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columbia.jessup@gmail.com

Application for 2015-2016 Jessup International Moot Court Team

Thank you for your interest in joining Columbia Law School’s Jessup team. Enclosed you will find more information about the team, instructions on completing your writing submission, a compromis (or statement of facts), and materials for you to use in crafting your argument.

Please email columbia.jessup@gmail.com with any questions about these instructions, the application process, the time commitment, or anything else related to law school. We look forward to reading your submissions.

Good luck!

Henry Ross & Libby Marden Instructions:

1. Please review the attached materials and prepare a written submission of no more than four pages. Convert your written submission into a PDF document to ensure there are no accidental changes to your submission. In order to preserve the anonymity of the application process, we will be assigning each applicant a competition number upon receipt of your materials. You do not have a competition number yet, so please do not worry about including it with your materials.

2. Please prepare a one-page resume without your name or contact information. Convert your resume into a PDF.

3. Send an email with your name, class year, email, and phone number, along with your resume and written submission, to columbia.jessup@gmail.com with the subject heading “1L Application,” “2L Application,” “3L Application,” or “LLM Application,” as appropriate.

4. Remember, with the exception of this email, your name or other identifying information should not appear anywhere in your competition submission.

Your submissions are due Tuesday, September 22nd at 11:59 p.m. EST and should be emailed to columbia.jessup@gmail.com. The oral round of callbacks will be held on Saturday, September 26th and Sunday, September 27th.

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About the Columbia Law School Jessup Team

About Jessup

The competition consists of briefing and orally arguing a fictitious case before the International Court of Justice, the principal judicial organ of the United Nations. You can learn more about the competition at www.ilsa.org/jessup. This year’s “compromis,” or competition problem, concerns the legality of cyber-surveillance and cyber attacks, and treaty obligations in the face of changed circumstances. If you are interested in competing, we strongly encourage you to read the problem and see if the subjects engage and excite you.

About the Team

The team has enjoyed great success in the Jessup competition, winning national championships eight out of the last ten years, finishing second at the international rounds in 2010, 2011 and 2012, and ranked in the top 3 teams at the international rounds in 2013 and 2014. Team members have also received numerous individual accolades. Last year, all members of the team eligible to receive individual awards were recognized for outstanding oral presentations at competition.

This year, the team is seeking three new members. Joining the team is a two-year commitment. 1Ls who join the team are excused from the ordinary 1L spring moot court competition and will be placed in a specialized Legal Practice Workshop with a focus on the practice of international law. 2Ls may also receive academic credit and satisfy their minor writing requirement.

We have no class preferences in making our selections. We understand that 1Ls have a more limited legal education, and this will not be held against them in the application process. We are seeking interested and motivated new members who can write and speak well. No prior knowledge or study of international law is necessary.

Schedule

Once selected, the team will immediately begin researching. Each team member is assigned a portion of the overall problem and will be responsible for drafting that part of our final brief. Research will continue until Thanksgiving. No work is done for the entire month of December until after finals and the holidays. The briefs are due on January 13th, 2016, during the winter vacation period. If invited to join the team, members should be aware that work will be required during some of the winter vacation.

During the spring semester, the team will practice oral argument skills at regular meetings until the regional competition in New York in February. We anticipate honing our speaking skills by meeting with members of Columbia’s international law faculty and alumni of the Jessup team, giving members of the team an opportunity to develop relationships with professionals in their field of interest. All team members will participate in oral arguments at the regional competition. If the team is successful at the regional competition, we will advance to the international competition, held in Washington, D.C. from March 27th through April 2nd. If we participate in the international rounds, all team members will compete at the international level. Travel will be

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funded by Columbia Law School.

Jessup participation is a significant time commitment, but it is also incredibly rewarding. It will afford you a unique opportunity to engage with dynamic issues of public international law and public policy while honing your legal writing and oral argument skills.

Feel free to get in touch with Libby Marden (elizabeth.marden@gmail.com) or Henry Ross (hross2013@gmail.com) with additional questions regarding the experience. We truly enjoyed participating in this competition last year and would love to share that experience with you.

Instructions for Written Argument

Please write an argument that Reverentia’s support for East Agnostica’s referendum and subsequent secession from Agnostica either did or did not violate its obligations under international law.

