Warm greeting

The agent seeks permission to address the bench as your excellencies.

Much obliged your excellencies

May it please the hon’ble Court, I am Agent for the Respondent. I will be addressing the first
two issues concerning admissibility of evidences and election intervention, and Agent 2 will
address the next two issues concerning freedom of expression and breach of international norms
in taking down of Botnet. Before I begin, Mr. President, would you like a brief review of the
material facts?

Antara passed decree 20-32 and imposed restriction on movements and violated the treaty of
singapure. Wife of Ravarian diplomats had been arrested and her personal baggage which
contained official correspondence documents had been seized and made a photocopy.

Financial funding provided by Ravaria to SIP and SAD.

Prof.Hunland’s PANO account had been suspended by ANTARA for 1 year.

ANTARA violates the sovereignty of RAVARIA by Operation moonstroke.

Much obiliged, Your Excellency.

The first issue before the Court is Whether the documents obtained in the search of the vehicle
driven by Ms. Walters and the recording from the conciliation meeting of 30 May 2021 are
admissible as evidence in these proceedings? The answer to this question is “No,” for three
reasons:-

Firstly, arrest of Mrs. Walters was illegal and not in conformity with international law.

Secondly, the inspection of Mrs Walters was also against the provisions of international law.

Thirdly, the documents purported to be submitted as evidence recovered from Mrs. Walters are
not admissible as evidence before this Court, inasmuch as they were illegally obtained.

The agent would first establish that how members of the diplomatic agent’s family, in this case
Mrs. Walters, who is wife of Ravarian ambassador Benny Walters, has diplomatic immunity.

Article 37 of the Vienna convention on Diplomatic relations, 1961 expressly states that members
of a diplomatic agent’s family are entitled to the privileges and immunities provided by Articles
29 to 36 of the convention if they are not nationals of the receiving state.
1. Article 29 of the Convention specifies that the diplomatic agent (which includes
family members) is immune from arrest or detention in any manner. Therefore, the Agent
contends that the arrest of Mrs. Walters, which occurred after the arresting officers
recovered her passport, was illegal because she was arrested after the knowledge that her
passport was diplomatic. The failure to mention this to the sergeant cannot be excused, in
as much as such ignorance, even if not wilful, violated international law. If all the parties
start giving justification of ignorance of law, then any Treaties will have no meaning. The
fact that Mrs. Walters was released cannot be a matter of relieving Antara from this
violation, since the provision cited prohibits both arrest and detention. Mrs. Walters, in a
state of intoxication, despite the arresting officers being aware of her identity, was
detained till the next day. Further, the exception to the immunity under this provision
does not apply to Mrs. Walters, since she was not a national of Antara, but of Ravaria.

2. Further, the agent submits that Mrs. Walters enjoyed freedom from the criminal
jurisdiction of the receiving State as per Article 31 VCDR. It is thus submitted that she
could not be subjected to arrest, and that she enjoyed immunity from the criminal
jurisdiction of Antara, even for acts done outside the course of her duty. Though She was
released, Criminal charges were not dropped.

3. The agent having established the inviolability (the fact of having to be respected
and not removed or ignored) of the body of the diplomatic agent (which includes the
members of the family).
The agent now proceeds to establish how the briefcase of Mrs. Walters could not
have been subjected to inspection :-
As per Article 36 of the aforementioned Convention, the personal baggage of the
diplomatic agent shall be exempt from inspection. Further, in cases where the baggage
can be subjected to examination, the grounds of which are stated in the provision itself,
such inspection has to be carried out under the supervision of the diplomatic agent or his
authorized representative. The agents submits here that such inspection having been
carried out by both the arresting officers as well as the sergeant, such inspection was in
violation of international law. The provision nowhere states that an element of knowledge
or intention is necessary for the provision to have applicability. Therefore, it is submitted
that the documents recovered from the a briefcase of Mrs. Walters have been illegally
obtained, that is, in violation of international law by Antara, and therefore inadmissible as
evidence.

