
Case of Moustaquim v. Belgium, Judgment (Merits and Just Satisfaction), 18 February 1991, Application number 12313/86, para. 43. See

also: Case of Vilvarajah and others v. United Kingdom, Judgment (Merits), 30 October 1991, Application numbers 13163/87, 13164/87,

13165/87, 13447/87 and 13448/87, para. 102; Case of Chahal v. United Kingdom, Judgment (Merits and Just Satisfaction), 15 November 1996,

Application number 22414/93, para. 73; Case of Ahmed v. Austria, Judgment (Merits and Just Satisfaction), 17 December 1996, Application

number 25964/94, para. 38; Case of Bouchelkia v. France, Judgment (Merits), 29 January 1997, Application number 23078/93, para. 48; and

Case of H.L.R.. v. France, Judgment (Merits), 29 April 1997, Application number 24573/94, para. 33.

40
Chae Chan Ping v. United States, 130 U.S. 581 May 13, 1889

16
 therefore, to the full and complete power of a nation within its own territories, must be traced up

to the consent of the nation itself. They can flow from no other legitimate source.” 41

Furthermore, aliens residing in a foreign country are only permitted to stay when they are

permitted by that foreign country unless they have taken legal procedures and qualified towards

becoming a citizen of such country under its naturalization laws. 42

B. Rophan’s action represents a valid exercise of derogation in time of public emergency

1. Increase of Civil unrest in Rophan.

In time of public emergency which threatens the life of the nation and the existence of

which is officially proclaimed, the States Parties to the present Covenant may take measures

derogating from their obligations under the present Covenant to the extent strictly required by the

exigencies of the situation, provided that such measures are not inconsistent with their other

obligations under international law and do not involve discrimination solely on the ground of

race, colour, sex, language, religion or social origin. 43

A threat to the life of the nation is one that: (a) affects the whole of the population and

either the whole or part of the territory of the state; and (b) threatens the physical integrity of the

population, the political independence or the territorial integrity of the state or the existence or

basic functioning of institutions indispensable to ensure and protect the rights recognized in the

Covenant.44

41
Ibid

42
Fong Yue Ting v. United States et al. Wong Quan v. SAME. LEE JOE v. SAME. 149 U.S. 698, May 15, 1893.

43
Article 4 of International Covenant on Civil and Political Rights Adopted and opened for signature, ratification and accession by General

Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49

44
Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights

17
 Notably, there is an increased civil unrest in Rophan. Riots broke out in city centers and

citizens staged mass rallies against Amirans. 45 Both countries thereafter tried to contain the

tension through diplomatic means. 46 But, to no avail. 47 Hence, the civil disturbance is a public

emergency that needs to be immediately addressed because it threatens the integrity of the

Rophan population resulting to a civil war between Rophans and Amirans.

2. Rophan acted in self-defense

There are universal exceptions that could be invoked in relation to national security

concerns. These include the doctrines of distress, 48 impossibility,49 and force majeure50. The

doctrine of distress is related to that of necessity, 51 but operates on a smaller scale, protecting

“lives”52 rather than “essential interests.”53

To legitimately invoke the right of anticipatory self-defense there must be “necessity of

self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation

in accordance with the Caroline test.”54

While the cyber-attack was against Ministry of Defense of Mykinos, Rophan cannot be

complacent not to take actions from the fact that the hacking occurred in its territory. The hack
45
Para 10, Compromis

46
Para 11, Compromis

47
Para 12, Compromis

48
ILC Articles, supra note 13, at 49 (art. 24).

49
See Vienna Convention, supra note 13, art. 61.

50
ILC Articles, supra note 13, at 48 (art. 23).

51
. See Bjorklund, supra note 16.

52
ILC Articles, supra note 13, at 49 (art. 24(1)).

53
Id. at 49 (art. 25(1)).

54
See note of US Secretary of State Daniel Webster dated 24 Apr. 1841, in Caroline Case, 29 British and Foreign State Papers (1841) 1137–

1138, http://avalon.law.yale.edu/19th_century/br-1842d. asp. The Caroline test is a 19th-century formulation of customary international law.

