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SUMMARY OF ARGUMENTS

I.

The placement of troops by Kylosia, in the island of Etermia, had not violated Article
2(4) of the W.N. Charter.
The Counsel on behalf of respondent humbly submits that the placement of troops by
Kylosia, in the island of Etermia, had not violated Article 2(4) of the World Nation.
Article 2(4) of the W.N. states 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. The counsel hereby submits that the placement of troops sent
by Kylosia was invited by the Government of Vadertham. Hence, there was no threat or
use of force by Kylosia against Vadertham. The placement of troops by Kylosia, in the
island of Etermia, was an act of Self-Defence under Article 51 of the World Nation.
Article 51 is an exception to Article 2(4), which allows the state to use force as it deems
necessary in order to maintain or restore international peace and security. The
placement of troops by Kylosia was for the same purpose, excercied under Article 51 of
the W.N. Charter. The Charter further talks about the inherent right of collective or
individual self-defence. Moreover, the troops were protecting the Ethnic Etermia
population who had sympathies with their orginial motherhood. Therefore, the
placement of troops was in accordance with the W.N. charter.
The people of Etermia have the right to secede from Vadertham.
The Counsel on behalf of the respondent humbly submits that the people of Etermia have
the right to self determination and hence can secede from Vadertham. Article 1(2) of the
W.N. Charter provides that one of the purposes of the UN is to develop friendly
relations among nations based on respect for the principle of equal rights and self
determination of peoples, and to take other appropriate measures to strengthen universal
peace. Article 55 of the Charter says that "With a view to the creation of conditions os
stability and well-being which are necessary for peaceful and friendly relations among
nations based on respect for the principle of equal rights and self determination of
peoples, the United Nations shall promote...universal respect for and observance of,
human rights and fundamental freedoms for all without distinction as to race, sex,
language or religion.." Thus, the right of self determination is part of the law of the
Charter and is thus binding on the members of the UN. The most authoritative legal

statement of the right can probably be seen in Article 1(1) of the Human Rights
Convenants that, by virtue of the right of self-determination, all peoples freely determine
their political status and freely pursue their economic, social and cultural development.
Every person is granted the right to self determination, and therefore the people of
Etermia can exercise this right and secede from Vadertham.

WRITTEN PLEADINGS

1. THE PLACEMENT OF TROOPS BY KYLOSIA, IN THE ISLAND OF


ETERMIA, HAD NOT VIOLATED ARTICLE 2(4) OF THE W.N. CHARTER.
The placement of troops, in the island of Etermia; Kylosia had not violated Article 2(4) of the
W.N. charter. Article 2(4) of the W.N. charter states 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. The prohibition on use of force contained in Article 2(4) of the W.N. charter is not
absolute.1 The W.N. charter , in speaking of the use of armed force, employs different terms: the
use of force in Article 2 (4), Act of Agression in article 39 and Armed Attack in article 51. The
definition of aggression contained in GA Res.2, formally only claims to specify the notion of 'act
of aggression' as it is embodied in Article 39 of the Charter, and not that of 'Armed Attack' as
used in Art. 51.3 Pursuant to para 2 and 4 of the preamble, as well as according to Art. 6, the
definition does not contain an interpretation of the right of Self-Defence in response to an armed
attack.4 The travaux preparatoires of the definition also confirm that a definition of the notion of
'armed attack' was not intended.5 Therefore the term threat or use of force enshrined under
Article 2(4) is undefined which has been confirmed by the case of Guyana v Suriname 6 that the
term threat remains uncertain. Since the term itself is uncertain the placement of troops by
Kylosia cannot be interpretated as a threat or use of force. The placement of troops by Kylosia
was a mere law enforecement since it was invited by the goivernmenmt of Vadertham. As the
1PHILIP JESSUP, A MODERN LAW OF NATIONS 162 (1948)
2 UN Doc A/RES/3314(XXIX)
3 Ruys(n 26) 136; Corten(n 16) 404.
4 Ruys (n 26) 137, Ferencz ( n 53) 46; V Cassin and Others, ' The Definition Of Aggression' (1975) 16
Harv Intl LJ 589, 594.
5 Frencz (n 53) 12; Bruha (n 53) 110-11 fn 62 and 163-201; Ruys (n 26) 129-36.
6139 ilr 566

court held in Nicaragua, military intervention at the request of the [host] government does not
violate international law7 even absent Security Council authorisation.8 Therefore, the force
cannot be taken as a threat as it was a mere law enforcement and not in violation of Article
2(4). There is a vast difference between threat and use of force and mere law enforcement as
the court distinguished in Guyana v Suriname 9.The placement of troops, in the island of Etermia;
was an act of Self-Defence under Article 51 of the W.N. Charter. Article 51 of the W.N. Charter
states that Nothing in the present Charter shall impair the inherent right of collective or
individual self- defence if an armed attack occurs against a member of the United
Nations,Article 51 is a major exception to the principle of prohibition of the threat or use of
force given under Article 2(4) of the W.N. Charter. It has been acknowledged as an inherent right
of all the states by the W.N charter. And as held by the ICJ it is a customary right.10 Since the
right of self defence is inherent, it exists over and above the right of self defence provided under
Article 51 and this provision for only one of the many circumstances under which the right of
Self-Defence may be excercised.11 It has already been pointed out that under article 51 a state
retains the inherent right if self defence independently of other provisions of the charter in cases
if an armed attack. In cases where there is no armed attack but where, under traditional
customary rules of international law, there existed a wider right of action in self defence.. it still
continues to exist.12Hence, its an inherent right of Kylosia to protect Ethnic Etermia population who
had sympathies with their orginial motherhood,as they wanted to be merged into Kylosia and to protect
many Kylosian nationals who frequently travelled from Kylosia to Etermia but Vadertham was
7nicara
8Jochen Frowein, Legal Consequences or International Law Enforcement in Case of Security Council
Inaction, in THE FUTURE OF INTERNATIONAL LAW ENFORCEMENT: NEW SCENARIOS,
NEW LAW 111, 120 (Jost Delbrck ed. 1993).
9139 ilr 566
10Nicaragua case, ICJ Rep, 1986,pp. 14,84.
11Bowett, self-defence, pp. 185-6.
12D.Greig, International Law 892-893 (2d ed. London: Butterworths,1976).