4. The agents submit that the documents of the diplomatic agent enjoy inviolability
as per Article 30 of the aforementioned Convention, which, falling therefore under
Article 37, extends it to the members of the family of the diplomatic agent. The agents
now proceed to point out that the word inviolability having been stated here, such
 documents could neither have been seized, nor could they have been photocopied. Such
inviolability would be of no use if documents of the diplomatic agent were to be seized
temporarily and then returned after photocopying them. Therefore, the usage of such
documents as evidence violates international law.

5. In the Iranian Hostages case, Iran argued that it could only collect the evidence of the
United States’ interference in Iran’s domestic affairs from within the American Embassy
in Iran. Iran took the position that if the principle of inviolability of diplomatic premises
is taken as an absolute, the United States would be permitted to remove this information
or to destroy the evidence in the embassy. The ICJ mentioned that the seizure of an
embassy and its personnel could not be considered “secondary” or “marginal”, thereby
giving principles of international law great importance.
The corfu channel had to be
separated from the Iranian hostage case, which pertained to the violation of diplomatic
immunities & privileges. In the Iran case, violation of the diplomatic mission was not
considered secondary.

In Chorzow Factory (Germany v. Poland) case, it was held that evidence obtained
through settlement negotiation is deemed inadmissible if the negotiation has been
unsuccessful, the same principle can be said to apply in the present case to the recordings
obtained from the conciliation meeting held between the two nations which Antara seeks
to admit. The conciliation meeting having been unsuccessful, any attempt to make any
conversation held in the course of the meeting, is not in accordance with the decision in
the Chorzow Factory case.

Observing other international practices, and the procedural framework of international

criminal courts and tribunals, the problem of unlawfully obtained evidence is addressed
quite prominently. Article 69(7) of the Rome Statute, for instance, stipulates that the
International Criminal Court shall not deem evidence admissible that was obtained by
means of a violation of this Statute or internationally recognized human rights if
(a) The violation casts substantial doubt on the reliability of the evidence; or
(b) The admission of the evidence would be antithetical to and would seriously damage
the integrity of the proceedings.

Article 89(D) of the ICTY (International criminal tribunal for the former yugoslavia) Rules
grants a discretionary power to exclude evidence if its probative value is substantially
outweighed by the need to ensure a fair trial. Rule 162 of Rules of Special Tribunal for Lebanon
stipulates the same threshold for mandatory exclusion as that contained in the ICTY and ICTR
Rules, and adds that in particular, evidence shall be excluded if it has been obtained in violation
of international standards on human rights.
The English Court of Appeal reached a similar conclusion when faced with WikiLeaks
documents in Bancoult III. The evidence was challenged based on the inviolability of the
documents under Articles 24 and 27, paragraph 2, of the Vienna Convention on Diplomatic
Relations (VCDR), and the English Court of Appeal confirmed in principle that such
inviolability “extends to make it impermissible to use such documents or copies in a domestic
court of the host country.

1. Further, the Agent submits that as per the principle of ex iniuria jus non oritur, it
could be argued that evidence obtained through breaches of international law constitutes
a wrong-doing from which the responsible party should not be able to take advantage or
receive rights.

2. Therefore, in keeping with the international law and showing that the evidence was
clearly illegally obtained, in violation of international law, it is submitted that the
documents cannot be subject to become evidence before this Hon’ble Court. The
admitting of these documents would only render the provisions of the Vienna Convention
on Diplomatic Relations, 1961 ineffective, and thus violate the very purpose of
international law.

4. On the basis of the facts and contention given so far the agent submits that the
documents recovered from the illegal arrest of Mrs. Walters are not admissible before this
Court, and that the Court, exercising its discretion in admitting the documents should
consider the violation of international law by Antara, and therefore refuse their
admission.

If your excellencies are satisfies then the agent would like to continue with next issue.

Issue 2

Whether Ravaria’s alleged financial contributions and the cyber operations in connection

with the Suthan referendum were consistent with international law?

The Agent submits that the Velan Kingdom of Ravaria did not violate the principle of
non-intervention. For this, the Agent proceeds to examine what the principle of non-intervention
actually is. A breach of non-intervention involves interference with matters in which each state is
permitted, by the principle of Sovereignty, to decide freely. However, in the case of Armed
Activities in the Territory of Congo, it was held that the principle of non-intervention was limited
by this Court primarily to specific situations such as military intervention, occupation, or
furnishing of Assistance to armed rebel movements.