The test takes its name from the Caroline affair

18
 can certainly be categorized as an intervention in the state’s “political, economic, social and

cultural system, and the formulation of foreign policy.” 55 State sovereignty exists in cyberspace as

it does in the other domains of air, land, and sea; and a state has sovereign control over cyber

infrastructure and cyber operations within its territory. 56 Further, international public law governs

state responsibility for harm to another state in the cyber domain. 57

As stated in Island of Palmas (Neth. v. U.S.) the principle of “sovereignty in the relations

between States signifies independence. Independence in regard to a portion of the globe is the

right to exercise therein, to the exclusion of any other State, the functions of a State.” 58 That

independence includes territorial integrity and political independence. 59 Significantly, state

sovereignty ties to the rights to self-determination, freedom and independence. These rights lie at

the heart of democracy, are recognized and protected under U.S. law, and are of particular

relevance to the 2014 Sony hack, which affected so many individuals and other companies. 60

55
Nicar. v. U.S., 1986 I.C.J. at 205.

56
The ICJ has confirmed that a state has the right of control over its territory and other states cannot interfere in that state’s freedom to

maintain exclusive and independent control over its territory. Corfu Channel (U.K. v. Alb.), Judgment, 1949 I.C.J. Rep. 4, at 36 (Apr. 9). There is

general consensus that international law governs activities in cyberspace. For example, the International Group of Experts unanimously

concluded that the general principles of international law apply to cyberspace. See TALLINN MANUAL, supra note 65, at 13.

57
The White House view is that “the development of norms for state conduct in cyberspace does not require a reinvention of customary

international law, nor does it render existing international norms obsolete. Long-standing international norms guiding state behavior – in times

of peace and conflict – also apply in cyberspace.” THE WHITE HOUSE, INTERNATIONAL STRATEGY FOR CYBERSPACE 9 (2011).

58
Netherlands vs United States, Acts of retorsion are acts that are unfriendly but lawful, such as a state closing its cyber infrastructure to

transmissions from the rogue state.

59
Island of Palmas (U.S. v. Neth.), 2 R.I.A.A. 829, 838 (Perm. Ct. Arb. 1928). The current notion of state sovereignty has four aspects: territory,

population, authority, and recognition. Thomas J. Biersteker & Cynthia Weber, STATE SOVEREIGNTY AS SOCIAL CONSTRUCT (1996).

60
G.A. Res. 2625 (XXV), supra note 89, The full text is “Every State has the duty to refrain from any forcible action which deprives peoples

referred to in the elaboration of the principle of equal rights and self-determination of their right to self-determination and freedom and

independence.”

19
 The 2014 Sony hack has been described as the most devastating attack on a U.S.

company to date.61 Hackers were able to obtain Sony’s internal information 62, employee’s

information and bank accounts 63. There were also copies of passports and visas of cast and crew

members and personal email addresses 64and aliases used by celebrities, 65 and in one case a home
66
address, as well as employee passwords. The Sony hackers breached U.S. territorial

sovereignty when they infiltrated, commandeered, manipulated and interfered with Sony’s cyber

operations in the United States. 67 The hackers also breached U.S. political independence and

rights of U.S. citizens when they threatened U.S. subjects and interfered with their fundamental

rights as U.S. citizens to self-determination and to the freedoms protected under U.S. law,

particularly under the U.S. Constitution.68

3. Rophan acted as counter-measure for the wrongful acts committed

Investigators found out that the hack was done within Rophan, and the virus used for
69
the hack was traced to a small company registered under the name of an Amiran company. But

61
Ronald Grover, Mark Hosenball & Jim Finkle, Sony Suffered The Most Devastating Hack Of A Major US Company Ever, REUTERS (Dec. 3,

2014), http://www.businessinsider.com/the-size-and-scopeof-the-sony-hack-is-incredible-2014-12.

62
Mark Seal, An Exclusive Look at Sony’s Hacking Saga, VANITY FAIR (Feb. 4, 2015), http://www. vanityfair.com/hollywood/2015/02/sony-

hacking-seth-rogen-evan-goldberg.

63
Ibid

64
Reportedly Seth Rogen and Emma Stone’s personal email addresses as well as email addresses of lesser known celebrities were in the

information. See, Stan Schroader,“The Damage Done, Sony Pictures Hack Reveals More Embarrassing Details” MASHABLE (Dec.9, 2014),

http://mashable.com/ 2014/12/09/sony-hack-details/#a0r3lNrbu5qt.

