INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE HAGUE

NETHERLANDS

CASE CONCERNING ARMED ACTIVITIES IN TULIP

THE PEOPLE’S REPUBLIC OF TULIP

APPLICANT

V.

THE REPUBLIC OF DAFFODIL

RESPONDENT

WRITTEN REPLY for the RESPONDENT

Submitted by,
Name – Kamal Kant Sharma

Exam Roll No.-21309806428

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 Table of Contents

Index of Authorities 2

Statement of Facts 4

Statement of Jurisdiction 6

Statement of Issues 8

Summary of Arguments 9

Arguments Advanced 10

Prayer for Relief 20

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 Index of Authorities

TREATIES AND CONVENTIONS:

1. International Law Commission, Draft Articles on Responsibility of States for Internationally

Wrongful Acts , November 2001, Supplement No. 10 (A/56/10),

2. Charter of the United Nations, 1 U.N.T.S. XVI (1945)

3. Convention on Rights and Duties of States, Montevideo, 165 L.N.T.S. 19 (1933)

4. Statute of the International Court of Justice, 1055, 33 U.N.T.S. 993 (1945)

5. Declaration on Principles of International Law concerning Friendly Relations and Co-

operation among States in accordance with the Charter of the United Nations, G.A. Res.
2625 (XXV), U.N. Doc. A/8028 (1970) [„Friendly Relations Declaration‟]

Cases Cited:

1. Military and Paramilitary Activities in und against Nicaragua. (Nicaragua v. United States of
America). Merits,. Judgment. I.C.J. Reports 1986

2. Armed Activities on the Territory of the Congo, Congo, the Democratic Republic of the
v Uganda, Judgment, Merits, ICJ GL No 116, [2005] ICJ Rep 168, ICGJ 31 (ICJ 2005), 19th
December 2005, International Court of Justice [ICJ]

3. Application of the Convention on the Prevention and Punishment of the Crime of Genocide,
Bosnia and Herzegovina v Yugoslavia, Order, Provisional Measures, [1993] ICJ Rep 3, ICGJ
67 (ICJ 1993), 8th April 1993, United Nations [UN]; International Court of Justice [ICJ]

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UNITED NATIONS DOCUMENTS:

1. Commentary ILC Draft ASR, Y.B.I.L.C., II, (1975)

2. Declaration on Principles of International Law concerning Friendly Relations and Co-

operation among States in accordance with the Charter of the United Nations, G.A. Res.
2625 (XXV), U.N. Doc. A/8028 (1970)

3. S/RES/678 of 1991(Iraq)

4. S/RES/686 of 1991 (Iraq)

5. S/RES/748 of 1992 (Libya)

6. S/RES/807 of 1993 (Croatia)

Books and Treatises:

1. Malcolm N. Shaw, International Law (Cambridge University Press 8) (2017)

2. Brownlie's Principles of Public International Law (Oxford University Press 9)(2019)

3. Oppenheim's International Law(9th ed., 1992)

4. Akehurst’s Modern Introduction To International Law(Routledge 7)(1997)

5. James Crawford, State Responsibility: The General Part (Cambridge University Press)
(2013)

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 Statement of Facts

Background

1. For years The People’s Republic of Tulip was colonized by the Republic of Daffodil
before it got independence in the year 1955. Daffodil has been the founding member of
UN while Tulip became its member in the year 1956. The historical episodes of
colonialism and the ethnic demography of the People’s Republic of Tulip significantly
influence its municipal and international policies.

2. The parties to this dispute are People's Republic of TULIP and Republic of DAFFODIL.
TULIP‟s experience of its colonial history and ethnic demography has an influence upon its
internal and external policies.

3. Recurrent violence against the non-ethnic minority population of Tulip forced them to take
up arms under an organized group “Armed Group V”. TULIP has always denied it as a
peripheral issue. The Republic of DAFFODIL was accused of assisting this armed group by
TULIP.