Similarly, in the Nicaragua case, the Court found the United States having breached the principle
of non-intervention by providing aid, financial support, weapons, logistical support to contra
rebels to overthrow Nicaragua’s government.

1. Therefore, the Agent submits that the support allegedly provided by the Velan Kingdom
of Ravaria, even if the documents are deemed admissible, do not interfere with
non-intervention, inasmuch as there was no occupation, intervention, or assistance to an
armed rebel movement. The financial assistance was provided to a body (SIP & SAD)
which was in accordance with the domestic laws of Antara, and thereby not an illegal
body.

Further, the Agent submits that the financial funding was also in accordance with
international law. The U.N. Special Rapporteur on freedom of assembly and association and the
European Court of Human Rights has concluded that NGOs have a right to access foreign
sources of funding. The Agent submits that the SAD being a non governmental organization, it
has a right to access foreign sources of funding.

2. The ICCPR also grants the right to freedom of association and expression and permits
only limited restrictions on the right. These rights of association and expression are incorporated
under Articles 22 and 19 of the ICCPR. The Agent submits that the right to access funding is a
direct and essential component of the right to freedom of association, which is protected by
Article 22 of the ICCPR. Most NGOs, and especially human rights organizations, function on a
“not-for-profit” scheme and therefore depend heavily on external sources of funding to carry out
their work.

The UNHRC has also stated that any limitations on the rights of association and assembly are to
be in strict conformity with Articles 21 and 22 of the ICCPR, and suggested a reexamination of
the restrictions imposed on the funding of NGOs.

Foreign aid to political parties which in this SIP is for help in developing countries as a means to
promote democracy and good governance.
3. Thirdly, the Agent submits that the cyber operations are not coercive in nature. Coercive
cyber operations have to be distinguished from those that are merely influential or persuasive.
Noting the "precise definition of coercion, and thus of unauthorized intervention, has not yet
fully crystallised in international law," the Netherlands Ministry of Foreign Affairs has
observed, "in essence it means compelling a State to take a course of action (whether an act or
an omission) that it would not otherwise voluntarily pursue. The goal of the intervention must be
to effect change in the behaviour of the target state."

4. Fourthly, the Agent submits that the Republic of Antara did not intend to organize free
and fair elections for the referendum of Sutha, and thereby infringed the right to
self-determination of the people of Sutha, which itself is a violation of international law.

5. The UNGA speaking on Article 21 of the UDHR has stated that the will of the people
shall be the basis of the authority of government; this will be expressed in periodic and genuine
elections which shall be by universal and equal suffrage and shall be held by secret vote or by
equivalent free voting procedures.
Antara was not willing to conduct a free and fair referendum. Therefore, the right to
self-determination has clearly been violated by Antara in holding elections but holding them
under such circumstances would nulligate the outcome of the referendum, rendering it
impossible to term the result ‘free’, such as by stopping a rally to mobile voters. The rally
organized by Professor Hunland, which attempted to mobilize the voters to register voters, was
brutally crushed by the Antaran government through a crackdown, which resulted in the death of
3 people and injuries to more than 225 people.

According to Art. 7 Of UNGA res. 3314 Definition of Aggression (UNGA Res 3314 [XXIX] [14
December 1974]), peoples that are deprived of their right to self-determination by force have the
right to struggle with all means at their disposal in order to achieve their freedom, including
seeking and receiving support from other States. Therefore, it is not an intervention if a State
provides such assistance. :Max planck

7. The Agent now examines how Antara’s actions have also led to the violation of the
Singapore Treaty. The right to participate freely in the cultural life of the community (granted by
Article 27, UDHR) was denied by Antara by closing its border with Ravaria, thereby denying
Ravarian Velans access to the Kuvil Shrine. The border restrictions were a clear violation of the
Treaty of Singapore. Ravaria is also a party to the Treaty of Singapore, so any action taken in
Sutha directly affects Ravaria. Antara breached this treaty without consultation with Ravaria that
is in direct violation of the law of treaties.
Therefore, the exercise of political influence, by assisting political candidates and causes,
enhancing and amplifying political speech, and providing aid to parties and foundations, is not
illegal and in accordance with international law.
Whether the Court order regarding Professor Hunland’s account was in accordance with
international law
Whether Operation Moonstroke violated international law
ISSUE 3

The agent submits that the right to freedom of speech and expression is an essential right guaranteed by
the international law of the ICCPR.

