TEAM AC303R

THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE,
THE HAGUE, THE NETHERLANDS

CASE CONCERNING THE ALLEGED VIOLATIONS OF IMMUNTIES FROM

JURISDICTION AND MEASURES OF CONSTRAINT

THE ASIA CUP 2023 INTERNATIONAL LAW MOOT COURT COMPETITION

THE FEDERAL REPUBLIC OF AVALONIA

(APPLICANT)
v.
THE KINGDOM OF RIVIERA
(RESPONDENT)

COUNTER-MEMORIAL FOR THE RESPONDENT

 TABLE OF CONTENTS

TABLE OF CONTENTS.........................................................................................................ii
PLEADINGS............................................................................................................................1
1. The Court lacks jurisdiction rationae temporis to entertain Avalonia’s claims insofar
as they are based on facts or events that occurred after the lapse of the title of jurisdiction
on 4 July 2022........................................................................................................................1
a. The court lacks the jurisdiction to entertain Avalonia’s claims under the Pact..............1
i. The ICJ no longer has title of jurisdiction over Riviera under the Pact...................1
ii. Avalonia’s claims insofar as they are based on events occurring after the lapse
fall outside the court’s jurisdiction.................................................................................2
b. The jurisdiction granted to the ICJ under the Pact does not apply in the present
case….................................................................................................................................2
i. The dispute stands settled under Art. XXXIV of the Pact of Bogota, 1948............3
ii. The precondition of settling the dispute through negotiations has not been
satisfied..........................................................................................................................3
2. Riviera has never breached its obligations to respect Avalonia’s jurisdictional
immunities under customary international law in light of the facts and events that fall
within the scope of the Court jurisdiction ratione temporis..................................................4
a. Avalonia is not protected by jurisdictional immunities as it violated jus cogens
norms…..............................................................................................................................4
i. The Massacre violated jus cogens norms................................................................4
ii. The violation of a jus cogens norm overrides State immunity.............................5
b. The territorial tort exception precludes Avalonia from State immunity..................5
i. The Convention codifies CIL and extends to States which are not parties to it......5
ii. The territorial tort exception is applicable in the present case.............................6
3. Counter-claims raised by Riviera as its Submission (d) are admissible........................7
a. Riviera’s counter-claim is within the jurisdiction of this Court..................................7
i. Riviera’s counter-claim is within the jurisdiction of this Court through the Pact.. .7
ii. Riviera’s notice of denunciation does not oust the jurisdiction of the Court.......8
b. Riviera’s counter-claim is directly connected with the subject-matter of Avalonia’s
claim...................................................................................................................................8
4. Avalonia has breached, and continues to breach, 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. The present matter is not precluded from immunity from measures of constraint on
the grounds of arising out of jure gestionis......................................................................10
i. The present matter relates to jure imperii..............................................................10
 ii. A matter arising out of jure gestionis can still be protected by immunity from
measures of constraint..................................................................................................10
b. The requirements for imposing measures of constraint have not been fulfilled....10
i. The nature of the properties has not been established...........................................11
ii. The measures of constraint have not been expressly consented to by Riviera...11
iii. Riviera has not specifically allocated any property for the satisfaction of a
judicial claim................................................................................................................12
SUBMISSIONS......................................................................................................................13
 PLEADINGS
1. The Court lacks jurisdiction rationae temporis to entertain Avalonia’s claims insofar

as they are based on facts or events that occurred after the lapse of the title of

jurisdiction on 4 July 2022.

The International Court of Justice [hereinafter “the Court” or “the ICJ”] itself has the power

to decide if it has jurisdiction over a matter. 1 The Federal Republic of Avalonia [hereinafter

“Avalonia”] seeks to bring events occurring after 4 July 2022 into the present dispute. 2 The

Court lacks the jurisdiction to entertain Avalonia’s claims under the Pact of Bogota

[hereinafter “the Pact”] (a). The jurisdiction granted to the ICJ under the Pact does not apply

in the present case (b).

a. The court lacks the jurisdiction to entertain Avalonia’s claims under the Pact.

