AC332A

2023 ASIA CUP INTERNATIONAL LAW MOOT COURT COMPETITIONALLEGED VIOLATIONS OF IMMUNITIES FROM JURISDICTION
AND MEASURES OF CONSTRAINT

FEDERAL REPUBLIC OF AVALONIA(APPLICANT)v.
KINGDOM OF RIVIERA(RESPONDENT)

IN THE INTERNATIONAL COURT OF JUSTICE
AT THE PEACE PALACETHE HAGUE, THE NETHERLANDSMEMORIAL OF APPLICANTTABLE OF CONTENTSTABLE OF CONTENTS ...........................................................................................................ii
PLEADINGS ............................................................................................................................. 1
I. The Court has jurisdiction to entertain the dispute brought to it by Avalonia in its entirety
consisting of all facts and events as described in the Statement of Agreed Facts. ................ 1
A. The Court has jurisdiction over all the facts under the Pact. ........................................ 1
B. The Court has jurisdiction ratione temporis to entertain Avalonia’s claims. ................ 1
i. Avalonia firstly submits under this prong that the Court’s mandate of its 2022
judgment is applicable. .................................................................................................. 1
a. Whether the impugned facts and events ‘arises directly out of the question whichis the subject-matter of the application’ or whether they would ‘transform the natureof the dispute.’ ........................................................................................................... 1
b. The ‘continuity’ and ‘connexity’ tests. ................................................................... 2
ii. Arguendo, Avalonia submits that the focus needs to be given to the title of jurisdiction.
........................................................................................................................................ 3
II. Riviera has breached, and continues to breach, its obligations to respect Avalonia’s
jurisdictional immunities under customary international law by allowing civil claims
concerning the Sainte Bérénice Massacre to be brought against Avalonia before its domestic
Courts. .................................................................................................................................... 3
A. Avalonia firstly submits that the issue is admissible. .................................................... 4
B. Avalonia secondly submits that Riviera has violated Avalonia’s jurisdictional immunity.
............................................................................................................................................ 4
i. The territorial tort exception does not apply. .............................................................. 4
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ii. There is no exception for ‘jus cogens’ violation. ....................................................... 5iii. There is no exception for the right to get an effective remedy. ................................ 6
C. Riviera’s acts do not amount to lawful countermeasures. ............................................. 6
III. Counterclaims raised by Riviera as its submission (d) are inadmissible. ........................ 7
A. The counterclaim has no direct connection with the subject matter of the claim of theprincipal claim. .................................................................................................................. 7
i. There is no factual connection. ................................................................................... 7
a. The facts of the counterclaim and the principal claim arise out of different
geographic locations and relate to different time periods. ......................................... 8b. The facts relied upon by each party are of different nature, in that they allege
different types of conduct. ......................................................................................... 8
ii. There is no legal connection. ..................................................................................... 8
a. The legal principles relied upon by the Parties are different, and they are notpursuing the same legal aim in their respective claims.............................................. 8
B. Even if the counterclaims are found to be directly connected with the principal claim,
they are not within the jurisdiction of the Court. ............................................................... 9i. The Court does not have jurisdiction as the Respondent could not establish that thematters presented in the counterclaim could not be settled by negotiations. ................. 9
IV. Avalonia acts in conformity with its international obligations, inter alia, to respect
Riviera’s immunity from measures of constraint by allowing the issuance of the discovery
order dated 1 April 2022 and by maintaining the prescribed legal consequence thereof. ..... 9
A. Avalonia did not violate Riviera’s immunity from enforcement by the motion for
discovery. ......................................................................................................................... 10
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i. Issuing government bonds by Riviera amounts to acta jure gestionis. ..................... 10
ii. Riviera’s arbitration agreement amounts to a waiver of immunity.......................... 11
B. In any event, the motion for discovery was a valid countermeasure in response to theacts of the Rivieran Courts. .............................................................................................. 11
C. In any event, Riviera cannot claim immunity from enforcement due to its own
inconsistent behavior. ....................................................................................................... 12
SUBMISSIONS ....................................................................................................................... 13

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PLEADINGS
I. The Court has jurisdiction to entertain the dispute brought to it by Avalonia in its
entirety consisting of all facts and events as described in the Statement of Agreed Facts.
Avalonia has two main submissions regarding this- A. The Court has jurisdiction over all of
the facts under the Pact of Bogota (Pact), 1 and B. The Court has jurisdiction ratione temporisover the impugned facts.
A. The Court has jurisdiction over all the facts under the Pact.
Applicant submits that for there to be jurisdiction under Article XXXI of the Pact, there must
be a dispute when the application is filed, 2 which existed in the present case regarding thereparation. 3 Moreover, the Pact will cease to be in force for Riviera after one year regardlessof the language of the notice of the denunciation. 4 Furthermore, it is submitted by Avalonia thatany subsequent lapse of the jurisdiction after the filing of the application is irrelevant. 5
B. The Court has jurisdiction ratione temporis to entertain Avalonia’s claims.
i. Avalonia firstly submits under this prong that the Court’s mandate of its 2022
judgment is applicable.
The International Court of Justice (ICJ) in 2022 concluded that impugned facts would fall under
the jurisdiction ratione temporis in a similar case. 6 The Court essentially used two testsa. Whether the impugned facts and events ‘arises directly out of the question
1