Report of the International Commission of Inquiry

4. The UNSC established the International Commission of Inquiry to investigate and which
submitted its report on 12 March 2011 and it was pointed out that murder, extermination,
torture, enslavement and sexual violence against the non-ethnic community is rampant
and “Armed Group V” didn’t act on the instructions, direction or control of the Republic
of Daffodil though its members were trained, funded and armed by it.

5. On 13 March 2011, the Foreign Minister of DAFFODIL rejected the findings of the report
and maintained that unless the official armed personnel of the Republic of DAFFODIL are
directly involved in any attack, the question of breach of Article 2(4) of the UN Charter does
not arise. On the other hand, the People’s Republic of TULIP noted that any attack by the

5
“Armed Group V” would be attributable to the Republic of DAFFODIL as the members of
the group are being trained, funded and were armed by it.

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The Attack

6. On 11 August 2011, an armed attack on a government building killed 200 people. The
“Armed Group V” took responsibility for the attack. Subsequently, TULIP held DAFFODIL
responsible for the incident which "amounted to the use of force".

The Proceedings

7. Thereafter, the People's Republic of TULIP, initiated proceedings against the Republic of
DAFFODIL in the International Court of Justice seeking reparations.
8. On 20 August 2011, the case was filed in the registry by the People’s Republic of Tulip in
ICJ against Republic of Daffodil seeking reparations for the damages caused by the violation
of International Law and hence this case.

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 Statement of Jurisdiction

In accordance with Article 40 (1) of the Statute of the International Court of Justice [“ICJ"]
which states as follows,

“Cases are brought before the Court, as the case may be, either by the notification of the special
agreement or by a written application addressed to the Registrar. In either case the subject of the
dispute and the parties shall be indicated.”

the Parties hereby submit to this Court their dispute concerning the armed activities in TULIP.
The ICJ is hereby requested to adjudge the dispute in accordance with the rules and principles of
international law, including any applicable treaties.

The parties have accepted the jurisdiction of the Court in accordance with Article 36(1) of the
Statute of the [“ICJ”] which states as:

“The jurisdiction of the Court comprises all cases which the parties refer to it and all matters
specially provided for in the Charter of the United Nations or in treaties and conventions in
force.”

Each party has made declarations Under Article 36(2) of Statute of the [“ICJ”] accepting the
jurisdiction on the condition of reciprocity over all international disputes which states as:

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“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.”

Each party shall accept the judgment of the Court as final and binding and shall execute it in
good faith.

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 Statement of Issues

1. Whether the Republic of DAFFODIL has violated any substantive provision of The
International Law?

2. In the light of findings of the commission whether any state responsibility is imputed
upon part of DAFFODIL?

10
 Summary of Arguments

1. Whether the Republic of DAFFODIL has violated any substantive provisions of the
International Law?
The submission herein rests upon two grounds, Firstly, the actions of the Republic of
DAFFODIL do not amount to “use of force' under International Law. It is because the
findings of the commission are impeachable as such the findings are not subject to the
adversarial process thus the credibility is highly dubious and without giving a chance to
DAFFODIL to verify the findings also contravene nature justice.
Even if the findings of the commission were taken to be true the actions are no were
imputable to ‟intervention” in the internal affairs of the People’s Republic of TULIP as
therewas no direct involvement of DAFFODIL at any instance.
In addition, the Republic of DAFFODIL exercises does not exercise “effective control” of
over the actions of the "Armed Group V”. The report of the commission no where states that
Armed Group V was action on the direction and control of DAFFODIL.

2. In the light of findings of the commission whether any state responsibility is imputed
upon part of DAFFODIL?

Only an Internationally Wrongful act results in “state responsibility” and as no substantive

provision of law stands violated in the case present at hand the question of state
responsibility does not arise. As state responsibility does not arise the question of
reparationhas no basis.