On 4 July 2022, the Pact ceased to be in force with respect to the Kingdom of Riviera

[hereinafter “Riviera”].3 The ICJ lacks the jurisdiction to entertain Avalonia’s claims as the

ICJ no longer has title of jurisdiction over Riviera under the Pact (i), and Avalonia’s claims

insofar as they are based on events occurring after the lapse, fall outside the court’s

jurisdiction (ii).

i. The ICJ no longer has title of jurisdiction over Riviera under the Pact.

The ‘title of jurisdiction’ of a court refers to the source of the power by which the Court has

the right to adjudicate on a case, and to take into account anything related to the same. 4 An

1
Statute of the International Court of Justice, art. 36, ¶ 6, adopted on 26 June 1945
[hereinafter “ICJ Statute”]; American Treaty on Pacific Settlement (“Pact of Bogotá”), art.
XXXIII, Apr. 30th, 1948, 30 UNTS 55 [hereinafter “Pact of Bogota”].
2
Statement of Agreed Facts [hereinafter “Compromis”], ¶ 35-36.
3
Pact of Bogota, art. LVI; Compromis, ¶ 34.
4
Pranav Ganesan, Laia Roxane Guardiola, The ICJ judgment on Nicaragua v Colombia
(2022): applying an established jurisdictional test or a problematic invention?, J. INT’L DISP.
SETTLEMENT (2023).
1
essential for it is the acceptance of such a jurisdiction by the States party to the dispute. 5 The

Court’s jurisdiction is confined to the extent accepted by them. 6 The ICJ has jurisdiction only

as long as the Pact “remains in force”.7 Here, the Pact has lapsed,8 along with the Court’s

jurisdiction.9 The lapse signifies the withdrawal of its consent. 10 Thus, in the absence of

consent, the Court does not have the requisite jurisdiction.

ii. Avalonia’s claims insofar as they are based on events occurring after the lapse fall

outside the court’s jurisdiction.

Claims that are not implicit in the submissions, or do not arise “directly out of” the central

question of the application, are not admissible. 11 This is only applicable if when considered

together with the prior acts, they form a ‘composite act’, i.e. a series of acts which constitute

a separate internationally wrongful act.12 The current events have not been proved to be

‘wrongful’, and do not have an link to prior ones, Thus, they do not fall under this category.

b. The jurisdiction granted to the ICJ under the Pact does not apply in the present case.

5
I.C.J. Statute, art. 36.
6
Armed Activities on the Territory of the Congo (Dem. Rep. Congo v Rwanda) 2006 I.C.J.
39, ¶ 88 (Feb. 9); Hugh Thirlway, The Law and Procedure of the International Court of
Justice 1960-1989, 69 BRIT. Y.B. INT’L L. 4 (1998).
7
Pact of Bogota, art. XXXI.
8
Compromis, ¶ 34.
9
Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicar. v
Colom.) 2022 I.C.J. Declaration of Judge Bennouna 1, ¶ 2 (Apr. 21); Vienna Convention on
the Law of Treaties, art. 31, May 23rd, 1969, 1155 U.N.T.S. 331 [hereinafter “VCLT”];
VCLT, art. 32.
10
Compromis, ¶ 34.
11
Case Concerning Certain Phosphate Lands in Nauru (Nauru v Ausl.) 1992 I.C.J. 240, ¶ 67
(June 26).
12
Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicar. v
Colom.) 2022 I.C.J. Declaration of Judge Nolte 4, ¶ 14 (Apr. 21); Draft Articles on
Responsibility of States for Internationally Wrongful Acts art. 15, Nov. 2001, Supp. No.10
(A/56/10) [hereinafter “ARSIWA”].
2
The ICJ’s jurisdiction to adjudicate upon a dispute between parties to the Pact does not apply

in the present case as the dispute stands settled under Art. XXXIV (i), and the precondition of

settling the dispute through negotiations under Art. II has not been satisfied (iii).

i. The dispute stands settled under Art. XXXIV of the Pact of Bogota, 1948.

