Respondent Memorial 2012

TEAM CODE: C

IN THE INTERNATIONAL COURT OF JUSTICE LA COUR INTERNATIONALE DE JUSTICE

AT THE PEACE PALACE, THE HAGUE, NETHERLANDS GENERAL LIST NO YEAR 2012 DIFFERENCES BETWEEN THE STATES CONCERNING THE ECONOMIC AND TAXATION POLICIES 13TH D.M. HARISH MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2012 REPUBLIC OF AMITI

/

(THE APPLICANT STATE)

REPUBLIC OF DARSHINI (THE RESPONDENT STATE)

SUBMITTED IN THE REGISTRY OF THE COURT MEMORIAL FOR THE RESPONDENT DARSHINI

TABLE OF CONTENTS LIST OF ABBREVIATIONS

I

INDEX OF AUTHORITIES

II

STATEMENT OF JURISDICTION

X

STATEMENT OF FACTS

QUESTIONS PRESENTED

SUMMARY OF ARGUMENTS

XI

XIV

XV

BODY OF ARGUMENTS

1.

THE ACTS OF THE STATE OF DARSHINI ARE IN ACCORDANCE WITH BOTH INTERNATIONAL LAW AS WELL AS ITS TREATY OBLIGATIONS

1.1

THE PRESENT CLAIM IS INADMISSIBLE DUE TO THE EXHAUSTION OF

1

LOCAL REMEDIES RULE 1.2

THE STATE OF DARSHINI HAS NOT COMMITTED ANY WRONGFUL

1, 2

ACT UNDER INTERNATIONAL LAW 1.3

STATEMENTS BY THE PRESIDENT AND THE HEAD OF THE

2

DEMOCRATIC PARTY DO NOT INCUR ANY INTERNATIONAL RESPONSIBILITY. 1.4

IN ARGUENDO, THE STATE OF DARSHINI IS ENTITLED TO

3

INVALIDATE A TREATY DUE TO CONSTITUTIONAL CONSTRAINTS 1.5

IN ARGUENDO, THE TREATY VIOLATION IS PRECLUDED DUE TO THE

4

CIRCUMSTANCE OF ‘NECESSITY’ 1.6

LOWER COURT DECISION AND THE ECONOMIC POLICIES OF

5

DARSHINI DO NOT AMOUNT TO DE FACTO ECONOMIC SANCTIONS AGAINST THE STATE OF AMITI OR ANY OTHER STATE IN THE VIPULIAN ECONOMIC UNION 1.6.1

The Current claim is not maintainable at the ICJ

5

1.6.2

In Arguendo, The Lower Court Decision and the Economic Policies of

6

D.M HARISH MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2012

TABLE OF CONTENTS

MEMORIAL ON BEHALF OF RESPONDENT

Darshini do not amount to de facto Economic Sanctions against the State of Amiti 1.7

THE LOWER COURT DECISIONS AND ECONOMIC POLICIES DO NOT

7

AMOUNT TO AGGRESSION OR USE OF FORCE UNDER CUSTOMARY INTERNATIONAL LAW 1.8

THE ECONOMIC POLICIES OF DARSHINI DO NOT INTERFERE IN THE

8

INTERNAL AFFAIRS OF AMITI. 1.9

THE ECONOMIC POLICIES OF DARSHINI ARE NOT IN VIOLATION OF

9

CLAUSE C OF THE VIPULIAN ECONOMIC UNION CHARTER 1.9.1

The State of Amiti cannot invoke the responsibility of the state of

9

Darshini for violations of the Vipulian Economic Treaty 1.9.2

In Arguendo, The provisions of Clause C of the Vipulian Economic

10

Charter have not been violated.

2

AMITI IS REQUIRED TO PROVIDE THE INFORMATION REQUESTED BY DARSHINI IN ACCORDANCE WITH ITS INTERNATIONAL OBLIGATIONS

2.1

AMITI IS REQUIRED TO PROVIDE INFORMATION IN ACCORDANCE

11

WITH THE VIPULIAN ECONOMY CHARTER. 2.1.1

The Vipulian Economy Charter is a treaty adopted by the Vipulian

11

Economy which all member states are required to abide by 2.1.2

Amiti is required to provide Darshini information in accordance with

11

clause E of the Charter of the Vipulian Economic Union. 2.1.3

Amiti is required to provide Darshini information in accordance with

12

clause B of the Charter of the Vipulian Economic Union. 2.2

THE RIGHT TO PRIVACY IS NOT PROTECTED BY THE VIPULIAN

13

ECONOMIC UNION CHARTER. 2.3

IN ARGUENDO, THE INFORMATION REQUIRED BY DARSHINI DOES

14

NOT INTERFERE WITH THE RIGHT TO PRIVACY 2.3.1

Stage one of the Determination process A. THE APPLICANT HAS A BURDEN OF PROOF TO CHARACTERIZE THE RIGHT IT SEEKS TO PROTECT AND ADVANCE IT BEFORE THE COURT B. IN ARGUENDO, THE RIGHT IN QUESTION IS NOT PROTECTED

D.M HARISH MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2012

14

TABLE OF CONTENTS 2.3.2

MEMORIAL ON BEHALF OF RESPONDENT

Stage Two of the Determination process

16

A. IN ARGUENDO, IF THE RIGHT IN QUESTION IS PROTECTED THERE IS NO INTERFERENCE WITH THE RIGHT B. ASSUMING WITHOUT CONCEDING IF THERE HAS BEEN INTERFERENCE WITH THE RIGHT THE INTERFERENCE IS JUSTIFIED a. The information requested for is in accordance with law b. The Information requested for pursues a legitimate aim c.

The information requested for is necessary in a democratic society

2.4

ALTERNATIVELY AMITI IS TO REQUIRED TO PROVIDE INFORMATION

19

TO DARSHINI IN PURSUANCE OF THE DOUBLE TAX AVOIDANCE AGREEMENT 2.5

AMITI CANNOT INVOKE PROVISIONS OF ITS BANKING REGULATION

20

AND SECRECY ACT AS A JUSTIFICATION FOR NOT EXCHANGING INFORMATION WITH DARSHINI

PRAYER

D.M HARISH MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2012

XVI

LIST OF ABBREVIATIONS ¶

Paragraph

§

Section

DTAA

Double Tax Avoidance Agreement

ECHR

European Convention of Human Rights

GATT

General Agreement on Tariffs and Trade

ICJ

International court of Justice

ICCPR

International Covenant on Civil and Political Rights

ICESCR

International Covenant on Economic, Social and Cultural Rights

ICSID

International Centre for the Settlement of Investment Disputes

ILC

International Law Commission

Intl

International

ILR

International Law Review

ITLOS

International Tribunal for the Law of the Sea

OECD

Organization for Economic Cooperation and Development

PCIJ

Permanent Court Of international Arbitration

Res

Resolution

WTO

World Trade Organization

UDHR

Universal Declaration Of Human Rights

UN

United Nations

U.N.G.A

United Nations General Assembly

U.N.R.I.A.A

United Nations Reports of International Arbitral Awards

U.N.T.S

United Nations Treaty System

U.S

United States

D.M HARISH MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2012 

I

INDEX OF AUTHORITIES

ARTICLES 1.

Adam Winkler, Just Sanctions, 21 Human Rights Quarterly (1999)

7

2.

Balassa, В , Trade Creation and Trade Diversion in the European Common 10 Market, The Economic Journal, vol. 77,(1967)

3.

Benjamin E. Bratman , Brandeis And Warren's “The Right To Privacy And 13 The Birth Of The Right To Privacy, 69 Tennessee Law Review 623,(2009)

4.

Christopher Saporita , Reconciling Human Rights And Sovereignty: A 13 Framework For Global Property Law, 10 Indiana Journal of Global legal studies,(2003)

5.

David Cortright & George A. Lopez, The Sanctions Decade, (2000)

6

6.

D. W. Bowett, International Law and Economic Coercion, 16 Virginia 9 Journal of International Law ,(1975-6)

7.

David Brown ,Making Room For Sexual Orientation And Gender Identity In 13 International Human Rights Law: An Introduction To The Yogyakarta Principles, 31 Michigan Journal of Int'l Law, 2010)

8.

Elias Davidsson, Towards a Definition of Economic Sanctions, 2003

6

9.

GH Fox, Constitutional Violations and the Validity of Treaties: Will Iraq 4 Give Lawful Consent to a Status of Forces Agreement?, Wayne State University Law School Research Paper No 08–25, (2008)

10.

I. Shihata, Arab Oil Policies and the New International Economic Order,16 9 Virginia Journal of International Law,(1975-6)

11.

J. Paust & A. Blaustein, The Arab Oil Weapons - A Threat to International 9 Peace, 68 American Journal of Intl Law 410,(1974)

12.

M. Mennecke and C Tams ,The Right To Consular Assistance Under 7 International Law, 42 German Yearbook of Int Law,(1999)

13.

Mario Polesi, Economic Integration, National Policies And The Rationale Of 10 Regional Separatism

14.

Mary LaFrance & Gail H. Cline ,Identical Cousins?: On The Road With 13 Dilution And The Right Of Publicity, 24 Santa Clara Computer & High Technology Law Journal 641, (2008)

15.

Maziar Jamnejad & Michael Wood, The Principle Of Non-Intervention, 9

D.M HARISH MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2012 

II

INDEX OF AUTHORITIES

MEMORIAL ON BEHALF OF RESPONDENT

22(2) Leiden Journal of Intl Law, (2009) 16.

Michael Lennard, The UN model Tax Convention As Compared With the 19 OECD Model Tax Convention – Current Points of Difference and Recent Developments, Asia-Pacific Tax Bulletin,( January /February 2009)

17.

OECD, Forces Shaping Tax Policy,63 OECD Economic Outlook(June 1998) 18

18.

Omer Y. Elagab, Coercive economic measures against developing countries, 7 41 International & Comparative Law Quarterly,1992)

19.

Oscar Schachter, In Defense Of International Rules On The Use Of Force, 8 53 University of Chicago Law Review,(1986)

20.

P

Groenewegen

,Distributional

and

Allocational

Effects

of

Tax 18

Avoidance,(Australian Tax Research Foundation, (1984) 21.

Pamela Stephens ,Applying Human Rights Norms To Climate Change: The 14 Elusive Remedy,21 Colorado Journal of Int'l Environmental Law & Policy 49,( 2010)

22.

R. Porotsky, Economic Coercion and the General Assembly, 28 Vanderbilt 9 Journal of Transnational Law, (1995)

23.