American Treaty on Pacific Settlement (adopted 30 April 1948, entered into force 6 May 1949)
30 UNTS 55 (Pact of Bogota).
2
Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaraguav Colombia) (Preliminary Objections) [2016] ICJ Rep 3, para 50; Questions of Interpretation
and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie(Libyan Arab Jamahiriya v United Kingdom) (Preliminary Objections) [1998] ICJ Rep 9, paras
43–45.
3
Statement of Agreed Facts (SAF), para 4,7.
4
Pact of Bogota (n 1), art LXI; Nicaragua v Colombia (Preliminary Objections) (n 2), para 48;
SAF, para 33.
5
Application of the Convention on the Prevention and Punishment of the Crime of Genocide(Croatia v Serbia) (Preliminary Objections) [2008] ICJ Rep 412, para 95; Military andParamilitary Activities in and against Nicaragua (Nicaragua v United States of America)(Merits) [1986] ICJ Rep 28, para 36; Nottebohm case (Liechtenstein v Guatemala) (Preliminary
Objection) [1953] ICJ Rep 111, para 123; Samuel A Bleicher, ‘ICJ Jurisdiction: Some New
Considerations and a Proposed American Declaration’ (1967) 6 Colum J Transnat'l L 61.
6
Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaraguav Colombia) (Judgment) [2022] ICJ, para 261.
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which is the subject-matter of the application’ or whether they would‘transform the nature of the dispute.’7
In the present case, it is our submission that the impugned facts relating to the proceedings
resuming against Avalonia clearly arise out of the subject matter of the application regarding
the alleged violations of jurisdictional immunities of Avalonia by Riviera. 8 Moreover, whether
the denouncing state is trying to evade the Court’s jurisdiction is another importantconsideration while making this decision. 9 In the present case, Avalonia submits that Rivieradenounced the Pact right after Avalonia’s warning of bringing the suit before the ICJ. 10
b. The ‘continuity’ and ‘connexity’ tests. 11
Avalonia submits that the impugned facts were just a ‘continuation’ of the violation of
Avalonia’s jurisdictional immunity.12 But even if it is assumed that the wrongful act in this caseoccurred after the lapse of the title of jurisdiction and not before, it is our submission under the‘composite act’ approach that both previous and impugned facts will fall under the jurisdictionof the Court since they constitute a wrongful act in aggregate. 13
7

