2nd Speaker Respondent

7/25/2019 2nd Speaker Respondent

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SPEECH

Good morning, your excellences. May it please the court. My name is Ivy NoreenTabaag, appearing as second counsel for the Respondent the !ederal "tate ofReisland.

#our $xcellencies, %e come to this court not only as a "tate &hose rights have beencompromised but also as a state &ho over the years of good economic and bilateral

relations &ith the 'pplicant, remained faithful to its obligations under international la&.

My presentation consists of t&o parts. !irst, I shall prove to this court that Respondent(sdetention of )oseph *af+er &as consistent &ith its obligations under international la&.'nd "econd, I shall venture into proving that the yberattac+s against the 'mes -ostand hester and %alsingham are not attributable to respondent.If your excellences dont have any preliminary /uestions, I shall no& proceed.

1. ACT: WITHRESPECTTOTHEDETENTIONOFJOSEPHKAFKER, YOUREXCELLENCIES, ITISTHE SUBMISSION OF THE RESPONDENT THAT THE DETENTION COMPLIED WITHINTERNATIONALLAW, ON 3 GROUNDS:

0. *af+er(s detention &as valid because of the presence of a publicemergency in Respondent(s territory.

2. Re!"#$e#%& 'e%("$ ") $e%e#%*"# +"'!*e$ -*%( %(e ICCPR.3. Re!"#$e#% +"'!*e$ -*%( %(e ICCPR *# *% %e/%'e#% %"-/$K/)0e.

ACT: F*%, " e+ee#+e4

A. T(e $e%e#%*"# ") K/)0e -/ 5/*$ 6e+/e I#%e#/%*"#/ L/- /"- /5/*$ $e"7/%*"# ") (* *7(% *# %(e !ee#+e ") / !6*+ e'e7e#+.

RULE 8 BASIS: A%*+e 9 ") %(e I#%e#/%*"#/ C"5e#/#% "# C*5* /#$ P"*%*+/R*7(%, !"5*$e %(/% %/%e !/%*e '/ /-) $e"7/%e )"' +e%/*#"6*7/%*"# *# %*'e ") !6*+ e'e7e#+ -(*+( %(e/%e# %(e *)e ") %(e #/%*"#/#$ %(e e*%e#+e ") -(*+( * "+*/ !"+/*'e$.

-ublic emergency existed in Respondent(s territory. 1-ara 023 March 4506 427envelopes containing &hite po&der, &ere sent to the Ministries of Trade and 'griculturein both Riesland and 'mestonia, to prominent 'mestonian farmers, and to boardmembers of three neonicproducing Rieslandic corporations, &as a clear act of terrorism.The purpose of &hich &as to intimidate Respondent to stop the production ofneonicotinoids.

Moreover, 1para 723 the calls for violent disruptions to raise public a&areness ofthe neonics controversy cannot be ta+en lightly by respondent before a potential harmcan be su8ered by the territory in large scale.

In addition your excellencies, public emergency did existed, &hen a credibledanger of an imminent terrorist act is manifested by the information obtained by Tom"ivaneta, 1-ara 093 &here the :ureau had succeeded in identifying a ring of 'mestonianenvironmental activists &ho had been plotting to contaminate a large shipment ofhoney, intended for consumption in Riesland, &ith a chemicallyaltered and toxicneonicotinoid.

It is important to note, 1para 0, clari;cation3 'mestonian police investigators foundthat the chemically altered neonicotinoids could potentially cause serious bodily in


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It &as then reissued on 'pril 450@ &here the "ecretary General of the AnitedNations &as noti;ed of all issued 'lerts, la&fully derogating 'rticle B of I-R in times ofpublic emergency.

ACT: Se+"#$, " e+ee#+e, Re!"#$e#%& 'e%("$ ") $e%e#%*"# +"'!*e$-*%( %(e A%*+e = ") %(e ICCPR e%/6*(*#7 %(e )""-*#7 %/#$/$ )"$e%e#%*"#:>1? %(/% %(e $e%e#%*"# +/##"% 6e /6*%/4

>2? %(/% %(e /e%e$ !e"# '% 6e *#)"'e$ ") %(e e/"# ") %(e /e%4 /#$>3? %(/% %(e $e%/*#ee (/ 6e /@"$e$ %(e *7(% %" $e%e#%*"# e5*e-.