R.T Dalimov, The Dynamics Of The Trade Creation And Diversion Effects 10 Under International Economic Integration, Current Research Journal of Economic Theory, vol. 1, issue 1,( 2009)

24.

S.E Wilborn, Revisiting The Public/Private Distinction: Employee 15 Monitoring In The Workplace,32 Georgia Law Review, (1998)

BOOKS AND REPORTS 1.

ANTHONY AUST, MODERN TREATY LAW AND PRACTICE (2007)

7

2.

ANTONIO CASSESSE, THE

8

CURRENT LEGAL REGULATION OF THE USE OF

FORCE(1986)

3.

ALBERICO GENTILI, DE IURE BELLI, LIBRI TRES(1612, reprinted Oxford, 4 Clarendon Press, 1933)

4.

BALTHAZARIS AYALAE, DE JURE ET OFFICIIS BELLICIS ET DISCIPLINA 4 MILITARI, LIBRI TRES(1582 reprinted Washington, Carnegie Institution, 1912)

5.

BRUNO

SIMMA,

THE

CHARTER

OF

THE

UNITED

NATIONS-A 6

D.M HARISH MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2012 

III

INDEX OF AUTHORITIES

MEMORIAL ON BEHALF OF RESPONDENT

COMMENTARY(1995) 6.

C. F. AMERASINGHE, LOCAL REMEDIES IN INTERNATIONAL LAW(2004)

1

7.

C. WOLFF, JUS GENTIUM METHODO SCIENTIFICA PERTRACTATUM(1764, 4 reprinted Oxford, Clarendon Press, 1934)

8.

DAVID A. REIDY, MORTIMER N. S. SELLERS, UNIVERSAL HUMAN RIGHTS: 13 MORAL ORDER IN A DIVIDED WORLD(2005)

9.

DAVID ALLEN BALDWIN, ECONOMIC STATECRAFT (1985)

8

10.

DAVID HARRIS, CASES AND MATERIALS ON INTERNATIONAL LAW (2011)

20

11.

EMIIRECH DE VATTEL, LE DROIT DES GENS OU PRINCIPES DE LA LOI 4 NATURELLE(1758 reprinted Washington, Carnegie Institution, 1916)

12.

FRANCIS G. JACOBS, THE EUROPEAN CONVENTION ON HUMAN RIGHTS(1975)

14

13.

GARY CLYDE HUFBAUER, ECONOMIC SANCTIONS RECONSIDERED( 2007)

6

14.

HUGO GROTIUS, DE JURE BELLI AC PACIS, LIBRI TRES(1646, reprinted 4 Oxford, Clarendon Press, 1925)

15.

I.A SHEARER, STARKES INTERNATIONAL LAW(1994)

13

16.

IAN BROWNLIE, PRINCIPLES OF INTERNATIONAL LAW(2008)

15

17.

I L. OPPENHEIM, INTERNATIONAL LAW: A TREATISE (8th Ed. 1955)

1, 3

18.

L OPPENHEIM

EDITED BY

SIR ROBERT JENNINGS & SIR ARTHUR WATTS, 8, 9

OPPENHEIMS INTERNATIONAL LAW, VOLUME 1 PEACE, PARTS 1 (2005) 19.

LARRY J. SIEGEL , CRIMINOLOGY(2004),

12

20.

JAMES CRAWFORD ILC’S ARTICLES ON STATE RESPONSIBILITY – 9, 10 INTRODUCTION TEXT AND COMMENTARY( 2001)

21.

KAREN DAVIES, UNDERSTANDING EUROPEAN UNION LAW(2003)

10

22.

KATHLEEN MAGUIRE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS (1995)

20

23.

LORD MCNAIR, INTERNATIONAL LAW OPINIONS(1956)

7

24.

MARGARET P. DOXEY, INTERNATIONAL SANCTIONS

IN

CONTEMPORARY 6, 7

PERSPECTIVE(1996) 25.

MICHAEL IMBER & TYLL VAN GEEL, EDUCATION LAW (2010)

26.

NICKEL JAMES, HUMAN RIGHTS: THE STANFORD ENCYCLOPEDIA

18 OF

13

PHILOSOPHY(2010) 27.

NOWAK, UN COVENANT

ON

CIVIL

AND

POLITICAL RIGHTS: CCPR 14,

COMMENTARY(1993) 28.

15

OECD COMMITTEE ON FISCAL AFFAIRS ,OECD MODEL TAX CONVENTION 19

D.M HARISH MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2012 

IV

INDEX OF AUTHORITIES

MEMORIAL ON BEHALF OF RESPONDENT

ON INCOME AND CAPITAL A COMMENTARY(2008) 29.

REUVEN S. AVI-YONAH, INTERNATIONAL TAX AS INTERNATIONAL 19 LAW(2007)

30.

RICHARD LILLICH, HUMAN RIGHTS IN INTERNATIONAL LAW, LEGAL AND 14 POLICY ISSUES (1984)

31.

RONALD C. KEITH

ZHIQIU LIN, NEW CRIME IN CHINA: PUBLIC ORDER 18

AND

AND HUMAN RIGHTS(2006) 32.

RONALD C. KEITH & ZHIQIU LIN, NEW CRIME IN CHINA: PUBLIC ORDER AND 12 HUMAN RIGHTS(2006),

p.33;KATHLEEN MAGUIRE, SOURCEBOOK

OF

CRIMINAL JUSTICE STATISTICS (1995) 33.

S. PUFENDORF, DE JURE NATURAE ETGENTIUM, LIBRI OCTO (1688, reprinted. 4 Oxford, Clarendon Press, 1934)

34.

S. ROSENNE, THE LAW AND PRACTICE OF THE INTERNATIONAL COURT(1965)

35.

SARAH JOSEPH, JENNY SCHULTZ & MELLISA CASTAN, THE INTERNATIONAL 14, COVENANT

ON

CIVIL

AND

POLITICAL RIGHTS: CASES, MATERIALS

AND

7 17

COMMENTARY(2004) 36.

SHABTAI ROSENNE, THE INTERNATIONAL LAW COMMISSION'S DRAFT 2 ARTICLES ON STATE RESPONSIBILITY(1991)

37.

THOMAS AND THOMAS, THE CONCEPT OF AGGRESSION IN INTERNATIONAL 8 LAW(1972)

38.

VICTOR CONDÉ ,A HANDBOOK OF INTERNATIONAL HUMAN RIGHTS 13 TERMINOLOGY(2004)

39.

URSULA KILKELLY, A GUIDE TO THE IMPLEMENTATION OF THE ARTICLE 8 14, OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS (2003)

17, 19

40.

WEST'S ENCYCLOPEDIA OF AMERICAN LAW, VOLUME 7TH (2005)

18

TREATIES,CONVENTIONS AND RESOLUTIONS 1.

Charter of the United Nations

8

2.

European Union, Treaty Establishing the European Community), Rome 10 Treaty, 25 March 1957,

3.

International Convenant on Civil and Political Rights, 16 December 1966 , 15 General Assembly resolution 2200A (XXI)

D.M HARISH MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2012 

V

INDEX OF AUTHORITIES 4.

MEMORIAL ON BEHALF OF RESPONDENT

Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2, 4 November 2001, Supplement No. 10 (A/56/10)

5.

OECD Model Tax Convention On Income And Capital

19

6.

Responsibility of States For Internationally Wrongful Acts, UNGA Res 2 56/83, ¶ 3 (Dec. 12, 2001)

7.

The Convention For the Protection Of Human Rights and Fundamental 15, Freedoms ,4th November 1950(Also known as European Convention on 16, Human Rights)

18

7.

UN Model Convention on Double Taxation

19

8.

United Nations, Statute of the International Court of Justice, 18 April 1946

6

9.

Universal Declaration of Human Rights, (1948),G.A. res. 217A (III), U.N. 15 Doc A/810 at 71

10.

Vienna Convention on The Law of Treaties,1969, , 1155 U.N.T.S. 331

2,3, 11, 14, 20

REPORTS ,COMMENTS AND YEARBOOKS 1.

Fourth Report of the Special Rapporteur

Sir Humphrey Waldock, ILC 3

Report, A/6009 (F)(A/20/9), ,chapter II (A),(1965) 2.

J. Kokott, ‘Interim Report on the Exhaustion of Local Remedies’, 1 International Law Association, Report of the Sixty-Ninth Conference, London, 2000

3.

James

Crawford’s

Second

Report

on

State

Responsibility,

UN 5

Doc. A/CN.4/498/Add.4,(July 1999) 4.

General Comment No 16,Human Rights Committee

5.

Opinion of Law Officers Of The British Crown In Connection With The 10, Simons Town Agreement (1971)

6.

16 20

Report of the International Law Commission on the Work of Its Thirty- 5 second Session,2 Yearbook of the ILC, (1980), (Part. II), UN Doc. A/CN.4/SER.A/1980/Add.1 (Part 2)

7.

Robert Ago’s Eight Report on State Responsibility, Yearbook of the 4 ILC,(1969), vol. II (Part I), Report A/CN.4/318/ADD.5

D.M HARISH MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2012 

VI

INDEX OF AUTHORITIES 8.

MEMORIAL ON BEHALF OF RESPONDENT

Roberto Argo, Sixth Report On State Responsibility, Yearbook of the ILC, 1 (1977) Part 2

9.

South African Revenue Service (SARS), Discussion Paper on Tax 12 Avoidance (November 2005)

10.

Statement by Ottawa Revenue Minister Jean-Pierre Blackburn as reported by 12, Louise Egan, Canada Asks France For A List Of Swiss Account Holders, 14, Reuters News Network, Friday January 08,2011

16, 20

11.

Summary Report of the 11th Meeting of the Committee, UNICIO Doc. 8 (1945) ,G17(4), (6 May 1945)

12.

United States – Sections 301-310 of the Trade Act of 1974, WT/DS152/R, 2 Report of the Panel, (Dec. 22, 1999)

13.

Yearbook of the ILC,(1969) vol. II (Part II), Report A/CN.4/SER.A/1980

5

ICJ AND PCIJ CASES 1.

Advisory Opinion On Legal Consequences For The States Of The Continued 11 Presence Of South Africa In Namibia Notwithstanding Security Council Resolution 276, ,ICJ Reports 1971,p. 16(21 June 1971)

2.

The Advisory Opinion On The Exchange Of Greek And Turkish Populations 14 Case, PCIJ Reports, Series B, No.10, (21st February 1925)

3.

Armed Activities On The Territory Congo(Between Democratic Republic Of 2 Congo v. Uganda), 2001,ICJ Reports 2001, p. 146-147(11 December 23, 2001)

4.