Fisheries Jurisdiction (Federal Republic of Germany v Iceland) (Merits) [1974] ICJ Rep 175,
para 72; LaGrand (Germany v United States of America) (Merits) [2001] ICJ Rep 466, para 45;
Case Concerning Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary
Objections) [1992] ICJ Rep 240, paras 67, 69–70; Case Concerning the Arrest Warrant of 11
April 2000 (Democratic Republic of the Congo v Belgium) (Jurisdiction and Admissibility)[2002] ICJ Rep 3, para 36.
8
SAF, para 33–36.
9
Ricardo Abello-Galvis and Walter Arevalo-Ramirez, ‘Alleged Violations of Sovereign Rights
and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia, 2022): Commentary on theCase and the Judgment on the Merits by the International Court of Justice’(2023) 10 The
Journal of Territorial and Maritime Studies, p 7.
10
SAF, para 18,19.
11
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) (Judgment)[2008] ICJ Rep 177, para 56, 88; Nicaragua v Colombia (Judgment) (n 6), para 44; Daniel
Muller and Affef Ben Mansour, ‘Procedural Developments at the International Court of Justice’(2009) 8 Law & Prac Int'l Cts & Tribunals 459; Croatia v Serbia (Preliminary Objections) (n5) paras 79–80; Application of the Convention on the Prevention and Punishment of the Crimeof Genocide (Bosnia and Herzegovina v Yugoslavia) (Preliminary Objections)[1996] ICJ Rep
595, para 26.
12
SAF, paras 35–36.
13
ILC, Draft articles on Responsibility of States for Internationally Wrongful Acts, withcommentaries (DASR) [2001] UN Doc A/56/10, art 15, para 8,9; Nicaragua v Colombia(Judgment) (n 6) see Dissenting Opinion of Judge Nolte, para 14 and Dissenting Opinion ofJudge Abraham, para 10; Pranav Ganesan and Laia Roxane Guardiola, ‘The ICJ judgment on
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ii. Arguendo, Avalonia submits that the focus needs to be given to the title ofjurisdiction.
Since, in the present case, the only basis of jurisdiction was claimed under Article XXXI of thePact, Avalonia submits that the clause must be analyzed properly. 14 Although VCLT has no
retroactive effect, 15 articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT)
will apply 16 as they reflect Customary International Law (CIL). 17 Firstly, Applicant submits
that a good-faith interpretation of the clause considering its context, objects, and text suggests
a broad approach. 18 The object of the Pact is to reinforce the states’ mutual commitments
concerning judicial settlements. 19 As for text, Articles XXXI and LVI jointly suggest that theapplication can be filed at any time within one year of denunciation. 20 Avalonia respectfully
submits that a different conclusion cannot be reached, considering that claims arising from facts
that occurs before the Pact comes into force for any party can be brought as well. 21 Even thetravaux preparatoires of the Pact suggests a broad scope of jurisdiction. 22
II. Riviera has breached, and continues to breach, its obligations to respect Avalonia’s
jurisdictional immunities under customary international law by allowing civil claims
concerning the Sainte Bérénice Massacre to be brought against Avalonia before its
Nicaragua v Colombia (2022): applying an established jurisdictional test or a problematic
invention?’ (2023) Journal of International Dispute Settlement, p 13.
14
SAF, para 33; Nicaragua v Colombia (Judgment) (n 6) see Dissenting Opinion of Judge Nolt,
para 8, Separate Opinion of Judge Yusuf, para 6, Dissenting Opinion of Judge Abraham, para
5; and Declaration of Judge Bennouna, para 3; Fisheries Jurisdiction (n 7) para 72.
15
ibid art 4.
16
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27
January 1980) 115 UNTS 331 (VCLT), art 31, 32.
17
Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal) (Judgment) [1991] ICJ Rep 53,
para 48.
18
Nicaragua v Colombia (Judgment) (n 6) (Separate Opinion of Judge Tomka), para 14.
19
Border and Transborder Armed Actions (Nicaragua v Honduras) (Jurisdiction and
Admissibility) [1988] ICJ Rep 69, para 46.
20
Nicaragua v Colombia (Judgment) (n 6) (Separate Opinion of Judge Tomka), para 10, 12.
21
Obligation to Negotiate Access to the Pacific Ocean (Bolivia v Chile) (Preliminary Objection)[2015] ICJ Rep 592, para 21, as well as the Judgment on the Merits in the same case [2018]
ICJ Rep 507, paras 19–83.
22Ninth International Conference of American States held in Bogota (30 March–2 May, 1948),
Novena Conferencia Internacional Americana, Actas y Documentos, Vol IV, pp 161–164<https://history.state.gov/historicaldocuments/frus1948v09/d44> accessed on 27 June 2023.
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domestic Courts.
Avalonia substantiates this issue in 3 parts- A. The issue is admissible, B. Riviera’s act was a
violation of Avalonia’s jurisdictional immunity, and C. Riviera’s act do not amount to lawful
counter-measures.
A. Avalonia firstly submits that the issue is admissible.
The Court will adjudge if, when filing the application, the parties believe that the disputesettlement is not possible through usual diplomatic negotiations. 23 Presently, it is our humble
submission that the disagreement between the parties make it evident that the parties were ofthis opinion.24
B. Avalonia secondly submits that Riviera has violated Avalonia’s jurisdictional
immunity.
States have immunity from the domestic jurisdiction of all states for all their sovereign acts. 25
The forum Court needs to grant this immunity even when giving effect to a foreign judgment. 26
Moreover, Avalonia submits that to be a ‘Persistent Objector,’ a state must express its objection
consistently from the beginning, which was not present in this case. 27 Lastly, Applicant submits
that the following exceptions are not applicablei. The territorial tort exception does not apply.
ICJ found in 2012 that this exception does not extend to acts of the armed force of another state
during an armed conflict in the territory of the forum state, similar to the facts of the present
case. 28 The Court considered the United Nations (UN) and European convention, 29 national

