UNIVERSIDAD DE LA SABANA

INTERNATIONAL LAW
2020

INTERNATIONAL COURT OF JUSTICE

GERMÁN LINARES
TOMÁS PRASCA

CASE CONCERNING THE BREAK OF A BROTHERHOOD

APPLICANTS MEMORIAL
Contenido
AUTHORITY INDEX........................................................................................................... 3
STATEMENT OF JURISDICTION......................................................................................4
STATEMENT OF FACTS...................................................................................................4
ROWANS VIOLATION TO THE COMMONWEALTH PURPOSES AND THE FREEDOM
OF MOVEMENT PRINCIPLE.............................................................................................6
THE ACTS PERFORMED BY ALIASTRA REGARDING THE DOLPHINS DO NOT
CONSTITUTE A MATERIAL BREACH OF THE STF TREATY..........................................9
ROWAN VIOLATED INTERNATIONAL LAW BY THREATENING TO USE FORCE
AGAINST THE UNITED REPUBLIC OF ALIASTRA.........................................................12
THE COURT CANNOT EXERCISE JURISDICTION OVER ROWAN'S COUNTERCLAIM
REGARDING THE CAPTURE OF THE DOLPHINS AND THE VIOLATION OF THE STF
TREATY; AND EVEN IF THE COURT EXERCISED JURISDICTION OVER THE
COUNTERCLAIM, ALIASTRA DID NOT VIOLATE THE STF TREATY............................15
STATEMENT OF FACTS.................................................................................................17
 AUTHORITY INDEX

Barboza, J. (2006). La responsabilidad internacional. Recuperado de http://www. oas.

org/es/sla/ddi/docs/publicaciones_digital_XXXIII_curso_der echo_internacional_2006_Julio_Barboza.
pdf.
Estatuto de la Corte Internacional de Justicia, artículo 38.
Jofre Santalucia, J., & Ocampo Seferian, P. (2001). RESPONSABILIDAD INTERNACIONAL DEL
ESTADO POR EL INCUMPLIMIENTO DE OBLIGACIONES INTERNACIONALES [Ebook].
Moreno Fernández, A. G. (2005). La atribución al estado de responsabilidad internacional por los
hechos ilícitos de los particulares e intentos de flexibiliazación.
Bosnia and Herzegovina v Serbia and Montenegro merits judgment ICJ reports 2007
 STATEMENT OF JURISDICTION
According to article 34, of the statute of the international Court of Justice, this Tribunal has
competence in solving the controversies between States, who have ius standi before the
Court.

Both parties have accepted the compulsory jurisdiction of the Court, based on Article 36 of
the Court's Statute, which states:
A. the interpretation of a treaty;
B. any question of international law;
C. the existence of any fact which, if established, would constitute a breach of an
international obligation;