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 Arguments Advanced

1. Whether the Republic of DAFFODIL has violated any substantive provisions of the
International Law?

This submission rests on two grounds that

I. That here has been no interventionism and use of force on part of DAFFODIL and
II. That intervention if any is in the nature of Humanitarian intervention.

There is no interventionism and thus no use of force on part of DAFFODIL, and it is most
respectfully submitted

1. That "In their international relations, all members shall refrain from threatening or using force
against the political independence or territorial integrity of any state, or in any other manner
inconsistent with the objectives of the United Nations 1.”

2. The intervention can only be forbidden if it is: "pertaining to subjects over which each State has the
right, under the principle of State sovereignty, to make its own decisions." Choosing a political,
economic, social, and cultural system as well as formulating foreign policy are two of them. When
intervention employs coercive techniques to influence these decisions—which ought to be made
freely—it is wrong. When force is used in an intervention—either directly through military action or
indirectly through support for armed subversive or terrorist activities within another State—it is evident
that coercion—which defines and constitutes the very essence of prohibited intervention—is at play. ”2

3. As a result, not every intervention is prohibited. The International Court of Justice made it
clear in the Nicaragua decision that coercive measures have to be used for an intervention to
be illegal. These are "especially evident in the event of a forceful intervention," and "these
kinds of activities are thus unlawful in light of both the principle of non-use of force, as well

1
U.N. Charter art. 2, para.4
2
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits,Judgment, ICJ Reports 1986, p. 14, at p. 106, para. 202.

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as that of the absence of action. Thus, it is possible to discern a direct connection between the
ban on intervention and the ban on the use of force.3A state transgresses both prohibitions if it
employs force unlawfully.4Therefore, under international law, any use of force also qualifies as
an intervention; but, not all interventions include the use of force; only those that do.5Then, the
question still stands as to what kind of force is encompassed by the phrase "use of force."

4. During the writing stage of the UN Charter, a proposal to incorporate economic measures
within the definition of force under Article 2(4) was turned down. Six Most people agree that
the phrase exclusively refers to armed force.7

5. The interference must be coercive, dictatorial, or otherwise forceful, effectively depriving the
state against which it is directed of control over the topic at hand, according to Oppenheim's
International Law. Simple interference does not equate to intervention.” 8

6. It is commonly accepted that the prohibition of force—that is, the prohibition of using
aggressive or illegal force—is a peremptory norm. Numerous papers support this, including
the ILC Commentary to the Draft Articles on the Law of Treaties, the ILC Commentary on
ARSIWA, the ILC Report on Fragmentation—which makes reference to Brownlie and Aust—
and the UN Charter Commentary.

3 Jamnejad and Wood (2009), pp. 348–349; touched upon by Kritsiotis (2015), p. 1000

4 Kohen (2012), p. 161.

5 supra n.3

6 Randelzhofer and Dörr (2012), p. 209; see also Shaw (2017), p. 855; Ruys (2014), p. 163; Henderson (2018),
p. 53.

7 Ruys (2014), p. 163; Dinstein (2017), p. 90; Henderson (2018), pp. 53, 55.
8 Oppenheim's International Law Vol. I, 9th ed., 1992, p. 432

9 Orakhelashvili (2015), p. 165; De Hoogh (2015), p. 1164; Henderson (2018), pp. 24–25.
10 ILC, Draft Articles on the Law of Treaties with commentaries, Art. 50, p. 247, para. 1, and p. 248, para. 3.
11 ARSIWA Commentary, p. 112.
12ILC Report on Fragmentation of International Law, as submitted to the General Assembly, A/CN.4/L.682, 2006,
p. 189, para. 374 and fn. 522; see also Cassese (2005), p. 202.