Corfu Channel Case (United Kingdom v. Albania), I.C.J. Reports 1949, p. 7 4,(9 April 1949)

5.

Case Concerning Certain Phosphate Lands In Nauru ( Nauru v. 6 Australia),I.C.J Report 1992, (26th June 1992)

6.

Continental Shelf Case(Libya Arab Jamahiriya v. Malta), ICJ Reports 1985, 13 (3rd June 1985)

7.

Diallo Case (Guinea v. Democratic Republic of Congo), ICJ 1 Reports 2007, (24 May 2007)

8.

East Timor Case (Portugal v. Australia )I.C.J Reports 1995,p.101(30th June 6 1995)

D.M HARISH MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2012 

VII

INDEX OF AUTHORITIES 9.

MEMORIAL ON BEHALF OF RESPONDENT

Elerrronica Sicula S.P.A. (ELSI) Case (Italy v. United States of America) , 1 I.C.J. Reports1989, (20th December 1988)

10.

Fisheries

Jurisdiction

Case(United

Kingdom

v. 11

Iceland(Jurisdiction),1973,ICJ Reports 1974, 11.

Gabcikovo Nagymaros Project Case(Hungary and Slovakia),1997, ICJ 11 Reports 1997, (25 September 1997 )

12.

Interhandel Case (Switzerland v. United States Of America), I.C.J. Reports, 1 (21 November 1959)

13.

Legality Of The Threat Or Use Of Nuclear Weapons Case, Advisory 13 Opinion ,ICJ reports 1996, (8th July 1996)

14.

Military

and

Paramilitary

Activities in

and

against 9

Nicaragua Case (Nicaragua v USA) (Merits), ICJ Reports (1986), (27th June 1986) 15.

Maritime Delimitation and territorial Questions Case(Qatar v. Bahrain) 11 (Jurisdiction and Admissibility No 2,), ICJ Reports 1995,(1st July 1994)

16.

Monetary Gold Removed from Rome in 1943 Case( Italy v. France, UK, 6 North Ireland & USA.),I.C.J Reports 1954, (15th June 1954)

17.

Nuclear Tests Case (Australia and New Zealand v. France), 1974, I.C.J. 2 Reports 1974, (20 December 1974)

18.

Questions of Interpretation and Application of the 1971 Montreal 7 Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom)(Preliminary Objections),ICJ Reports 1999, (27th February 1998)

19.

Sovereignty over Certain Frontier Land Case(Belgium v. Netherlands),ICJ 3 Reports (1959), (Declaration of Judge Lauterpacht )(20th June 1959)

20.

Temple of Preah Vihear Case, ICJ Reports (1962) (Decision of Judges 3 Alfaro and Fitzmaurice)

OTHER CASES 1.

California Bankers Association vs. Shultz, 416 U.S. 21 (1974); US vs. 15 Miller, 425 U. S. 435, 442 (1976)

2.

Commission of the European Communities v Italian Republic. - Case 24- 10 68. European Court Reports 1969, p. 193(1stJuly 1969)

D.M HARISH MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2012 

VIII

INDEX OF AUTHORITIES 3.

MEMORIAL ON BEHALF OF RESPONDENT

Cr`emieux v. France(Application No.11471/85) European Court of Human 16, Rights(Series A No 256B),(25th February 1993)

18, 19

4.

Dudgeon v. United Kingdom , Application No. 7525/76,European Court of 16, Human Rights, (Series A, No. 45)(23 September 1981)

5.

19

Gaskin vs. The United Kingdom, European Application No. 10454/83, 16 European Court of Human Rights, (ser. A ,No 160) , (7th July 1989)

6.

Klass & Others v. Germany(Application No. 5029/71), European Court of 16, Human Rights(Series A No 28),(6th September 1978)

7.

19

LG&E v. Argentina, ICSID Case No. ARB/02/1 (United States/Argentina 4, 5 BIT),(8th July 2008)

8.

Niemietz v. Germany, Application No. 13710/88, European Court of Human 15 Rights, (ser. A ,No 251B) ,( 16th December 1992)

9.

P.G. & J.H. v. the United Kingdom,(Application No. 44787/98), European 17 Court of Human Rights) (Series A No.2001-IX),(25th September 2001)

10.

Peck v. United Kingdom, Application No. 44647/98,European Court of 18 Human Rights, (ser. A) , (2003)

11.

Russian Indemnity case(Russia v. Turkey) ,UNRIAA vol. XI, (Sales No. 5 61.V.4), (11 November 1912)

12.

Soering v. the United Kingdom , (Application No.14038/88) European Court 18 of Human Rights(Series A No 0161), (7 July 1989)

13.

Toonen v Australia ,UN Doc CCPR/C/50/D/488/1992.§ 6.10(4 April 1994),

16

14.

US vs. Miller, 425 U. S. 435, 442 (1976)

15,17

15.

X & Y v. the Netherlands, Application No. 8978/80, European Court of 16 Human Rights, (ser. A ,No 091) , ( 163th December 1983)

NATIONAL LAWS 1.

US Department of State. 9 FAM 40.21(a) N2.3-2 Crimes Committed Against 18 Governmental Authority. Foreign Affairs Manual—Volume 9: Visas. http://www.state.gov/documents/organization/86942.pdf.

Accessed

September 5, 2001 2.

United Sates Constitution

3

3

French Constitution

3

D.M HARISH MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2012 

IX

STATEMENT OF JURISDICTION The State of Amiti on one side and the State of Darshini on the other have submitted by a special agreement their differences regarding certain economic and taxation policies to the International Court of Justice and transmitted a copy to the registrar pursuant to article 40(1) of the Statute of the International Court of Justice. Therefore, both parties have accepted the Court’s jurisdiction Pursuant to article 36(1) of the Statute.

D.M HARISH MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2012 

X

STATEMENT OF FACTS

PROLOUGE: THE VIPULIAN ECONOMIC UNION The Vipulian Economic Union is an economic union comprising of twelve geographically proximate nations sharing common religious and economic ties. The Vipulian Economic Union Charter espouses certain principles, namely, Respect for universal rights; Mutual respect for member nation laws and support for implementation of member nation laws and judicial decisions; Movements towards full economic integration- with respect to currency, fiscal policy, monetary policy, Taxation and legal systems; Preservation of the cultural, social and religious histories of member nations; Exchange of information on matters of importance to member nations and its policies.

DESCRIPTION OF STATE PARTIES AMITI: A developing country, Amiti opened its economy in 1992 and since then has succeeded to a large degree in integrating its economy into the Vipulian Union as well as the global economy. The country is a renowned for its technology and outsourcing. It has a clear separation of powers and a Parliamentary system of Governance. Amiti has in place the Banking Regulation and Secrecy Act, a domestic legislation, which was passed primarily for the protection of privacy of individuals and whereby banks were required to maintain secrecy of banking transactions unless forced to make disclosures by applicable laws. DARSHINI: The second largest economy in the world with an entrepreneurial culture, free market economy, strong regulatory bodies and a social security net for citizens, constitutionally, Darshini, has a clear separation of powers and a Presidential form of governance. Darshini entered into a DTAA with Amiti whereby a particular capital gains treatment was adopted, which according to most experts, was originally at Darshini’s behest.

DOUBLE TAX AVOIDANCE AGREEMENT (DTAA) Darshini and Amiti entered into a Double Tax Avoidance Agreement which conspicuously has no limited limitation of benefits clause and under which the exchange of information clause was restricted to matters under the treaty. As a consequence of this treaty, the country of residence was to tax capital gains. Following this treaty, Amiti’s tax rate dropped and various corporations around the world invested into the Vipulian Union and particularly into Darshini through entities set up in Amiti.

D.M HARISH MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2012 

XI

STATEMENT OF FACTS

MEMORIAL ON BEHALF OF RESPONDENT

ECONOMIC POLICIES OF DARSHINI AND CONSEQUENCES THERETO In 2005, Mrs. Raj, a well-respected economist, was elected as the President in Darshini. Post the 2008-2009 fiscal crisis, Mrs. Raj increased government spending and with the legislature passed a number of stimulus packages to support the economy, all to prevent the economy from slipping into recession. Many economists were of the view that these steps had protected the economy from recession. In 2010, however, the Democratic Party of Darshini was elected to the legislature, who instantly overturned the economic policies for more fiscal conservativeness, or in the words of the leader of the Party, “brace for pain, inorder to insure that the country recovered in the medium to long term”. Consequently, the expenditures on social programs and subsidies for business were particularly hit. By late 2010, the country slipped into recession. These measures had a particularly devastating impact on the economy in Amiti and the member countries of the Vipulian Union. The situation was grave with an absolute freeze of investment money, complete secession of supply of goods and services from Darshini and an all-time low for taxation. The Amitian prime Minister repeatedly requested Darshini to reverse its policies or at the very least to reverse certain key aspects, but the Darshinian President was unable to accede to those requests since the legislature was “hell bent on following ideological policies rather than policies that were pragmatic and consistent with the need of the hour”. Independent reports confirm that the social unrest attributable to the state of the economy and unemployment. In Darshini, the drop in public expenditure had greatly aggravated the problems.

LOWER COURT DECISION AND CONSEQUENCES THERETO In early 2011, a Lower Court in Darshini gave a series of ‘public policy’ hearings on the DTAA whereby it sought to invalidate the same on grounds of ‘loss of revenues’ and ‘questions on whether the income tax legislation in the country expressly permitted the executive to enter into tax treaties and forgo the country’s right to tax capital gains.’ This view was disputed by various legal experts. The matter was not taken to the higher courts and the legislature welcomed the decision and vis a vis an obscure constitutional provision advised the executive to implement the decision. Mrs Raj, while not dispensing any uncertainties about the effect of the same, merely stated that “the law should take its course and be implemented fully”This was followed by a verbal volley of statements between the two member nations with the President of Darshini committing that “it was likely that the decision of the lower Court would be enforced at least for a period of two years,” and the the D.M HARISH MEMORIAL INTERNATIONAL MOOT COURT COMPETITION 2012 

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Head of the Democratic Party justifying the “tough choices” on grounds of “economic crisis” and “global state practice with respect to tax havens.” These collective statements of the authority in Darshini spooked the stock markets which fell dramatically adding to the economic woes of the Vipulian region.

EXCHANGE OF INFORMATION Around the same time, the Darshinian Supreme Court ordered the Darshinian Government to conduct investigations into violations of Darshini laws by residents. The Darshini Government, consequently, requested the Government of Amiti to disclose the identities of all Darshini based residents who had bank accounts in Amiti. Since these was in grave violation of the banking Regulations and Secrecy Act as also the principle of privacy espoused in the Vipulian Charter, Amiti refused to comply with the same. Amiti, however, offered to make disclosure in cases where violations of law had been established.