suppressing the human rights of the Etermia region by suppressing the secessionist movement and the
stationing of troops was an act of self defense.I t has convincingly been argued that the right of a

State to rescue its nationals, if necessary by military coercion, is unaffected by the UN Charter.
Well-known examples include the Entebbe Operation in Uganda in 1976, the US attempt to
liberate the American hostages in Tehran in 1980 and a British military action to rescue
peacekeepers in Sierra Leone in 2002. Such actions raised little protest. Practice and an absence
of protest, together with a widely held conviction that a State has a right, if not a duty to protect
the life and right of its nationals. The right of the state to intervene by the use or threat of force
for the protection of its nationals suffering injuries within the territory of another state is
generally admitted, both in the writings of jurists and in practice of states. 13 The placement of
troops was to protect the rights of nationals which were criticized by Vadertham. The use of force
for the protection of nationals abroad is a part of customary international law with the purpose of
promoting human rights and is therefore consistent with the purposes set out in Article 1 of the
Charter.14 The right is derived from the pre- and still existing customary international law
allowing self-defence which inter alia extends to the protection of nationals abroad. D. W.
Bowett justifies this view with the argumentation that the use of the word inherent in Article
51 refers to the fact that the authors of the Charter wanted to leave the customary law, including
the customary rules concerning the protection of nationals abroad, lawful. D. W. Bowett
acknowledges that the Charter sets some new limits to self defence, like immediate reporting to
the Security Council, but retains that the Article does not imply the unlawfulness of using force
to protect nationals abroad.15 Further, The International Law Commission undertook a review of
the subject of diplomatic protection.16 Special Rapporteur J.R. Dugard submitted his First Report

13[t]he jurists of the nineteenth century universally considered as lawful the use of force to protect lives and
property of nationals.IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 289
(1963).

14 D. W. Bowett. 1958. Pp 17, 186; J. Stone, B. B. Ferencz, J. Perkovich. Pp 43, 95-96.


15 D. W. Bowett. 1986. In: A. Cassese. 1986. P 40.
16 . Rep. of the Intl Law Commn, 48th Sess., May 6July 26, 1996, U.N. Doc. A/51/10; GAOR, 51st
Sess., Supp. No. 10 (1996).

on Diplomatic Protection on March 7, 2000.17 He placed this right within the inherent right to
self-defense preserved from customary law.18 [p]eople being a necessary condition for the
existence of a state, the protection of nationals can be assimilated without great strain to the right
of self-defense explicitly conceded in the text of the Charter.19 H. Kelsen concludes that a State
has the right to protect its nationals.20 Hence , the placement of troops was to protect the national
which is an inherent right under Article 51 further State (Kylosia) has obligations to ensure a
minimum standard of living, a minimum quality of life, for all its citizens. The state has the
obligation to do its utmost to preserve the security and welfare of its citizens within its borders
and under its protection. That explains why the ICJ, in the passage from wall case

21

quoted

earlier, recalled the duty of the States to respond in order to protect the life- that includes the
quality of life- of its citizens. It does not matter where those citizens are. If they are threatened
because they are citizens of the state, that state is entitled, and may be under a duty, to exercise
its right of self-defence to protect them.Right to live in peace and security is implicit in the
concept of self defence as it has developed in other countries of the world. The right of selfdefence is the other side of the coin of the right to live in peace. The nationals of Kylosia had the
right to live in peace as enshrined in Article 2 of Universal Declaration of Human Rights which
says "Everyone has the right to life, liberty and security of person" 22 and such right was being
hampered by Vadertham by criticising their secession. What this means in our context is that the
right of self-defence through the right to peace and security is inextricably linked to basic human
17 Special Rapporteur on Diplomatic Protection, First Report on Diplomatic Protection, Intl Law Commn, U.N.
Doc. A/CN.4/506 (Mar. 7, 2000) (by John R. Dugard)

18 Dugard Report Special Rapporteur on Diplomatic Protection, First Report on Diplomatic Protection,
Intl Law Commn, U.N. Doc. A/CN.4/506 (Mar. 7, 2000) (by John R. Dugard) [
19 Tom J. Farer, Panama: Beyond the Charter Paradigm, 84 AM. J. INTL L. 503 (1990).
20 H. Kelsen, R. W. Tucker (editor). Principles of International Law. 2nd edition. New York, Chicago,
San Francisco, Toronto, London: Holt, Rinehart and Winston 1966. P 373. See also: D. W. Bowett. 1958.
Pp 91-94.
21 Wall case
22 Article 2

rights, and has to be interpreted and applied in that framework.Therefore, the placement of
troops was in accordance with W.N. as it was necessary to protect the nationals who were
residing in Vadertham. It was the inherent right of Kylosia to protect its nationals.
II.

THE PLACEMENT OF TROOPS AT THE REQUEST OF PRESIDENT DRAGO WAS


INVITIED INTERVENTION.

The intervention of Kylosian troops in Etermia was an invited intervention. 23 The consent for
the same was given by a legitimate Government of Vadertham, such a consent validates an
otherwise wrongful military intervention into the territory of the consenting state is a generally
accepted principle. When a government is both widely recognized and in effective control of
most of the state, this principle affords a clear alternative to Security Council authorization as a
basis for justifying external intervention, whether by states acting unilaterally, or by states acting
under the auspices of the United Nations (U.N.) or a regional organization or it gives the
Government right to invite an outer force as per it need and demands. The theoretical basis of the
rule is that consent validates an otherwise wrongful intervention . It serves as a bilateral
agreement between the consenting and intervening states that suspends the normal operation of
the legal rules that would otherwise govern their relationship 24 in the present case which was of
non involvement in the affairs of Kylosia under Article 2 of the UN Charter.Consistent with this
understanding, many states have attempted to justify military intervention in other states on the
basis of consent and invitation and it has been duly accepted by the Honorale United Nations. In
many cases, the justification was relatively persuasive, and the interventions met with general
acquiescence. During the Cold War both France, and to a lesser extent the United Kingdom,
relied on invitation and consent to justify periodic interventions in former colonies to support
friendly governments against small-scale rebellions or palace coups. 25 Most states accepted such
23 Fact Sheet
24As Judge (then Special Rapporteur) Roberto Ago observed in his report to the International Law Commission on
state responsibility, Eighth Report on State Responsibility, Document A/CN.4/318 and Add.1-4, 2 Y.B. INT'L L.
COMM'N 3,35-36 (1979).