The following information is adapted from the Compromis (problem) of the 2014-2015 Jessup competition. For the purposes of your argument, please regard the information as full and complete. Do not make assumptions about the facts; if something is not detailed in the Compromis, then there is no evidence that it happened. If you find any factual inconsistencies or omissions, the resolution of which is crucial to your argument, please email columbia.jessup@gmail.com for clarification.

You do not need to acknowledge strong arguments on the opposing side. Instead, advocate your side of the issue – the most convincing arguments, not necessarily the most balanced, will be most successful. If you wish, you may refer to materials from your legal writing course for more information on advocacy and persuasive writing. Keep in mind that, if invited back for the oral argument portion of the try-out, you will be asked to argue the opposite position from that which you chose to argue in the written portion.

Your written argument must be no more than four pages, double-spaced, in 12-point Times New Roman font, left-aligned, with 1 inch margins all around, and page numbers. Your name should not appear anywhere in the materials. Include only your argument, without other traditional brief sections (i.e., no ‘statement of fact,’ ‘questions presented,’ etc.)

Clarity of citation to materials in the packet is more important than any particular form. Cite the sources in conformity with the Table of Authorities, listed below, with an article or paragraph number, if provided. No outside research is permitted – do not use any materials other than those found in this packet to support your arguments. Some sources of law may have been changed for the purpose of this application. While you may use any sources within this packet, do not feel compelled to use everything. You are free to demonstrate your ability to distinguish between relevant and irrelevant information.

Special Instructions for 2L, 3L and LLM candidates: For the 2015-2016 Jessup Application, 2L and 3L candidates may submit the writing sample from an application to a journal at Columbia Law School in lieu of the Written Argument for the Jessup Application (or other legal writing sample if the candidate did not participate in journal selection). Note: we may not

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accept applications from anyone currently licensed to practice law. Candidates should please ensure that no identifying information appears anywhere in the writing sample.

TABLE OF CONTENTS

Authority Cite As Page Compromis Compromis 5 Pleadings Pleadings 8 ICJ Statutes Article 38(1) Article 38(1) 9 Articles on the Responsibility of States for Internationally Wrongful Acts

ARSIWA 10

UN Charter Article 2(4) Article 2(4) 11 2009 Report of the International Fact-Finding Mission on the Conflict in Georgia

Georgian Fact-Finding Mission

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“Threat of Armed Force and Contemporary International Law,” Marco Roscini

Roscini 13

Legality of the Threat or Use of Nuclear Weapons

Nuclear Weapons 15

Guyana v. Suriname Guyana v. Suriname 16 Nicaragua v. U.S. Nicaragua 18 The Corfu Channel Case, Opinion of Judge Ecer

Corfu Channel Opinion

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Declaration on Friendly Relations Friendly Relations 20 “The Principle of Non-Intervention,” Maziar Jamnejad and Michael Wood

Jamnejad and Wood 21

Montevideo Convention on the Rights and Duties of States

Montevideo 22

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Separate Opinion of Judge Elaraby

Wall Separate Opinion

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“Questioning the Peremptory Status of the Prohibition of the Use of Force,” James A. Green

Green 24

“Non-Intervention and Non-Interference in International Law,” Laura Fiske Durban

Durban 25

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COMPROMIS

The State of Reverentia v. The Federal Republic of Agnostica The Case Concerning the Secession and Annexation of East Agnostica