STATEMENT OF FACTS

1. The United Republic of Aliastra (“Aliastra”) is a developed parliamentary democracy

located in the Region of Petrani, with a population of 3 million and a gross domestic
product of €160 billion. The principal contributor to its GDP is its agricultural,
manufacturing and, in a greater percentage, the tourism industry.
2. The Kingdom of Pretani was originally formed by the regions of Ilea, Aliastra, Caspia
and Rowan. In the 18th century, the four regions gain their independence, and the
five independent States established the Commonwealth of the Pretani Region
(“Commonwealth”).
3. All five countries share territory with te Fiti River, a very known place on the world. In
1998 the five countries decided to sign the “Saving Te Fiti Treaty” to guarantee its
security and environmental health.
4. In January 2019, the State of Aliastra alerted the world of a rare new disease named
T/CHER-19, a virus which symptoms are very similar to a simple flu, also Experts
believe that it can be easily contained.
5. On 20 April 2019, the World Health Organization Director-General declared the
outbreak of T/CHER-19 a public health emergency of international concern (“PHEIC”)
and imparted a group of Temporary Recommendations directed to control the virus,
trying to explain how it can be faced and recommending not to make restrictions of
travel and trade. However, on 22 May the Ministry of Health of Rowan published a
regulation governing entry into the country, specifically to address the T/CHER-19
public health emergency, restricting the entrance to people who are not a national
and stayed on a high risk country, indicating that the list of high risk countries are on
a national website and includes, but not necessarily nations with at least 50 cases
confirmed of T/CHER-19 during the last months.
6. In response of the regulation taken on Rowan, the WHO sent a communication to
the Ministry of Health requesting that Rowan, should reconsider the application of its
22 May regulation, in contrast the Rowan’s Minister replied that they will not modify
or revoke its entry regulation, alleging that controlling their borders is a matter that
falls exclusively within our national sovereignty.
7. Later, on 15 June 2019, the WHO declared that T/CHER-19 constituted a pandemic
and by that month, on 20 June the President of Aliastra announced that they were
working in a vaccine against the virus. However, on 23 June the Intelligence of
Rowan reported that Aliastra had created the virus in a military laboratory, with the
purpose of spread it on all the region and obtaining economic benefits from it.
8. In result of that report, on 24 June the King of Rowan made a public declaration
threating with the use of force against Aliastra declaring that if the syndicated nation
do not clear the issue they will use its army forces, alleging self-defense to respond
to all the harm caused to Rowan, the Commonwealth and the world. In addition, the
President of Aliastra respond this declaration saying that there is no way that Aliastra
could be the responsible for creating the virus and affirmed that they have no fear of
an arm attack. Because of the tense relations, the Government of Aliastra formally
submitted a diplomatic note to the
 ROWANS VIOLATION TO THE COMMONWEALTH PURPOSES AND THE
FREEDOM OF MOVEMENT PRINCIPLE

First, it is necessary to take into account the general comment No. 27 of the human rights
committee of November 2, 1999. This instrument clearly provides for the development and
control of the principle of freedom of movement, a principle that is being completely violated
by Rowan due to their unjustified actions in relation to the closure of borders.

Starting with the first article, we find that this right is defined as "an indispensable condition
for the free development of a person" 1. This means that it is important at the international
level and the seriousness of an unjustified violation as Rowan is doing. Article 2 also states
that while there may be limitations on the exercise of this right, they should not override the
principle and should be governed by the requirements set out in articles 11 and 12, which we
will discuss later. Turning to the requirements, however, we find that article 12, paragraph 3,
provides for exceptional circumstances in which the rights conferred by paragraphs 1 and 2
may be restricted. This provision authorizes the State to restrict such rights and freedoms of
third parties only to protect "national security, public order, public health or morals and the
rights and freedoms of others. Likewise, in order for these limitations to be consistent with

1
CCPR General Comment no 27: article 1
international law, they must "be provided by law, and must be necessary in a democratic
society to protect the aforementioned purposes.2

Based on this explanation, however, we find that the closure of Rowan's borders constitutes
a serious violation of this principle, since this restriction is not based on any of the grounds
proposed in the same article.

On the other hand, despite the various recommendations made by the WHO which explicitly
mentioned that the border closure was not necessary to contain the spread of T-CHER19 ,
Rowan chose to disregard these recommendations and make a total closure. Subsequently,
they decided to regulate the entry of foreigners by listing those countries that were
considered to be at high risk, namely those countries that had 50 or more infected at the
time. However, Rowan did not know their own regulation and what was enshrined in the
commentary because they unilaterally began to deny entry to Aliastra nationals, on the
grounds that this was a high-risk country even though they did not have the 50 required
cases. This is an internationally wrongful act that leads to the violation of an international
right and obligation for which Rowan is internationally responsible.

In order to establish the Rowans international responsibility we must say that there has
been a conduct that involves a direct violation of their international obligations that are
binding to them, namely, the cooperation between the state parties . The border closure
means a huge problem to Aliastra, this is , because Aliastra´s economy is based on the
tourism field which has been really affected by the decision taken by Rowans government
who did not take the WHO recommendations which clearly mentioned that the borders
closure wasn't a solution for stopping the spreading virus, this decision was taken in order
to prejudicate our nation.