23

Pact of Bogota (n 1), art 2; Nicaragua v Honduras (Jurisdiction and Admissibility) (n 19)[1988] ICJ Rep 69, para 62.
24
SAF, para 10,12,14,18,30.
25
Hoffmann v Dralle [1950] 1 Ob 171/50; Hazel Fox and Philippa Webb, The Law of State
Immunity (3rd edn, OUP 2013), p 399–411; ILC, ‘Yearbook of the International Law
Commission’ (1980) Vol II, p 147, para 26; Jurisdictional Immunities of the State (Germany v
Italy) (Judgment) [2012] ICJ Rep 99, para 57.
26
Germany v Italy (Judgment) (n 25), para 127, 131.
27
North Sea Continental Shelf cases (Judgment) [1969] ICJ Rep 3; MN Shaw, Internationallaw (8th edn, CUP 2017), p 68; SAF, para 30.
28
ibid para 78; SAF, para 3.
29
European Convention on State Immunity (adopted May 16 1972) 1495 UNTS 182, art 31
and the travaux préparatoires to art 12 of the United Nations Convention on Jurisdictional
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legislations, 30 and national courts’ decisions 31 but did not find enough state practice or opinio
juris to create an exception to the rule. Riviera might argue that a custom has developed eversince but it is Avalonia’s humble submission that instant customs need even clearer proof ofstate practice and opinio juris 32 and the state practice after 2012 further supports the Court’sview. 33
ii. There is no exception for ‘jus cogens’ violation.
Avalonia firstly submits that, peremptory norms, which is a substantive matter, cannot bederogated by jurisdictional immunity, which is a procedural matter. 34 Secondly, this Court, after
taking into account state legislations,35 and national Court decisions, 36 did not find adequate
state practice in this regard in its 2012 judgment. 37 Lastly, it is our humble submission thatrecent development also supports this view. 38

Immunities of States and their Property (adopted 2 December 2004) (UN Convention on State
Immunity) UN Doc A/RES/59/38.
30
Germany v Italy (Judgment) (n 25), para 71. See State Practice of the United Kingdom,Singapore, Canada, Australia, Israel, South Africa, Argentina, Japan, and the United States.
31
Germany v Italy (Judgment) (n 25), para 72,77. See State Practice of France, Slovenia,
Poland, Belgium, Serbia and Brazil.
32
Martin Dixon, International Law (7th edn, OUP 2013), p 36.
33
Korean comfort women v Japan [2021] 2016 Ga Hab 580239; Shin Ji-hye, ‘Seoul Court
Dismisses Lawsuit on Japan’s Wartime Forced Labor’, The Korea Herald (7 June 2021)
available at <http://www.koreaherald.com/view.php?ud=20210607000944> accessed on 22
June 2023; Case No 943/1741/19 (Judgment of the Supreme Court, 22 October 2021); Case
No 712/10119/20-ц (Judgment of the Supreme Court, 22 September 2021); Decree-Law No
36/2022 of 30 April 2022, art 43.
34
Al‑Adsani v United Kingdom (2001) application No 35763/97 and Kalogeropoulou and ors
v Greece and Germany; Stefan Talmon, ‘Jus Cogens after Germany v Italy: Substantive andProcedural Rules Distinguished’ (2012) 25 Leiden Journal of International Law 979, p 986.
35
General exceptions to the jurisdictional immunity of a foreign state (2023) 28 USC 1605A.
36
UK Jones v Saudi Arabia [2007] 129 ILR 629; Canada-Bouzari v Islamic Republic of Iran[2004] 243 Dominion Law Reports (DLR), 4th Series, p 406; Slovenia- Case No Up-13/99.
37
Germany v Italy (Judgment) (n 25), para 97.
38
Letter from Jeroen Re Court, Member of Dutch House of Representatives to Trent Franks
and Steven Cohen, Chairman and Ranking Minority Member of the Subcomm on theConstitution and Civil Justice Committee on the Judiciary (July 12, 2016)<https://www.almonitor.com/pulse/files/live/sites/almonitor/files/documents/2016/JASTA_M
otie%20Re Court_Unofficial_English_Translation.pdf> accessed on 25 June, 2023; Official at
Ministry of Foreign Affairs: JASTA Great Concern to Community of Nations Objecting to
Erosion of Principle of Sovereign Immunity, Saudi Press Agency (Sept 29, 2016)<http://www.spa.gov.sa/viewstory.php?lang=en&newsid=1543953> accessed 25 June, 2023.
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iii. There is no exception for the right to get an effective remedy.
Avalonia humbly submits that this right is inapplicable in the present case and does not have
the CIL status. 39 Arguendo; this right has to be interpreted harmoniously with other principles
of international law. 40 Further, this defense is not applicable as in the present case, all avenuesof seeking remedy were not exhausted as no civil suit was filed in Avalonia regarding this. 41 In
any event, it is Applicant’s submission that the peace treaty finally and conclusively closed all
scopes for bringing subsequent suits, 42 and any further solution lies in diplomacy. 43
C. Riviera’s acts do not amount to lawful countermeasures.
Countermeasures can only preclude the wrongfulness of a state if it is given by way of
executive orders, and not solely by judicial decisions. 44 Moreover, a countermeasure needs tobe proportional 45 i.e., there can be no better alternative, 46 which was absent in the present caseas Riviera could have continued diplomatic talks or even filed suit before Avalonia’s domestic
Courts first. 47 Lastly, Avalonia respectfully submits that the procedural requirement of giving

