MEMORIAL ON BEHALF OF THE RESPONDENT

BEFORE THE INTERNATIONAL COURT OF JUSTICE

AT THE HAGUE
Special Leave Petition (crl) No. 112 of 2020

In The Matter Of :

STATE OF UTTAR PARDESH

CASE CONCERNING ARMED ACTIVITIES IN TULIP
..............................................................APPELLANT

V.

PEOPLE’S REPUBLIC OF TULIP (PETITIONER)

MR. BALDEV
...............................................................RESPONDENT

VS.
FILED UNDER ORDER XXII RULE 2 OF SCR,2013
REPUBLIC OF DAFFODIL (RESPONDENT)
(CRIMINAL APPELLATE JURISDICTION)

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA

CASE FILED UNDER ARTICLE 36(2) OF THE STATUTE OF THE

INTERNATIONAL COURT OF JUSTICE

MEMORIAL ON BEHALF OF THE PETITIONER

APPEARING ON BEHALF OF THE PETITIONER
 TABLE OF CONTENTS

S.NO CONTENT
1. List of Abbreviations

2. Index of Authorities

3.
Summary of Facts

4. Statement of Jurisdiction

5. Issues Raised

6.
Summary of Arguments

7.
Arguments Advanced

8. Prayer
 LIST OF ABBREVIATIONS

TERMS

Hon’ble High Court

-vs- Versus
ICJ International Court of Justice
Rep. Report
PCIJ Permanent Court of International Justice
 INDEX OF AUTHORITIES

Legislations :
Charter of the United Nations
Statute of the International Court of Justice
DRAFT CODE ON RESPONSIBILITY OF STATES FOR INTERNATIONALLY
WRONGFUL ACTS [Adopted by the International Law Commission at its Fifty-third Session
(2001)]

Case Laws :
• MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST
NICARAGUA
(Nicaragua vs United States of America), Merits
ICJ Reports, 1986
• Corfu Channel Case ICJ Reports 1949
• North Sea Continental Shelf Cases ICJ Reports, 1969
• Lotus case (France vs Turkey) PCIJ Series A No 10, 1927
• Factory At Chorzow, Germany v Poland, Judgment, Claim for Indemnity, Merit, PCIJ
Series A No 17, ICGJ 255, PCIJ 1928
 SUMMARY OF FACTS

People’s Republic of TULIP and Republic of DAFFODIL are two countries in the existing international
legal order. For years, the People’s Republic of TULIP was colonized by the Republic of DAFFODIL
before it got its independence in 1955. Post decolonization, the incidents of violence between the
majority ethnic community and the minority non-ethnic community became frequent. According to a
report prepared by a civil society organization the incidents of violence in the People’s Republic of
TULIP have proliferated after people from the non-ethnic community took up arms to resist the
atrocities being committed against them. Over the years the resistance got organized in a group named,
‘armed group V’.

Frequent reports of conflict and the growing number of casualties attracted international attention. In
light of the growing concerns, UNSC established an International Commission of Inquiry with a
mandate to investigate the situation. International Commission submitted its report on 12 March 2011.
In its report, the International Commission pointed out that murder, extermination, torture, enslavement
and sexual violence against members of the non-ethnic community is rampant. The report further stated
that while the members of the ‘armed group V’ were trained, funded and armed by the Republic of
DAFFODIL, ‘armed group V’ did not act on the ‘instructions, direction or control’ of the Republic of
DAFFODIL. In a press conference on 13 March 2011, the Foreign Minister of the Republic of
DAFFODIL rejected the findings of the report. He also stated that since ‘armed group V’ was not
acting under the ‘direction or control’ of the DAFFODIL, it cannot be held responsible for the acts of
‘armed group V’ under international law.

On 11 August 2011, an armed attack on a government building in People’s Republic of TULIP killed
200 people. The ‘armed group V’ took responsibility for the attack. In a public statement on 12 August
2011, the President of the People’s Republic of TULIP referred to the report of the International
Commission of Inquiry and noted that the Republic of DAFFODIL is responsible for the acts of the
‘armed group V’. He also noted that the incident of 11 August 2011 amounts to use of force under
international law by the Republic of DAFFODIL, and violates the sovereignty and territorial integrity
of TULIP.

On 20 August 2011, the People’s Republic of TULIP filed in the Registry of the International Court of
Justice (ICJ) an application instituting proceeding against the Republic of DAFFODIL seeking
reparations for the damages caused by the violation of international law. Subsequently, as per the rules
of the ICJ the Registrar entered the case into the Court’s General List as, Case Concerning Armed
Activities in TULIP (People’s Republic of TULIP v. Republic of DAFFODIL). The proceedings before
the ICJ began.
 STATEMENT OF JURISDICTION

Both, People’s Republic of TULIP and Republic of DAFFODIL, have made declarations under Article
36(2) of the Statute of the International Court of Justice accepting the jurisdiction on the condition of
reciprocity over all international disputes.