A. Y" e+ee#+*e, %(e $e%e#%*"# -/ #"% /6*%/ 6e+/e / e/"#/6e!*+*"# e*%e$ -(e# K/)0e -/ /!!e(e#$e$.

'ccording to the $CR, reasonable suspicion presupposes the existence of facts orinformation &hich &ill satisfy an obD E" A*3.

The detention &as not arbitrary because bureau analysts &ere able to establish

that *af+er &as a fre/uent visitor to the longlivethehive &ebsite, had participated inonline chats, and had used the forum(s li+e function to endorse conversations includingcalls for violent disruptions to raise public a&areness of the neonics controversy.

In 'ddition, reasonable suspicion existed since *af+er &as determined to be a highlevel suspect &ith ties to The Cive and &as even lin+ed as one of the Cive(s seniorechelons the association &ho have been indorsing violent uprising against the use ofneonics.

-aragraph 72 of the compromise &ill sho& that Rieslandic authorities hadreasonable suspicion that *af+er committed acts of inciting or aiding or abetting an actof Terrorism.

B. M"e"5e, Y" e+ee#+e, K/)0e -/ *#)"'e$ ") %(e e/"# ") (*/e%.

'rticle B 143 of the I-R provides that the right to be informed, at the time ofarrest, the reasons of such arrest In this case, *af+er &as arrested and detained pursuantto the Terrorism 'ct of 4557.1&arrant issued by the National "ecurity Tribunal 1N"T3 under the Terrorism 'ct of 4557.3

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W*%( e!e+% %" THE CYBER ATTACKS AGAINST THE COMPUTER SYSTEMS OFTHE AMES POST AND CHESTER 8 WALSINGHAM *% * %(e 6'**"# ") %(eRe!"#$e#% %(/% %(e +6e/%%/+0 CANNNOT BE ATTRIBUTED TO RESPONDENT,AND IN ANY EENT DID NOT CONSTITUTE AN INTERNATIONALLY WRONGFULACT.

ACT: F*%, " e+ee#+*e, THE CYBER ATTACKS /7/*#% %(e +"'!%e%e' ") %(e A'e P"% /#$ C(e%e 8 W/*#7(/' ARE NOT ATTRIBUTABLE

TO RESPONDENT "# %(ee 7"#$4

1. T(e /+%" ") %(e +6e/%%/+0 $*$ #"% /+% "# %(e *#%+%*"#,$*e+%*"# " +"#%" ") Re!"#$e#%.

2. Re!"#$e#% $*$ #"% /+0#"-e$7e /#$ /$"!% %(e +6e/%%/+0.

3. T(e %/+ /#/* * *#+*e#% %" !"5e /%%*6%*"#.

A. U#$e A%. ") %(e D/)% A%*+e "# S%/%e Re!"#*6**%, Re!"#*6**% )"%(e /+%*"# ") /# *#$*5*$/ * /%%*6%/6e %" / S%/%e -(e# %(e *#$*5*$/ /+%"# %(e *#%+%*"#, $*e+%*"# " +"#%" ") %(/% S%/%e.The rule is that the onlyconduct attributable to a "tate is that of its organs of government, or of others &ho haveacted under the direction, instigation or control of those organs, such as agents of the"tate. >r in other &ords, the "tate over the conductmust have e8ective control enunciated in the Nicaragua case or overall controlenunciated in the Tadic case. If I may bring the attention of thishonorable court to -aragraph 7@ of the compromis &ith respect to the statement givenby 'ttorney General eloponte on March 06, the statement &as merely an expression ofcondemnation of 'pplicant(s publication of the lea+ed con;dential information and is notevidence to prove the exercise of control by Respondent over the actors of the cyberattac+s.