65
Natalie Portman is “Lauren Brown.” Daniel Craig is “Olwen Williams.” See, Stan Schroader,“The Damage Done, Sony Pictures Hack

Reveals More Embarrassing Details” MASHABLE (Dec. 9, 2014), http://mashable.com/2014/12/09/sony-hack-details/#a0r3lNrbu5qt.

66
Jesse Eisenberg’s home address was reportedly included. See, Stan Schroader,“The Damage Done, Sony Pictures Hack Reveals More

Embarrassing Details” MASHABLE (Dec.9, 2014), http:// mashable.com/2014/12/09/sony-hack-details/#a0r3lNrbu5qt.

67
Clare Sullivan, The 2014 Sony Hack and the Role of the International Law, Journal of National Security Law and Policy, 2016, Vol.8:437

68
Ibid

69
Para 9, Compromis

20
 Amira issued a statement that citizens of Amira do not engage in criminal activity. 70

Consequently, diplomatic negotiations were stalled and deadlock. 71

Article 60 of the Vienna Convention on the Law of Treaties provides for the

termination or suspension of a treaty in case of a-material breach by one of the parties. 72 A

material breach is defined as "the violation of a provision essential to the accomplishment of the

object or purpose of the treaty.”73 Failure to enter into negotiations might very well be a material

breach if: (1) the treaty contained an express provision requiring negotiation under certain

circumstances; or (2) the treaty created overlapping rights which could only be defined for one

party in relation to the rights of the other party or parties even without an express requirement to

negotiate.74

An aggrieved state may claim that the failure of another state to enter into good faith

negotiations when required to do so by customary international law excuses the former state from

certain corresponding obligations with respect to the non-negotiating state. 75 Furthermore,

violation of a customary or consensual obligation to negotiate may allow the aggrieved state to

take action, short of terminating the treaty that would otherwise be impermissible. 76

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

or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of

an international obligation of the State. 77

70
Para 11, Compromis

71
Para 12, Compromis

72
Vienna Convention on the Law of Treaties, supra note 7, art. 60. See also supra note 14 and accompanying text.

73
Vienna Convention on the Law of Treaties, supra note 7, art. 60(3)(b).

74
Martin A. Rogoff, University of Maine School of Law , The Obligation to Negotiate in International Law: Rules and Realities, Michigan

Journal of International Law, Vol 16, Issue 1, 1994,

75
Ibid p. 175

76
Ibid p.175

77
Article 2, Elements of Elements of an internationally wrongful act of a State, Responsibility of States for Internationally Wrongful Acts

21
 Amira’s failure to “getting to the table” with Rophan constituted a breach of its

obligation that justified the latter to take actions.

It is for the same failure to negotiate and mitigate the effects of the hacking that

attribution of the hacking shall be attached to Amira. The small Amiran company may not be an

organ of Amira,78 but the knowledge of the continued hacking and continued cyber-terrorism

conducted by Amiran citizens in Rophan and rejection of the claim that its citizens do not engage

in criminal activity that Rophan is entitled to its counter-measures for the wrongful acts attributed

to Amira.

Article 17 of the Responsibility of States for Internationally Wrongful Acts provides, “

Direction and control exercised over the commission of an internationally wrongful act A State

which directs and controls another State in the commission of an internationally wrongful act by

the latter is internationally responsible for that act if: (a) that State does so with knowledge of the

circumstances of the internationally wrongful act; and (b) the act would be internationally

wrongful if committed by that State.”

C. Rophan did not violate the international convention on the elimination of all forms of
racial discrimination

1. The advisory on deportation by Rophan do not result to disproportionate

interference with the right to family life of Amiran citizens.

Article 17 of ICCPR provides that no one shall be subjected to arbitrary or unlawful

interference with his privacy, family, home or correspondence, nor to unlawful attacks on his

honour and reputation.

Rophan exempted the following from the deportation order: (1) dual citizens of Amira

and Rophan; (2) citizens of Amira who are married to citizens of Rophan; (3) and citizens of

78
Article 5, Responsibility of States for Internationally Wrongful Acts, Conduct of persons or entities exercising elements of governmental

authority, “The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to

exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is

acting in that capacity in the particular instance.”