25 Louise Doswald-Beck, The Legal Validity of Military Intervention by Invitation of the Government,
1985BRIT.Y.B. INT'L L. 189, 189 n.4 (1986). John Darnton, The World: Interveningwith Elan and No Regrets, N.Y.
TIMES, June 26,1994, 4, at 3.

interventions, even when the invitations at issue arguably came after the inviting officials had
already lost their hold on power.26 Similarly, the 1982 deployment of United States, French,
Italian and British forces to assist the Lebanese government in restoring order met with little
international opposition, at least at the outset.' 27 In general, international law presumes that when
a government exercises effective control over the territory and people of the state, the
government (and more particularly, the authorized officials of that government) possesses the
exclusive authority to express the will of the state in its international affairs. 28 This presumption
derives from a mix of practical and theoretical considerations. As a practical matter, states cannot
ignore an effective government, whatever its origin or political leanings. As a theoretical matter,
effective control serves as a rough proxy for the existence of some degree of congruity between
the government and the larger political community of the state, which supports the government's
claim to represent the state as a whole. To the extent that the government is unrepresentative, this
assumed congruity may be largely fictitious.' 29 But it is nonetheless widely accepted as the only
viable basis on which states can conduct international relations in a decentralized system. In the
given case President Drago was the face of Vadertham in the International domain , irrespective
of the the clashes or any internal situations , thus the invitation is valid .When a recognized,
incumbent government controls the political apparatus and most of the territory of the state , as
in the present scenario of Vadertham , in such cases, the government ordinarily retains full
authority to request external assistance, or even military intervention, to assist it in maintaining
control of the state.30 The government may seek such assistance from the United Nations, from
regional organizations, or from individual states. As the International Court of Justice observed
in Nicaragua v United States, intervention is generally "allowable... at the request of the
26W. Michael Reisman, Humanitarian Intervention and Fledgling Democracies, 18 FORDHAMINT'L L.J.
794,800 (1995).

27 Louise Doswald-Beck, The Legal Validity of Military Intervention by Invitation of the Government, 1985
BRIT.Y.B. INT'L L. 189, 189 n.4 (1986).
28 Tom J. Farer, Panama: Beyond the Charter Paradigm, 84 AM. J. INT'L L. 503, 510 (1990) RESTATEMENT
(THIRD) OF FOREIGN RELATIONS 210 cmt. d (1985).

29 Cf Fernando Tes6n, Collective Humanitarian Intervention, 17 MICH. J. INT'L L. 323,332 (1996)

government of a State ....31 Nonetheless, most states appear to accept the authority of an effective
incumbent government to invite external intervention.32
Arguendo, even if President Drago did not have effective control , he still was the face of
Vadertham , just as in the case of Liberia Professor Georg Nolte, has argued forcefully that
President Doe's consent to the intervention was sufficient legal authority for it. 33" Nolte contends
that it is "irrelevant" that Doehad been reduced to a "minor contender for power" at the time he
gave his consent to the intervention.34 His government was still the recognized government of
Liberia. The same holds true for President Drago in case of Vadertham. the United Nations first
intervened in the Congo, it relied in large part on the beleaguered government's consent35
The Secretary-General's decision in case of Egypt provoked considerable controversies. 36 Some
critics felt that Egypt's consent to the deployment, and its acceptance of a status of forces
agreement with the U.N., created a legal obligation to permit the force to carry out its mission in
accordance with the parties' prior agreement." ' To confer on any state the right to force a
unilateral withdrawal of international peacekeepers at any time could stimulate strategic
30 U.N. SCOR, 14th Sess., 746th mtg. at 4, U.N. Doe. S/PV.746 (1956) (Hung.); U.N.SCOR, 23d Sess., 1441st
mtg. at 1, U.N. Doe. S/PV.1441 (1968) (Czech.); U.N. SCOR, 35th Sess., 2185th mtg. at 2, U.N. Doe. S/PV.2185
(1980) (Afg.). Rein Mlllerson, Intervention by Invitation, in LAW AND FORCE IN THE NEW INTERNATIONAL
ORDER 127,128-29 (L. Damrosch & D. Scheffer eds., 1991).

31 Nicaragua, 1986 I.C.J. at 126.


32 U.N. SCOR, 14th Sess., 746th mtg. at 4, U.N. Doe. S/PV.746 (1956) (Hung.); U.N. SCOR, 23d Sess., 1441st
mtg. at 1, U.N. Doe. S/PV.1441 (1968) (Czech.); U.N. SCOR, 35th Sess., 2185th mtg. at 2, U.N. Doe. S/PV.2185
(1980) (Afg.). Rein Mlllerson, Intervention by Invitation, in LAW AND FORCE IN THE NEW INTERNATIONAL
ORDER 127,128-29 (L. Damrosch & D. Scheffer eds., 1991).

33 Georg Nolte, Restoring Peace by Regional Action: International Legal Aspects of theLiberian Conflict, 53
ZErrScHRIFT FOR AUSLANDISCHES OFFENTLIcmES RECHT UND VOLKKERRECHT 603 (1993).
34 Id. at 625.
35 S.C. Res. 143, U.N. SCOR, 15th Sess., 873d mtg., U.N. Doe. S/4387 (1960).
36 STEVEN R. RATNER, THE NEW U.N. PEACEKEEPING: BUILDING PEACE IN LANDS OF CONFLICr
AFTER THE COLD WAR 38 (1995).