EPILOUGE Following a to and fro of accusations from both sides where the Amiti Government rightly accused Darshini of imposing economic sanctions, use of force and at the very least , intervention in violation of Amiti’s sovereignty, and Darshini accused Amiti of violation of the Vipulian Charter provisions the Secretary General of the United Nations advised the states to refer the matter to the ICJ, as a result of which this dispute was submitted to the registry of the International Court of Justice.

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QUESTIONS PRESENTED The parties have placed before this Hon’ble Court, the following Questions for its consideration: 1. Whether the Decision of the Lower Court of Darshini and subsequent acts on behalf of the Legislature and Executive amount to violation of the Double Tax Avoidance Agreement and International Law on Taxation? 2. Whether the Decision of the Lower Court of Darshini and subsequent acts on behalf of the Legislature and Executive amount to treaty invalidation, and if so, is the treaty invalidation so justified? 3. Whether the Decision of the Lower Court of Darshini and subsequent acts on behalf of the Legislature and Executive amount to imposing sanctions, use of force or at the very least, intervention against the sovereignty of Amiti? 4. Whether Amiti is required to disclose the requested information under the DTAA or the Vipulian Charter? 5. Whether the right to privacy is protected under the Vipulian Charter and consequently, whether Amiti is required to disclose the requested information in light of the privacy right of individuals?

The Applicant has duly addressed all the aforementioned in the form of two substantive arguments advanced summarized under.

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1. THE ACTS OF DARSHINI ARE IN ACCORDANCE WITH BOTH INTERNATIONAL LAW AS WELL AS ITS TREATY OBLIGATIONS This claim of the republic of Amiti is not admissible due to the exhaustion of local remedies rule. Further the State of Darshini hasn’t committed any wrongful act under international law and the unilateral declarations by the president and the head of the democratic republic party do not incur any international responsibility. Alternatively the state of Darshini is entitled to invalidate a treaty due to constitutional constraints and also the treaty violation is precluded due to the circumstance of ‘necessity’. The lower court decision and the economic policies of Darshini are not in violation of the Vipulian Economic Union Charter and also do not amount to de facto economic sanctions against the state of Amiti, use of force against the state of Amiti and interference in the internal affairs of Amiti.

2. AMITI IS REQUIRED PROVIDE INFORMATION REQUESTED BY DARSHINI IN ACCORDANCE WITH ITS INTERNATIONAL OBLIGATIONS Amiti is required to provide information in accordance with the B and E of Vipulian economy charter and the DTAA between Amiti and Darshini. Further Amiti may not invoke provisions of its banking regulation and secrecy act as a justification for not exchanging information with Darshini. Alternatively the right to privacy isn’t protected by the Vipulian economic union charter. Also even if it is protected the information required by Darshini doesn’t interfere with the right to privacy and even if it does the interference would be justified as it is in accordance with law. necessary in a democratic society and it pursues a legitimate aim

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CONTENTION I THE ACTS OF DARSHINI ARE IN ACCORDANCE WITH BOTH INTERNATIONAL LAW AS WELL AS ITS TREATY OBLIGATIONS 1.1. THE PRESENT CLAIM OF THE REPUBLIC OF AMITI IS NOT ADMISSIBLE DUE TO THE EXHAUSTION OF LOCAL REMEDIES RULE. Customary International Law provides that before international proceedings are instituted or claims or representations made, the remedies provided by the local State should have been exhausted. 1 The purpose of the rule is both to enable the State to have an opportunity to redress the wrong that has occurred within its own legal order and to reduce the number of international claims that might be brought. 2 This fact can be advanced by the jurisprudence of the ICJ. 3 Unless local remedies have been invoked one cannot qualify a State’s action as amounting to an internationally wrongful act. 4 In the current case it can be seen redress is clearly available by Appeal in the Higher Courts and Supreme courts of the Republic of Darshini, which have previously given a positive interpretation of the Treaty 5 and since such redress has not been pursued the present claim is not admissible at the international plane. 1.2. THE STATE OF DARSHINI HAS NOT COMMITTED ANY WRONGFUL ACT UNDER INTERNATIONAL LAW. The rules which determine whether a State is in breach of its obligations toward another state are referred to as the principles of state responsibility 6 which have been widely recognized in international law. 7 In asserting state responsibility the work of the international law commission on state responsibility is already recognized as a principle of customary                                                              1

C. F. AMERASINGHE, LOCAL REMEDIES IN INTERNATIONAL LAW(2004),p.15-60; J. Kokott, ‘Interim Report on the Exhaustion of Local Remedies’, International Law Association, Report of the Sixty-Ninth Conference, London, 2000, p. 606.[hereinafter as Kakkot].

2

Yearbook of the ILC, (1977),vol.II, part 2, p. 30; [Kakkot], Id. At 606.

3

D iallo Case (Gu in ea v . D e mo cratic Repub lic of Congo), I CJ Repor ts 2007, ¶42¶44,(24 May 2007) ;Interhandel Case (Switzerland v. United States Of America), I.C.J. Reports, p. 6,27(21 November 1959) ;Elerrronica Sicula S.P.A. (ELSI) Case (Italy v. United States of America) , I.C.J. Reports 1989, p. 42 at ¶50(20th December 1988). 4

Roberto Argo, Sixth Report On State Responsibility, Yearbook of the ILC, (1977) Part 2, p .20.

5

Compromis ¶ 11.

6

Garcia-Amador, First Report on State Responsibility, U.N. Doc. A/CN.4/96 (1956), reprinted in The Yearbook of the ILC,(1956), p. 173-231. 7

I L. OPPENHEIM, INTERNATIONAL LAW: A TREATISE, §§ 148-49, At 336-38 (8th Ed. 1955)[hereinafter OPPENHEIM].

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international law 8 and has been relied on by the ICJ 9 . Further ILCs work has been adopted by the General Assembly. 10 The ILC’s Articles on State Responsibility decree that a breach of an international act only occurs when the act is performed and extends over the entire period the act is performed. 11 Thus, an act can amount to being against the principles of international law, only once it is committed and not before its commencement. In the current situation there is no explicit cancellation of the DTAA as no treaty is cancelled until and unless the other state is notified in accordance with the rules and procedures 12 and further no capital gains were subjected to taxation outside the state of residence. Therefore it is submitted that hasn’t committed any wrongful acts under international law. 1.3. UNILATERAL DECLARATIONS BY THE PRESIDENT AND THE HEAD OF THE DEMOCRATIC REPUBLIC PARTY DO NOT INCUR ANY INTERNATIONAL RESPONSIBILITY. Attributing international legal significance to unilateral statements made by a State should not be done lightly and should be subject to strict conditions. 13 A sovereign State should normally not find itself legally affected on the international plane by the casual statement of any of the numerous representatives speaking on its behalf. 14 ICJ jurisprudence has propounded the test that only when it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of legal undertaking. 15 Thus the intent to be bound by the declaration is a perquisite for the declaration to create any type of international legal responsibility. This requisite of intent was also mandated by the ICJ where it decreed that to entail responsibility it should be observed whether the language employed in any given declaration does reveal a clear                                                              8

SHABTAI ROSENNE, THE RESPONSIBILITY(1991), P.167.

INTERNATIONAL

LAW

COMMISSION'S

DRAFT

ARTICLES

ON

STATE

9

Armed Activities On The Territory Congo(Between Democratic Republic Of Congo v. Uganda), 2001,ICJ Reports 2001, p. 146-147(11 December 23, 2001). 10

Responsibility of States For Internationally Wrongful Acts, UNGA Res 56/83, ¶ 3 (Dec. 12, 2001).

11

International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Article 15, Supplement No. 10 (A/56/10)[hereinafter as Draft Articles on State Responsibility]. 12

Vienna Convention on The Law of Treaties,1969, §4, 1155 U.N.T.S. 331[hereinafter as VCLT].

13

United States – Sections 301-310 of the Trade Act of 1974, WT/DS152/R, Report of the Panel, ¶ 7 ¶ 118,(Dec. 22, 1999). 14

Nuclear Tests Case (Australia and New Zealand v. France), 1974, I.C.J. Reports 1974, ¶ 43,(20 December 1974) . 15

Id. at ¶43.

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intention. 16 This intention is not mirrored in the statements made by the President and the head of the Democratic Party, rather from the construction of the statements it appears that they were made casually, without

any intention of creating international obligations, and

hence the State of Darshini cannot be bound by them. Thus it is submitted that unilateral declarations by the president and the head of the democratic republic party do not incur any international responsibility. 1.4. IN ARGUENDO, THE STATE OF DARSHINI IS ENTITLED TO INVALIDATE A TREATY DUE TO CONSTITUTIONAL CONSTRAINTS The State of Darshini has impeached the treaty due to lack of authority of the executive to enter into such tax treaties whereby the country has forsaken its right to tax capital gains. The validity of a treaty may be open to question if it has been concluded in violation of the constitutional laws such that the states representatives must have exceeded their powers in concluding the treaty. 17 A rule to this effect is well established in customary International Law. 18 A State can invoke non observance in its internal law as a basis for invalidating its consent to be bound by a treaty but the rule of internal law relates to competence to conclude treaties only if it is a rule of fundamental importance and if the violation is manifest and such is objectively evident to any state conducting itself in the matter. 19 Thus a lack of authority may be manifest to the other party if the other party has actual knowledge or was negligently ignorant of the other party’s lack of authority. 20 The special nature of tax treaties dictates that in Presidential systems of governance, the executive has the power to enter into treaties only after the advice and consent of the legislature. 21 Such a lack of authority can be considered manifest and the lowering of the threshold for assuming a manifest violation is based on the right to democratic governance which is emerging with the international legal order.22 Thus such a lack of independent treaty making power solely with the President, in Presidential                                                              16

Temple Of Preah Vihear Case(Thailand v. Cambodia), ICJ Reports 1962,p .32 (15 June 1962).

17

[OPPENHEIM],supra note 7 at p. 1285.

18

Sovereignty over Certain Frontier Land Case(Belgium v. Netherlands),ICJ Reports (1959), p. 23031(Declaration of Judge Lauterpacht )( 1959 ). 19

VCLT, Article 46.

20

Fourth Report of the Special Rapporteur Sir Humphrey Waldock, ILC Report, A/6009 (F) (A/20/9), ,chapter II (A), ¶3 ¶15,(1965). 21

United Sates Constitution, Article 2(2); French Constitution, Article 53.