39

SAF, para 37; UNHRC, General Comment no 31, The nature of the general legal obligation
imposed on States Parties to the Covenant (2004).
40
Case of Jones and others v UK [2014] appl nos 34356/06 and 40528/06; Anne Peters, ‘Let
Not Triepel Triumph–How to Make the Best Out of Sentenza No 238 of the Italian
Constitutional Court fora Global Legal Order’ (judgments in cases Ashingdane v United
Kingdom [1985]; Waite and Kennedy v Germany [1999]; TP and KM v United Kingdom [2001];
Z and ors v United Kingdom [2001]; Cordova v Italy [2003]; Ernst v Belgium [2003].
41
Jurisdictional Immunities of the State (Germany v Italy) (Counter‑Memorial of Italy) [2009],
para 4.100; SAF, para 11–19.
42
SAF, para 4.
43
Germany v Italy (Judgment) (n 25), para 104; Korean comfort women v Japan (n 32); Shin
Ji-hye (n 32).
44
Daniel Franchini, ‘State Immunity as a Tool of Foreign Policy: The Unanswered Question’(2019) Virginia Journal of International Law, p 38; A Atteritano, ‘Immunity of States and Their
Organs: The Contribution of Italian Jurisprudence over the Past Ten Years’ (2009) 19 ItalianYearbook of International Law, p 33, 36.
45
Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep 7, para 85;
DASR (n 13), art 41, 45, 48(2)(b); KCCR [2011] 2006 HunMa788/Unconstitutional; Germany
v Italy (Judgment) (n 25) (Dissenting Opinion of Judge Trindade), para 71.
46
Amerada Hess Shipping Corp v Argentine Republic [1987] 830 F 2d 421.
47
Abelesz v Magyar Nemzeti Bank [2012] 692 F 3d 661; Cassirer v Kingdom of Spain [2010]
461 F Supp 2d 1157; Agudas Chasidei Chabad of US v Russian Fed’n [2008] 528 F 3d 934;
Princz [1992] 813 F Supp 22.
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sufficient notice to the other state was also not met. 48
III. Counterclaims raised by Riviera as its submission (d) are inadmissible.
The Applicant submits that the admissibility of a counterclaim includes both the jurisdictional
requirement and the direct connection requirement” 49 as required by Rule 80 paragraph 1 of
the Rules of the Court. In examining those requirements, the Court is not bound to follow thesequence set out in that Article 50 i.e., the Court may first consider the requirement of directconnection. 51
A. The counterclaim has no direct connection with the subject matter of the claim of
the principal claim.
The Court, in its discretion, shall assess whether there is a sufficient connection between the
counterclaim and the principal claim, and the degree of connection between the claims must be
assessed both in fact and in law. 52
i. There is no factual connection.
Regarding the connection in fact, the Court has assessed whether the facts relied upon by eachparty relate to the same factual complex, including the same geographical area or the same time
period 53 and whether the facts relied upon by the parties are of the same nature, i.e., they allege

48

Maurice Kamto, ‘The Time Factor in the Application of Countermeasures’, in The Law Of
International Responsibility, p 1170; Gabčíkovo-Nagymaros Project (Judgment) (n 45), para
84; DASR (n 13), art 52 (1).
49
Jurisdictional Immunities of the State (Germany v Italy) (Counter-Claims: Order) [2010] ICJ
Rep 310, para 14; Certain Activities Carried Out by Nicaragua in the Border Area (Costa Ricav Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaraguav Costa Rica) (Counter-Claims: Order) [2013] ICJ Rep 200, para 20;
Dispute over the Status and Use of The Waters of the Silala (Chile v Bolivia) (Judgment) [2022]
ICJ, para 131.
50
Nicaragua v Costa Rica (Counter-Claims: Order) (n 49), para 27.
51
Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea(Nicaragua v Colombia) (Counter-Claims: Order) [2017] ICJ Rep 289, para 21.
52
Oil Platforms (Islamic Republic of Iran v United States of America) (Counter-Claims: Order)[1998] ICJ Rep 190, para 37; Chile v Bolivia (Judgment) (n 49) para 135.
53
Nicaragua v Colombia (Counter-Claims: Order) (n 51), para 25. See also Nicaragua v Costa
Rica (Counter- Claims: Order) (n 49), para 34; Croatia v Serbia (Preliminary Objections) (n5), para 34; Islamic Republic of Iran v United States of America (Counter-Claims: Order) (n52), para 38.
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similar types of conduct. 54
a. The facts of the counterclaim and the principal claim arise out of different
geographic locations and relate to different time periods.
The Applicant submits that the facts relied on by the Applicant in support of their claim havetaken place in Riviera between 2017 and 2021, 55 whereas the facts relied on by the Respondents
in support of the counterclaim have taken place in Avalonia in 2022. 56 Therefore, there exists
no temporal or geographic connection between the facts relied on by the respective parties.
b. The facts relied upon by each party are of different nature, in that they allege
different types of conduct.
The facts underpinning Riviera’s counterclaims are of a different nature as those underpinning
Avalonia’s principal claims in so far as they allege to impugn different types of conduct of thedomestic Courts of the Applicant 57 and the Respondent respectively. 58
ii. There is no legal connection.
Regarding the connection in law, the Court has assessed whether there is a direct connection
between the counterclaim and the principal claim in terms of the legal principles or instruments
relied upon and whether the parties were pursuing the same legal aim by their respective
claims. 59
a. The legal principles relied upon by the Parties are different, and they are notpursuing the same legal aim in their respective claims.
The rules of CIL governing immunity from measures of constraints and those governing