1. Located in the Southern Hemisphere, the Thanatosian Plains is a landlocked region which has since time immemorial been home to two ethnic groups, the Reverentians and the Agnosticans. In the eighteenth century, the Kingdom of Credera, a European power, conquered the Thanatosian Plains and incorporated the region into its global empire as two separately-administered colonies, Reverentia and Agnostica. 2. While Reverentia remained ethnically homogeneous throughout the colonial era, a large number of ethnic Reverentians migrated to Agnostica to take advantage of economic opportunities presented by commerce across the shared border. Nearly all of them settled in eastern Agnostica. According to a 1919 Crederan census, approximately 70 percent of the permanent population of Agnostica was ethnic Agnostican, while 30 percent was ethnic Reverentian (popularly known as “Agnorev”). 3. In 1925, Credera granted independence to all of its colonies worldwide. The Federal Republic of Agnostica (Applicant) and the State of Reverentia (Respondent) were established on 1 August 1925 according to the colonial boundaries established by Credera. Upon independence, Agnostica established two provinces: East and West Agnostica. 4. Within the territory of East Agnostica are the only areas in the world that contain deposits of Marthite, a naturally-occurring mineral salt which was known to possess mildly restorative properties. Marthite has always been a core ingredient in Reverentian traditional medicine but is virtually unknown outside the Thanatosian Plains. 5. On 14 April 1938, Agnostica and Reverentia concluded a bilateral treaty, “the Marthite Convention,” under which mining facilities in East Agnostica produced between 200 and 250 tonnes of Marthite per year, and the Reverentian Marthite Trust (RMT) sold the entire output to traditional medicine practitioners in Reverentia and East Agnostica. As the traditions that included the use of Marthite were limited to the region, there was virtually no demand for the mineral outside of Reverentia and East Agnostica at the time of the treaty’s formation. 6. In late 2011, scientists discovered that high doses of Marthite were over 90% effective in treating a broad range of previously untreatable infant and early-childhood autoimmune disorders, some of which afflicted tens of thousands of children worldwide. 7. Major international pharmaceutical companies immediately began contacting RMT seeking access to Marthite. Within weeks of the publication of the article, RMT shifted its focus to the international market, selling nearly all of the mined Marthite to pharmaceutical companies. The Reverentian press noted that this new arrangement was causing serious concerns among traditional users that shortages and price increases were inevitable. 8. On 1 February 2012, Agnostican Prime Minister Maxine Moritz attempted to renegotiate the Marthite Convention with Reverentian President Nuvallus. When Nuvallus declined, Moritz

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terminated the treaty. Nuvallus responded by ordering Reverentian engineers to leave the Marthite mining facilities and remove Reverentian-installed software. 9. The withdrawal of personnel and software crippled the Marthite operations. In response, on 1 October 2012, the Agnostican Parliament passed the Marthite Control Act (MCA), a law banning the sale or transfer of Marthite into Reverentia, as well as the unauthorized purchase, sale, or possession of Marthite within Agnostica. Many Agnorevs were arrested and sentenced under the law for practicing traditional medicine. 10. Through the remainder of 2012, demonstrators across East Agnostica protested the unavailability of Marthite for traditional medicines. Prime Minister Moritz mobilized military troops stationed in the province “to maintain order.” On 26 December 2012, police clashed with protesters in the streets of Thanatos. Sixty demonstrators were killed and several protesters and lightly-armed military personnel were seriously injured. 11. In the wake of the 26 December clashes, President Nuvallus expressed “deep concern for the safety of our Reverentian brethren abroad,” and offered “any assistance that Reverentia might provide to protect their lives and safety.” In particular, he contacted Tomás Bien, the Agnorev head of the East Agnostican provincial legislature and a member of the Agnostican federal Parliament, asking how Reverentia might be of assistance. Mr. Bien thanked President Nuvallus for his concern, but did not otherwise reply. 12. On 4 January 2013, Mr. Bien addressed the crowd at a rally in Thanatos, saying: “It is becoming clear that the aims of the federal government have diverged from those of its Agnorev citizens.” He concluded: “We must now be permitted to decide whether to continue this federal state.” 13. On 5 January 2013, Mr. Bien presented a resolution to the Agnostican Parliament proposing the dissolution of the nation. This resolution was defeated, with all 67 delegates from West Agnostica voting against it and 29 of the 33 delegates from East Agnostica voting in favour. 14. On 9 January 2013, President Nuvallus delivered a speech in the Reverentian capital:

“I commit myself today to the cause of our Reverentian brothers and sisters who live on the Agnostican side of our shared border. The Agnostican Parliament’s wrongful refusal to allow you to take possession of your future cannot defeat the inevitable progress of history. If you wish to be free, our dear compatriots, know that we will do everything in our power to ensure that you are, indeed, free.”

15. On 10 January 2013, the Reverentian Parliament adopted a resolution titled “On the Crisis in East Agnostica.” It read, in relevant part:

In the event that a popular referendum reflecting the will of our Reverentian brothers and sisters living in East Agnostica clearly demonstrates their desire to secede from Agnostica, the President is authorized, on behalf of the Government and people of Reverentia:

(1) to recognize such referendum as lawful and valid;

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(2) to promote the recognition and efficacy of such popular decision by any means at his disposal;

(3) to extend diplomatic recognition to an independent state in the territory of East Agnostica;

(4) to enter into negotiations with the responsible parties to ensure that, notwithstanding any other commitment, practitioners of traditional medicine in the state of East Agnostica have adequate supplies of Marthite available at reasonable prices; and

(5) to take all measures necessary to ensure the security and integrity of that state.