As already noted, the international responsibility of a State arises from the commission of an
internationally wrongful act. An internationally wrongful act presupposes that there is a
conduct , consisting in an action or an omission, that: is attributable to a State under
international law ; and constitutes a breach of the international obligations of the State. 3
In
principle, the fulfilment of these conditions is a sufficient basis for the international
responsibility as has been constantly affirmed by the international court of justice. 4 On the
basis of this analysis, we might ask how to determine whether the action corresponds to a
State organ. This answer is found in the principle of unity, which states: "The principle of
State unity implies that the acts or omissions of all its organs must be regarded as acts or
2
CCPR General Comment no 27: article 12
3
ARSIWA article 2
4
Bosnia and Herzegovina v Serbia and Montenegro merits judgment ICJ reports 2007
omissions of the State for purposes of international responsibility. This is without mentioning
that there are no State organs specially designated to commit unlawful acts, and that
virtually any organ may be the author of such an act” 5. At the end, it is well proved that these
acts were made by the Ministry of health, this led us to ensure that it is an act committed by
an State6 organ and thus is attributable to Rowan according to article 4 of ARSIWA which
states “Conduct of organs of a State

The conduct of any State organ shall be considered an act of that State under international
law, whether the organ exercises legislative, executive, judicial or any other functions,
whatever position it holds in the organization of the State, and whatever its character as an
organ of the central Government or of a territorial unit of the State. 7Likewise, in the
International Covenant on Civil and Political Rights on article 4 we see another obligation
breached by Rowan, this article mentions that: “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”8. In this way, we can observe that these measures do not correspond to the
exceptions that this article proposes and on the contrary they encourage discrimination since
in a unilateral way and without existing justification the entry of Aliastra nationals is
prohibited. Even if it were alleged that this is not true and that the restriction is due to a
public health problem, this disease has only claimed the lives of 22 people, thus it does not
represent an imminent danger that would justify the limitation to the exercise of the rights
emanating from the aforementioned instruments and the commonwealth.

Secondly, we must analyse which is the content and scope of being a State party in the
commonwealth. The commonwealth, is known as a brotherhood made for the cooperation
between the States that are part of it in different contents such as the economy, which is one
of the most important factors of this alianse. Taking this into account,we can affirm that there
has been a material breach of the international obligations of Rowan once they decided to
implement border restrictions regarding the pandemic T-CHER19.

5
Bosnia and Herzegovina v Serbia and Montenegro merits judgment ICJ reports 2007

6
International Law cases and materials Lori F Damrosh, Louis Henkin
7
ARSIWA article 4
8
International Covenant on Civil and Political Rights of 16 december 1966
In the Corte Constitucional words, “The person is the kinetic marrow, reason and justification
of all known normative ordering, to which he grants personification, attributes, rights,
initiative, freedom and legal ability to dispose of his interests in order to satisfy his ends, vital
needs, designs or individual purposes in the life of the relationship, to discipline, regulate,
govern or order its operative sphere in the legal traffic through the legal business and the
contract or device agreement of two or more parties or contractual subjects to establish,
modify or terminate legal relationships”. 9 This led us to affirm that Rowan's actions are
limiting the exercise of fundamental rights with no applicable reason.

In conclusion, it is clear that Rowan did not act under any exceptional circumstances, which
significantly damaged Aliastra and the commonwealth economy, where its strongest sector
was completely affected. It is for this reason, that Rowan must be declared responsible for
the economic losses generated to Aliastra and the commonwealth and for the violation of the
principle of circulation that has been denied to their nationals.