22

GH Fox, Constitutional Violations and the Validity of Treaties: Will Iraq Give Lawful Consent to a Status of Forces Agreement?, Wayne State University Law School Research Paper No 08–25, 25–26,p.32-46, (2008).

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Governments being objectively evident, or manifest, a treaty entered into without the appropriate authority can be rescinded keeping in with the provisions of international law. Further from the facts of the case it is evident that financial decisions of importance lie with the legislature and that the president is handicapped in this regard. 23 Thus it is submitted that the state of Darshini is entitled to invalidate a treaty due to constitutional constraints. 1.5. IN ARGUENDO, THE TREATY VIOLATION IS PRECLUDED DUE TO THE CIRCUMSTANCE OF ‘NECESSITY’ In the present situation Darshini was compelled to take actions contrary to its treaty obligations in the light of the political, economic and social crisis that befell on it. The concept of excusing a State for the responsibility for violation of its international obligations during what is called a “state of necessity “is recognized to extent that it is considered a part of international law. 24 Even the Articles on State responsibility which were shown to be custom allow wrongfulness to be precluded on grounds of necessity. 25 In international law, a state of necessity is marked by certain characteristics that must be present in order for a State to invoke this defense. 26 A state of necessity is identified by those conditions in which a State is threatened by a serious danger to its existence, to its political or economic survival. 27 Hence, the possibility of alleging the state of necessity is closely bound by the requirement that there should be a serious and imminent threat and no means to avoid it. The identification of such circumstances, in principle, have been left to the State’s subjective appreciation

28

Taking each element in turn the principle of necessity requires that the

‘essential interest’ of the State must have been threatened and such essential interests have

                                                             23

Compromis ¶8 & ¶10.

24

BALTHAZARIS AYALAE, DE JURE ET OFFICIIS BELLICIS ET DISCIPLINA MILITARI, LIBRI TRES (1582 reprinted Washington, Carnegie Institution, 1912), vol. II, p. 135; ALBERICO GENTILI, DE IURE BELLI, LIBRI TRES (1612, reprinted Oxford, Clarendon Press, 1933),vol. II, p. 351; HUGO GROTIUS, DE JURE BELLI AC PACIS, LIBRI TRES (1646, reprinted Oxford, Clarendon Press, 1925), vol. II, p. 193;EMIIRECH DE VATTEL, LE DROIT DES GENS OU PRINCIPES DE LA LOI NATURELLE (1758 reprinted Washington, Carnegie Institution, 1916), vol. iii, p. 149. ; S. PUFENDORF, DE JURE NATURAE ETGENTIUM, LIBRI OCTO (1688, reprinted. Oxford, Clarendon Press, 1934), vol. II, p. 295-296; C. WOLFF, JUS GENTIUM METHODO SCIENTIFICA PERTRACTATUM (1764, reprinted Oxford, Clarendon Press, 1934), vol. II, p. 173-174. 25

Draft Articles on State Responsibility, Article 25.

26

Id. at Article 25(a) & Article 25(b).

27

Robert Ago’s Eight Report on State Responsibility, Yearbook of the ILC,(1969), vol. II (Part I), Report A/CN.4/318/ADD.5, p. 3. 28

LG&E v. Argentina, ICSID Case No. ARB/02/1 (United States/Argentina BIT), ¶248 at p. 72(8th July 2008).

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been interpreted to include different matters such as the economy, ecology or other

29

The

“grave and eminent principle” requirement has been interpreted so as to include that the peril so threatened must be established objectively.30 In the present case, the threat of complete breakdown of the economy and society was both objectively present and eminent as evidenced from the deteriorating economic and social conditions caused due to the global financial crisis. 31 It is also required that such measures must have been the ‘only means’ available to the state to protect such interests. Thus the State must have exhausted all possible legal means before being forced to act as it does. 32 The various economic policies ranging from excessive government subsidizing and increased spending in order to cushion the negative impact of the economy to that of cutbacks in the public and military expenditure clearly establishes the exhaustive attempts made by the state to negate the economic downturn. Further for invoking the exception whereby the state has contributed to the state of necessity, the burden of proof has to be satisfied the Applicant State 33 and in the present case this cannot be claimed since the acts of the State of Darshini were an attempt to combat the huge loss in revenue that was caused due to the global financial crisis and not to a situation it had created due to its on acts. Therefore the acts of the State of Darshini can be precluded on grounds of necessity. 1.6. LOWER COURT DECISION AMOUNT TO DE FACTO

AND THE

ECONOMIC POLICIES

ECONOMIC SANCTIONS

AGAINST THE

OF

STATE

DARSHINI OF

AMITI

DO NOT OR

ANY

OTHER STATE IN THE VIPULIAN ECONOMIC UNION. 1.6.1. The Current claim is not maintainable at the ICJ Amiti had issued strong statements equating the economic policies and decisions of the Supreme Court of Darshini to effective sanctions against Amiti and other nations in the Vipulian Economic Union. 34 It is a well established principle that court will not entertain actions between States that in reality also included a third State without its                                                              29

Id. at 72; Yearbook of the ILC,(1969) vol. II (Part II), Report A/CN.4/SER.A/1980,p.174; Russian Indemnity case (Russia v. Turkey) ,UNRIAA vol. XI, (Sales No. 61.V.4), p 42(11 November 1912). 30 31

James Crawford’s Second Report on State Responsibility, UN Doc. A/CN.4/498/Add.4, p.31(July 1999). Compromis 7¶ ¶8 ¶9 & ¶10.

32

Report of the International Law Commission on the Work of Its Thirty-second Session,2 Yearbook of the ILC, (1980), (Part. II), UN Doc. A/CN.4/SER.A/1980/Add.1 (Part 2), p 155-175.

33 34

LG&E v. Argentina, ICSID Case No. ARB/02/1 (United States/Argentina BIT), ¶248 at p. 72(8th July 2008). Compromis ¶17.

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consent where the legal interest of the third State which may be affected would form an important part of the subject matter of the decision. 35 Further the court cannot adjudicate upon the rights of third States without their consent. This principle is embodied in the statute of the court 36 and has been endorsed by the court on numerous occasions. 37 Therefore in accordance with this principle the court cannot hear a case where the rights of third States are in question without the consent of the respective third parties. Thus it is submitted that the claim is not maintainable. 1.6.1. In Arguendo, The Lower Court Decision and the Economic Policies of Darshini do not amount to de facto Economic Sanctions against the State of Amiti Sanctions are defined as penalties threatened or imposed as a declared consequence of the target’s failure to observe international standards or international obligations. 38 Limiting the definition of economic sanctions to operational dimensions, economic sanctions are defined as deliberate, government-inspired withdrawal, or threat of withdrawal, of customary trade and financial relations. 39 This principal has even been recognized in the United Nations Charter. 40 The expression economic sanctions is to be distinguished from limited forms of adverse measures, such as trade countermeasures permitted under the Statute of the WTO, symbolic sanctions that may include a material component but are neither intended nor foreseen to impair general economic life, diplomatic sanctions and arms embargoes. 41 Thus Economic Sanctions, while being accorded no exhaustive meaning by international law have been ascribed by two essential ingredients namely intent and effect. 42 There is no dispute that economic                                                              35

Monetary Gold Removed from Rome in 1943 Case( Italy v. France, UK, North Ireland & USA.),I.C.J Reports 1954, ¶54 at p. 21(15th June 1954); East Timor Case (Portugal v. Australia )I.C.J Reports 1995,p.101(30th June 1995);Case Concerning Certain Phosphate Lands In Nauru ( Nauru v. Australia),I.C.J Report 1992,p .240, 259 262(26th June 1992). 36

United Nations, Statute of the International Court of Justice, 18 April 1946,,Article 36(1).

37

Monetary Gold Removed from Rome in 1943 Case( Italy v. France, UK, North Ireland & USA.),I.C.J Reports 1954, ¶54 at p. 21(15th June 1954). 38

MARGARET P. DOXEY, INTERNATIONAL SANCTIONS IN CONTEMPORARY PERSPECTIVE(1996),p. 9[hereinafter as DOXEY].

39

GARY CLYDE HUFBAUER, ECONOMIC SANCTIONS RECONSIDERED( 2007) p. 3.

40

BRUNO SIMMA, THE CHARTER OF THE UNITED NATIONS-A COMMENTARY(1995),p. 621.

41

Elias Davidsson, Towards a Definition of Economic Sanctions, (2003).

42

Omer Y. Elagab, Coercive economic measures against developing countries, 41 International & Comparative Law Quarterly p 682-694,(1992).

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sanctions immediate purpose as distinct from their ultimate purpose is to cause economic hardships in the targeted territory. 43 Furthermore the ICJ has insisted that a higher degree of persuasion is required where bad faith is imputed to another State in establishing such a purpose or intent. 44 In the present case, the statements of the concerned authorities indicate the purpose of the economic policies being selfpreservation to prevent great loss of revenue in dire times

45

rather than any extra

territorial change in the policy of a State. Therefore in the absence of bad faith the requisite intent cannot be attributed to the State of Darshini and hence it any allegations of de facto economic sanctions must fail. Thus it is submitted that the lower court decision and the policies of Darshini do not amount to de facto sanctions against Amiti. 1.7. THE LOWER COURT DECISIONS

AND

ECONOMIC POLICIES

DO NOT AMOUNT TO

AGGRESSION OR USE OF FORCE UNDER CUSTOMARY INTERNATIONAL LAW. Amiti had issued strong statements stating that the economic policies and decisions of the court of Darshini had an effect of using force on Amiti. 46 The United Nations Charter lays down that all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state. 47 International Tribunals 48 and the ICJ 49 for long have relied on the travaux préparatoires (i.e. official record of negotiation between the parties of a treaty 50 ) for its interpretation. An examination of the travaux préparatoires of the UN Charter and subsequent practice reveal that the constraint imposed by the UN charter on member States does not extend to coercive economic

                                                             43

Adam Winkler, Just Sanctions, 21 Human Rights Quarterly (1999),p. 136; [DOXEY] supra note 38 at p. 9.

44

S. ROSENNE, THE LAW AND PRACTICE OF THE INTERNATIONAL COURT (1965), p 580; Corfu Channel Case (United Kingdom v. Albania), I.C.J. Reports 1949, p. 4,.p.17(9 April 1949). 45

Compromis ¶ 8, ¶ 9, ¶10, ¶12, ¶13.

46

Compromis ¶17.

47

United Nations, Charter of the United Nations, 24 October 1945, Article 2(4), 1 UNTS XVI.