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7. The scope of indirect force was clarified by the International Court of Justice, which stated
that "financing the rebels will not amount to indirect force, while arming and training the
rebels amount to use of force."13

Therefore, it may be said that the use of force and non-interventionism are the essential tenets
upon which international law is based in light of the authorities previously indicated. The states
acknowledge it as jus cogens. The UN Charter's Article 2(4) considers direct involvement as
opposed to indirect intervention. The reasons that follow support this even more:

1. There are two types of force that can be considered: (1) direct force, which includes acts such
as cross-border shootings or military incursions; and (2) indirect force, which prohibits states
from inciting, organizing, supporting, instigating, or engaging in acts of terrorism or civil
unrest against another state, or from cooperating with organized activities that pose a threat to
or involve the use of force against another state.

2. While the language of Article 2(4) of the U.N. Charter forbidding the use of force appears to be
quite apparent at first look, its exact meaning and content have not yet been established by state
practice or scientific literature. First, this is due to the fact that the restriction is a component of
a set of prohibitions found in many U.N. Charter articles that deal with maintaining and
promoting peace. These provisions include Articles 39, 51, and 53, which utilize various
terminology such as "act of aggression," "threat to the peace," or "armed attack." Second, this
system establishes limitations on the right to self-defense, which have led to debate on the
parameters of that right as well as the definition of "force." The interpretation may rely on the
judgments of the ICJ and on the binding resolutions of the Security Council, such as
S/RES/678 of 1991 and S/ RES/686 of 1991 (Iraq), S/RES/748 of 1992 (Libya), and
S/RES/807 of 1993 (Croatia).

3. Developing nations, particularly those that were formerly socialist, have attempted to expand
the definition of force to include economic and political compulsion, claiming that the results
might be comparable to those of military force.

13 Armed Activities on the Territory of the Congo, Congo, the Democratic Republic of the v Uganda, Judgment,
Merits, ICJ GL No 116, [2005] ICJ Rep 168, ICGJ 31 (ICJ 2005), 19th December 2005, International Court of
Justice [ICJ], paras 60 – 165, supra n.2

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 While such an interpretation can be made of the wording of Article 2(4) of the U.N. Charter,
it must be categorically rejected. The word "force" is only used in reference to military force
in other articles of the Charter. Furthermore, Brazil's proposal to include economic coercion
in the ban on the use of force in international law was expressly rejected at the San Francisco
Conference in 1945. According to this view, the Friendly Relations Declaration interprets the
basic principles of the Charter in a way that only addresses military power in relation to
Article 2(4), putting political and economic pressure under the principle of non-intervention.
The latter permits non-military coercion as long as it is proportionate and does not typically
forbid it. Therefore, in its 1986 ruling, the International Court of Justice erred when it held
that the United States' economic sanctions against Nicaragua did not violate the ban against
the use of force.

4. There is no question that Article 2(4)'s language encompasses the use of indirect force,
regardless of whether the direct force is really used by another state's regular army or by
unauthorized groups arranged in a military fashion (such as rebels or mercenaries).
Although it is widely accepted that actions taken directly against another state must
constitute the use or threat of force (such as intrusions into foreign territory or cross-border
gunfire), it is still debatable as to whether actions might be considered an indirect use of
force. The Friendly Relations Declaration14 addresses the following in this regard:
assembling armed groups or irregular forces, supporting their formation, inciting, aiding, or
taking part in acts of terrorism or civil unrest, or consenting to such actions. In the
Nicaragua ruling, the International Court of Justice (ICJ) held that not all acts of
support could be considered an indirect use of force, considering the United States'
training and equipping the "contras" to be illegal but dismissing the idea of only
providing financial support to them.

5. The Court dismissed Bosnia's argument that it just needed to establish its case on the
"balance of probabilities" in order to meet the burden of proof. Rather, the Court concluded

14 Declaration
on Principles of International Law concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations, G.A. Res. 2625 (XXV), U.N. Doc. A/8028 (1970) [„Friendly
Relations Declaration‟]

15
 that "claims against a State involving charges of exceptional gravity must be proved by
evidence that is fully conclusive," drawing on its prior decisions.” 15

Thus under the prevailing view, clearly all non-military effects on another state, such as
environmental pollution, remain outside the scope of Article 2(4) of the U.N. Charter.