18. The resolution was promptly denounced by Prime Minister Moritz as “unlawful interference in Agnostica’s internal affairs and an act of aggression against our territorial integrity.” 19. The East Agnostican provincial parliament voted on 16 January 2013 to schedule a plebiscite “open to all Agnostican citizens resident in East Agnostica” on the question of secession. Prime Minister Moritz warned the parliamentarians that “the federal government will not stand idly by in the face of this threat to our national identity,” and ordered the National Police to prepare to block the referendum. 20. On 18 January 2013, President Nuvallus ordered several hundred soldiers to the border with East Agnostica, with specific orders not to leave Reverentian territory. He simultaneously issued a diplomatic note to Prime Minister Moritz, stating, “I want to clarify that our troops have been moved to the border to offer aid to any Agnorevs fleeing the violence in East Agnostica. We have no territorial ambitions. Reverentia is deeply concerned about the state of affairs in East Agnostica, and we are worried that violence will spill over into Reverentia.” 21. On 29 January 2013, the plebiscite was held, and 73 percent of voters cast their ballots in favour of secession. There were no reports of violence or of apparent interference with the conduct of the voting. 22. On 6 February 2013, the President of the Security Council expressed concern over what he termed the “question of the continued territorial integrity of Agnostica,” and the possibility that recent events might constitute “an unjustifiable and illegal interference in Agnostican domestic affairs.” The Security Council, however, chose to take no action. 23. President Nuvallus announced on 22 February 2013 that he and Mr. Bien had signed an Integration Agreement that would make East Agnostica a semi-autonomous province of Reverentia. Reverentian Army units were promptly moved into the region. The Agreement was accepted and ratified by the Reverentian Parliament on 24 February and by the East Agnostican provincial legislature on the following day. The resolutions adopted by the two bodies provided that RMT would immediately enter into negotiations to guarantee a sufficient supply of Marthite to traditional users in East Agnostica and in the rest of Reverentia.

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PLEADINGS

I. AGNOSTICA asks the Court to adjudge that Reverentia’s support for East Agnostica’s referendum and subsequent separation from Agnostica violated either the principle of non-intervention, Article 2(4) of the UN Charter, or both.

II. REVERENTIA asks the Court to adjudge that Reverentia’s support for East Agnostica’s referendum and subsequent separation from Agnostica did not violate the principle of non-intervention or Article 2(4) of the UN Charter.

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AUTHORITIES

Statute of the International Court of Justice Article 38(1)

The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most

highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

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“Articles on the Responsibilities of States for Internationally Wrongful Acts,” United Nations International Law Commission (Text approved by U.N. General Assembly, 2001)

PART I, CHAPTER I: GENERAL PRINCIPLES

Article 1: Responsibility of a State for its internationally wrongful acts Every internationally wrongful act of a State entails the international responsibility of that state. Article 2: Elements of an internationally wrongful act of a State There is an internationally wrongful act of a State when conduct consisting of an action or omission:

a. Is attributable to the state under international law; and b. Constitutes a breach of an international obligation of the state.

PART I, CHAPTER II: ATTRIBUTION OF CONDUCT TO A STATE

Article 8: Conduct directed or controlled by a State The conduct of a person or group of persons shall be considered an act of the State under international law if the person or group of persons is acting under the instructions of, or under the direction or control of, the State in carrying out the conduct.

PART I, CHAPTER III: BREACH OF AN INTERNATIONAL OBLIGATION Article 15: Breach consisting of a composite act The breach of an international obligation by a State through a series of actions or omissions defined in aggregate as wrongful occurs when the action or omission which, taken with other actions or omissions, is sufficient to constitute the wrongful act.

PART II, CHAPTER III: SERIOUS BREACHES OF OBLIGATIONS UNDER PEREMPTORY NORMS OF GENERAL INTERNATIONAL LAW

Article 40. Application of this chapter This chapter applies to the international responsibility which is entailed by a serious breach by a State of an obligation arising under a peremptory norm of general international law. 2. A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible State to fulfill the obligation. Article 41. Particular consequences of a serious breach of an obligation under this chapter. 2. No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation.