48

LORD MCNAIR, INTERNATIONAL LAW OPINIONS(1956) p. 413 ; M. Mennecke and C Tams ,The Right To Consular Assistance Under International Law, 42 German Yearbook of Int Law, p 223-224,(1999). 49

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),ICJ Reports 1999, ¶4.17¶4.18 at p. 9(27th February 1998). 50

ANTHONY AUST, MODERN TREATY LAW AND PRACTICE (2007),p. 244.

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measures. 51 Also it is to be noted that a proposal by Brazil to include economic measure in Article 2(4) was decisively defeated in San Francisco 52

therefore the UN charter not

specifying economic measures as constituting use of force cannot be argued to be an oversight considering it was specifically rejected. 53 Further a restrictive interpretation of force excluding economic coercion has been adopted by most jurists with some jurists going to the extent of calling even egregious economic aggression even if illegal not amounting to use of force under the charter. 54 Alternatively assuming without conceding if the use of economic coercion is to be interpreted as use of force, an enormously heavy burden of proof must lie on the Applicant State to show that the economic coercion constitutes aggression inter alia a violent response 55 the intent of which is to cause injury to the Applicant state or forcing a change in their will

56

and such is definitely not the case in the current situation

where Amiti has not proved that the acts of Darshini were meant to cause injury to them or force there will and on the contrary as shown earlier Darshini’s acts were acts of self preservation. Thus it is submitted that Darshinis lower court decisions and economic policies do not amount to the use of force against Amiti. 1.8. THE ECONOMIC POLICIES OF DARSHINI DO NOT INTERFERE IN THE INTERNAL AFFAIRS OF AMITI. Amiti claimed that the economic policies of Darshini at the very least would amount to interference in the domestic affairs of their state. 57 The principle of sovereignty which even finds its presence in the UN charter 58 provides that states have a right against unlawful intervention and interference in their domestic affairs. 59 Two elements are recognized to                                                              51

Summary Report of the 11th Meeting of the Committee, UNICIO Doc. (1945) ,G17(4), ¶331 at p.334(6 May 1945).

52

6 U.N.C.I.O Documents, p. 335.

53

DAVID ALLEN BALDWIN, ECONOMIC STATECRAFT (1985),p .341.

54

Oscar Schachter, In Defense Of International Rules On The Use Of Force, 53 University of Chicago Law Review,p.113-127,(1986). 55

ANTONIO CASSESSE, THE CURRENT LEGAL REGULATION OF THE USE OF FORCE(1986), p. 127.

56

THOMAS AND THOMAS, THE CONCEPT OF AGGRESSION IN INTERNATIONAL LAW(1972),p. 90 -91.

57

Compromis ¶17.

58

Charter of the UN, Article 2(7).

59

L OPPENHEIM EDITED BY SIR ROBERT JENNINGS & SIR ARTHUR WATTS, OPPENHEIMS INTERNATIONAL LAW, VOLUME 1 PEACE, PARTS 1 (2005) p .428[hereinafter as OPPENHEIM EDITED].

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establish violations of the sovereignty principle, Firstly there must be an ‘intervention’ by one state in the affairs of another. And secondly, the intervention must bear on ‘matters in which each State is permitted, by the principle of state sovereignty, to decide freely’.60 Further any such interference must be forcible or dictatorial, or otherwise coercive; in effect depriving the state intervened against of control over the matter in question. Economic measures can be directed against states or their leaders to force a change in policy.61 Interference pure and simple is not intervention 62 this principle has even been recognized by the ICJ 63 . As stated earlier if economic coercion is seen to be in breach of the sovereignty principle two prerequisites are essential: the first is coercion and the second is an intention to change the policy of the target state.

64

As was proved previously that there was no coercive intent in

economic measures and it was rather a self preservation measure thus the present situation is rendered beyond the scope of the sovereignty principle. Therefore it is submitted that the acts of Darshini do not amount to interference in the internal affairs of Amiti. 1.9. THE ECONOMIC POLICIES OF DARSHINI ARE NOT IN VIOLATION OF CLAUSE C OF THE VIPULIAN ECONOMIC UNION CHARTER 1.9.1. The State of Amiti cannot invoke the responsibility of the state of Darshini for violations of the Vipulian Economic Treaty The principles governing the law of responsibility of States require that in case of an injury arising from violations of collective obligations the State invoking the responsibility of another State is required to establish that it is ‘specially affected’ by the acts of that other State. 65 For a State to be considered injured it must be affected by the breach in a way which distinguishes it from the generality of other States to which                                                              60

Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v USA) (Merits), ICJ Reports (1986), ¶ 205,(27th June 1986). 61

D. W. Bowett, International Law and Economic Coercion, 16 Virginia Journal of International Law, p. 245 ,(1975-6); I. Shihata, Arab Oil Policies and the New International Economic Order,16 Virginia Journal of International Law ,p. 261,(1975-6); J. Paust & A. Blaustein, The Arab Oil Weapons - A Threat to International Peace, 68 American Journal of Intl Law 410,(1974); R. Porotsky, Economic Coercion and the General Assembly, 28 Vanderbilt Journal of Transnational Law, p. 901, (1995). 62

[OPPENHEIM EDITED],supra note 59 at p.428.

63

Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v USA) (Merits), ICJ Reports (1986), ¶ 205,(27th June 1986).

64

Maziar Jamnejad & Michael Wood, The Principle Of Non-Intervention, 22(2) Leiden Journal of Intl Law,p. 345-381,(2009). 65

Draft Article on State Responsibility, Article 42 (b)(i); JAMES CRAWFORD ILC’S ARTICLES ON STATE RESPONSIBILITY –INTRODUCTION TEXT AND COMMENTARY( 2001), ¶11 at p. 259[hereinafter as CRAWFORD].

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the obligation is owed. 66 Thus in order to invoke the responsibility of the State of Darshini, Amiti is burdened to prove, not only violation of the Vipulian Economic Treaty, but also that it is ‘specially affected’ vis-a-vis the other parties to the obligation. In the current case the burden of proof has not been dispensed with and thus the State of Amiti cannot invoke the responsibility of the State of Darshini for violations of the Vipulian Economic Treaty. 1.9.2. In Arguendo, The provisions of Clause C of the Vipulian Economic Charter have not been violated Further assuming if the burden of proof has been disposed off with the principles of the Charter, most significant of which here would be the obligation of ‘movement towards full economic integration’ does not give rise to a specific right that has been violated. Economic Integration essentially defined as the absence of institutional barriers to trade and factor movements between the regions of the system 67 States are generally under a positive obligation to ensure that all obstacles to free movement of goods, persons, services and capital are abolished

68

and the negative obligation against implementing

and direct, indirect or effective barriers against the creation of a free market. 69 It is humbly submitted that the State of Darshini has not acted in violation of either of these obligations, further it has acted expressly in pursuance of the same by entering into various treaties bilateral investment treaties and double tax avoidance agreements with members of the Vipulian Economic Union and abiding by the same, in order to facilitate these obligations. 70

                                                             66

[CRAWFORD], Id. ¶12 at p. 259.

67

Mario Polesi, Economic Integration, National Policies And The Rationale Of Regional Separatism; Balassa, В. Trade Creation and Trade Diversion in the European Common Market, The Economic Journal, vol. 77,p. 1– 21(1967); R.T Dalimov, The Dynamics Of The Trade Creation And Diversion Effects Under International Economic Integration, Current Research Journal of Economic Theory, , vol. 1, issue 1,( 2009). 68

KAREN DAVIES, UNDERSTANDING EUROPEAN UNION LAW(2003),p.85[hereinafter as KARREN]; European Union, Treaty Establishing the European Community), Rome Treaty, 25 March 1957,Article 3(2). 69

[KARREN],Id at p. 85; Treaty of Rome, Article 25;Commission of the European Communities v Italian Republic. - Case 24-68. European Court Reports 1969, p. 193(1st July 1969). 70

Compromis ¶4

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CONTENTION II AMITI IS REQUIRED PROVIDE INFORMATION REQUESTED BY DARSHINI IN ACCORDANCE WITH ITS INTERNATIONAL OBLIGATIONS 2.1.AMITI IS REQUIRED TO PROVIDE INFORMATION IN ACCORDANCE WITH THE VIPULIAN ECONOMY CHARTER. 2.1.1. The Vipulian Economy Charter is a treaty adopted by the Vipulian Economy which all member states must abide by. Both Amiti and Darshini are members of the Vipulian Economic Union and parties to its Charter. 71 The charter as can be seen is the

treaty adopted by the Vipulian

Economic union and defines the main principles of the Vipulian Economic Union 72 The VCLT which is now recognized as a part of customary international Law readily applied by the World Court

74

73

and is

states that the convention would apply to

constituent instruments of international organizations and to treaties adopted by international organization 75 .The Convention further recognizes the rule of “Pacta Sunt Servanda” according to which every treaty is binding on the parties and must be performed in good faith. 76 Thus it is submitted that both the parties are bound by the charter of the Vipulian Economic Union and must carry out its provisions. 2.1.2.Amiti is required to provide Darshini information in accordance with clause E of the Charter of the Vipulian Economic Union. Clause E of the charter of the Vipulian Economic Union provides for member nations to exchange information that is of importance to member states. 77 Therefore                                                              71

Compromis ¶1.

72

Id at ¶1.

73

Opinion of Law Officers Of The British Crown In Connection With The Simons Town Agreement (1971), Command 4589, p. 5[hereinafter as Opinion of Law Officer]. 74

Maritime Delimitation and territorial Questions Case(Qatar v. Bahrain) (Jurisdiction and Admissibility No 2,), , ICJ Reports 1995,p. 6(1st July 1994);Advisory Opinion On Legal Consequences For The States Of The Continued Presence Of South Africa In Namibia Notwithstanding Security Council Resolution 276, ,ICJ Reports 1971,p. 16(21 June 1971);Fisheries Jurisdiction Case(United Kingdom v. Iceland(Jurisdiction),1973,ICJ Reports 1974,p 3;Gabcikovo Nagymaros Project Case(Hungary and Slovakia),1997, ICJ Reports 1997,p. 7(25 September 1997 ). 75

VCLT, Article 5.

76

VCLT, Article 26.

77

Compromis ¶1.