International law mandates that everyone shall have the right to freedom of expression, which
right shall include freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, or through any other media of his
choice. The Agent recognizes that the very right carries certain duties and responsibilities which
are prescribed by the law. One ground for restriction can be for the protection of national security
or of public order, or of public health or morals.

Public Order
The suspension of Professor Hunland’s account cannot be justified on the ground of protection of
public order, since on the basis of public order, the limitation imposed may be permissible in
certain circumstances to regulate speech-making in a “particular public place”, as has been held
in the case of Coleman v. Australia. The agent submits that this public place principle has been
ignored, and the blanket ban extends to Hunland’s posts throughout. The social media posts and
content cannot be said to violate a public place with the speech. Further, the initial action by
Pano to flag posts came with the words by Pano that “While it may be in the public interest for
the post to remain available, we advise users to act with caution before clicking this screen.” This
statement is to show that Pano had initially recognized that the availability of posts was in public
interest. The Agent will at a later stage examine how Pano was used as a mere tool by the
Antaran agencies to further their objectives in suspending Professor Hunland’s account, and how
it had no choice but to comply or face sanctions.

Public Health
Further, the posts cannot absolutely be violative of public health, and the ground not having
been taken up by either of the authorities in Antara, the restrictions imposed by Antara cannot be
sustained. This ground was neither cited by the DPCA nor the court officer during the court
process. The apparent ground on which the DPCA relied upon was that the posts were“likely to
undermine the inviolability of the referendum and to incite imminent violence in connection with
it.” The Agent submits that exercising the right to freedom of expression cannot lead to
undermining of the inviolability of the referendum, and this holds true even if the expression is
of false content, to which now the Agent will come to.

Human Rights Watch has mentioned in its 2021 report how at least 81 countries have used the
Covid-19 pandemic to justify violating the exercise of free speech and peaceful assembly.
Authorities have attacked, detained, prosecuted, and in some cases killed critics, broken up
peaceful protests, closed media outlets, and enacted vague laws criminalizing speech that they
claim threatens public health. The victims include journalists, activists, healthcare workers,
political opposition groups, and others who have criticized government responses to the
coronavirus. Human Rights Watch also mentioned that Governments and other state authorities
should immediately end excessive restrictions on free speech in the name of preventing the
spread of Covid-19 and hold to account those responsible for serious human rights violations
and abuses.

Further, the ICJ in 2021 with regard to Sri Lanka has said that Covid-19 restrictions should not
undermine freedom of expression, and mentioned in the case of Thailand that Covid-19
Emergency Decree must not be used to violate international human rights laws.
The SAD had organized a grassroots campaign to mobilize voters. The issue of public order or
public health was in any case extremely limited, since what happened happened through the
virtual medium of Pano, thereby eliminating the ‘public’ threats. The rally organized by
Professor Hunland was organized outdoors, and there an attempt was made to encourage voters
to go to polls, and not to engage in violent protests. This rally must be held to be separate from
his social media posts. A restriction on a rally or a post on rally, and a restriction on the social
media accounts are different from each other.

Whether right extends to misinformation :

The Agent proceeds to examine now whether the right to freedom of expression also extends to
apply to disinformation, or as often termed, to misinformation.
Assuming that Professor Hunland’s posts did indeed amount to misinformation, we now proceed
to see whether in such a case the suspension of the Pano account could be sustainable under
international law. The Human Rights Committee in its General Comment 34 of 2011 has held
that the right to freedom of expression applies to all kinds of information and ideas, including
those that may shock, offend, or disturb. Further, the right extends irrespective of the truth or
falsehood of the content. Now assuming that the posts of Hunland with regard to the Covid-19
deaths and the Kuvil Shrine were false, analyzing the matter from this light, the right to freedom
of expression extends even to such falsehood of content.
Therefore, having seen that the freedom of expression extends even to those posts which may
shock or offend, it is submitted that the restrictions on the posts could not have come from
‘Public Morals’ as a restrictive ground in ICCPR.
In Salov v. Ukraine, it has been held that Article 10 of the European Convention on Human
Rights’s freedom of expression does not prohibit discussion or dissemination of information
received even if it is strongly suspected that this information might not be truthful.
It is plain from a reading of Article 19 of the ICCPR that misinformation is not a ground on
which the freedom of speech and expression can be subject to curtailment. It may be restricted
only on the grounds mentioned in the provision itself and no other. Therefore, the restriction
imposed on Ravarian citizen Professor Hunland’s account was not in accordance with
international law.
The Human Rights Council of the United Nations has also stated that the responses to the spread
of disinformation and misinformation must be based on international human rights law, including
the principles of legitimacy, lawfulness, necessity, and proportionality.