22
 Amira who have minor children who are citizens of Rophan and are living in Rophan. 79

Exempting citizens of Amira who are married to citizens of Rophan and citizens of Amira who

have minor children who are citizens of Rophan and are living in Rophan is in conformity with

Article 17 of ICCPR.

2. Dispute was based on nationality and not race and thereby did not relate to the
International Convention on the Elimination of All Forms Racial Discrimination
(CERD).

Article 1 (2) of the International Convention on the Elimination of All Forms of Racial

Discrimination provides, “This Convention shall not apply to distinctions, exclusions, restrictions

or preferences made by a State Party to this Convention between citizens and non-citizens.”

The Convention on the Elimination of Racial Discrimination does not contain any

specific provisions on expulsions. Nevertheless, the Committee on the Elimination of Racial

Discrimination has adopted a General Recommendation on discrimination against non-citizens in

which it has made several pronouncements on expulsions. The Committee recommended that

national laws on expulsion should not discriminate in purpose or effect among foreigners on the

basis on race, color or ethnic or national origin, and that foreigners should have equal access to

the right to challenge expulsion orders.80

Rophan did not violate CERD because the dispute is based on nationality and not on

national origin. As per order, other Amirans were exempted from deportation. Thus, it is

Amirans cannot argue that its citizens are being discriminated on account of their race.

In Diop v. France, a Senegalese citizen claimed that he was denied the right to work on

the ground of national origin when he was refused admission to the French Bar, as the right to

practice law in France exits only for French nationals. The committee concluded that the

distinction was between citizens and non-citizens and that he was refused to practice law in

79
Para 13, Compromis

80
Economic Sanctions In International Law, UTMS Journal of Economics 9, 201–211 (2018).

23
 France based on the fact that he was not of French nationality, and not based on any of the

grounds in Article 1.81

In D.R. v. Australia82 a New Zealand citizen residing in Australia claimed that

Australian law had unlawfully restricted his rights to social security, education and nationality on

the basis of his national origin and nationality. 83 He further claimed that the Australian Racial

Discrimination Act from 1975 did not offer any effective protection or remedy for discrimination

on the ground of nationality, since the term ‘national origin’ was interpreted by the Full Bench

Federal Court as excluding nationality as a ground for discrimination. 84 Australia argued that the

communication should be considered inadmissible, since discrimination on the basis of

nationality does not fall ratione materiae within the scope of the definition of racial

discrimination, as provided in Article 1 paragraph 1 and 2. 85 In response to Australia’s argument,

the Committee noted that, taking into account GR 30 of 2004 and “in particular the necessity to

interpret article 1, paragraph 2, of the Convention in the light of article 5, the Committee does not

consider that the communication as such is prima facie incompatible with the provisions of the

Convention”.86

The dissenting opinion of Judge Crawford in Qatar v. UAE argues similarly that the

Convention distinguishes between discrimination on grounds of ‘national origin’ (which is

prohibited per se) and differentiation on the grounds of ‘nationality’ (not prohibited as such),

which “finds its reflection in widespread State practice giving preferences to nationals of some

81
Diop v. France, Opinion, Comm. 2/1989, U.N. Doc. CERD/C/39/D/2/1989 (Mar. 1991)

82
D.R. v. Australia, Opinion, Comm. 42/2008, U.N. Doc. A/64/18 at 131 (Aug. 2009).

83
Id. paras 2.1-2.2

84
Id. para 2.8, referring to Macabenta, supra note 36.

85
Id. para 4.2.

86
Id. para 6.3.

24
 countries over others in matters such as the rights to enter or to reside, entitlement to social

security, university fees and many other things”. 87

D. Rophan’s action did not constitute a violation of international law since deportation is
not consummated

A state is responsible only for violations of international law when there is breach of

a treaty or the violation of another state’s territory. 88

According to the Ruto, Kosgey and Sang Pre-Trial Chamber:

"In order to establish that the crime of deportation or forcible transfer of population is

consummated, the Prosecutor has to prove that one or more acts that the perpetrator has

performed produced the effect to deport or forcibly transfer the victim. Absent such a link

between the conduct and the resulting effect of forcing the victim to leave the area to another

State or location, the Chamber may not establish that deportation or forcible transfer of

population pursuant to article 7(2) (d) of the Statute has been committed." 89

According to the Elements of Crime under Article 7 (1) (d) - Crime against humanity of

deportation or forcible transfer of population:

“ 1. The perpetrator deported or forcibly transferred, without grounds permitted under

international law, one or more persons to another State or location, by expulsion or other

coercive acts.”