1. The findings of Commission of Inquiry are not conclusive and would not suffice to impute
any interventionism and thus use of force on part of DAFFODIL.A much higher degree of
imputation is needed which should be directly and fully conclusive. The mere finding that
DAFFODIL was involved in supply of material to Armed Group V are not sufficient to
impute State responsibility on part of DAFFODIL.

2. Without prejudice to the earlier argument even if there is any interventionism on part of
Republic of DAFFODIL it would be still not conclusive because it has not been put on trial
and subjected to adversarial process. Thus, the findings of the commission is highly
doubtful. Therefore the report of finding of the Commission is disapproved by Republic of
DAFFODIL since „Armed group V‟ was not acting either directly or indirectly under the
„direction or control‟ of DAFFODIL and as such Republic of DAFFODIL cannot be held
responsible for the acts of „Armed Group V‟ under International Law.

3. The armed attack on the government building on 11 August, 2011 by Armed Group V should
not in any way be attributable upon DAFFODIL as no official armed personnel of the
Republic of DAFFODIL is directly involved in any attack. The Republic of DAFFODIL
exercises no effective control over the actions of the "Armed group V".

Therefore Republic of DAFFODIL categorically rejects all the allegations put forth by People’s
Republic of TULIP as they being without firm ground and frivolous.

1]Intervention if any was on humanitarian grounds.

In addition to arguments made earlier:

15 Bosnian Genocide, 2007 I.C.J. at ¶ 209.

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1. Any intervention would be imputable upon TULIP itself as it stands in violation the
principles of International Humanitarian Law. And thus an intervention of any, it is in the
nature of support to the ethnic minorities of TULIP in the nature of humanitarian aid against
the State sponsored activities of People’s Republic of Tulip.

2. The basis of intervention on humanitarian grounds is that it is no state’s prerogative to allow

the wanton disregard and violation of human rights, and therefore, if such wanton disregard
and violations take place, another state, or other states may intervene to put an end to them. 16

3. The theory of intervention on the ground of humanity (...) recognizes the right of one State to
exercise international control over the acts of another in regard to its internal sovereignty
when contrary to the laws of humanity17

4. The International Court of Justice in the Nicaragua v. USA threw light in the scope of
humanitarian assistance by stating that “there can be no doubt that the provision of strictly
humanitarian aid to persons or forces in another country, whatever their political affiliations
or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to
international law”.18

B.] There is no State Responsibility which can be imputed upon DAFFODIL.

1. The matter of the responsibility of States for internationally wrongful acts is primarily
governed by the International Law Commission (ILA)‟s Articles on the Responsibility of
States for Internationally Wrongful Acts (ARSIWA). 19

16 Fernando Teson, “Humanitarian Intervention: An Inquiry into Law and Morality” 5 (1988)
17 FrancisKofi Abiew, The Evolution of the Doctrine and Practice of Humanitarian Intervention, Kluwer Law
International, 1999, p. 31.
18 Military
and Paramilitary Activities in und against Nicaragua. (Nicaragua v. United States of America). Merits,.
Judgment. I.C.J. Reports 1986, p.14
19 International
Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts,
November 2001, Supplement No. 10 (A/56/10), chp.IV.E.1

