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17 TH D.M. HARISH M EMORIAL G OVERNMENT LAW C OLLEGE

INTERNATIONAL M OOT C OURT C OMPETITION

11 TH - 14 TH F EBRUARY , 2016

C OMPETITION 11 T H - 14 T H F EBRUARY , 2016 H OSTED B
C OMPETITION 11 T H - 14 T H F EBRUARY , 2016 H OSTED B

H OSTED B Y :

11 T H - 14 T H F EBRUARY , 2016 H OSTED B Y :

I N A SSOCIATION W ITH:

D. M. HARISH FOUNDATION

INTERNATIONAL COURT OF JUSTICE

COMPROMIS

BETWEEN THE FEDERAL REPUBLIC OF RATANKA AND CONFEDERATION OF UNITED PROVINCES (APPLICANTS)

AND THE REPUBLIC OF ANGHORE (RESPONDENT)

TO SUBMIT TO THE INTERNATIONAL COURT OF JUSTICE

THE DIFFERENCES BETWEEN THE PARTIES

CONCERNING DIPLOMATIC PROTECTION, SAFE PASSAGE AND EXTRADITION OF BOBERT TIRES

Jointly notified to the Court on 12 October 2015

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JOINT NOTIFICATION

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ADDRESSED TO THE REGISTRAR OF THE COURT:

The Hague, The Netherlands, 12 October 2015

On behalf of the Federal Republic of Ratanka and Confederation of United Provinces (the

Applicants ”) and the Republic of Anghore (the “ Respondent ”), in accordance with

Article 40(1) of the Statute of the International Court of Justice, we have the honour to

transmit to you an original of the Compromis for submission to the International Court of

Justice of the Differences between the Applicant and the Respondent concerning the

Diplomatic Protection, safe passage and Extradition of Bobert Tires, signed in The Hague,

The Netherlands, on the twelfth da y of October in the year two thousand and fifteen.

Ambassador of the Federal Republic of Ratanka to the Republic of Anghore

Ambassador of the Confederation of Provinces to the Republic of Anghore

Ambassador of the Republic of Angho re to the Federal Republic of Ratanka

Ambassador of the Republic of Anghore to Confederation of United Provinces

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COMPROMIS

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SUBMITTED TO THE INTERNATIONAL COURT OF JUSTICE BY

FEDERAL REPUBLIC OF RATANKA AND CONFEDERATION OF PROVINCES

(Applicant s) AND REPUBLIC OF ANGHORE (Respondent)

ON THE DIFFERENCES BETWEEN THEM CONCERNING

THE DIPLOMATIC PROTECTION, SAFE PASSAGE AND EXTRADITION OF BOBERT TIRES.

The Federal Republic of Ratanka and Confederation of United Provinces and the Republic

of Anghore

Considering that differences have arisen between them concerning the Diplomatic

Protection, Safe Passage and Extradition of Bobert Tires;

Recognising that the Parties concerned have been unable to settle these differences by

negotiation;

Desiring further to define the issues to be submitted to the International Court of Justice

(hereinafter referred to as the “Court ”) for settling this dispute;

In furtherance thereof the Parties have concluded the following Compromis:

Article 1

The Parties submit the questions contained in the Compromis (together with Corrections

and Clarifications to follow) to the Court pursuant to Article 40(1) of the Statute of the

Court.

Article 2

It is agreed by the Parties that The Federal Republic of Ratanka and Confederation of

United Provinces shall act as Applicants and the Republic of Anghore as Respondent, but

such agreement is without prejudice to any question of the burden of proof.

Article 3

(a) The Court is requested to decide the Case on the basis of the rules and principles of

international law, including any applicable treaties.

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(b) The Court is also requested to determine the legal consequences, including the rights

and obligations of the Parties, arising from its Judgment on the questions presented in the Case.

Article 4

(a) Procedures shall be regulated in accordance with the applicable provisions of the

Official Rules of the 2016 D.M. Harish International Law Moot Court Competition.

(b) The Parties request the Court to order that the written proceedings should consist of

Memorials presented by each of the Parties not later than the date set forth in the Official

Schedule of the 2016 D.M. Harish International Law Moot Court Competition.

Article 5

(a) The Parties shall accept any Judgment of the Court as final and binding upon them and

shall execute it in its entirety and in good faith.

(b) Immediately after the transmission of any Judgment, the Parties shall enter into negotiations on the modalities for its execution.

In witness whereof, the undersigned, being duly authorised, have signed the present Compromis and have affixed thereto their respective seals of office.

Done in The Hague, The Netherlands, This twelfth day of October in the year two thousand and fifteen , in triplicate in the English language.

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COMPROMIS

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1. Bobert Tires is a national of Scandinatia. After completing his undergraduate education and qualifying with a joint degree in law and political science, Bobert Tires went to Federal Republic of Ratanka (“Ratanka”), to pursue a Master’s Degree. He obtained an LLM degree in International Legal Studies from a reputed university in the capital city of Ratanka. During his further studies he did an internship with a Member of Parliament, the legislative organ of the Government in Ratanka. The requirement for doing such an internship was to maintain strict confidentiality in respect of any official documents including discussion papers to which an intern may have access. Aft er Bobert Tires graduated with a Master’s Degree, the Ministry of External Affairs of Ratanka appointed him as an advisor on foreign legal issues.