B. M"e"5e, " e+ee#+e, A%. 11 ") %(e D/)% A%*+e "# S%/%eRe!"#*6**%, *% !"5*$e %(/% S%/%e e!"#*6**% '/ /*e -(e# / S%/%e/+0#"-e$7e /#$ /$"!% %(e /+% ") /# *#$*5*$/. In the commentaries to saidraft 'rticles it provides that the act of ac+no&ledgement and adoption, &hether it ta+esthe form of &ords or conduct, must be clear and une/uivocal.

'doption carries &ith it the idea that the conduct is ac+no&ledged by the state as,in e8ect, its o&n conduct. This means that ac+no&ledgment and adoption re/uires morethan having allegedly committed the cyberattac+s through the "tate(s computerinfrastructure but must sho& a clear and une/uivocal act by the respondentac+no&ledging and adopting said attac+s.

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'rt. 6B 103 of the raft 'rticles provide that the apparent &rongfulness of an attac+does not establish that the "tate &as the author. 'ttribution is notoriously di=cult in thecybercontext, and the 'mes -ost and hester H %alsingham cyber attac+s are noexception.

Se+"#$, " e+ee#+*e, THE CYBER ATTACKS DID NOT CONSTITUTE ANINTERNATIONALLY WRONGFUL ACT.

1'rticles on Responsibility of "tates for Internationally %rongful 'cts, 'rt. 4.3There is an internationally &rongful act of a "tate &hen a conduct consisting of an

action or omission 1a3 is attributable to the "tate under international la&J and 1b3constitutes a breach of an international obligation of the "tate.

I have established in this honorable that the cyber attac+s are not attributable tothe respondent. The cyber attac+s also did not constitute an internationally &rongful actbecause of three groundsJ

1. T(e +6e /%%/+0 $*$ #"% +"#%*%%e e ") )"+e.

2. T(e +6e /%%/+0 $*$ #"% +"#%*%%e / %(e/% %" %(e !e/+e.

3. T(e +6e /%%/+0 $*$ #"% +"#%*%%e %e"*% /+% %(ee)"e Re!"#$e#% (/#" $% %" !!e %(e'.

A. Y" e+ee#+*e, %(e +6e /%%/+0 $*$ #"% +"#%*%%e e ") )"+e.

'ccording to this honorable court, the prohibition on use of force applies to any useof force, regardless of the &eapons employed. Co&ever, in order for a cyber attac+ to

/ualify as a use of force, the travaux prparatoiresof the AN harter clearly sho& thatthe prohibition of force &as not intended to extend to economic coercion and politicalpressures.

%ith respect to cyber attac+s as an armed attac+ the Nicaragua case discussedthat armed attac+s denotes the use of conventional military &eapons.

In the 455F cyber attac+ in $stonia, there &as no use of bombs, guns, and allstandard &eaponry. $ven under a broader e8ectsbased understanding of armed attac+,the cyberassault on $stonia failed to generate physical damage analogous to a use ofarmed force.

The cyber attac+ if &ill not generate physical damage must at least cripple asystem or operations of government or interfere &ith the operations of vital

infrastructures such as the ban+ing system and internet communication.The cyber attac+ against The 'mes -ost and hester H %alsingham did not

generate the same physical damage, death, in


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&idespread "tate practice evidencing international agreement on the de;nition ofterrorism. These treaties do not address cyber attac+s. !urthermore, the 'd Cocommittee of the General 'ssembly has been unable to formulate a de;nitionacceptable to the international community. Therefore, the duty to suppress terrorismdoes not arise in relation to the cyber attac+s.

#our exellencies, it is important to note that, sophisticated attac+s by +no&ledgeablehac+ers, &hether private or "tatesponsored, are nearly impossible to trace to their

source using modern practices. 'bsent attribution of the act to the respondent and theact not constituting an intenationally &rongful act, '--LI'NT I" N>T $NTITL$ T> 'N#>M-$N"'TI>N.

If your excellencies have no further /uestions, I(d li+e to than+ this honorable court for itsindulgence. May it please the court.

Documents

2nd Speaker Respondent