54

Nicaragua v Colombia (Counter-Claims: Order) (n 51), para 25. See also Nicaragua v Costa
Rica (Counter- Claims: Order) (n 49), para 33; Armed Activities on the Territory of the Congo(Democratic Republic of Congo v Uganda) (Counter-Claims: Order) [2001] ICJ Rep 660, para
38.
55
SAF, paras 9,11,13,14–17.
56
ibid para 27.
57
ibid.
58
ibid paras 14–17.
59
Nicaragua v Colombia (Counter-Claims: Order) (n 51), para 25. See also Nicaragua v Costa
Rica (Counter- Claims: Order) (n 49), para 35; Bosnia and Herzegovina v Yugoslavia(Preliminary Objections) (n 11), para 35; Islamic Republic of Iran v United States of America(Counter-Claims: Order) (n 52), para 38; Land and Maritime Boundary between Cameroon
and Nigeria (Cameroon v Nigeria) (Counter-Claims: Order) [1999] ICJ Rep 983; Democratic
Republic of Congo v Uganda (Counter-Claims: Order) (n 54), paras 38 and 40.
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jurisdictional immunity are distinct and must be applied independently. 60 In its counterclaims,
Riviera invokes law regarding immunity from measures of constraints, 61 whereas, in its
principal claims, Avalonia refers to CIL relating to the jurisdictional immunity of a State. 62
Therefore the legal principles relied upon by the parties are different, and they are also not
pursuing the same legal aim in their respective claims.
B. Even if the counterclaims are found to be directly connected with the principal
claim, they are not within the jurisdiction of the Court.
The requirements of admissibility of counterclaim are cumulative, 63 and if either of the two
requirements is not satisfied, the Court should not entertain the counterclaim. 64 However, even
if the counterclaims are found to be directly connected with the principal claim, they are notwithin the jurisdiction of the Court.
i. The Court does not have jurisdiction as the Respondent could not establish that thematters presented in the counterclaim could not be settled by negotiations.
The respondent was unable to provide evidence showing that neither of the Parties could
plausibly maintain that the dispute between them could be settled by direct negotiations throughthe usual diplomatic channels. 65 The fact that the Avalonian Courts took no further action inthis regard after the sixty days grace period expired 66 indicates that the matter could have been
settled through negotiations. Therefore, the counterclaims are inadmissible for want ofjurisdiction and direct connection with the principal claim.
IV. Avalonia acts in conformity with its international obligations, inter alia, to respect
Riviera’s immunity from measures of constraint by allowing the issuance of the discovery
order dated 1 April 2022 and by maintaining the prescribed legal consequence thereof.

60

Germany v Italy (Judgment) (n 25), paras 113, 114.
SAF, para 27.
62
ibid para 18.
63
Nicaragua v Colombia (Counter-Claims: Order) (n 51), para 20.
64
ibid.
65
Nicaragua v Colombia (Counter-Claims: Order) (n 51), para 74; Nicaragua v Colombia(Preliminary Objections) (n 2), para 95; Islamic Republic of Iran v United States of America(Counter-Claims: Order) (n 52), para 33.
66
SAF, para 29.
61