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Countries are under an obligation to exchange any information that would be necessary to member nations and their policies. Darshini required that Amiti provide the names of individuals having bank accounts in Amiti in order that this information aids them in preliminary investigations to crack down on tax evaders. 78 Tax evasion is widely recognized as public order crime 79 i.e. a crime which involves acts that interfere with the operations of society and the ability of people to function efficiently. 80 The consequences of tax evasion are multifold and include short-term revenue loss, growing disrespect for the tax system and the law, increasingly complex legislation, the uneconomic allocation of resources, an unfair shifting of the tax burden and a weakening of the ability of Parliament and the National Treasury to set and implement economic policy. 81 Thus the requested information being necessary, Amiti has an obligation to provide the required names of individuals to Darshini in accordance with clause E of the Vipulian Economic Union. 2.1.3. Amiti is required to provide Darshini information in accordance with clause B of the Charter of the Vipulian Economic Union. Clause B of the charter of the Vipulian Economic Union provides for Parties to help support the implementation of decisions of each other countries courts and laws. 82 The Darshini Supreme Court had ordered their government to investigate into instances of any violation of tax law by Darshini based residents and report back to it within 3 months. 83 The Darshini Government made a formal request to the Amiti Government seeking identities of individual with bank accounts in Amiti. Such information involving names of individuals having bank accounts as stated earlier is essential for preliminary investigation to help find out and crack down tax evaders. That this information will aid in the facilitation of the Supreme Court decision is evident. Thus it                                                              78

Statement by Ottawa Revenue Minister Jean-Pierre Blackburn as reported by Louise Egan, Canada Asks France For A List Of Swiss Account Holders, Reuters News Network, Friday January 08,2011[hereinafter as Jean-Pierre]. 79

RONALD C. KEITH & ZHIQIU LIN, NEW CRIME IN CHINA: PUBLIC ORDER AND HUMAN RIGHTS(2006), p.33;KATHLEEN MAGUIRE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS (1995), p.693. 80

LARRY J. SIEGEL , CRIMINOLOGY(2004), p.54.

81

South African Revenue Service (SARS), Discussion Paper on Tax Avoidance (November 2005), p. 9.

82

Compromis ¶1.

83

Compromis ¶14.

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is submitted that Amiti has to provide information to Darshini in accordance with clause B of the charter of the Vipulian Economic Union to support the implementation of decisions of each other countries courts. 2.2. THE RIGHT TO PRIVACY ISN’T PROTECTED BY THE VIPULIAN ECONOMIC UNION CHARTER. The government of Amiti in its defense to not share information has put forward that the Vipulian Economic Union Protected the privacy rights of the individuals. 84 The Vipulian Economic Union Charter protects only the Universal Rights of the people.85 A universal right is a right that is applicable everywhere. 86 A universal right fitting in with the definition has to be a part of customary international law 87 as a norm that is a part of customary international law only would be applicable everywhere. 88 The jurisprudence of the ICJ has held that custom is a general practice accepted as law which has constant and uniform usage. 89 The right to privacy is not a universal right

90

because the right to privacy

is protected by

international law only in states party to a treaty which affords such protections; moreover, even those treaties allow the right to privacy to be limited for reasons of national security, morals, and the like. 91 The right to privacy is a concept so amorphous with it practice being far from being called uniform and constant that its entry into customary international law is                                                              84

Compromis ¶15.

85

Compromis ¶11.

86

NICKEL JAMES, HUMAN RIGHTS: THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY(2010); VICTOR CONDÉ ,A HANDBOOK OF INTERNATIONAL HUMAN RIGHTS TERMINOLOGY(2004), p.268 ; DAVID A. REIDY, MORTIMER N. S. SELLERS, UNIVERSAL HUMAN RIGHTS: MORAL ORDER IN A DIVIDED WORLD(2005),p.3. 87

David Brown ,Making Room For Sexual Orientation And Gender Identity In International Human Rights Law: An Introduction To The Yogyakarta Principles, 31 Michigan Journal of Int'l Law, p. 821-853,(2010)[hereinafter as David Brown]. 88

I.A SHEARER, LAW(2008),p.6.

STARKES INTERNATIONAL

LAW(1994),p.31;IAN

BROWNLIE, PRINCIPLES

OF

INTERNATIONAL

89

Legality Of The Threat Or Use Of Nuclear Weapons Case, Advisory Opinion ,ICJ reports 1996, ¶226 at p. 64(8th July 1996); Continental Shelf Case(Libya Arab Jamahiriya v. Malta), ICJ Reports 1985, ¶29 at p .27(3rd June 1985). 90

Christopher Saporita , Reconciling Human Rights And Sovereignty: A Framework For Global Property Law, 10 Indiana Journal of Global legal studies, 255, p. 12,(2003); Mary LaFrance & Gail H. Cline ,Identical Cousins?: On The Road With Dilution And The Right Of Publicity, 24 Santa Clara Computer & High Technology Law Journal 641,p.3,(2008); Benjamin E. Bratman , Brandeis And Warren's “The Right To Privacy And The Birth Of The Right To Privacy, 69 Tennessee Law Review 623,p. 3,(2009).

91

[David Brown],supra note 87 at p. 821-853.

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precluded. 92 Thus it is submitted that the right to privacy isn’t a

universal right protected

under the Vipulian Economic Union Charter. 2.3.IN ARGUENDO, THE INFORMATION ASKED FOR BY DARSHINI DOES NOT INTERFERE WITH THE RIGHT TO PRIVACY Assuming but not conceding that right to privacy is protected by the Charter, in interpretation of such clauses relevant international law applicable in relations between parties will be taken into consideration. 93 Reliance in interpretation of right to privacy can be placed on European Convention Practice 94 or Human Rights Committee Jurisprudence. 95 Further what is true for ICCPR is true for UDHR as well as ECHR. 96 Determination of whether the privacy rights of an individual has been breached or not is carried out in two stages the first of one which deals with whether the alleged complaint falls within the rights protected and the second deals with whether there has been an interference with the right protected and if the interference is justified. 97 2.3.1. Stage one of the Determination process. Stage one has two further steps which are whether the alleged right falls within the rights protected and secondly whether there is a positive obligation on part of the state to respect the individual right and if it has been fulfilled. 98 A. THE APPLICANT HAS A BURDEN OF PROOF TO CHARACTERIZE THE RIGHT IT SEEKS TO PROTECT AND ADVANCE IT BEFORE THE COURT. The party raising the claim that a right has been breached has a burden of proof to characterize the right it seeks to protect and advance it before the court. 99 Thus In                                                              92

RICHARD LILLICH, HUMAN RIGHTS IN INTERNATIONAL LAW, LEGAL AND POLICY ISSUES (1984),p.148; Pamela Stephens ,Applying Human Rights Norms To Climate Change: The Elusive Remedy,21 Colorado Journal of Int'l Environmental Law & Policy 49,p. 60,(2010). 93

VCLT, Article 31(3(c)).

94

FRANCIS G. JACOBS, THE EUROPEAN CONVENTION ON HUMAN RIGHTS(1975),P. 126.

95

SARAH JOSEPH, JENNY SCHULTZ & MELLISA CASTAN, THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS: CASES, MATERIALS AND COMMENTARY(2004), p.478;[hereinafter as ICCPR Commentary]. 96

NOWAK, UN CONVENAT ON CIVIL 294,[hereinafter as NOWAK].

AND

POLITICAL RIGHTS: CCPR COMMENTARY(1993), §15

at p..

97

Ursula Kilkelly, A Guide To The Implementation Of The Article 8 Of The European Convention On Human Rights (2003), p. 11-12. .[ hereinafter as URSULA KILKELLY]. 98

Id at p.11-12.

99

Id at p.11-12.

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this case Amiti has a burden of proof to characterize the right it wishes to protect and advance it before the court. B. IN ARGUENDO, THE RIGHT IN QUESTION IS NOT PROTECTED. In the current case Amiti had argued that disclosing information would be a violation of the right to privacy of individuals. A compromise definition of right to privacy would comprise of freedom from unwarranted and unreasonable intrusion into activities that the society recognizes as belonging to the sphere of individual autonomy or inner circle of private life.

100

The sphere of individual autonomy or

inner circle of private life has been described as the field of action that does not touch upon the liberty of others and where one may withdraw from others to shape one’s life according to one’s own egocentric wishes and expectations. 101 Further Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings. 102 Other aspects of personal interest such as family life, home and correspondence are protected under the right to privacy. 103 It has been observed that individuals have no right to privacy in relation to records kept by banks 104 and information kept by banks doesn’t fall into the realm of activities that society recognizes as belonging to the realm of individual autonomy nor other aspects of private life. Thus as no right to privacy exists with respect to information kept by bank, no right in question would be protected.

                                                             100

S.E Wilborn, Revisiting The Public/Private Distinction: Employee Monitoring In The Workplace,32 Georgia Law Review, p .825-833, (1998).

101

[NOWAK],supra note 96 at p. 288.

102

Niemietz v. Germany, Application No. 13710/88, European Court of Human Rights, (ser. A ,No 251B) ,¶27¶ 33( 16th December 1992).

103

The Convention For the Protection Of Human Rights and Fundamental Freedoms,Article 8,4th November 1950(Also known as European Convention on Human Rights)[hereinafter as ECHR] Universal Declaration of Human Rights, (1948).Article 12, G.A. res. 217A (III), U.N. Doc A/810 at 71;International Convenant on Civil and Political Rights,16 December 1966 Article 17, General Assembly resolution 2200A (XXI). 104

California Bankers Association vs. Shultz, 416 U.S. 21 (1974); US vs. Miller, 425 U. S. 435, 442 (1976).

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C. IN ARGUENDO, NO POSITIVE OBLIGATION EXISTS ON PART OF THE STATE TO RESPECT THE RIGHT IN LIGHT OF THE GREATER INTERESTS OF THE SOCIETY. States at time have a positive obligation to take steps to respect the rights of an individual

105

.In order to determine whether or not a positive obligation exists the

state must have regard to whether a fair balance has been struck between the general interest of the community and the interests of the individual. 106 The positive obligation does not exist when the information called for is necessary in the greater interest of the society. 107 Further States have a level of appreciation to decide what interference would be necessary in the interest of the society and to draw a fair balance between the relevant conflicting private and public interests. 108 The information required here is necessary for tax evasion investigation.109 As reiterated earlier tax evasion is a public order crime which has profound impact on the operations of the society and the ability of people to function efficiently. Thus there exists no positive obligation on part of the state to respect the individual right in the greater interests of the society. 2.3.2. Stage Two of the Determination process Stage two has two further steps

110

which are 1-Has there been an interference with the

Article right 2- If so a) - is it in accordance with law111 B)-does it pursue a legitimate aim 112 C)-is it necessary in a democratic society 113 .                                                              105

X & Y v. the Netherlands, Application No. 8978/80, European Court of Human Rights, (ser. A ,No 091) ,¶27-¶ 33( 163th December 1983).