THE ACTS PERFORMED BY ALIASTRA REGARDING THE DOLPHINS DO NOT

CONSTITUTE A MATERIAL BREACH OF THE STF TREATY

With respect to Aliastra's alleged non-compliance and responsibility for dolphin hunting, it
should be mentioned first that State responsibility under international environmental law
arises from a failure to comply with an international legal obligation established by a treaty, a
customary international rule, or a breach of general principles of international law.10

Now then, it is necessary to define in which normative body this responsibility is found,
because from here the basis to determine if Aliastra is or not responsible is born. A key
starting point is established in Principle 21 of the Stockholm Declaration, which refers to the
duty not to cause harm to the environment of other States or areas beyond national
jurisdiction. These articles read as follows: principle 21 “States have, in accordance with the
Charter of the United Nations and the principles of international law, the sovereign right to
exploit their own resources pursuant to their own environmental policies, and the
9
Sentencia T-229/16, Corte Constitucional de Colombia.
10
Diego Uribe Vargas, Derecho Internacional Ambiental pgs 280-281
responsibility to ensure that activities within their jurisdiction or control do not cause damage
to the environment of other States or of areas beyond the limits of national jurisdiction.” 11
Based on this provision, we can affirm that international environmental law requires States to
take all necessary measures to avoid that, in the development of their activities, damage is
caused to the environment by adopting a criterion of subjective responsibility.

Through this premise, we find that Aliastra did not at any time violate its obligations under
international environmental law, much less its obligations under the treaty in force. As
mentioned in the facts, the government took all the necessary measures to avoid damage to
the environment, including the study of the different variants that did not need Hector
dolphins, and at no time have any failures been reported in the environment or in the
development of such an important species. Likewise, it is worth mentioning that not all
failures to protect the environment constitute by themselves a failure to comply with an
obligation to protect it, much less an illegal act on the part of the State in question. According
to specialized doctrine, however, it is very difficult to determine responsibility because, in the
absence of express regulation from a formal source, it is not possible to impute responsibility
to the State, much less condemn it.

On the other hand, with respect to the treaty it is of vital importance to analyze its content in
order to determine whether or not there was a breach of the provisions emanating from it. In
this particular case, we find that the relevant provisions are found in articles 1 and 5 of the
instrument, which read as follows:

“Article 1:

The five States are sovereign to exploit their own natural resources.

Article 5:
In the implementation of any activity that a State develops, should take as far as possible
environmental considerations taking into account the prevention and the precaution
environmental principles.”

However, it is then necessary to interpret the treaty in order to establish the meaning given
to the text by the parties. Article 31 of the Vienna Convention stipulates that a treaty should
be interpreted in the light of its object and purpose 12 which in this case clearly is the
11
Declaration of the United Nations Conference on the Human Environment
12
Aust Modern Treaty Law and practice interpretation pg 21
protection of the natural resources and biodiversity in the Te Fiti River. Making this
interpretation, it is evident that Aliastra has fully complied with the provisions of the treaty
since, as mentioned in previous paragraphs within their investigations they used all available
resources to not affect the dolphins. Likewise, the principle of pacta sunt servanda
established in Article 26 of the Vienna Convention was always taken into account in their
actions, where it says “every treaty inforce is binding upon the parties to it and must be
performed by them in good faith”.13

On the other hand, if Rowan decide to allege a material breach of the treaty, it should be
borne in mind that the Court's jurisprudence has treated Article 60 of the Convention in a
restrictive manner, as it did in the Gabcikovo-Nagymaros case, in this case, they concluded
that in order to allegue a material breach first is has to occur.14

Furthermore, taking account the advisory opinion of april 2015 we can see that one of the
problems solved by the tribunal of the law of the sea was the determination of the expected
behaviour “The Tribunal observes that the Convention contains several provisions, namely
articles 61, 62, 73, 192 and 193, concerning general rights and obligations of the coastal
State in ensuring the conservation and management of living resources in its exclusive
economic zone” 15

Article 61 Conservation of the living resources

2. The coastal State, taking into account the best scientific evidence available to it,
shall ensure through proper conservation and manage- ment measures that the
maintenance of the living resources in the exclusive economic zone is not
endangered by over-exploitation. As appropriate, the coastal State and
competent international organiza- tions, whether subregional, regional or global,
shall cooperate to this end.