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United Nations Charter Article 2(4)

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.

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2009 Report of the International Fact-Finding Mission on the Conflict in Georgia

Unlike the use of force, the prohibition of the threat of force is expressly regulated only in one provision of the Charter of the UN: in Art. 2(4). On three occasions, the International Court of Justice held that a threat of force need not be explicit but could be implicit. In judging whether implicit behaviour compromised the UN Charter, the Court consistently paid particular attention to the context of a dispute. It asked whether the circumstances of the dispute were such as to convey the impression that military force would indeed be used. State practice since 1945 reinforces this interpretation. A threat may be conveyed implicitly, through demonstrations of force, where credibility for the use of force is established through the physical presence of military authority. According to State practice, however, not all militarised acts amount to a demonstration of force and thus to a violation of Art. 2(4) of the UN Charter. Many are routine missions devoid of any hostile intent and are meaningless in the absence of a sizeable dispute. But as soon as they are non-routine, suspiciously timed, scaled up, intensified, geographically proximate, staged in the exact mode of a potential military clash, and easily attributable to a foreign policy message, the hostile intent is considered present and the demonstration of force manifest. Official statements on the use of force, such as those often made to the media or through diplomatic channels, may also qualify as threats of force. The requirement is that there be some specificity in formulating demands and in clarifying what happens if these demands are not met.

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“Threats of Armed Force and Contemporary International Law,” Marco Roscini

A wrongful act is often preceded by some preliminary conduct that is not always unlawful. In most cases, the preliminary actions amount to a breach of international law only when they ‘predetermine the final decision to be taken.’ However, certain rules also specifically prohibit threats, planning, preparation, incitement or attempt, thus making such conduct unlawful in itself, even if the principal offence will not be committed. This is the case of Article 2(4) of the Charter of the United Nations, which expressly prohibits a state’s threat to use armed force against another state, regardless of whether or not the threatened use of force eventually materializes.

Threats of force must be distinguished from planning and preparation. While in the latter the decision to use force has already been taken, threats are not intended as preparatory acts in view of subsequently using force, but as a coercive means alternative to it. . . . Another difference is that the state threatening the use of force must make sure that the target state knows its intentions to allow the threat to produce its coercive effect, while the planning and preparation are often kept secret.

Hence, it is this article’s contention that a threat of force under Article 2(4) can be

defined as an explicit or implicit promise of a future and unlawful use of armed force against one or more states, the realization of which depends on the threatener’s will. Given the low threshold of Article 2(4) as far as threats of force are concerned, any declaration or conduct falling within this definition would be unlawful, whether or not it produces the intended result or is followed by the actual use of force.

The suggested definition requires some explanation. First of all, the realization of the threatened harm must depend on the threatener’s will, i.e., it can be caused or prevented by it. This is what distinguishes a threat from a (lawful) warning. For instance, state A has knowledge through its intelligence that state B is preparing an armed attack against state C and warns the latter about it. Such declaration would not amount to a threat by state A against state C, since the armed attack is being prepared by state B over which state A has no control. . . .

Finally, it is necessary that the threat reaches the target state. Threats must be somehow communicated in order to produce their effects, i.e., to intimidate and genuinely reduce ‘the range of choices otherwise available to states,’ Secret military exercises or manoeuvres might amount to the preparation of aggression but are not threats under the terms of Article 2(4) if they are unknown to the victim. It is not relevant how threats reach their target, as long as they are able to be perceived: they can consist of explicit declarations or result implicitly from certain actions. As far as the former are concerned, they might be contained not only in ad hoc statements but also in national legislation or policy instruments, providing that they are legally identifiable and sufficiently precise as to targets and content. As to ad hoc threatening declarations, the most evident example is of course an ultimatum, i.e., ‘a written communication by one State to another which ends amicable negotiations respecting a difference, and formulates, for the last time and categorically, the demands to be fulfilled if other measures are to be averted.’ However, there is no reason why threatening declarations should only be ‘blatant and direct’. . . .

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Oblique declarations such as ‘we are exploring a full range of options’, ‘we have not ruled out anything’, ‘we must keep our options open’, ‘we will use all tools at our disposal’, especially if this phraseology is repetitive and consistent, can well amount to a threatening strategy.