behavior, permitting one party to use peacekeepers as a means to buy time until that party is
ready to resume a conflict previously suspended by agreement between the warring parties . At
that point, the faction perceiving itself as disadvantaged by intervention may withdraw consent,
and even attack the would-be peacekeepers. Clearly, the peacekeepers have the right to defend
themselves, and stay in the region to pursue their mission against internal opposition. Keeping on
the same track the stay of Kylosian troops in the region of Etermia is justified.When consent
broke down as a basis for intervention in Somalia, the Security Council switched to enforcement
action under Chapter VII37." It did the same in the former Yugoslavia 38. By contrast, the consent
of various warring factions to ECOWAS peacekeeping in Liberia has come and gone with some
frequency over the last six years. Kylosia is also using the same argument and thus the Counsel
proposes that our invitation and stay even without the consent of the new Government stands.
Professor Tom Farer urges us to consider the following hypothetical. Suppose that a if a state in
the Caribbean enters into a treaty with interested NATO members and the forces enter with
invitation, and the new Government is against the stay of the troops Professor Farer's conclusion
is that an intervention carried out pursuant to such a treaty would be lawful "[s]ince such an
action is carried out with the previously expressed consent of the target state." 39Therefore,
Keeping all the above cases in mind , the Agentpleads the Bench to consider that Kylosias
invitation and stay both are valid.
II(2). THAT THE GOVERNMENT OF VADERTHAM WAS NOT RECOGNIZED.
The Kylosian Government does not recognize the new President of Vadertham. The guidance
may be drawn from the Article 4 of the UN Charter which requires that an applicant for
membership must be peace loving , accepts obligations of the UN Charter and is willing to carry
these obligations. Moreover, the recognition is not restricted to unconstitutional governments, it
becomes clear from the fact that in certain circumstances states have both expressly recognized
37 Statement of Roy S. Lee, 28 CORNELL INT'L L. J. 643 (1995)
38 James B. Steinberg, International Involvement in the Yugoslavia Conflict, in ENFORCING RESTRAINT.
COLLECTIVE INTERVENTION IN INTERNAL CONFLICTS 27, 50-55 (1993).
39 Tom J. Farer, A Paradigm of Legitimate Intervention, in ENFORCING RESTRAINT. COLLECrIVE
INTERVENTION IN INTERNAL CONFLICTS 316, 319 (L. Damrosch ed., 1993)

and refused to recognize elected governments.40 When changes in a Govt occur , foreign Govt
are concerned primarily with the question whether the new regime is in fact in control of the
govt. The guidance may be drawn from the Art 4 of the UN Charter which requires that an
applicant for membership must be peace loving , accepts obligations of the UN Charter and is
willing to carry these obligationsThe new President is not accepted by people of Etermia, they do
not see themselves in consonance with him and he is against the idea of self determination which
forms the crux of the W.N. charter. The Court held in Tinoco case that recognition is the
evidence that the international law requirements are met.41 The Counsel further submits the
test for Government recognition according to which a government is deemed to be recognized
in internatrional law.

DOCTRINE OF EFFECTIVE CONTROL- According to this doctrine, whenever there


is change in the government of state,other states see if the government in question is in
fact effective control of the state. The only criterion in international law for the
recognition of an authority as the government of a State is its exercise of effective control
over the States territory. A government can be said to be in effective control of the state
if bulk population of such state obeys the commands of such government with a
reasonable expectancy of permanence. If the government excercises effective control
over the state it is granted recognition irrespective of validity of its origin. The lack of
effective and independent governmental control has served as a basis for the nonrecognition of an entity as a sovereign state in a significant number of cases. Thus,
recognition was withheld from Manchukuo42, Katanga43 and Biafra44, in part due to lack

40League of Nations, Records of the first Assembly. Plenary meetings (1920), 598, 606.
41Tinoco Claim Arbitration (Great Brtain vs Costa Rica) , 1 UN Rep Intl Arb Awards 369(1923).
42 Report of the Commission of Enquiry, League of Nations Publications no. VII.A.12 (1932); see also
Lauterpacht, supra note 5, at 47; Higgins, supra note 8, at 27.
43 In John Dugard, Recognition and the United Nations 86-90 (1987).
44 David A. Iljaye, "Was 'Biafra' At Any Time a State in International Law," 65 Am. J. Int'l L. 551
(1971).

of effective and independent governmental authority. Recognition was also opposed or


delayed with respect to Mongolia45, Ceylon (Sri Lanka)46, and the German Democratic
Republic47 on the basis, inter alia, that independent governmental control had not yet
been established. However, in the concerned case the new government of Vadertham
didnt have effective control over the population. Infact considerable population was
against the President as he was criticising their secessionist movement. Hence, the
government was not recognised.

DOCTRINE OF NON RECOGNITION- This doctrine is based on a legal principle ex


injuria jus non oritur( law doesnt arise from injustice)48. According to this doctrine, any
factual situation which is an outcome of an act which is explicitly illegal under
internationla law, such factual situation will not be recognised and no legal consequences
will be permitted to flow from such factual development. Ocassionally states have
refused to recognize governments on the ground of their revolutionary origin and degree
of violence accompanying the change such as the refusal of Great Britian to recognize in
1972 the French revolutionary government. Moreover, Vegatino started to criticize the
utmost right of the people i.e. Self-Determination which was followed by dissention
among the masses. Hence, the new government was not recognised by the state of
Kylosia from the very beginning. A government has been refused recognition because of
its supposed unwillingness to fulfil international obligations like many states refused to
recognize the Government of Soviet Russia on account of its unwillingness to fulfil
obligations.49 The actions of the Government of the Peoples Republic of China at the

45 United Nations Yearbook 200-201 (1960).


46 Repertoire of Practice of the Security Council, 272-273 (1946-1951).
47 588 H.C. Debates (5th Ser.) col. 876 (May 19, 1958). See generally, M. Whiteman, 2 Digest of
International Law 379-390 (1963).
48Namibia opinion, ICJ Reports (1971).
49Dickinson, Mich Law Rev, 30 (1931-32), pp 181-96.

time of the Korean hostilities.50 And in certain other matters involving an apparent
unwillingness to observe international obligations, was a major factor in the refusal of
many states to recognize it.51 Just the same way the Government of Vadertham failed to
fulfil its obligation to not to criticize the seccesion. Moreover, The Security Council
resolutions of 1965 and 1966 characterized the smith regime in Rhodesia as unlawful in
terms of the charter of the W.N nation and called upon all states not to recognize the
illegal regime52. Similar issues arise in relation to the situtation in namibia following the
termination of the mandate53, and in relation to the status of the turkish-occupied area of
cyprus after the turkish invasion of 1974.54Jurists such as Blix55, De Visscher56,
Hackworth57, Kunz58, and Schwarzenberger59 have thus affirmed that, in this respect,
recognition is a discretionary act which is subject to the policy considerations of each
state. The United States has taken a similar view by proclaiming that "international law

50GA Res 498 (V) (1950).