3. Such measures shall also be designed to maintain or restore popu- lations of

harvested species at levels which can produce the max- imum sustainable yield,
as qualified by relevant environmental and economic factors, including the
economic needs of coastal fishing communities and the special requirements of
developing States, and taking into account fishing patterns, the interdependence
of stocks and any generally recommended international minimum standards,
whether subregional, regional or global.
13
Article 26 Vienna Convention on the law of treaties
14
Gabcikovo-Nagymaros case
15
International Law Malcom D evans pg 681
If we make a clear understanding of this article we can see that the acts performed
by Aliastra are according to it,

Finally, with respect to the acts deployed by some fishing vessels, it should be mentioned
that these acts do not in any way constitute state responsibility since: it is not possible to
determine that these persons are in some way agents or representatives of the state as
determined by the ARSIWA article 4 which says “ The conduct of any State organ shall be
considered an act of that State under international law, whether the organ exercises
legislative, executive, judicial or any other functions, whatever position it holds in the
organization of the State, and whatever its character as an organ of the central Government
or of a territorial unit of the State.16 From this explanation we can firmly conclude that there is
no possibility to make Aliastra responsible for the acts committed by this vessel, this is
because there is no evidence of internal legislation that maintains that these persons are
part of the organs of the state in any of the areas mentioned in the same article.

ROWAN VIOLATED INTERNATIONAL LAW BY THREATENING TO USE FORCE

AGAINST THE UNITED REPUBLIC OF ALIASTRA

Rowan violated international law by threatening to use force against the United Republic of
Allied because, in the first place. In accordance with the Charter of the United Nations in its
Article 2, Numeral 4, it is provided that, for the realization of the purposes set forth in Article
1, such as, inter alia, the maintenance of international peace and security, all members of
the Organization shall refrain 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 institution, thus developing the principle of non-use of force. This means that such
regulation directed at the use of force established in the Charter will not only aim at
restricting the use of military means by States, but will also establish a centralized system
under the control of the United Nations, which will obey collective decisions by the latter on
the use of force17, thus creating the first exception to the principle.

16
ARSIWA article 4
17
Torrijo, X. F. (2014). La prohibición de la amenaza y del uso de la fuerza por el derecho
internacional. Araucaria. Revista Iberoamericana de Filosofía, Política y Humanidades, 16(32), 255-
267.
Notwithstanding the foregoing, article 51 of the same Charter provides that no provision may
prejudice the inherent right of States to self-defence, which develops the second exception
to the principle of non-use of force or threat. This is the recognition of the right that states
consider inherent and necessary in cases where there is a threat to their State preservation.
This right is intended to empower nations in cases of necessity to use force as a means of
defence to protect the integrity of force, because in a scenario of an armed attack by a third
party, the victim State could not wait for the Security Council to act to solve the problem,
action is needed at the moment to avoid more damage than already caused by the attack.
Thus, nations are empowered, by virtue of self-defence, to take provisional measures
through the use of force.

It should also be mentioned that, according to the jurisprudence of the International Court of
Justice, in the case concerning military and paramilitary activities in Nicaragua and against
Nicaragua (Nicaragua against the United States of America) 18, that right to self-defence has
restrictions governed by the principles of necessity and proportionality.

The principle of proportionality requires that specific measures to be taken in self-defence be

proportionate to the armed attack or to the objective of stopping and repelling the armed
attack, that is to say, such measures do not necessarily mean that one must react in the
same way as the actor of the attack, but must be intended to interrupt the threat and
neutralize it in order to restore peace; on the contrary, this power is not designed to deter
future armed attacks because in such cases the victim State would not be repelling any
attack, since it only exists as an expectation. Rather, the extension of self-defence measures
to the deterrence of future armed attacks may become a punitive attack.