Article 36(2) is reproduced as under:

“The states parties to the present Statute may at any time declare that they recognize as compulsory
ipso facto and without special agreement, in relation to any other State accepting the same obligation,
the jurisdiction of the Court in all legal disputes concerning:

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 ;

d. the nature or extent of the reparation to

be made for the breach of an international obligation.”

There is no question that the both parties are subject to the jurisdiction of this Hon’ble Court in case of
the dispute in question.
 ISSUES RAISED

1. Did the Republic of DAFFODIL violate its customary international law obligation not to
intervene in the affairs of another State when it trained, armed, equipped, and financed the
‘armed group V’ against the People’s Republic of TULIP?

2. Did the Republic of DAFFODIL breach Article 2(4) of the Charter of the United Nations?
Also, does the incident of 11 August 2011 amount to use of force under international law by the
Republic of DAFFODIL, and violate the sovereignty and territorial integrity of TULIP?

3. Is the People’s Republic of TULIP is entitled to reparations for the damages caused by the violation
of international law?
 SUMMARY OF ARGUMENTS

ISSUE 1: Did the Republic of DAFFODIL violate its customary international law
obligation not to intervene in the affairs of another State when it trained, armed,
equipped, and financed the ‘armed group V’ against the People’s Republic of TULIP?

It is humbly submitted that non-intervention in the affairs of another State has been
well-recognized as having the weight of a customary international law, both in
terms of being a settled State practice as well as in the nature of opinio juris.
The Republic of DAFFODIL has violated this customary international law
obligation by training, funding and arming the “armed group V’.

ISSUE 2: Did the Republic of DAFFODIL breach Article 2(4) of the Charter of the United
Nations?
Also, does the incident of 11 August 2011 amount to use of force under international law
by the Republic of DAFFODIL, and violate the sovereignty and territorial integrity of
TULIP?

It is humbly submitted that the Republic of DAFFODIL is liable for breach of

Article 2(4) of the Charter of the United Nations which espouses abstention from
the threat or use of force against the territorial integrity or political independence
of any State. There is enough evidence to show that the ‘effective control’ test can
be successfully applied to the incident of 11 August 2011 which killed 200 people
and wounded many more, and that the ‘armed group V’ acted under the control of
the Republic of DAFFODIL.
ISSUE 3 : Is the People’s Republic of TULIP is entitled to reparations for the damages
caused by the violation of international law?

It is humbly submitted that the People’s Republic of TULIP is entitled to

reparations. The Draft Code on Responsibility of States for Internationally
Wrongful Acts adopted by the International Law Commission (ILC) at its fifty-
third session in August 2001 codifies the clauses on reparations in Part Two,
Chapter II of the Code.
 ARGUMENTS ADVANCED

ISSUE 1:

Did the Republic of DAFFODIL violate its customary international law

obligation not to intervene in the affairs of another State when it trained,
armed, equipped, and financed the ‘armed group V’ against the People’s
Republic of TULIP?

It is humbly submitted that the Republic of DAFFODIL is liable for the violation of
the principle of customary international law that relates to non-intervention in the
affairs of another State. The counsel submits the following arguments:

As per Article 38 of the Statute of the International Court of Justice, the Court shall
apply to “international custom, as evidence of a general practice accepted as law;”

In North Sea Continental Shelf Cases1, this Hon’ble Court has laid out the elements
that go into the making of a customary international law in some detail.
The Court had observed that, “in order to achieve this result, two conditions must be
fulfilled. Not only must the acts concerned amount to a settled practice, but they must
also be such, or be carried out in such a way, as to be evidence of a belief that this
practice is rendered obligatory by the existence of a rule of law requiring it. The need
for such a belief, i.e., the existence of a subjective element, is implicit in the very notion
of the opinio juris sive necessitatis. The States concerned must therefore feel that they
are conforming to what amounts to a legal obligation. The frequency, or even habitual

(1) ICJ Rep. 1969

character of the acts is not in itself enough. There are many international acts, e.g., in
the field of ceremonial and protocol, which are performed almost invariably, but which
are motivated only by considerations of courtesy, convenience or tradition, and not by
any sense of legal duty.”