51Kiss, Repertoire,3 p57.
52 Mc dougal and Reisman, 62 AJ(1968).
53 Namibia opinion, ICJ Reports (1971),16.
54 R. v. Minister of Agriculture, fisheries and food,ex p. S.P. amatasiou (pissouri), ltd; ILR 100,25 7
55 H. Blix, "Contemporary Aspects of Recognition," 130 Recueil Des Cours 589, at
633 (1970).
56 De Visscher, Theory and Reality in Public International Law 228 (1957)
57 72 Am. J. Int'l L. 337 (1978).
58 J. Kunz, "Critical Remarks in Lauterpacht's Recognition in International Law," 44
Am. J. Int'l L. 713 (1950)
59 G. Schwarzenberger, A Manual of International Law 59 (1976)

does not require a state60 to recognize another entity ; it is a matter for the judgment of
each state whether an entity merits recognition.61 " Moreover, states, in exercising this
discretion, may decide to make the grant of recognition conditional or may confer a
recognition which is limited either functionally, territorially, or in some other way. When
a government is recognized as being de facto or de jure the distinction refers to the
requirements of international law. A dejure government is one which, in the opinion of
the person using the phrase, ought to possess the powers of sovereignty, though at the
time, it may be deprived of them. A de facto government is one which isreally in
possession of them, although the possession may be wrongful or precarious. De facto
recognition is a declaration that the body claiming to be the government actually wields
effective authority without, . Defacto recognition, then, is merely an admission of the fact
of the existence of the new government and such admission is conclusive evidence of
such existence in the courts of the recognizing government. The United States regards
itself as free to withhold recognition from a regime professing to function and even
successfully functioning as a government of a foreign state. The recognition of a newly
created government is an act which the recognizing government may or may not do. The
recognition of a foreign state or government is a matter peculiarly within the province of
the political as distinct from the judicial department of the government and the propriety
of what may be done in the exercise of this political power is not subject to judicial
inquiry or decision.
The unrecognized government itself has no standing in court and may neither sue or be sued
in the courts of the United States. Speaking of Russia, justice Stone said:"It is not denied that
in conformity to generally accepted principles, the Soviet Government could not maintain a
suit in our courts before its recognition by the political department of the government. For
this reason, access to the federal and state courts was denied the Soviet Government before
60 James Crawford, The Creation of States in International Law 48 (1979); see also
Gerhard von Glahn, Law Among Nations 62 (4th ed., 1981)
61 The Council of the League of Nations approved the validity of the Mandate on
July 24, 1922; see U.N.S.C.O.P., Report to the General Assembly, 1 UN G.A.O.R., 2nd
Sess., Supp. no. 11, at para. 180.

recognition."62 Usually the .courts do not concern themselves with what an unrecognized
government intended by its decrees, but cbnsider what effect should be given them according to
principles of justice and public policy And the same should be applied on Vadertham.

III.

PEOPLE OF ETERMIA HAVE THE RIGHT TO SELF DETERMINATION.


HENCE, CAN SECEDE FROM VADERTHAM.

The Counsel on behalf of the Respondent humbly submits that International law recognises that
the right to self determination constitutes a fundamental human right and applies to all people.
After the end of WWII, Articles 1(2), 55 and 73 and chapter XII of the UN charter recognised
the right to self determination. Article 1(2) of the United Nations Charter provides that one of
the purposes of the UN is to develop friendly relations among nations based on respect for the
principle of equal rights and self determination of peoples, and to take other appropriate
measures to strengthen universal peace. The position of peoples at the centre of the UN system
was underlined in Article 1(2) and 55 of the Charter. Both proposed that friendly relations
between nations were based on respect for the principle of the equal rights and self determination
of peoples. This has put self determination at the foundations of the international community.
Self determination in Article 1 formed part of the purposes of the United Nations, which were
described as, "the object of the Charter".63Moreover , Article 15 of the United Nations Universal
Declaration of Human Rights states that everyone has the right to a nationality and that no one
should be arbitrarily deprived of a nationality or denied the right to change nationality.
Article 55 of the Charter says that "With a view to the creation of conditions os stability and
well-being which are necessary for peaceful and friendly relations among nations based on
respect for the principle of equal rights and self determination of peoples, the United Nations
shall promote...universal respect for and observance of, human rights and fundamental freedoms
for all without distinction as to race, sex, language or religion.." Thus, the right of self
determination is part of the law of the Charter and is thus binding on the members of the UN.
Therefore, criticising the act of secession by Vadertham is violation of aforesaid principles and
hence, people Etermia have the right to Secede to Kylosia. Etermias ethnicity belonged to
62Guaranty Trust Company of New York v. United States, 304 U.S. 126, 58 S.Ct.785 (1938).
63 Report of Papporteur, Cmttee. I/I, (Doc. 885, I/I/34), UNCIO, vol.VI, at p.392.

Kylosia. A large section of the population of the peninsula had ethnic roots in Kylosia and had
migrated from Kylosia to Vadertham. Kylosia even had found popular support from the citizen of
Vadertham.64 But their secessionist movement was being criticized by Vadertham which is to be held
unlawful.An ethnic minority living in an ethnically different state is still covered today by the