Legitimacy
The Agent therefore proceeds to examine the issue in the light of legitimacy. It is no doubt
submitted that the restrictions to Hunland’s accounts came from the domestic court orders.
However, mere compliance with domestic legislation does not give legitimacy in accordance
with international law.
It is submitted that Antara has used social media platforms as mere to further its objective in
curtailing free speech. Such platforms comply with the domestic orders for fear of being
sanctioned, as has ben held in the 47th Session of the UNGA. This has been witnessed through
the example of the Russian Federation.
Further, the response was not based on international human rights law, and the one year
restriction, keeping in view that in case of a no vote in the referendum no new referendum could
be held for the next twenty five years, was neither necessary nor proportionate to the act sought
to be regulated (Proportionality). The restrictions coming from the Court order does not mean
legitimacy, since the social media platforms have to either comply with the orders or face
sanctions, thereby meaning that it is coercive in nature.
Considering the issue whether Professor Hunland’s social media content is advocacy of religious
hatred which constitutes incitement to violence, the provision for which is given in Article 20 of
the ICCPR, even if that is true, it does not give a reason to curtail the right granted by the
preceding article. The limitations on the right to freedom of speech and expression are the ones
prescribed by the provision itself, and article 20 of the ICCPR cannot be made a ground to curtail
that right.

Issue 4

The Agent now examines whether Antara’s orders in taking down the Lunar Botnet through its
Operation Moonstroke was consistent with international law. At the outset, the Agent submits
that Antara’s actions were violative of the territorial integrity and sovereignty of Ravaria.

Issue of violation of territorial integrity :

Customary International law provides when a State can exercise its Jurisdiction :
(a) a state may exercise jurisdiction to enforce in its own territory, and
(b) a state may not exercise jurisdiction to enforce in the territory of another state without . . .
consent.
The dual principles at issue in The Lotus Case (France v. Turkey) can be stated as follows.
1. First, nations may not exercise extraterritorial enforcement jurisdiction “except by virtue
of a permissive rule derived from inter- national custom or from a convention.”.
2. Second, absent restrictions to which any state—in its own discretion—may bind itself, a
state may presumptively exercise enforcement jurisdiction over actors within its own
territorial boundaries as an aspect of its sovereignty.
The Lotus Case teaches that without a positive source of international law, State A’s enforcement
actions against the criminal actor inside the territorial boundaries of State B are disallowed.
Therefore, under this light, the Agent referring to scholarly text as set out in the Tallinn Manual,
submits that there must be a reasonable balance between a State’s competence to regulate cyber
activities affecting it on one hand, and the interests of other States in having their sovereignty
and interests of their nationals respected on the other. Antara has clearly failed to maintain this
balance. The acts of Antara, before even any allegations which it later claimed against Ravaria
were leveled or ground was given thereof, had conducted a closed door hearing and an operation
which violated the territorial integrity of Ravaria.
Issue of Sovereignty Violation :
Rule 4 of the Tallinn Manual states that a State must not conduct cyber operations that violate the
sovereignty of another State, under which it has been mentioned that this Rule applies in the
relations between States, that is, to actions undertaken by or attributable to the States, and the
International Group of Experts has mentioned that this does not extend to the actions of non-state
actors unless they are attributable to a State. Applying this rule, it is apparent that the actions of
Operation Moonstroke being attributable to Antara, Antara has clearly violated the sovereignty
of Ravaria, and applying conversely, the acts having being carried out by a non-state actor SAD
inside Antara, the said Lunar Botnet cannot be said to be attributable to Ravaria.