On opinio juris, the Hon’ble Court had cited the view adopted by the Permanent Court
of International Justice in the Lotus case (France vs Turkey)2, as stated in the
following passage:
“Even if the rarity of the judicial decisions to be found . . . were sufficient to prove . . .
the circumstance alleged . . ., it would merely show that States had often, in practice,
abstained from instituting criminal proceedings, and not that they recognized
themselves as being obliged to do so; for only if such abstention were based on their
being conscious of having a duty to abstain would it be possible to speak of an
international custom. The alleged fact does not allow one to infer that States have been
conscious of having such a duty; on the other hand, . . . there are other circumstances
calculated to show that the contrary is true.”

In Nicaragua vs United States of America3, this Hon’ble Court had said that mere
opinio juris is not enough, that in the field of customary international law, the Court
must satisfy itself that the existence of the rule in the opinio juris of States is confirmed
by practice. However, “ it is not to be expected that in the practice of States the
application of the rules in question should have been perfect, in the sense that States
should have refrained, with complete consistency, from the use of force or from
intervention in each other's internal affairs. The Court does not consider that, for a rule

(2) PCIJ Series A No 10, 1927

(3) ICJ Rep. 1986
to be established as customary, the corresponding practice must be in absolutely
rigorous conformity with the rule. In order to deduce the existence of customary rules,
the Court deems it sufficient that the conduct of States should, in general, be consistent
with such rules, and that instances of State conduct inconsistent with a given rule should
generally have been treated as breaches of that rule, not as indications of the recognition
of a new rule. If a State acts in a way prima facie incompatible with a recognized rule,
but defends its conduct by appealing to exceptions or justifications contained within the
rule itself, then whether or not the State's conduct is in fact justifiable on that basis, the
significance of that attitude is to confirm rather than to weaken the rule.”

The principle of non-intervention involves the right of every sovereign State to conduct
its affairs without outside interference; though examples of trespass against this
principle are not infrequent, this Hon’ble Court considers that it is part and parce1 of
customary international law. As the Hon’ble Court has observed: "Between independent
States, respect for territorial sovereignty is an essential foundation of international
relations"4, and international law requires political integrity also to be respected.
Expressions of an opinio juris regarding the existence of the principle of non-
intervention in customary international law are numerous and not difficult to find.

Thus, the support given by the Republic of DAFFODIL to the ‘armed group V’ in
People’s Republic of TULIP, in that they were “trained, funded and armed by the
Republic of DAFFODIL”, constitutes a clear breach of the principle of non-
intervention.

(4) I.C.J Reports 1949, p.35.

ISSUE 2 :
Did the Republic of DAFFODIL breach Article 2(4) of the Charter of the United Nations?
Also, does the incident of 11 August 2011 amount to use of force under international law by
the Republic of DAFFODIL, and violate the sovereignty and territorial integrity of TULIP?

It is humbly submitted that the Republic of DAFFODIL is liable for these charges. The Counsel
submits the following arguments:

1. Article 2(4) of the Charter of the United Nations lays down that “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.”

2. In Corfu Channel Case5, this Hon’ble Court has laid emphasis on the element of circumstantial
evidence to pin culpability and responsibility of the egregious act in question. The Hon’ble Court
has observed that “(t)his indirect evidence is admitted in all systems of law, and its use is recognized
by international decisions. It must be regarded as of special weight when it is based on a series of
facts linked together and leading logically to a single conclusion. The Court must examine therefore
whether it has been established by means of indirect evidence that Albania has knowledge of mine
laying in her territorial waters independently of any connivance on her part in this operation. The
proof may be drawn from inferences of fact, provided that they leave no room for reasonable doubt.
The elements of fact on which these inferences can be based may differ from those which are
relevant to the question of connivance.”

(5) ICJ Rep. 1949

3. In Nicaragua vs United States of America6, this Hon’ble Court while elaborating on the attribution
of the acts in question had recognized that key criterion in this respect is ‘control’. The Hon’ble
Court distinguished between strict control and effective control. On the strict control element, this
Hon’ble Court had opined that “ (w)hat the Court has to determine at this point is whether or not the
relationship of the contras to the United States Government was so much one of dependence on the
one side and control on the other that it would be right to equate the contras, for legal purposes, with
an organ of the United States Government, or as acting on behalf of that Government.”

Even if the element of strict control is negated, the element of effective control over a specific
conduct or operation remains. On the element of effective control, this Hon’ble Court had said that
“ (f)or this (specific)conduct to give rise to legal responsibility of the United States, it would in
principle have to be proved that that State had effective control of the military or paramilitary
operations in the course of which the alleged violations were committed.”

4. Even if the report of the International Commission of Inquiry7 is taken at face value that the ‘armed
group V’ were not acting under ‘direct control’ of the Republic of DAFFODIL, there is enough
evidence to show that the ‘effective control’ test can be successfully applied to the incident of 11
August 2011 which killed 200 people and wounded many more.