definition created by the PCIJ in the Greco-Bulgarian Communities Case. 65 This definition refers
to a group of people living in a delimited territory, possessing distinct religious, racial, linguistic
or cultural attributes and desiring to preserve its special characteristic.The most authoritative
legal statement of the right can probably be seen in Article 1(1) of the Human Rights
Convenants66 that, by virtue of the right of self-determination, all peoples freely determine their
political status and freely pursue their economic, social and cultural developement. 67 Article 1 in
both the International Covenant on Civil and Political Rights (ICCPR)68 and the International
Covenant on Economic, Social and Cultural Rights (ICESCR)69 reads: "All peoples have the
right of self-determination. By virtue of that right they freely determine their political status and
freely pursue their economic, social and cultural development. "Both instruments have been
widely ratified and Article 1 is generally seen as the most important codification of selfdetermination after the UN Charter.The inclusion of the right to self-determination in the
International Covenants on Human Rights and in the Vienna Declaration and Programme of
Action, referred to above, emphasizes that self-determination is an integral part of human rights
law which has a universal application. At the same time, it is recognized that compliance with the
64Factsheet amity para 11.
65 Greco Bulgarian Communities,1930, PCIJ, Series B, No.17, p.21.
66 Vienna Declaration, 32 ILM (1993) at p.1665; Helsinki Final Act, 14 ILM (1975) at p. 1295.
67 Article 1(1), International Convenant on Economic, Social and Cultural Rights, and article 1(1),
International Convenant on Civil and Political Rights, 6 ILM (1967) at pp. 360, 368.
68International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Treaty Doc. No. 95-20, 6
I.L.M. 368 (1967), 999 U.N.T.S. 171.
69International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, S. Treaty Doc. No.
95-19, 6 I.L.M. 360 (1967), 993 U.N.T.S. 3.

right of self-determination is a fundamental condition for the enjoyment of other human rights
and fundamental freedoms, be they civil, political, economic, social or cultural.The right to selfdetermination of peoples is recognized in many other international and regional instruments,
including the Declaration of Principles of International Law Concerning Friendly Relations and
Co-operation Among States adopted by the UN General Assembly in 1970; the Helsinki Final
Act adopted by the Conference on Security and Co-operation in Europe (CSCE) in 1975; the
CSCE Charter of Paris for a New Europe adopted in 1990; and the Vienna Declaration and
Programme of Action of 1993. It has been affirmed by the International Court of Justice in the
Namibia case70, the Western Sahara case71, and the East Timor case72, in which its erga omnes
character was confirmed. The Friendly relationas Declaration73 emphasised that international co
operation should respect the 'right' of self determination.The ICJ in its advisory opinion in
Namibia case74 made it clear that the right of self determination is now a custormary international
law . moreover many jurist consider it JUS COGENS. The ICJ affirming the decision of the
aforementioned case emphasised that the application of right of self determination requires a
free and genuine expression of the will of the peoples concerned as remarked by Justice Dillard
in his opinion that it is for the people to determine the destiny of the territory and not the
territory the destiny of the people."In the case of REFERENCE RE SECESSION OF QUEBEC,
Canadian Supreme Court. The Canadia Supreme Court held - "the existence of the right of the
people to self determination is now so widely recognized in international convention that the
principle has acquired a status beyond convention and is considered a general principle of
international law."75 ICJ recognised in general that self determination was, "one of the essential
70 ICJ reports ,1971,pp.16
71 ICJ reports,1975,pp.12
72 ICJ reports 1995,pp.90,102
73 GA Res. 2625(XXV), Oct.24, 1970.
74 ICJ rep 1971 16
75 REFERENCE RE SECESSION OF QUEBEC [1998] 2 SCR 217.

principles of contemporary international law."76Additionally, General Assembly Resolution 2625


states that: By virtue of the principle of equal rights and self-determination of peoples enshrined
in the Charter of the United Nations, all peoples have the right freely to determine, without
external interference, their political status and to pursue their economic social and cultural
development, and every State has the duty to respect this right in accordance with the provisions
of the Charter.77Through its advisory opinions delivered to the General Assembly and Security
Council of the UN, the Court accepted the aim and scope of the right of the people of Namibia to
self-determination.78Similarly , on 13 December 1974 the General Assembly adopted resolution
3292 (XXIX) requesting the Court for an advisory opinion on the issue of Western Sahara. The
General Assembly reaffirmed the right of the population of the Spanish Sahara to selfdetermination.79The Court was of the opinion that the process envisaged by the General
Assembly was one which respected the right of the population of Western Sahara to determine
their future political status by their own and freely expressed will. 80 Further, the Court
acknowledged that the General Assembly was left with a measure of discretion with regard to the
forms and procedures by which the right to self-determination was to be realized. 81 On the same
grounds , people of Etermia have a right of self determination and their decision to join Kylosia
should be respected by everyone including Vadertham , going against this will be dishonorable
towards the United Nations. This Honorable Court in the East Timor case thas supported
Portugals assertion that the right of peoples to self-determination, as it evolved from the

76 Case Concerning East Timor (Portugal v. Australia) (Judgement), ICJ Reports (1995) p.102, para. 29.
77 G.A. Res. 2625, 25 U.N. GAOR Supp. (No. 28) at 123, U.N. Doc. A/8028 (1971)
78 ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa)notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p. 57, par.
131.

79 ICJ, Western Sahara, Advisory Opinion of 16 October 1975, ICJ Reports 1975, p. 20, par. 20.
80
81

Charter and from United Nations practice, has an erga omnes character, is irreproachable. 82 The
concept of self-determination is a very powerful one. As Wolfgang Danspeckgruber put it: "No
other concept is as powerful, visceral, emotional, unruly, as steep in creating aspirations and
hopes as self-determination." It evokes emotions, expectations and fears which often lead to
conflict and bloodshed. Ultimately, the best approach is to view the right to self-determination in
its broad sense, as a process providing a wide range of possible outcomes dependent on the
situations, needs, interests and conditions of concerned parties. The principle and fundamental
right to self-determination of all peoples is firmly established in international law.
OBLIGATION OF VADERTHAM UNDER PRICIPLE OF SELF-DETERMINATION.
The Counsel further submits that there are certain obligations of states under the principle of
Self-Determination

The states are under obligation to respect the right to self-determination of peoples within
their territories. The states are enjoined not to use force to suppress the right to
determionation of the peoples.
Here, in the concerned case, Vadertham failed to perform the said obligation and

moreover criticized the secessionist movement.


It is legally permissable for the other states to support people in their struggle for the right
to self-determination. Hence, Kylosia was under an obligation to support the people of
Etermia.