Going by the UNGA Seventieth Session, the Group of Governmental Experts on Developments
in the Field of Information and Telecommunications in their use of ICTs provide that the States
must observe, among other principles of international law, State sovereignty, sovereign equality,
the settlement of disputes by peaceful means and non-intervention in the internal affairs of other
States. Existing obligations under international law are applicable to State use of ICTs. States
must comply with their obligations under international law to respect and protect human rights
and fundamental freedoms. Operation Moonstroke having been an hacking operation which
deployed the means of ICTs, the Agent submits that the obligations owed under international law
not to intervene in the internal affairs of a State, was clearly violation of international law.
The Agent would cite here an example here : the Netherlands set out its view that both the
internal and external aspects of sovereignty apply in full in the cyber domain and that states are
not permitted to perform cyber operations that violate the sovereignty of another state
The Agent submits that the Command and Control server being located in Antara, and Antara
being aware of this, the only jurisdictional power which Antaran authorities had was that of only
internal jurisdiction.

Ex-parte hearing :
Further Antara never obtained consent from Ravaria before exercising its ultra vires
extraterritorial jurisdiction. From the beginning itself the whole criminal proceedings were
violative of international norms.The ex parte hearing by DPCA and Federal Court of Upper
Antara is violative of International Procedural Law. The Group of experts have stated that
judicial proceedings in absentia are neither permissible nor feasible due to domestic human
rights requirements and procedural safeguard. The closed-door ex parte hearing itself shows the
beginning of an arbitrary procedure conducted by the Antaran authorities by not informing the
affected parties about the same. Even if the alleged perpetrator were not identified, which
allowed for an ex-parte order to be passed, there was absolutely no justification for a closed door
hearing.

On 5th April 2021, DPCA openly admitted the fact that many of the infected devices via
malware were located outside the territory of Antara, this is a clear indication of a brazen act of
extraterritorial enforcement by Antara,even when none of the alleged crime was committed in its
territory. Not only that, but Antara clearly disregarded the concept of territoriality in cyberspace
by mentioning that there are no restrictions in international cyberspace.

Operation Moonstroke is violative of International Law :

The Group of Governmental Experts guided by the Charter and the mandate contained in
resolution 73/266 stated that as per obligation under Article 2(3) and Chapter VI of the Charter
of the United Nations, States party to any international dispute, the use of ICTs, the continuance
of which is likely to endanger the maintenance of international peace and security, shall, first of
all, seek a solution by such means as described in Article 33 of the Charter, namely negotiation,
enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice.

Article 32 of Budapest Convention enables Antara access or receive, through a computer system
in its territory, stored computer data located in the territory of Ravaria only after receiving
voluntary and lawful consent from Ravaria

The Agent therefore submits that Operation Moonstroke was arbitrary and is violative of
International Law. It was unreasonable and violates the test of proportionality principle, and by
entering into the cyberspace affecting devices located within the Velan Kingdom of Ravaria, has
violated Ravarian sovereignty and territorial integrity, which extends to cyberspace.

.Criminal charges were not dropped

The convention does not allow temporary violation too, since that would make purpose of
convention useless.
Ravaria needs to mention how the present case differs from those cases where evidence illegally
obtained was admitted.
Summary of cases like Chorchow, Iran, ICTY, Rome Statute, Wikileaks,

National Security :
In General Comment 34,the Human Rights Committee (HRC) has interpreted Article 19 and offered
a number of pertinent analyses regarding national security. First, with regard to the legal bases for a
restriction on the basis of national security, the HRC insists that“it is not compatible with paragraph 3, for
instance, to invoke such laws to suppress, or withhold from the public information of legitimate public
interest that does not harm national security or to prosecute journalists, researchers, environmental
activists, human rights defenders,or others, for having disseminated such information.12”

Similarly, the Siracusa Principles indicate that a nationalsecurity limitation"cannot be invoked as a

reason for imposing limitations to prevent merely local or relatively isolated threats to law and
order."13 They also insist that “National security cannot be used as a pretext for imposing vague
or arbitrary limitations and may only be invoked when there exists adequate safeguards and
effective remedies against abuse”