5. The Republic of DAFFODIL effectively controlled the operation, and lent all manner of support to
the ‘armed group V’ in the execution of this dastardly act.

(6) ICJ Rep. 1986

(7) From the moot problem

6. Until recently, the theory of the law of state responsibility was not well developed. The position has
now changed, with the adoption of the Draft Code on Responsibility of States for Internationally
Wrongful Acts adopted by the International Law Commission (ILC) at its fifty-third session in
August 2001. Article 1 and 2 are reproduced here for emphasis:

Article 1 - Responsibility of a State for its internationally wrongful acts

Every internationally wrongful act of a State entails the international responsibility of that State.

Article 2 - Elements of an internationally wrongful act of a State

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.

7. Thus, attribution and responsibility go hand in hand, and the Republic of DAFFODIL cannot escape
either. It trained, funded and armed the ‘armed group V’, and the said extremist group acted under
its control, at any rate effective control.
ISSUE 3:
The People’s Republic of TULIP is entitled to reparations for the damages caused by the
violation of international law.

The Counsel humbly submits the following arguments:

1. In the Factory At Chorzow, Germany v Poland, Judgment, Claim for Indemnity, Merits8,
the Permanent Court of International Justice has held:
“The essential principle contained in the actual notion of an illegal act is that reparation must, as
far as possible, wipe out all the consequences of the illegal act and re-establish the situation
which would, in all probability, have existed if that act had not been committed. Restitution in
kind, or, if this is not possible, payment of a sum corresponding to the value which restitution in
kind would bear; the award, if need be, of damages for loss sustained which would not be
covered by restitution in kind or payment in place of it-such are the principles which should
serve to determine the amount of compensation due for an act contrary to international law”

2. The Draft Code on Responsibility of States for Internationally Wrongful Acts adopted by
the International Law Commission (ILC) at its fifty-third session in August 2001 codifies the
clauses on reparations in Part Two, Chapter II of the Code.
Reproduced as under:

Article 34 - Forms of reparation

Full reparation for the injury caused by the internationally wrongful act shall take the form of
restitution, compensation and satisfaction, either singly or in combination, in accordance with
the provisions of this chapter.

Article 35 - Restitution
A State responsible for an internationally wrongful act is under an obligation to make
restitution, that is, to re-establish the situation which existed before the wrongful act was
committed, provided and to the extent that restitution:
(a) Is not materially impossible;
(b) Does not involve a burden out of all proportion to the benefit deriving from restitution
instead of compensation.

Article 36 - Compensation
1. The State responsible for an internationally wrongful act is under an obligation to compensate
for the damage caused thereby, insofar as such damage is not made good by restitution.
2. The compensation shall cover any financially assessable damage including loss of profits
insofar as it is established.

(8) PCIJ Series A No 17, ICGJ 255, PCIJ 1928

 Article 37 - Satisfaction
1. The State responsible for an internationally wrongful act is under an obligation to give
satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or
compensation.
2. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a
formal apology or another appropriate modality.
3. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating
to the responsible State.

Article 38 - Interest
1. Interest on any principal sum due under this chapter shall be payable when necessary in order
to ensure full reparation. The interest rate and mode of calculation shall be set so as to achieve
that result.
2. Interest runs from the date when the principal sum should have been paid until the date the
obligation to pay is fulfilled.

Article 39 - Contribution to the injury

In the determination of reparation, account shall be taken of the contribution to the injury by
wilful or negligent action or omission of the injured State or any person or entity in relation to
whom reparation is sought.

3. Since an internationally wrongful act has been committed by the Republic of DAFFODIL, it
cannot escape the charge of reparations which the People’s Republic of TULIP is rightfully
entitled to.
 PRAYER

Wherefore in light of the issued raised, arguments advanced and authorities cited, it
is humbly prayed that this Hon’ble Court may be pleased to adjudge and declare:

1. That the Republic of DAFFODIL has violated its international customary law obligation
not to intervene in the affairs of another State when it trained, armed, equipped, and
financed the ‘armed group V’ against the People’s Republic of TULIP .

2. That the Republic of DAFFODIL has breached Article 2(4) of the Charter of the
United Nations. Also, the incident of 11 August 2011 amounts to use of force
under international law by the Republic of DAFFODIL, and violates the
sovereignty and territorial integrity of TULIP.

3. That the People’s Republic of TULIP is entitled to reparations for the

damages caused by the violation of international law .

And/or
Any other order as it deems fit in the interest of equity, justice and good conscience.

MD WASIF ZEESHAN
COUNSEL FOR THE PETITIONER

Examination Roll No: 19309806483

Section : H