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Riviera’s status as a state has no bearing on its obligations as a contractual entity, i.e., under lex
contractus 67 and since immunity from enforcement is no longer absolute, according to therestrictive immunity approach enforcement measures can be taken against foreign property. 68
A. Avalonia did not violate Riviera’s immunity from enforcement by the motion for
discovery.
The presumption of immunity is rebuttable in two cases: [i] the act involved amounts to acta
jure gestionis 69 or [ii] the immunity is waived by the state. 70
i. Issuing government bonds by Riviera amounts to acta jure gestionis.
The Applicant submits that the acts of a state done in the course of commercial activities are
not immune from measures of constraints. 71 In determining whether a transaction iscommercial, 72 reference should be made primarily to its nature and not its purpose. 73 Issuanceof government bonds, 74 acting as guarantor of bonds, 75 and the unilateral rescheduling of
payment of these bonds have been held to constitute commercial activity. 76 Issuance of67

The Basic Law of the Hong Kong Special Administrative Region of the People's Republicof China [1990] 29 LLM 1511, art 153; WTO Press Release, ‘Trade Policy Review: Macau,
China’ (July 2001) WT/TPR/S/82, 12, 18; IMF Press Release, ‘IMF Offers Membership to
Republic of Kosovo’ (May 8, 2009) Press No 09/158; Tai-Heng Cheng, ‘Why New States
Accept Old Obligations’ (2011) U Ill L Rev 1.
68Hazel Fox, The Law of State Immunity (OUP, 2nd edn 2008) p 464–473; Gerhard Hafner,State Practice Regarding State Immunities (M Nijhoff Publishers, 2006) p 18, 59–68; Reportof Special Rapporteur, Seventh Report on Jurisdictional Immunities of States and their Property(1985) UN Doc A/CN4/388 and Corr 1 (E only) & Corr 2 (F only) p 42–44.
69
Weston Compagnie de Finance et D'Investissement (SA v Ecuador) (1993) 823 F Supp 1106;
Alcom Ltd v Republic of Colombia [1984] 127 ILR 170; Leasing West v Democratic Republicof Algeria [1986] 116 ILR 526; Leica AG v Central Bank of Iraq and State of Iraq [2001](Brussels Court of Appeal) JT 6.
70
United Nations Convention on Jurisdictional Immunities of States and Their Property(adopted 2 December 2004) (UN Convention on State Immunity) UN Doc A/RES/59/38, arts
18,19.
71
Alcom v Republic of Colombia (n 69), pp 180, 181.
72
UN Convention on State Immunity (n 70), art 19(c).
73United States Foreign Sovereign Immunities Act (USFIA) [1976], s 1603(d); Canada State
Immunity Act [1982] s 2; Hazel Fox (n 68), p 604, 608.
74
Argentina v Weltover [1992] 504 US 607; Morris v China [2007] 478 F Supp 2d 561; Velasco
v Indonesia [2004] 370 F 3d 392; Turkmani v Bolivia [2002] 193 F Supp 2d 165; Central Bankv Cardinal [2001] Lloyd’s Rep Bank 1, para 11.
75
Socie´te´ Bauer-Marchal v Gouvernment Turc, France [1965] 47 ILR 155.
76
Republic of Argentina v Weltover Inc [1992] 119 L Ed 2d 394, p 509.
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government bonds, being jure gestionis, property belonging to the defaulting state has been
attached to secure claims arising from the issue of bonds. 77 Riviera’s issuance of government
bonds clearly amounts to commercial activity and thus is not immune from enforcement of thearbitral award. 78 Since property other than public service assets do not enjoy immunity under
CIL, 79 Avalonia’s motion for discovery which exempted military and diplomatic property 80 is
lawful.
ii. Riviera’s arbitration agreement amounts to a waiver of immunity.
Both international conventions 81 and national legislations 82 have acknowledged the validity ofwaiving immunity from enforcement measures, including an implied waiver by agreeing toarbitration. 83 Arbitration agreement constitutes not only a waiver of immunity from jurisdiction,
but also a waiver of immunity from execution. 84 Therefore, the Applicant submits that Riviera
has waived its immunity from enforcement by submitting to the arbitration agreement withILSEC.
B. In any event, the motion for discovery was a valid countermeasure in response to
the acts of the Rivieran Courts.