However, with respect to the principle of necessity, the Court provides that measures taken
on the basis of self-defence must be necessary per se; in other words, such measures must
be indispensable to repel the threat, there must be no alternative to the measures proposed
in self-defence and if those measures were only to the extent necessary to stop and repel
the armed attack.

In short, the Charter of the United Nations prohibits the threat or use of force by individual
States; but in contrast allows the use of force in cases of self-defence, this is in situations
where a State is under armed attack and must repel or detain it and in cases of security

18
Case concerning the Military and Paramilitary Activities in and against Nicaragua
(Nicaragua V. United States Of America, International Court of Justice 1986.
measures taken by the Security Council when there is a threat to the principles of the
Organization.

As noted above, in principle, invoking the right to self-defence requires being under armed
attack, and there is a clear disparity between the terminology of Articles 2, paragraphs 4 and
51 of the Charter. While one speaks of "the threat or use of force", the second refers to 'an
armed attack'. However, the point of incidence is that, while any use of force against the
territorial integrity or political independence of another State is prohibited, not all use of force
shall constitute an armed attack, for example, in the case of Nicaragua against the United
States referred to above, the Court defines that an armed attack not only exists in the case
of an action by regular military forces but also in the case of the sending of guerrilla or
mercenary gangs or groups that carry out military actions against a State. On the other
hand, with regard to the definition of aggression taken by the UN 19 , it is noted that
aggression is the use of armed force by a state against the sovereignty, territorial integrity or
political independence of another state, or otherwise inconsistent with the charter of the
United

Nations, In addition, the same resolution stipulates a non-exhaustive list of cases of

aggression that may constitute an armed attack, however there is a lack of consensus on
whether the force must reach a threshold of intensity or not to constitute an armed attack,
even according to those who demand a threshold, is not very high. 20 On the contrary, an
armed attack that triggers the use of force in self-defence can range from a rather restricted
use of force, such as a border incursion that causes limited loss or damage, to an invasion at
the scale of its territory.

Thus, in the specific case according to the facts, the King of Rowan, in his capacity, issued
a public statement threatening the nation of Aliastra with the deployment of his forces, based
on self-defence, as can be seen in the first instance, that declaration has legal weight in the
international arena, taking the concept of unilateral declarations, these are manifestations of
the will of a single party, with the purpose of producing or preventing the creation of certain
legal effects21 , as stated in the Nuclear Test case 22. The Court finds that declarations made
by means of unilateral acts may have the effect of creating legal obligations and for them to
have legal weight, they will not even need the reaction of other states.

19
Definition of Aggression, United Nations General Assembly Resolution 3314 (XXIX).
20
David Kretzmer, The inherent right to self-defense and proportionality in Jus Ad Bellum, European
Journal of International Law, Volume 24, Number 1, February 2013, pages 235–282
21
GAVIRIA LIÉVANO, E. (1988). general public international law (3rd ed., p. 244). Bogotá: TEMIS.
22
Nuclear Tests case (New Zealand vs. France), ICJ, Judgment of 20 December 1974.
With this in mind, it can be confirmed that the statement made by the King of Rowan has
legal weight, as it demonstrates Rowan’s state practice by being issued by his head of state.
However, this threat does not fall under the precepts of the right of self-defence because
such aggression is not aimed at repelling or stopping any type of attack, thereby
undermining the principles of necessity and proportionality, since alternate mechanisms can
be developed to avoid conflict and disproportion in the deployment of all of Rowan’s armed
forces. On the contrary, it seeks to retaliate against the country, an action that is rejected by
the Organization, as evidenced in the dissenting opinion of Judge Elaraby in the case of
Petroleum Platforms23 and in Security Council resolution 188 of 1964, regarding the alleged
evidence by Rowan’s intelligence, the premises are in contradiction, since Aliastra is a
country that bases its economy mainly on tourism, Given the existence of the virus in
question, that economic sector would be affected, thus seriously altering the country’s
finances, and therefore the economic purpose imputed by the Rowan government would be
fulfilled as far as the virus itself would wipe out the country. In conclusion, Rowan did not act
in the light of international law at the time he threatened the use of force against Aliastra.