As to threats resulting implicitly from certain actions, ‘a demonstration of force for the purpose of exercising political pressure’ could well amount to a threat under the terms of Article 2(4), providing that such conduct is accompanied by a hostile intention: indeed, the mere fact than one power has more military strength than others and makes sure that the international community knows is not per se a violation of Article 2(4). The same conduct could thus be a threat in certain circumstances but not in others: military manoeuvres, the presence of naval forces off the cost of another state, or the acquisition of certain weapons could amount to the preparation of aggression (if they are a preparatory step in view of the crossing of the border to attack another state), or to a threat of force (if the only aim is to put abusive pressure on the victim state without a predetermined intention to use force) or be a perfectly lawful act (if the state in question has no hostile intention whatsoever). What distinguishes the three situations is the intention of the state taking that conduct: animus aggressionis, animus minandi, or no animus at all. . . . The factual circumstances of each case in the framework of the relations between the concerned states play a fundamental role in determining whether there is animus minandi and thus whether the conduct can be qualified as a threat of force.

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Legality of the Threat or Use of Nuclear Weapons, International Court of Justice (Advisory Opinion)

Whether a signalled intention to use force if certain events occur is or is not a “threat”

within Article 2, paragraph 4, of the Charter depends upon various factors. If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2, paragraph 4. Thus it would be illegal for a State to threaten force to secure territory from another State, or to cause it to follow or not follow certain political or economic paths. The notions of “threat” and “use” of force under Article 2, paragraph 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise be illegal. In short, if it is to be lawful, the declared readiness of a State to use force must be a use of force that is in conformity with the Charter.

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Guyana v. Suriname, Permanent Court of Arbitration

Mr. Edward Netterville, the Rig Supervisor on the C.E. Thornton, described the incident in these terms in his witness statement:

Shortly after midnight on 4 June 2000, while this coring process (drilling for core samples) was underway, gunboats from the Surinamese Navy arrived at our location. The gunboats established radio contact with the C.E. Thornton and its service vessels, and ordered us to “leave the area in 12 hours,” warning that if we did not comply “the consequences will be yours.” The Surinamese Navy repeated this order several times. I understood this to mean that if the C.E. Thornton and its support vessels did not leave the area within twelve hours, the gunboats would be unconstrained to use armed force against the rig and its service vessels.

Mr. Netterville made the following observations on this incident:

In my experience, Suriname’s threat to use force against the C.E. Thornton is unprecedented. I have been employed for over forty years in the marine and oil industry during which time I have served aboard oil rigs throughout the world. I have never experienced, nor heard of, any similar instance in which a rig has been evicted from its worksite by the threat of armed force. Nor, in discussions with others in the industry after June 2000, has anyone told me of a similar incident.

Mr. Graham Barber, who served as Reading & Bates Area Manager for the project and had overall responsibility for its rig and shore-based operations, gave similar testimony. He stated that:

After midnight on 3 June 2000, during the jacking-up process, two gunboats from the Surinamese Navy approached us and shined their search lights on the rig. A Surinamese naval officer informed us by radio that we “were in Surinamese waters” and that we had 12 hours to leave the area or “face the consequences.” He repeated this phrase, or variations of it, several times. ... Faced with these threats from the Surinamese Navy, in the early morning hours of 4 June 2003, I convened a meeting with other persons in authority aboard the C.E. Thornton. We decided that we had no alternative other than to evacuate the rig from the Eagle location.

Major J.P. Jones, Commander Staff Support of the LUMAR (the Suriname Air Force and Navy), recorded this exchange between himself and the drilling platform:

This is the Suriname navy. You are in Suriname waters without authority of the Suriname Government to conduct economic activities here. I order you to stop immediately with these activities and leave the Suriname waters. The answer to this from the platform was: “we are unaware of being in Suriname waters”. I persisted saying that they were in Suriname waters and that they had to leave these waters within 12 hours. And if they would not do so, the consequences would be theirs. They then asked where they should move to. I said that they should retreat to Guyanese waters. He reacted by saying that

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they needed time to start up their departure. I then allowed them 24 hours to leave the Suriname waters. We then hung around for some time and after about one hour we left for New Nickerie.

Major Jones added:

If the platform had not left our waters voluntarily, I would definitely not have used force. I had no instructions to that effect and anyhow I did not have the suitable weapons to do so. I even had no instructions to board the drilling platform and also I did not consider that.