106

Gaskin vs. The United Kingdom, European Application No. 10454/83, European Court of Human Rights, (ser. A ,No 160) ,¶42 (7th July 1989).

107

General Comment No 16,Human Rights Committee; Peck v. United Kingdom, Application No.

44647/98 European Court of Human Rights, (ser. A) ,¶78(2003). 108

Klass & Others v. Germany(Application No. 5029/71), European Court of Human Rights(Series A No 28),¶ 21(6th September 1978); Cr`emieux v. France(Application No.11471/85) European Court of Human Rights(Series A No 256B), ¶ 38(25th February 1993). 109

[Jean-Pierre],supra note 78.

110

ECHR, Article 8 ; [URSULA KILKELLY], supra note 97 at p .11-12.

111

General Comment 16,¶4,Human Right Committee.

112

Toonen v Australia ,UN Doc CCPR/C/50/D/488/1992.§ 6.10(4 April 1994).

113

Dudgeon v. United Kingdom , Application No. 7525/76,European Court of Human Rights, (Series A, No. 45) ¶53(23 September 1981).

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A. IN ARGUENDO, IF THE RIGHT IN QUESTION IS PROTECTED THERE IS NO INTERFERENCE WITH THE RIGHT. As earlier stated right to privacy would comprise of freedom from unwarranted and unreasonable intrusion into activities that the society recognizes as belonging to the sphere of individual autonomy or inner circle of private life while at the same time also comprising to a certain degree the right to establish and develop relationships with other human beings and the right to be protected from interference in other aspects of personal life such as family, home and correspondence. Thus it is pleaded that in the current case information with regards to identity of people holding bank accounts in Amiti was requested by Darshini and such information only dealing with the identity of people in no way would encroach upon activities belong to the sphere of individual autonomy or interfere with a person’s right to establish and develop relations with other human beings or interfere with his family life, home or his correspondence. B. ASSUMING WITHOUT CONCEDING IF THERE HAS BEEN INTERFERENCE WITH THE RIGHT THE INTERFERENCE IS JUSTIFIED. a. The information requested for is in accordance with law To ascertain whether or not the interference complained of is in accordance with law the interference must have a legal basis. 114 Further In order to satisfy the legality requirement a person’s reasonable expectations as to privacy may be a significant. 115 In the case at hand information requested for by Darshini has a legal basis as it is based in the Vipulian Economic Union Charter as reiterated earlier and is thus in accordance with law. Also when it comes to records held by bank an individual can have no expectation of privacy. 116 Therefore it is submitted that the information requested by Darshini is in accordance with law b. The Information requested for pursues a legitimate aim As mentioned earlier the information requested for is necessary for investigation of tax evasion. 117 The information requested for pursues a legitimate aim if it is                                                              114

[URSULA KILKELLY], supra note 97 at p .25;[ ICCPR Commentary], supra note 95 at p .482.

115

P.G. & J.H. v. the United Kingdom,(Application No. 44787/98), European Court of Human Rights) (Series A No.2001-IX), §56(25th September 2001).

116 117

US vs. Miller, 425 U. S. 435, 442 (1976). [Jean-Pierre],supra note 78.

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required for the interests of the economic well being of the country, prevention of crime, protection of morals etc.

118

Tax evasion is economically costly 119 as tax

evasion creates significant deadweight losses for the economy by distorting trade and investment flows such that these distortions reduce economic efficiency and impede growth. 120 Further Tax evasion is widely recognized as public order crime. 121 Also tax evasion is a moral turpitude 122 which refers to conduct that is considered contrary to community standards of justice, honesty or good moral 123 .Thus the information requested for pursues a legitimate aim as it is required for the interests of the economic well being of the country, prevention of crime and protection of morals c. The information requested for is necessary in a democratic society In Interpretation of the clause “necessary in a democratic society” the meaning of necessary in a democratic society is

determined with reference to the balance

achieved between the rights through the application of the principle of proportionality. 124 The principle of proportionality recognizes that human rights are not absolute and that the exercise of an individual’s rights must always be checked by the broader public interest. 125 Further States have a margin of appreciation to deem what interference would be necessary in the interest of the society and to draw a fair balance between the relevant conflicting private and                                                              118

ECHR, Article 8; Cr`emieux v. France(Application No.11471/85) European Court of Human Rights(Series A No 256B), ¶ 35(25th February 1993). 119

OECD, Forces Shaping Tax Policy, 63 OECD Economic Outlook 165, (June 1998).

120

P Groenewegen , Distributional and Allocational Effects of Tax Avoidance,(Australian Tax Research Foundation, 1984), p 23.

121

RONALD C. KEITH AND ZHIQIU LIN, NEW CRIME IN CHINA: PUBLIC ORDER AND HUMAN RIGHTS(2006), p.33;KATHLEEN MAGUIRE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS (1995), p.693. 122

US Department of State. 9 FAM 40.21(a) N2.3-2 Crimes Committed Against Governmental Authority. Foreign Affairs Manual—Volume 9- Visas. http://www.state.gov/documents/organization/86942.pdf. Accessed September 5, 2001. MICHAEL IMBER & TYLL VAN GEEL, EDUCATION LAW (2010), p 476; WEST'S ENCYCLOPEDIA OF AMERICAN LAW,VOLUME 7TH(2005),p. 116. 123

124

Soering v. the United Kingdom , (Application No.14038/88) European Court of Human Rights(Series A No 0161), ¶ 87(7 July 1989). 125

Id. at ¶ 87.

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public interests. 126 As shown earlier the information required here is necessary in greater public interest considering that tax evasion is a public order crime and it has profound impact on the operations of the society and the ability of people to function efficiently and thus it is submitted the information requested here is necessary in a democratic society. 2.4. ALTERNATIVELY AMITI IS REQUIRED TO PROVIDE INFORMATION TO DARSHINI IN PURSUANCE OF THE DOUBLE TAX AVOIDANCE AGREEMENT. Information may be exchanged between countries for the application of express provisions of Double Tax Avoidance Agreements to the widest possible extent.127 The Double Tax Avoidance Agreement between Darshini and Amiti is largely based on the OECD model 128 and allows information exchange with regard to matters under the convention 129 .There are allegations of violations of tax laws by Darshini based residents and through undeclared maintained bank accounts in Amiti. 130 With respect to incomes derived from employment 131 or other means 132 the country of the residence taxes the incomes. This principle finds its origin in the OECD model convention as well as the UN Model Convention. 133 Further an income being taxed only once is a principal of customary international law. 134 Thus as the agreement between the two countries in largely based on the OECD model a provision contrary to this would be a large deviation. Also as this feature is a common provision of other model conventions it is safe to assume that income being taxed in the country of residence would also be present in this convention. Hence Darshini based residents who                                                              126

Klass & Others v. Germany(Application No. 5029/71), European Court of Human Rights(Series A No 28),¶ 21(6th September 1978); Cr`emieux v. France(Application No.11471/85) European Court of Human Rights(Series A No 256B), ¶ 38(25th February 1993). 127

OECD COMMITTEE ON FISCAL AFFAIRS ,OECD MODEL TAX CONVENTION ON INCOME AND CAPITAL A COMMENTARY(2008),P. 348. 128

Compromis ¶4.

129

Id at ¶4.

130

Compromis ¶14.

131

Article 15, OECD Model Tax Convention On Income And Capital.

132

Article 21, OECD Model Tax Convention On Income And Capital; Article 21(3),UN Model Convention on Double Taxation.

133

Michael Lennard, The UN model Tax Convention As Compared With the OECD Model Tax Convention – Current Points of Difference and Recent Developments, Asia-Pacific Tax Bulletin, p. 9,( January /February 2009). 134 REUVEN S. AVI-YONAH, INTERNATIONAL TAX AS INTERNATIONAL LAW(2007), p.7

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according to provisions of the Double Tax Avoidance Agreement are to be taxed in Darshini have violated law and have undeclared income in Amiti based accounts. In light of this the Darshini Government made a formal request to the Amiti Government seeking identities of individual with bank accounts in Amiti because as stated earlier information with regard to individuals holding banks accounts in Amiti is necessary for tax evasion investigation and crackdown of tax evaders . 135

Thus in order to ensure application of the provisions of the

DTAA such that individuals do not escape paying taxes in the country of residence Amiti has to provide information to Darshini. 2.5. AMITI CANNOT INVOKE PROVISIONS OF ITS BANKING REGULATION AND SECRECY ACT AS A JUSTIFICATION FOR NOT EXCHANGING INFORMATION WITH DARSHINI. As shown earlier Amiti has a treaty obligation under the Vipulian Economic Union Charter to exchange information with Darshini. This information exchange was refused by Amiti on the grounds that it contravened with its Banking Regulation and Secrecy Act ,a domestic legislation 136 . There is ample judicial and international arbitral authority for the rule that a state cannot rely upon its municipal law i.e. domestic legislation to avoid legal obligations arising from treaties and other sources of international law. 137 Further even the VCLT which was earlier shown as custom 138 reiterates this rule. 139 Thus it is humbly submitted that Amiti cannot invoke provisions of its Banking Regulation and Secrecy Act as a justification for not exchanging information with Darshini.

                                                             135

[Jean-Pierre],supra note 78.

136

Compromis ¶6.

137

DAVID HARRIS, CASES AND MATERIALS ON INTERNATIONAL LAW (2011) ,p.-63.

138

[Opinion of Law Officer],supra note 73 at p.5.

139

VCLT, Article 27.

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PRAYER

In light of the questions presented, arguments advanced and authorities cited, the agent for the Respondent State most humbly and respectfully pray before this hon’ble Court, that it may be pleased to adjudge and declare that the 1. The Respondent State is not responsible for any international wrong. 2. The Respondent State is entitled to invalidate the Double Tax Avoidance Agreement. 3. The Respondent State is precluded by the circumstance of ‘necessity’. 4. The Respondent State has not imposed sanctions against the State of Amiti, and is also not responsible for use of force and intervention in the affairs of the Applicant State. 5. The Applicant State is required to disclose the requested information the provisions of the Vipulian Charter. 6. The Applicant State is also required to disclose the requested information as under the DTAA. 7. The Applicant State is not stopped from disclosing said information in light of the alleged ‘right to privacy’. 8. The Applicant State has acted in violation of its international obligations by refusing to disclose the required information. The Respondent State additionally prays that the Court may make any such order as it may deem fit in terms of equity, justice and due conscience. And for this act of kindness the Respondent State shall as duty bound ever humbly pray.

(Respectfully Submitted) - Agents on behalf of the Respondent State.

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