THE COURT CANNOT EXERCISE JURISDICTION OVER ROWAN'S

COUNTERCLAIM REGARDING THE CAPTURE OF THE DOLPHINS AND THE
VIOLATION OF THE STF TREATY; AND EVEN IF THE COURT EXERCISED
JURISDICTION OVER THE COUNTERCLAIM, ALIASTRA DID NOT VIOLATE
THE STF TREATY.

According to the case, the Supreme Court of Petrani will proceed to assess whether or not it
was competent to hear the case against Aliastra and will confirm that the respective nation
did not violate its international obligations.
As evidenced in the case, the events occurred at the time the treaty binding Aliastra to the
Commonwealth was in force. This is because despite having denounced the treaty, the
effects of the treaty would occur four months later, a time after the acts carried out by
individuals on Aliastra's territory, thus giving rise to the jurisdiction of the Supreme Court of
Petrani.
Now, once the bases of jurisdiction have been established, the reasons why the state of
Aliastra is not in a scenario of international responsibility for illicit acts will be analyzed.
23
Judgment of 6 November 2003 in the Case concerning Oil Platforms (Islamic Republic of Iran v.
United States of America) International Court of Justice.
According to the International Law Commission (ILC), the international responsibility of a
24

state arises from the violation of an existing international obligation, regardless of its legal
nature. In other words, an obligation arising from primary norms, that is, norms that are
constituted as sources of international law, which in light of the statute of the International
Court of Justice25 are (i) international conventions; (ii) international custom; (iii) general
principles of law; (iv) judicial decisions; (v) the doctrine of publicists.
In this case, it is clear that this responsibility is indirect, since the State was not the main
party to the wrongdoing. This indirect or derived responsibility refers to when a State, having
the duty to correct a damage caused or prevent it by an individual or by one of its agents
acting ultra vires, does not do so by omission or negligence.
In accordance with the constituent elements of State liability, it is found that:
There must be an act or omission that violates an obligation established by a rule of
international law in force between the responsible state and the injured state.
2.The wrongful act must be to the state as a legal person and in a manner that is sufficient
but not necessary, an injury must occur as a result of the wrongful act.
Due to the facts, there were acts against the 1998 treaty to the fishermen of the Aliastra
region because they had captured without environmental measures the specimens known as
Hector's Dolphin. According to the general rules of attribution, the state is only responsible
for acts carried out by its organs; however, there are two exceptions to this general rule,
which are when the individuals who carry out the illegal act act on behalf of the state and
when the state assumes certain conduct as a direct consequence of the illegal acts
committed by individuals.
A clear example of the assumption of responsibility by the state as a consequence of private
acts is the case concerning the United States diplomatic and consular staff in Tehran, where
a wrongful act by private individuals occurred and ended up binding the state of Iran. This
occurred because Iranian citizens took over the U.S. embassy located in Tehran and other
diplomatic establishments belonging to the American state, while the Iranian armed forces
did nothing to prevent it or to stop the disruption of the rights to protection owed to these
establishments and personnel.
As seen in the previous case, the state was linked by the actions carried out by individuals
because of their inaction regarding their obligations, and in the specific case it is noted that
there was no assumption by the facts involved by the fishermen, such acts were only

24
Barboza, J. (2006). La responsabilidad internacional. Recuperado de http://www. oas.
org/es/sla/ddi/docs/publicaciones_digital_XXXIII_curso_der echo_internacional_2006_Julio_Barboza.
pdf.
25
Estatuto de la Corte Internacional de Justicia, artículo 38.
isolated cases in which individuals made illegal acts by the legal system in force in aliastra,
thus affecting the charge that can be made to the nation.
In conclusion, since the element of imputability is absent in the instant case because the
acts did not involve State agents by action or omission and the negligence of the State
cannot be demonstrated, and because the illicit acts were no more than isolated cases, it is
concluded that aliastra is not responsible for the violations against the 1998 treaty.