The General Assembly Res.83 proclaimed that subjection of peoples to alien subjugation
constitutes a denial of fundamental right,is contrary to the charter of the United Nationbecause
all peoples have the right to self determination and any inadequacy of political, economic,social
or educational preparedness should never serve as a pretext for delaying independence the
resolution also provides that-All peoples have the right to self determination by virtue of that
right they freely determine their political status and freely pursue their economic, social and
cultural development.Therefore, the denial of secession to Etermia by Vadertham is against the

82 East Timor, ICJ Reports 1995, p. 102, par. 29.


831514 (XV)

resolutions, principals, obligation and Article of the W.N. and international law, which is to be
condemened by the honble Court.
UNILATERAL DECLARATION OF VADERTHAM HAD NO LEGAL RAMIFICATION
The unilateral declaration of independence has no legal ramification in International law and is
thus unlawful and invalid since it failed to comply with the principles of International Law. It
was the beginning of a process aimed at separating Vadertham from the State to which it belongs
and creating a new State.General international law simply does not address the issuance of
declarations of independence, because declarations of independence do not create or constitute
Statesunder international law. It is not the issuance of such declarations that satisfies the factual
requirements, under international law, for statehood or recognition. Under international law, such
declarations do not constitute the legal basis for statehood or recognition.84International law
does not confer a right on ethnic, linguistic or religious groups to break away from the territory
of a State of which they form part, without that States consent,
merely by expressing their wish to do so. In the present case, Vadertham declared its
independence unilaterally, which means without the consent of parent state, i.e., Kylosia.
Vadertham has no right to break away from Kylosia without its consent, therefore its declaration
of independence is invalid. To accept otherwise, to allow any ethnic, linguistic or religious group
to declare independence and break away from the territory of the State without the consent of
parent state of which it forms part, outside the context of decolonization, creates a very
dangerous precedent. Indeed, it amounts to nothing less than announcing to any and all dissident
groups around the world that they are free to circumvent international law simply by acting in a
certain way and crafting a unilateral declaration of independence, using certain terms.Vadertham
has done an act which exceeded their competence. As such, the declaration is a nullity.A
unilateral secession of a territory from an existing State without its consent, as in this case under
consideration, is a matter of international law. The truth is that international law upholds the
territorial integrity of a State. One of the fundamental principles of contemporary international
law is that of respect for the sovereignty and territorial integrity of States. This principle entails

84 ( CR 2009/31, p. 46 (Fife, Norway).)

an obligation to respect the definition, delineation and territorial integrity of an existing State.
According to the principle, a State exercises sovereignty within and over its territorial domain.85
The principle of respect for territorial integrity is enshrined in the Charter of the United Nations
and other international instruments. Article 2, paragraph 4, of the Charter of the United Nations
provides:All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any State, or in any other
manner inconsistent with the Purposes of the United Nations.The principle of respect for
territorial integrity is also reflected in the Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in accordance with the Charter of
the United Nations, according to which: any attempt aimed at the partial or total disruption of
the national unity and territorial integrity of a State or country or at its political independence is
incompatible with the purposes and principles of the Charter 86Not even the principles of equal
rights and self-determination of peoples as precepts of international law allow for the
dismemberment of an existing State without its consent. According to the above-mentioned
Declaration, [e]very State shall refrain from any action aimed at the partial or total disruption of
the national unity and territorial integrity of any other State or country. The Declaration further
emphasizes that Nothing in the foregoing paragraphs shall be construed as authorizing or
encouraging any action which would dismember or impair, totally or in part, the territorial
integrity or political unity of sovereign and independent States. The 1993 Vienna declaration
emphasises that:"In accordance with the Declaration On Principle of International Law
concerning Friendly relations and Cooperation Among states in accordance with the charter of
the United Nations, this shall not be construed as authorising or encouraging any action which
would dismember or impair, totally or in part, the territorial integrity or political unity of
sovereign and independent states."87Vadertham has acted against the principles of International
Law since it has disturbed the territorial integrity of Kylosia. It has acted against the basic
85 judge koroma
86 United Nations, Official Records of the General Assembly, Twenty-fifth Session, resolution 2625
(XXV) of 24 October 1970
87 Vienna Declaration and Programme of action, 12 July 1993, DOC A/Conf 157/ 23.
para.2

purpose of the W.N. Charter which all the member nations are supposed to follow.According to
the finding made by the Supreme Court of Canada, which has already considered a matter similar
to the one before the Court, international law does not specifically grant component parts of
sovereign states the legal right to secede unilaterally from their parent state."88 Therefore, in the
present case, Vadertham has no right to secede unilaterally without the consent of Kylosia.
Vadertham has no right to impair totally or in part its territorial integrity or political unity without
its consent since it is against the principles of W.N. Charter.The principle that no territory can
secede from the state without its consent has retained its continued validity. 89 As a general
principle, the right to self determination will be exercised by peoples within the framework of the
existing states, consistently with the maintenance of the territorial integrity of those states. 90Thus,
the principle of territorial integrity has survived the post 1989 parade of declarations of
independence, and international law does not authorise the unilateral secession of the territory
from the state.Unilateral secession is the antithesis of territorial integrity. If territorial integrity of
states means anything then secession can only be allowed with the consent of the parent
state.[f]ew principles in present-day international law have been so firmly established as that of
territorial integrity which requires that the very territorial structure and configuration of a State
be respected. In addition to constituting one of the key elements in the concept of sovereign
equality, territorial integrity has been seen as essential in the context of the stability and
predictability of the international legal system as a whole. 91There is no rule or principle of
International Law requiring or permitting secession of a region or entity whose population has
been subjected to human rights violation.92 Vaderthams unilateral declaration of independence
88 Reference by the Governor in Council concerning Certain Questions relating to the Secession of
Quebec from Canada, 1998, 2 SCR, Vol. 2, p. 217, para. 111
89 J. Crawford, "The Creation of states in International Law", 2006, 415.
90 J. Crawford, State Practice and International Law in Relation to Secession 69
BYIL, 1998, p. 85.
91 Serbia CR 2009/24 hearing of 1 December 2009, paragraph 4, p. 63
92 Statehood, Recognition and the United Nations System: AUnilateral deeclaration of independence in
Kosovo, Alexander Olakhreshvalli.