The element recognized two (2) distinct offenses, deportation and forcible transfer.

In Krstić, the Trial Chamber held that: "Deportation presumes transfer beyond State borders,

whereas forcible transfer relates to displacements within a State.”90

87
Qatar v. UAE, supra note 5, Dissenting Opinion of Judge Crawford, para 1.

88
Article 2 of the International Law Commission Articles on State Responsibility defines an internationally wrongful act as conduct (an act or

omission) “attributable to the State under international law”, which conduct “constitutes as breach of an international obligation of the State”,

Article 1 insists that, “Every internationally wrongful act of a State entails the international responsibility of that State.”

89
ICC, Prosecutor v. Ruto, Koshey and Sang,"Decision on confirmation of charges", ICC-01/09-01/11, 23 January 2012, para. 245.

90
ICTY, Prosecutor v.  Krstić, ''Judgement'', IT-98-33-T, 2 August 2001, para. 521.

25
 Accordingly, in Stakić Trial Chamber stated that: “…The crime of deportation in this

context is therefore to be defined as the forced displacement of persons by expulsion or other

coercive acts for reasons not permitted under international law from an area in which they are

lawfully present to an area under the control of another party." 91

In the issuance of deportation notices to citizens of Amira by Rophan, the Republic of

Amira is not an “another State” in the deportation of its own citizens. Further, deportation order is

not a punishment for a crime but a method of enforcing the return to his own country of an alien

who has not complied with the conditions upon the performance of which the government of the

nation, acting within its constitutional authority, and through the proper departments, has

determined that his continuing to reside here shall depend. 92

In issuing and implementing the Joint Statement regarding deportation of Amiran

citizens, Rophan did not act in violation of international law. Rophan even voluntary agreed to
93
stay the implementation of the deportation notices until the resolution of this case on the merits.

A. Rophan did not violate the International Convention on the Elimination of All Forms of

Racial Discrimination (CERD).

91
 ICTY, Prosecutor v.  Stakić, "Judgement", IT-97-24-T, 31 July 2003, para. 677-679.

92
Fong Yue Ting v. United States et al. Wong Quan v. SAME. LEE JOE v. SAME. 149 U.S. 698, May 15, 1893.

93
Para 16, Compromis

26
 The Joint Statement94 issued and implemented by Rophan made a differential treatment against some

Amirans. However, such does not presuppose a racial discrimination 95 as defined by CERD. The

differentiation of treatment made against Amirans is permissible since the goal of the distinction was to

achieve a legitimate purpose and such was based on a reasonable and objective criterion. 96 Thus, although

Rophan made a differential treatment against some Amirans, it did not violate the CERD.

1. There was no discrimination against a particular nationality.

For an act to be considered discriminatory against a certain national origin, there must exist a

distinction, exclusion, restriction or preference with the the purpose or effect of nullifying or impairing

the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in

the political, economic, social, cultural or any other field of public life. Rophan’s order was not

discriminatory against all Amirans. It even exempted certain Amirans from the application of the order.

2. Rophan did not made any preference by exempting some Amiran Citizens from the order.

Citizens of Rophan, have the right to enter and leave Rophan. 97 Dual citizens, being are considered as

citizens of Rophan possesses this right. Rophan made this exemption in order to uphold its obligation

pronounced under the international law.

3. The differential treatment against Amirans was based on a reasonbale and objective

criterion.

, exempting from deportation, (1) dual citizens of Amira and Rophan; (2) citizens of Amira who are
married to citizens of Rophan; (3) and citizens of Amira who have minor children [who are citizens
of Rophan] and are living in Rophan

94
Compromis, ¶ 13

95
CERD Article 1(1)

96
Human Rights Committee General Comment No. 18 Par(13)

97
Article 13 of the UDHR and Article 12(2) of the ICCPR

27
4.

5.

28