STATEMENT OF FACTS

The United Republic of Aliastra (“Aliastra”) is a developed parliamentary democracy located

in the Region of Petrani, with a population of 3 million and a gross domestic product of €160
billion. The principal contributor to its GDP is its agricultural, manufacturing and, in a greater
percentage, the tourism industry.

The Kingdom of Pretani was originally formed by the regions of Ilea, Aliastra, Caspia and
Rowan. In the 18th century, the four regions gain their independence, and the five
independent States established the Commonwealth of the Pretani Region
(“Commonwealth”).
All five countries share territory with te Fiti River, a very known place on the world. In 1998
the five countries decided to sign the “Saving Te Fiti Treaty” to guarantee its security and
environmental health.

In January 2019, the State of Aliastra alerted the world of a rare new disease named
T/CHER-19, a virus which symptoms are very similar to a simple flu, also Experts believe
that it can be easily contained.

On 20 April 2019, the World Health Organization Director-General declared the outbreak of
T/CHER-19 a public health emergency of international concern (“PHEIC”) and imparted a
group of Temporary Recommendations directed to control the virus, trying to explain how it
can be faced and recommending not to make restrictions of travel and trade. However, on
22 May the Ministry of Health of Rowan published a regulation governing entry into the
country, specifically to address the T/CHER-19 public health emergency, restricting the
entrance to people who are not a national and stayed on a high risk country, indicating that
the list of high risk countries are on a national website and includes, but not necessarily
nations with at least 50 cases confirmed of T/CHER-19 during the last months.

In response of the regulation taken on Rowan, the WHO sent a communication to the
Ministry of Health requesting that Rowan, should reconsider the application of its 22 May
regulation, in contrast the Rowan’s Minister replied that they will not modify or revoke its
entry regulation, alleging that controlling their borders is a matter that falls exclusively within
our national sovereignty.

Later, on 15 June 2019, the WHO declared that T/CHER-19 constituted a pandemic and by
that month, on 20 June the President of Aliastra announced that they were working in a
vaccine against the virus. However, on 23 June the Intelligence of Rowan reported that
Aliastra had created the virus in a military laboratory, with the purpose of spread it on all the
region and obtaining economic benefits from it.

In result of that report, on 24 June the King of Rowan made a public declaration threating
with the use of force against Aliastra declaring that if the syndicated nation do not clear the
issue they will use its army forces, alleging self-defense to respond to all the harm caused to
Rowan, the Commonwealth and the world. In addition, the President of Aliastra respond this
declaration saying that there is no way that Aliastra could be the responsible for creating the
virus and affirmed that they have no fear of an arm attack. Because of the tense relations,
the Government of Aliastra formally submitted a diplomatic note to the Secretary General of
the Commonwealth denouncing the agreement, nonetheless, the withdrawal will have full
effects only four months after the notification.

In July 2019, Rowan decide to put Aliastra into the list of high-risk country, restricting its
entry to the country and affecting on a several ways its economy. Despite this, Aliastra does
not have more than 50 cases confirmed on the country. In result, Aliastra request Rowan to
take off from that list.

In August 2019, because of the research of the vaccine, Aliastra found that the AND of the
Hector’s Dolphin, an animal endangered could be used to develop an effective vaccine
against the disease. In this way, they capture some of them, taking all the environmental
measures. However, the NGO Blue Justice, reported that fishermen from Aliastra were
clandestinely capturing this animal and then, demand Aliastra before its national courts, for
breaches on the 1998 treaty. Later, this claim were reviewed by the Supreme Court of
Petrani condemning Aliastra for its responsibility.