If the Court declares itself to be without jurisdiction, the dispute shall be settled. 13 In such a

case, the procedures mentioned under the Pact cannot be applied to matters that come under

the domestic jurisdiction of a State. 14 The ICJ does not have jurisdiction over settled

matters.15

This matter falls within the domestic jurisdiction of the courts of Riviera. 16 The law regarding

jurisdictional immunities of States has largely been shaped by domestic courts. 17 Domestic

courts have been allowing jurisdiction in domestic courts in case of human rights violations. 18

The Court’s jurisdiction in here only extends to deciding whether the provisions of the Pact

are applicable to the dispute.19 The human rights violations by Avalonia in Riviera’s territory

have already been settled via the Peace Treaty. 20 Thus, the court has no jurisdiction in the

matter.

ii. The precondition of settling the dispute through negotiations has not been satisfied.

The parties to a dispute may only use the procedures of the Pact if it cannot be settled by

direct negotiations.21 The Court upheld that this constituted a pre-requisite to the ICJ’s
13
Pact of Bogota, art. XXXIV.
14
Pact of Bogota, art. V.
15
Pact of Bogota, art. VI.
16
Compromis, ¶ 9; Foreign States Immunities Act, 2017, art. 5bis.
17
Michael P Van Alstine, Executive Aggrandizement in Foreign Affairs Lawmaking, 54
U.C.L.A. L. REV. 307 (2006).
18
Jurisdictional Immunities of the State (Ger. v It., Greece Intervening), Judgement, 2012
I.C.J. Rep. 99 (Feb. 3).
19
Pact of Bogota, art. V.
20
Compromis, ¶ 4; Pact of Bogota, art. VI.
21
Pact of Bogota, art. II.
3
jurisdiction.22 This condition has not been fulfilled by Avalonia. It was also held that both

parties had to agree that further negotiations would be futile before an application could

proceed,23 which is missing in the present case. Thus, the Application is not maintainable

before the ICJ.

2. Riviera has never breached its obligations to respect Avalonia’s jurisdictional

immunities under customary international law in light of the facts and events that

fall within the scope of the Court jurisdiction ratione temporis.

Riviera has not breached its obligations to respect Avalonia’s jurisdictional immunities as

Avalonia is not protected by such immunities due to violations of jus cogens norms (a). In

arguendo, the exception of territorial tort will preclude Avalonia from State immunity (b).

a. Avalonia is not protected by jurisdictional immunities as it violated jus cogens norms.

Avalonia is not protected by jurisdictional immunities as the Sainte Bérénice Massacre

[hereinafter “the Massacre”] violated jus cogens norms (i) and the violation of a jus cogens

norm overrides State immunity (ii).

i. The Massacre violated jus cogens norms.

Jus cogens norms can invalidate rules drawn by a treaty or a custom and are non-derogable. 24

Mass executions and indiscriminate killings of civilians, 25 torture,26 and other violations of

22
Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicar. v. Hond.) 2007 I.C.J. 659 (Oct. 8).
23
Ibid.
24
Christos L. Rozakis, The Concept of Jus Cogens in the Law of Treaties, 17 AM. J. INT’L L.
573 (1977).; VCLT, art 53.
25
Egon Schwelb, Some Aspects of International Jus Cogens as Formulated by the
International Law Commission, 22 Am. J. INT’L L. 946 (1967).
26
Jutta Brunnée, The Prohibition on Torture: Driving Jus Cogens Home?, 13 EUR. J. INT’L L.
97 (2010).
4
international humanitarian law are violations of jus cogens norms.27 As the Massacre involved

the aforementioned acts,28 it violated jus cogens norms.

ii. The violation of a jus cogens norm overrides State immunity.

A State cannot claim immunity for any act that contravenes a jus cogens norm.29 Upon, it is

deemed to have tacitly waived the right to State immunity.30

The Massacre contravened jus cogens norms. Therefore, Avalonia cannot claim State

immunity in relation to the Massacre. Thus, Avalonia is not protected by jurisdictional

immunities.

b. The territorial tort exception precludes Avalonia from State immunity.