The captains of the two Surinamese patrol boats, Mr. M. Galong and Mr. R.S. Bhola, both confirmed that the drilling platform was ordered to leave Suriname waters within 12 hours and if this order was not complied with, the consequences would be theirs. With respect to what the consequences would be, both Captain Galong and Captain Bhola noted that they had no instructions with regard to the use of force. Captain Bhola stated that:

In the periods May 1989-1990 and 1997 up to now I have performed at least 30 patrol missions off the coast of Suriname. These patrol missions also involved the sea area between 10° and 30° North which is disputed between Suriname and Guyana. The patrols had mainly to do with expelling fishermen without a licence from Suriname waters. This has always been achieved by issuing summons. In such cases the commander of the vessel is in command of the operation. My instructions never imply that I may use force And I have never used force. All things considered the course of the removal of the drilling platform, as far as I am concerned, does not differ essentially from the course taken during other patrols.

The testimony of those involved in the incident clearly reveals that the rig was ordered to leave the area and if this demand was not fulfilled, responsibility for unspecified consequences would

be theirs. There was no unanimity as to what these “consequences” might have been. The Tribunal is of the view that the order given by Major Jones to the rig constituted an explicit

threat that force might be used if the order was not complied with.

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Nicaragua v. U.S., International Court of Justice Facts: The United States provided military and financial support to the Contras during their violent rebellion in Nicaragua. The support included American participation in military maneuvers in El Salvador, near the Nicaraguan border; direct attacks within Nicaragua; the laying of mines in Nicaraguan territorial waters; arming and training of the Contras; and the provision of funds and military equipment to the Contras. Held: The United States’ arming and training of contras, laying of mines, and direct attacks constituted unlawful an threat or use of force and violated the principle of non-intervention. The Court was not satisfied that other forms of U.S. assistance amounted to a violation of international law. Excerpt: Notwithstanding the multiplicity of declarations by States accepting the principle of non-intervention, there remain two questions: first, what is the exact content of the principle so accepted, and secondly, is the practice sufficiently in conformity with it for this to be a rule of customary international law? As regards the first problem—that of the content of the principle of non-intervention—the Court will define only those aspects of the principle which appear to be relevant to the resolution of the dispute. In this respect it notes that, in view of the generally accepted formulations, the principle forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States. A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State. As noted above, General Assembly resolution 2625 (XXV) equates assistance of this kind with the use of force by the assisting State when the acts committed in another State "involve a threat or use of force". These forms of action are therefore wrongful in the light of both the principle of non-use of force, and that of non-intervention. . . .

The Court concludes that acts constituting a breach of the customary principle of non-intervention will also, if they directly or indirectly involve the use of force, constitute a breach of the principle of non-use of force in international relations.

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United Kingdom of Great Britain and Northern Ireland v. Albania (Corfu Channel Case)

Opinion of Judge Ecer, International Court of Justice

I consider therefore that in international law there is a presumption in favour of every State, corresponding very nearly to the presumption in favour of the innocence of every individual in municipal law. There is a presumptio juris that a State behaves in conformity with international law. Therefore, a State which alleges a violation of international law by another State must prove that this presumption is not applicable in some special case . . .

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Declaration on Friendly Relations, U.N. General Assembly Resolution 2625 (XXV)

The principle concerning the duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law. No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind. Also, no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State. The use of force to deprive peoples of their national identity constitutes a violation of their inalienable rights and of the principle of non-intervention. Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State.

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“The Principle of Non-Intervention,” Maziar Jamnejad and Michael Wood

Verzijl has written that ‘[t]he borderline between simple diplomatic pressure upon a foreign government and a forcible interference in its internal or external affairs is entirely fluid’. While it could be argued that much modern diplomacy (especially so-called ‘public diplomacy’) raises issues under the principle of non-intervention, states frequently issue statements criticizing conduct by other states, or commenting on foreign situations. States meet to discuss common problems and to agree on the conduct of international relations. States act so as to avoid the censure of other states, and the solutions obtained through these exchanges and discussions often have carrot and stick, or quid pro quo, elements. Such discussions are routine in international relations and are the first resort of states seeking to change the behaviour of other states. The relationship between diplomatic activity and intervention was one of the most controversial aspects of the negotiations leading to the Friendly Relations Declaration. Several Western states sought an amendment relating to ‘the generally recognized freedom of States to seek to influence the policies and actions of other States in accordance with international law and settled international practice’. The proposal was rejected by developing countries, who saw themselves as victims of current practices and did not wish to legitimize such treatment. The United Kingdom, however, made a statement to the effect that:

In considering the scope of ‘Intervention’, it should be recognized that in an interdependent world, it is inevitable and desirable that States will be concerned with and will seek to influence the actions and policies of other States, and that the objective of international law is not to prevent such activity but rather to ensure that it is compatible with the sovereign equality of States and self-determination of their peoples. The United Kingdom delegation wishes to state its understanding that the concept of intervention in the ‘external affairs’ of States was to be construed in the light of that commentary.

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Montevideo Convention on the Rights and Duties of States

ARTICLE 3 The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts. The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law. ARTICLE 4 States are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law. ARTICLE 7 The recognition of a state may be express or tacit. The latter results from any act which implies the intention of recognizing the new state. ARTICLE 8 No state has the right to intervene in the internal or external affairs of another. ARTICLE 9 The jurisdiction of states within the limits of national territory applies to all the inhabitants. Nationals and foreigners are under the same protection of the law and the national authorities and the foreigners may not claim rights other or more extensive than those of the nationals. ARTICLE 11 The contracting states definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by violations of peremptory norms of international law. The territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily.

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Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Wall Advisory Opinion)

Separate Opinion of Judge Elaraby, International Court of Justice

The prohibition of the use of force, as enshrined in Article 2, paragraph 4, of the Charter, is no doubt the most important principle that emerged in the twentieth century. It is universally recognized as a jus cogens principle, a peremptory norm from which no derogation is permitted. The Court recalls in paragraph 87, the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States (resolution 2625 (XXV)), which provides an agreed interpretation of Article 2 (4). The Declaration emphasized that 'No territorial acquisition resulting from the threat or use of force shall be recognized as legal'" (Advisory Opinion, para. 87). The general principle that an illegal act cannot produce legal rights–ex injuria jus non oritur—is well recognized in international law.

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“Questioning the Peremptory Status of the Prohibition of the Use of Force,” James A. Green

Though this is not the place to examine the threat of force in international law in any detail, it is relatively uncontroversial to say that states have not seen the prohibition of the threat of force in the same light as its weightier counterpart, the prohibition of the use of force. Crucially, in state practice, threats of force frequently occur without censure or even comment. In contrast to the legal prohibition of the use of force, which states inevitably reference and claim to adhere to even when breaching, states, for the most part, threaten to use force and are threatened with force without either party making any mention of the legal prohibition of such conduct in Article 2(4). As such, it would seem reasonable to hold that the prohibition is far from a fundamental one. There has been almost no customary international law development of the concept of the threat of force and, as such, it has little legal content beyond its cameo appearance in Article 2(4). It would therefore be extremely difficult to conclude that the prohibition of the threat of force is a peremptory norm, or, in other words, a rule of jus cogens.

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“Non-Intervention and Non-Interference in International Law,” Laura Fiske Duran “…The Principle of Non-Intervention, though frequently cited in international disputes, remains one of the more elusive norms in customary international law. States interfere in the domestic affairs of other states so frequently that one vaunted British international lawyer remarked: “the most surprising conclusion about the principle of non-intervention is the scholarly consensus that it exists at all.” Although a military intervention certainly violates the United Nations Charter, it can be difficult to discern the threshold over which non-military actions need pass before they constitute a violation of non-intervention.” “…States frequently provide economic support to political movements within other states. The beneficiaries of this support include groups who maintain the goal of a complete regime change, such as global support of internal democratic revolutions in various Central American nations in the 1980s. Furthermore, states frequently provide political and economic support to independence causes on foreign soil. 33 nations across the globe have allowed the Iberian Peninsular region of Catalonia to establish pseudo-embassies on their soil, most recently the State of Norway.” “…It is clear that some forms of interference must be permitted under international law. This has been acknowledged by international jurists such as Judges Ago and Schwebel in the Nicaragua decision of the International Court of Justice. The full Court failed to address or adopt Judges Ago and Schwebel’s language in its judgement, unfortunately bypassing an opportunity to clarify the principle of non-intervention.”