77

KK Oesterreichisches Finanzministerium v Dreyfus [1918] Tribunal fédéral suisse, ATF 44 I
49, 5 Ann Dig (1929–1930) 122, para 2; Greek Republic v Walder and Others [1930] Tribunal
fédéral suisse, ATF 56 I 237, 5 Ann Dig (1929–1930) 121.
78
Svenska Petroleum v Lithuania [2006] EWCA Civ 1529, paras 132–3.
79
Condor and Filvem v Minister of Justice [1992] 101 ILR, p 394; Cabolent v NIOC [1970] 1
NYIL (1970) 225; 47 ILR 138; Philippine Embassy Bank Account Case [1977] 164 ILR,
confirmed in the NIOC Revenues Case [1983] 65 ILR 215.
80
SAF, para 27.
81
UN Convention on State Immunity (n 70), art 19(1); European Convention on State
Immunity (adopted May 16 1972) 1495 UNTS 182, art 31.
82
USFIA (n 73), s 1610(a)(1); The United Kingdom State Immunity Act [1978] s 13(3);Australia Foreign States Immunities Act [1985] s 31; Canada State Immunity Act [1982] art
12(1)(a); Pakistan State Immunity Ordinance [1981] s 14(3); Singapore State Immunity Act[1985] s 15(3); South Africa Foreign States Immunities Act [1981] s 14(2).
83
UN Convention on State Immunity (n 70), art 17; Creighton Ltd v Minister of Finance of
Qatar and Others [2000] 127 ILR 154; Libyan American Oil Company v Libya [1980] CaseNo Ö 261/79, 20 ILM 893.
84
Creighton v Qatar (n 83); Collavino Incorporated v Yemen (Tihama Development Authority)[2007] ABQB 212, para 139; Libyan American Oil Company v Libya [1980] Svea Hovrett, 20
ILM 89, 62 ILR 225.
Page | 11Countermeasures are a part of customary international law 85 imposed by an aggrieved state in
response to an internationally wrongful act 86 by another state. Riviera’s violation of thejurisdictional immunity of Avalonia constituted an internationally wrongful act 87 even if it islawful under the internal law of Riviera. 88 The countermeasure also met the requirements underinternational law, as it was temporary, reversible, 89 and the procedural requirements 90 werealso met as Avalonia called upon Riviera before passing the motion. 91
C. In any event, Riviera cannot claim immunity from enforcement due to its own
inconsistent behavior.
To bring a claim before the Court, a State must ‘be consistent in its attitude to a given factualor legal situation’ 92 as one should not benefit from his or her own inconsistency’. 93 This
principle is identified as estoppel. 94 Since Riviera itself infringed Avalonia’s jurisdictional
immunity, it cannot claim violation on the part of Avalonia.

85

Air Service Agreement of 27 March 1946 between the United States of America and France[1978]18 UN Rep Int’l Arbitral Awards 417, para 81; Gabčíkovo-Nagymaros Project(Judgment) (n 45), 55.
86
ILC, Responsibility of States for Internationally Wrongful Acts (ASR) [2001] UN Doc
A/56/49(Vol I)/Corr 4, art 22.
87
ASR (n 86), art 2; Phosphates in Morocco, United States Diplomatic and Consular Staff inTehran (Judgment) [1980] ICJ Rep 3, para 56, 90. See also Military and Paramilitary Activities
in and against Nicaragua (Nicaragua v United States of America) (Jurisdiction and
Admissibility) [1984] ICJ Rep 392, para 226; Gabčíkovo-Nagymaros Project (n 45), para 78.
88
ASR (n 86), arts 2,4; Phosphates in Morocco, United States Diplomatic and Consular Staff
in Tehran (Judgment) (n 87), para 56, 90. See also Nicaragua v United States of America(Jurisdiction and Admissibility) (n 87), para 226; Gabčíkovo-Nagymaros Project (n 45), para
78.
89
ASR (n 86), art 49.
90
ibid art 52(1)(a).
91
SAF paras 14, 18.
92
Iain MacGibbon, ‘Estoppel in International Law’ (1958) 7 INT’L COM L Q 468.
93
Legal Status of Eastern Greenland [1933] PCIJ Series A/B No 53, para 71, 73; Temple ofPreah Vihear (Cambodia v Thailand) (Merits) [1962] ICJ Rep 6, 39 (Separate Opinion of Judge
Alfaro); North Sea Continental Shelf Cases (Judgment)(n 27) 120 (Separate Opinion of Judge
Ammoun).
94
Cambodia v Thailand (Merits) (n 32), para 39 (Separate Opinion of Judge Alfaro).
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SUBMISSIONSThe Federal Republic of Avalonia respectfully requests the Court to adjudge and declare that:(a) The Court has jurisdiction to entertain the dispute brought to it by Avalonia in its entirety
consisting of all facts and events as described in the Statement of Agreed Facts;(b) Riviera has breached, and continues to breach, its obligations to respect Avalonia’s
jurisdictional immunities under customary international law by allowing civil claims
concerning the Sainte Bérénice Massacre to be brought against Avalonia before its domestic
Courts;(c) Counter-claims raised by Riviera as its submission (d) are inadmissible;(d) Avalonia acts in conformity with its international obligations, inter alia, to respect Riviera’s
immunity from measures of constraint by allowing the issuance of the discovery order dated 1
April 2022 and by maintaining the prescribed legal consequence thereof.

Respectfully submitted on behalf of the Applicant.

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