The United Nations Convention on Jurisdictional Immunities of States and Their Properties

[hereinafter “the Convention”] codifies customary international law [hereinafter “CIL”] and

extends to States which are not parties to it (i) and the territorial tort exception present within

it is applicable in the present case (ii).

i. The Convention codifies CIL and extends to States which are not parties to it.

27
Ferrini v. the Federal Republic of Germany, Corte di Cassazione [Cass.] [Court of Last
Appeal] Mar. 11, 2004, 87 RIVISTA DI DIRITTO INTERNAZIONALE (R.D.I.) 539 (2004) (It).
28
Compromis, ¶ 3.
29
Hugo Princz v. Federal Republic of Germany, Court of Appeals for the District of Columbia
[DC], July 1, 1994, 813 F. Supp. 22, (D.D.C.) (1992) (U.S.) [hereinafter “Princz”]; Lorna
Mcgregor, State Immunity and Jus Cogens, 33 INT’L COMPAR. L. Q. 437 (2006); Supra note
27; Prefecture of Voiotia v. Federal Republic of Germany, Areios Pagos [AP] [Supreme
Court] May 4, 2000, 49 NOMIKO VIMA (N.V.) 212 (2000), 129 ILR 514 (Greece).
30
Mark Merva and Naomi Roht-Arriaza, Implied Waiver under the FSIA: A Proposed
Exception to Immunity for Violations of Peremptory Norms of International Law 33 C. L.
REV. 365 (1989); Roger O'Keefe, European Convention on State Immunity and International
Crimes 24 CAM. Y.B. OF EUR. LEGAL STUD. 512 (1999).
5
The relevant moment for determining the applicable rules of jurisdictional immunity is when

the proceeding is instituted.31 The Convention represents the codification of CIL. 32 Provisions

of treaties which codify CIL extend to States which are not parties to it as well. 33 Provisions

relating to exceptions to immunity from measures of constraint have been applied in cases

where the concerned State was not a party to the Convention.34

In the present case, the proceedings before the ICJ were initiated on 3 July, 2022. 35 At this

point in time, the Convention contained the definitive rules regarding State immunity. Since

the Convention codifies CIL, it extends to non-party States. Thus, the Convention can be said

to apply to the non-party States of Avalonia and Riviera in the present matter.

ii. The territorial tort exception is applicable in the present case.

The Convention provides for the territorial tort exception, which precludes a State from

liability for personal injuries when two conditions are fulfilled, namely: (i) the act or

omission causing any damage must occur in whole or in party in the territory of the forum

State and; (ii) the author of such act or omission must be present in that State at the time of

the act or omission.36

31
Arrest Warrant Case (Dem. Rep. Congo v. Belg.), Judgment, 2002 I.C.J. 3, ¶ 26 (April 11);
United Nations Convention on Jurisdictional Immunities of States and Their Property, art. 4,
adopted 2 December 2004, U.N.G.A Res 59/38 [hereinafter “UN Convention”]; Supra note
29, Princz; Al-Adsani v. The United Kingdom, App No 35763/97 (ECtHR Nov. 21, 2001).
32
Wallishauser v Austria, App No. 156/04, (ECtHR First Section July 17, 2012), ¶30; Sabeh
El Leil v. France App. No. 34869/05 (ECtHR June 29, 2011); Jones v. Ministry of the Interior
of the Kingdom of Saudi Arabia and another, House of Lords [HL], U.K.H.L. 26 (2006), 2
WLR 1424; UN Convention, Preamble ¶ 3.
33
Christopher Greenwood, Sources of International Law: An Introduction,
https://legal.un.org/avl/pdf/ls/greenwood_outline.pdf, (Nov. 11, 2008) (accessed 26 June
2023); VCLT, art. 53; VCLT, art. 64.
34
Netherlands v. Servaas, Hoge Raad [HR] [High Council] Oct. 14, 2016, ECLI: NL: HR:
2016: 2354 (2016) (Neth.).
35
Compromis, ¶ 33.
36
UN Convention, art. 12; Schreiber v. Canada (Attorney General), Supreme Court of Canada
[SCC], Nov 12, 1999, 3 S.C.R. 269 (Can.).
6
In the present case, the atrocities were perpetrated by Avalonia within Riviera’s territory. 37

Moreover, as the author of the acts was the Avalonian military, they were clearly present in

Riviera when the atrocities took place. Since both elements for the application of the

territorial tort exception are present in this case, Avalonia is precluded from State immunity.