violates the foundations of international law. It is a challenge to the authority of the United
Nations, and a challenge to international legal order based on the principles of sovereignty and
territorial integrity. The declaration represents an attempt annul kylosias sovereignty over its
province. Vadertham was "the historical cradle of kylosia and constitutes one of the essential
pillars of its identity. Also , Vadertham has Etermia , a territory with ancestral roots in Kylosia .
at one hand they say that people have right to self determination at the same time they are
declining the right of self determination of the etermian population. vadertham's declaration of
independence breaches an obligation to respect the territorial integrity of kylosia, the obligation
of peaceful settlement of disputes and principle of non-intervention. It has no legal basis in the
principle of self-determination.The United Nations have never recognised any case of a
unilateral independence declaration.93 The unilateral declaration of independence ignores not
only the authority of the UN Security Council, but also the principle of protecting the territorial
integrity of states. Integral parts of sovereign states, under international law, do not have a right
to unilateral secession while the principle of protection of territorial integrity is a cornerstone of
international legal order. Sovereign states have a right to prevent unilateral secessions and
protect their integrity. Vadertham is not a special case. Implementation of the international law
must be universal. The example which the agent is citing again and again of Kosovo was said to
be a special case and The declaration of independence of Kosovo cannot serve as a precedent
upon which entities can seek separation from their mother country, as it would cause instability
in the world.94 The future status of Kosovo must be the result of a political process, and
agreement between the two sides. Unilateral acts of one side cannot be considered an
"agreement". General international law prevents vadertham from declaring independence, and
reminds that the UN Security Council declared Northern Cyprus95 and Rhodesia's 96independence
93 "Trei dan rasprave o Kosovu" (in Serbian). RTS. 3 December 2009. Retrieved 3 December

2009.
94 "Kina za Srbiju, Hrvatska uz Kosovo" (in Serbian). RTS. 7 December 2009. Retrieved 7

December 2009.
95 Cyprus case
96 Rhodesia independence case

to be illegal, since unilateral secession is forbidden outside the colonial context. The right of
peoples to self-determination applies only to the colonies, and vadertham has never been a
colony.. Vadertham was not a legal vacuum. It was a part of Kylosia. 97 International law is not
created by non-State entities acting on their own. It is created with the assent of States. In this
regard, it must first be emphasized that it isa misconception to say, that internationallaw does not
authorize or prohibit the unilateral declaration of independence.That statement only makes sense
when made in the abstract aboutdeclarations of independence in general (see, e.g., the Advisory
Opinionof the Supreme Court of Canada98, reaching such a conclusion in the abstract with
respect to secession in international law not with regard to a specific unilateral declaration of
independence which took place in a specific factual and legal context against which its
accordance with international law can be judged.The Agents argument regarding good faith
should not be considered because no concept of "good faith" can make binding a policy
declaration or other pronouncement that is not binding because not conceived as binding by any
party concerned, to argue that "good faith" alone creates the obligation is to argue in support of
an obvious absurdity . Generally speaking, in this principle. it is particularly important to take
account of the context international community in its entirety.99 The same holds for the
declaration by the King ofJordan of 31 July 1988, waiving Jordans claims to the West Bank
territories, which was addressed simultaneously to the international community, to another State
(Israel) and to another entity the Palestine Liberation Organization (PLO). 100 Sine , Vaderthams
declaration was unilateral and it cannot be assumed to be made towardsthe international
community and it gives no legal obligation on Kylosia to accept it. It is well established in
international law that obligations cannot be imposed by a Stateupon another State without its
consent. For the law of treaties, this principle has been codified inarticle 34 of the 1969 Vienna
97 Fact sheet
98 Reference by theGovernor in Council concerning Certain Questions relating to the
Secession of Quebec from Canada, 1998, 2 SCR, Vol. 2, p. 217, para. 112),
99 Ibid., p. 269, paras. 50 and 51 and p. 474, paras. 52 and 53.

100

Convention.101 There is no reason why this principle should not also apply to unilateral
declarations; the consequence is that a State cannot impose obligations on other States to which
it has addressed a unilateral declaration unless the latter unequivocally accept these obligations
resulting from that declaration. The 1945 Truman Proclamation, by which the United States of
America aimed to impose obligations on other States or, at least, to limit their rights on the
American continental shelf, was not strictly speaking accepted by other States. All the same, as
the Court has stressed, this rgime [of the continental shelf] furnishes an example of a legal
theory derived from a particular source that has secured a general following. 102 In fact, the other
States responded to the Truman Proclamation with analogous claims and declarations 103 and,
shortly thereafter, the content of the Proclamation was taken up in article 2 of the 1958 Geneva
Convention. Keeping this in mind there is no obligation in International law which might force
Kylosia to accept Vaderthams unilateral declaration. In its Judgment in Armed Activities on the
Territory of the Congo case, the Court did not exclude the possibility that a unilateral declaration
by Rwanda104 could be invalid in the event that it was in conflict with a norm of jus cogens.105 A
unilateral declaration which is in conflict with a peremptory norm of general international law is
void. Since territorial integrity is a part of un charter 106 , Vaderthams attempt to break it leads to
invalidity of its unilateral declaration. Silence is not a legal act in the strict sense of the term, and
some say that it is not a unilateral legal act at all,107 In its Judgment in the case concerning Rights
of United States lVationals in Morocco, the Court held that the fact that lYIoroccohad acquiesced
101 Vienna Convention
102 North Sea Continental Shelf (Federal Republic of Germany v. Denmark; Federal Republic
of Germany v. Netherlands), I.C.J Reports 1969, p. 53, para. 100.
103 See the case of Mexico, A/CN.4/557, para. 132.

104 The declaration in this case was a reservation, a unilateral act which lies outside the
scope of the present Guiding Principles

105 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic
Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, para. 69.

106 Art , un charter

in the continued exercise of consular jurisdiction by the United States for many years after that
exercise could have been based on treaty rights, did not amount to recognition of the right of the
United States to do so, because, during the period in question, negotiations were proceeding
between the United States and France, concerned, amongst other matters, with the question of
the renunciation of capitulatory rights. In other

108

'lords, the Court acknowledged that absence of

protest in relation to a situation which it described as provisional did not affect the respective
rights of the parties since the question was kept open by the continuance of the negotiations .
Kylosia was not completely silent on the matter of Vadertham , it consistently involved itself
with the affairs of vadertham109 . This was also not a permanent silent but a temporary one and its
silence can in no way be taken as acceptance of declaration from Vadertham.

107 Rousseau, at 430.

108
109 Fact sheet