17
2. Oppenheim, renowned jurist and former Whewell Professor of International Law at
University of Cambridge, had stated that “every neglect of an international legal duty
constitutes an international delinquency.”20
3. There is an internationally wrongful act of a State when conduct consisting of an action or
omission: is attributable to the State under international law; and constitutes a breach of an
international obligation of the State. 21
4. Attribution is the process by which international law establishes whether the conduct of a
natural person or any other such intermediary can be considered an „act of state‟, and thus be
capable of giving rise to state responsibility.22 The primary aspect with regard to attribution
that is addressed here, is that of „control‟.
5.
Conduct will be attributable to the State only if it directed or controlled the specific operation
and the conduct complained of was an integral part of that operation. 23
6. In the Nicaragua case, the ICJ has identified three requirements of strict control :- (1) the
secessionist entity must be completely dependent on the outside power (2) this complete
dependence must extend to all fields of activity of the secessionist entity (3) the outside power
must actually have made use of the potential for control inherent in that complete
dependence, i.e. it must have actually exercised a particularly high degree of control. 24
7. The case of the Corfu Channel25 in which Albania did not warn the British ships about the
existence of mines in its seas placed by other States, Albania was nevertheless ordered to
comply with all the reparation measures awarded to the United Kingdom. Thus, international
law has established that unless some part of the injury can be shown to be severable in causal

20 Oppenheim's International Law Vol. I, 9th ed.

21 Yearbook of the International Law Commission, 2001, vol. II (Part Two)
22 James Crawford, State Responsibility: The General Part (Cambridge University Press) (2013)
23 ARSIWAArt.8 para 3
24 Nicaragua v USA supra
25 Corfu Channel case, Judgment of April 9: ICJ Reports 1949, p.4.

18
 terms from that attributed to the responsible subject, the latter is held responsible for all the
not too remote consequences of the wrongful conduct.26

Thus in the light of law stated the following arguments are advanced.

1. The constituent element of State Responsibility depends upon the existence of certain
characteristic factors:
1) The existence of an International legal obligation in force as between two particular
States,
2) There has occurred an act / omissions which violates that obligation,
3) That loss or damage has resulted from the unlawful act or
omissions.

2. Thus, the second criteria that is occurrence of an act / omissions which violates that
obligation is not satisfied. As two establish delinquency two criteria have to be satisfied as
held in Nicaragua which are:-
1) General control and
2) Specific Control only then an effective control on part of DAFFODIL can be established.
3. If we were to accept the findings of Commission of Inquiry even then the nexus between
DAFFODIL and Armed Group V has not been conclusively established. Only a general
control that too lacking vigor has been imputed upon DAFFODIL.

4. No where in the report it has been stated that Armed Group V was acting on the dictation or
effective control of DAFFODIL. Thus no specific control has been established and
conclusively DAFFODIL cannot be held responsible for the attack .

5. Reparation in International Law is based on the philosophy of making a wrong into a right
imparting the principles of restitution, compensation and declaration. But no such case arises
here as there was no wrong done.

26 As established in their codification by the International Law Commission, known as the Draft Articles on State
Responsibility (hereinafter “Draft Articles”), UN doc A/56/10. See Text with commentaries by the special rapporteur
John Crawford (hereinafter “Commentaries”), adopted by the ILC at its 53rd session, 2001, (Yearbook of the
International Law Commission, 2001, vol. II, Part Two), on art. 28, para. 3. The UN General Assembly (UNGA), in
its resolution 56/83 of 2001, commended the draft to the attention of governments “without prejudice to the question
of their future adoption or other appropriate action”,art. 31, paras. 12-13.

19
6. The People’s Republic of TULIP by its frivolous and unwarranted allegations has put
Republic of DAFFODIL in bad light and caused defamation to the nation of DAFFODIL and
its citizenry. TULIP must apologize for such reckless statements without any firm basis.

20
 Prayer for Relief

In the light of the issues raised, arguments advanced and authorities cited, the
People’s Republic of DAFFODIL respectfully requests this Honorable Court to
adjudge and declare that:

A. The actions of the Republic of DAFFODIL does not violate the principle of
non-intervention, and the United Nations Charter generally and do not
constitute any violations of International Law.

B. The Republic of DAFFODIL is not required to provide any reparation to the

People's Republic of TULIP.

Respectfully Submitted,

Agent For Respondent

21