3. Counter-claims raised by Riviera as its Submission (d) are admissible.

Riviera seeks to bring a counter-claim on the grounds that Avalonia has violated Riviera’s

immunity from measures of constraint through the decision of the Federal District Judge on 1

April, 2022. Counter-claims may be entertained by this Court if they are within the

jurisdiction of the Court, and directly connected with the subject-matter of the claim of the

other party.38 Herein, Riviera’s counter-claim is within the jurisdiction of this Court (a) and;

Riviera’s counter-claim is directly connected with the subject-matter of Avalonia’s claim (b).

a. Riviera’s counter-claim is within the jurisdiction of this Court.

Riviera’s counter-claim is within the jurisdiction of this Court because this Court has

jurisdiction over the counter-claim through the Pact (i), and Riviera’s notice of denunciation

does not oust the jurisdiction of this Court (ii).

i. Riviera’s counter-claim is within the jurisdiction of this Court through the Pact.

The Pact acknowledges the mandatory jurisdiction of the ICJ over all disputes of a juridical

nature concerning any question of international law, as long as the treaty is in force. 39 A bare

reading of the provision suggests that the cause of action must arise while the treaty is in

force.40 Questions relating to State immunity are a matter of international law. 41 In the present

37
Compromis, ¶ 3.
38
Rules of Court, 1978, I.C.J. Acts & Docs., 27, art. 80.
39
Pact of Bogota, art. XXXI(b).
40
VCLT, art. 31.
41
Supra note 18, ¶ 56.
7
case, Riviera’s counter-claim is regarding the decision of the Federal District Judge on 1

April, 2022.42 Thus, the cause of action arose while the Pact was still in force with respect to

Riviera. The claim relates to a potential violation of Riviera’s jurisdictional immunity, which

is a matter of international law. Thus, Riviera’s counter-claim is within the jurisdiction of this

Court.

ii. Riviera’s notice of denunciation does not oust the jurisdiction of the Court.

The Pact provides for a one-year-period in which proceedings can be instituted after the

notice of denunciation has been issued,43 following which the Pact would lapse for the State.44

The notice of denunciation was issued by Riviera on 4 July, 2021. Therefore, the Pact would

cease to be in effect from 4 July, 2022. The original claim was brought by Avalonia on 3 July,

2022. A counter-claim, if admitted, would be a part of the same proceedings instituted before

the expiry of the one-year period. Therefore, the counter-claim would not be barred due to

Riviera’s denunciation of the Pact.

As Riviera’s counter-claim is within the jurisdiction of this Court, and the notice of

denunciation does not oust the jurisdiction, the counter-claim is admissible.

b. Riviera’s counter-claim is directly connected with the subject-matter of Avalonia’s

claim.

Counter-claims must be “directly connected” to the subject-matter of the original claim in the

sense that they are based on facts of the same nature, and form part of the same factual

42
Compromis, ¶ 28.
43
Pact of Bogota, art. LVI.
44
Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia
beyond 200 nautical miles from the Nicaraguan Coast (Nicar. v Colom.), Judgement, 2016
I.C.J. Rep. 100, ¶37 (Mar. 17); Alleged Violations of Sovereign Rights and Maritime Spaces
in the Caribbean Sea (Nicar. v Colom.), Judgement, 2016 I.C.J. Rep. 3, ¶39 (Mar. 17).
8
context.45 It has been stated that counter-claims must be “directly connected” both in fact, and

in law.46 The claims must pursue the same legal aim, such as the establishment of

responsibility for breaches of a particular international law obligation.47

Avalonia’s claim, as well as this counter-claim, are with regard to a decision of the Reine

Court of Appeals on 30 June, 2021. This decision led to Apricity NA circulating the Amity

Bonds and ILSEC’s purchase of the same. The consequent default on repayment culminated

in the decision of the Federal District Judge enforcing the same on 1 April, 2022. The sources

of both claims exist within the same factual context and are based on facts of the same nature,

and thus, they are directly connected. In law, both claims are related to the concept of

jurisdictional immunity and seek to establish responsibility for alleged violations of

jurisdictional immunity. As these claims pursue the same aim, they are directly connected in

law as well.

As Riviera’s counter-claim is within the jurisdiction of this Court, and directly connected to

the subject-matter of Avalonia’s claim, Riviera’s counter-claim is admissible.

4. Avalonia has breached, and continues to breach, 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.

Avalonia has breached and continues to breach its international obligations by placing

ongoing sanctions on Riviera’s properties in Avalonia. The present matter is not precluded

45
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosn. and Herz. v Yugo.) 1996 Preliminary Objections I.C.J. 595, ¶ 34 (July 11).
46
Ibid. at ¶ 33.
47
Ibid. at ¶ 35; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v
Nigeria) 1999 Order I.C.J. 983, ¶ 6 (June 3).
9
from immunity from measures of constraint on the grounds of arising out of jure gestionis (a)

and the requirements for imposing measures of constraint have not been fulfilled (b).

a. The present matter is not precluded from immunity from measures of constraint on the

grounds of arising out of jure gestionis.

The present matter is not precluded from immunity as it arises out of jure imperii (i). In

arguendo, a jure gestionis matter can still be protected by immunity (ii).

i. The present matter relates to jure imperii.

The default on repayment of sovereign bonds constitutes a sovereign act (jure imperii),48

which are protected by immunity from measures of constraint. 49 The default on repayment of

the 1982 Bonds is a sovereign act, and would be protected by immunity from measures of

constraint. Thus, Riviera is protected from proceedings instituted against it.

ii. A matter arising out of jure gestionis can still be protected by immunity from

measures of constraint.

An absence of immunity from jurisdiction does not prevent immunity from measures of

constraint.50 Measures of constraints are not acceptable unless the Owner State assents. 51 As

48
Borri v. Argentina, Corte di Cassazione [Cass.] [Court of Last Appeal] May 27, 2005, 88
RLVISTA DI DIRITTO INTERNAZIONALE (R.D.I.) 856 (2005) (It.).
49
Greek Debt Restructuring Case, Bundesverfassungsgericht [BVerfG] [Federal
Constitutional Court] May 6, 2020, 2 BvR 331/18 ¶ ¶18-19 (Ger.).
50
Clerget v. Banque Commerciale pour l’Europe du Nord et Banque du commerce extérieur
du Vietnam, Cour d’appel de Paris [CA] [Regional Court of Appeal] June 7, 1969, 74 REVUE
GÉNÉRALE DE DROIT INTERNATIONAL PUBLIC [R.G.D.I.P.] 522 (1970), 52 ILR 310, ¶315.
(Fr.).
51
Philippine Embassy Bank Account Case, Bundesverfassungsgericht [BVerfG] [Federal
Constitutional Court] Dec. 13, 1977, 46 BVerfG 342, 2 BvM 1/76 65 ILR 146, ¶167 (Ger.).
10
elucidated below,52 Riviera has not assented to any measures of constraint on its property. As

there is no consent from Riviera, its immunity from measures of constraint is not vitiated.

b. The requirements for imposing measures of constraint have not been fulfilled.

The Convention codifies the CIL norms on immunity from measures of constraint. 53 It enlists

three requirements for setting aside such an immunity. 54 They have not been fulfilled as the

nature of the properties has not been established (i), the measures of constraint have not been

consented to by Riviera (ii) and Riviera has not specifically allocated any property for the

satisfaction of a judicial claim (iii).

i. The nature of the properties has not been established.

A property can only be subject to measures of constraint if it has been established that it is in

use or intended to be used for purposes other than government non-commercial purposes. 55

Here, while the discovery order dated 1 April, 2022 excluded certain property from measures

of constraint,56 it failed to establish that the unexcluded properties were being used for

purposes other than government non-commercial purposes. Thus, this requirement has not

been fulfilled.

ii. The measures of constraint have not been expressly consented to by Riviera.

52
Supra submission 4(b)(ii).
53
Supra submission 2(b)(i).
54
Supra note 18, ¶118; Kingdom of Spain v. Société X, Tribunal fédéral [TF] [Federal
Supreme Court], Apr. 30, 1986, 43 ANNUAIRE SUISSE DE DROIT INTERNATIONAL [A.S.D.I.]
158 (1987), 82 ILR 44 (Switz.); Alcom Ltd. v. Republic of Colombia, House of Lords [HL],
Apr. 12, 1984, 1 A.C. 580, 74 ILR 170, (Eng.); Abbott v. Republic of South Africa, Tribunal
Constitucional [TC] [Constitutional Court] Jul. 1, 1992, 44 REVISTA ESPANOLA DE DERECHO
INTERNACIONAL (R.E.D.I.) 565 (1992), 113 ILR 414 (Sp.).
55
UN Convention, art. 21.
56
Compromis, ¶27.
11
Immunity to measures of constraint can be said to be expressly consented to by an

international agreement, by an arbitration agreement or written contract, or by a declaration

or written communication before the court. 57 Consent through an arbitration agreement must

be express.58 Being party to an arbitration agreement does not constitute consent to measures

of constraint.59 Here, there has been no international agreement to such effect, nor any

declaration or written communication. 60 Riviera has not expressly consented to measures of

constraint in any arbitration agreement. Thus, there has been no express consent to the

measures of constraint.

iii. Riviera has not specifically allocated any property for the satisfaction of a

judicial claim.

Properties which are earmarked for satisfaction of a debt do not attract immunity from

measures of constraint.61 Here, there has been no such allocation. To the contrary, Riviera has

filed an objection to ILSEC’s motion and opposed the discovery order.62

As none of these requisites are fulfilled, Avalonia has breached, and continues to breach, its

international obligations, inter alia, to respect Riviera’s immunity from measures of

constraint.

57
UN Convention, art. 19.
58
République du Cameroun v Société Windslow Bank and Trust, Cour d'appel de Paris [CA]
[Regional Court of Appeal] Sept. 26, 2001, INFORMATIONS RAPIDES DU RECUEIL DALLOZ
(Dalloz, I.R.) 3017 (2001) (Fr.).
59
Joanne Foakes and Elizabeth Wilmshurst, State Immunity: The United Nations Convention
and its Effect, CHATHAM HOUSE, ILP BP 05/01, 6, §19 (2005); Republic of Argentina v. NLM
Capital, Supreme Court of the United Kingdom [UKSC] Jul. 6, 2011, UKSC 31 (2011) ¶123;
Duff Development Co Ltd v Government of Kelantan, House of Lords [HL], Apr. 10, 1924,
AC 797, Cf. Lord Dunedin ¶ 821.
60
Compromis, ¶ 37.
61
UN Convention, art. 19.
62
Compromis, ¶ 26-27.
12
 SUBMISSIONS
The Kingdom of Riviera respectfully requests the Court to adjudge and declare that:

a. The Court lacks jurisdiction ratione temporis to entertain Riviera’s claims insofar as

they are based on facts or events that occurred after the lapse of the title of jurisdiction

on 4 July, 2022;

b. Riviera has never breached its obligations to respect Avalonia’s jurisdictional

immunities under customary international law in light of facts and events that fall

within the scope of the Court’s jurisdiction ratione temporis;

c. Counter-claims raised by Riviera as its submission (d) are admissible;

d. Avalonia has breached, and continues to breach, 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 Respondent,

AGENTS FOR THE KINGDOM OF RIVIERA

13