2. The Ministry of External Affairs in Ratanka oversees the functioning of the Foreign Intelligence Agency (“FIA ”) . The FIA is a part of the executive administration of the Government of Ratanka. Scholars in Ratanka have questioned the legal basis for its authority and functioning . In fact, the Ratanka Civil Liberties Union (“RCLU”) has filed a class action petition, which is pending before, the 9th District Circuit Court in Ratanka. This class action petition seeks as its final relief the immediate discontinuation of the FIA and in the alternative, the framing of legislation to regulate the functioning of th e FIA and to make the same transparent. Briefly stated, Ratanka’s response to the class action petition is that the FIA is a part of the executive set up of the Ratanka and the requirement for a legislation to justify its existence and functioning is antit hetical to the written Constitution of Rata nka, which is premised upon the theory of Separation of Powers.

3. Bobert Tires signed a contract of engagement with Ratanka when he was appointed as an advisor. The contract of engagement contained various waivers of rights by Bobert Tires. These were considered necessary because of the sensitivity of a foreign national working for the Ministry of External Affairs. One of the clauses in this contract provided that in the event of Ratanka believing that Bobert Tires has acted against the interest of Ratanka in the performance of his duties either in Ratanka or whilst abroad, Bobert Tires accepts the jurisdiction of the Courts of Ratanka to adjudicate upon such matters. When Bobert started working for the Ministry , he did

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not have any connection with matters being investigated by the FIA. Over time, given his commendable performance and the trust that was reposed in him, Bobert Tires was asked to work on a White Paper for discussion on the compliance of investigative modes and methods adopted by the FIA with foreign legal requirements and standards. Whilst working on this White Paper, Bobert Tires accessed files and documents over the last fifteen years of the FIA. Amongst other things these documents disclosed that the FIA had been using state of the art technology and a network of agents in foreign jurisdictions to gather information including: recording of conversations between foreign heads of states, details of military and defence acquisitions and the development of space programs of various countries. On discovering the means and methods adopted by the FIA and the pervasive and comprehensive data gathered by the FIA, Bobert Tires became disillusioned and began questioning the practices of the FIA. By reading through FIA’s files and documents, Bobert Tires learnt of the manner in which this information was protected on digital formats and the codes to access the digital formats, which stored this information. After two years of working on the White Paper and seven days before Bobert Tires was to be interviewed for grant of citizenship by Ratanka (Ratanka recognises dual nationality), Bobert Tires left Ratanka for the Confederation of United Provinces (“CUP”).

4. The laws of CUP recognize the right of free speech as a basic right with reasonable restrictions. On 28 th January, 2012 an association was formed by expatriates and immigrants having permanent residence in CUP, known as the One World Alliance (“OWA”). The object of this association was to highlight how international organisations and institutions, such as the United Nations, World Trade Organisation and major political organisations across the world were completely dominated by the larger global economies and military powers and that there was systemic discrimination against smaller countries in the functioning of these international organisations. OWA’s campaign was to highlight how smaller countries and in particular developed countries that have acceded to the membership of these organisations had compromised their sovereignty to a significantly greater extent than larger and well - developed economies.

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5.

Bobert Tires came into contact with members of the OWA within a month of being in CUP. He learnt about the activities of the organisation and identified with their cam paign. He was told that their campaign was suffering because they were not able to adequately expose the hegemony of larger and developed states. Bobert Tires soon began to informally advise them on how to take their message to the public at large. He said that OWA must exploit social media to reach out to the people of not just CUP but the world over to advance their campaign.

6.

OWA then set up an account on Facebook and Twitter. Initially, the response was tepid as, perhaps, the information and content published by OWA w as too theoretical. On 7 th March 2014 , the Facebook and Twitter account of OWA carried a post: “The world’s powers intimidate ambassadors and representatives of smaller countries not to raise certain subjects and issues of discussion at t he course of discussions in the United Nations. And we will expose this.”

7.

After OWA’s post indicating a forthcoming exposé, OWA’s Facebook & Twitter pages saw a monumental rise in its followers and data traffic on its social media pages. Within days of its announcement to reveal such information, OWA published, on its social media pages, a link to a website. The website set what appeared to be transcripts of a conversation , between the Heads of State of Granje and Alleja, two Lesser Developed Countries, supposedly recorded at United Nations Sustainable Development Summit, 2008. Ratanka about the ‘incentives’ offered the conversation transcribed to them for a giving up their demands for recognising certain agriculture produce as ‘geographical indications’ and consequently allowing big Ratanka corporations to claim intellectual property rights over similar products. The conversation displayed on the website did acknowledge that the people of Granje and Alleja would suffer but referred to the pay- out being too substantial to overlook. The conversation then trails off with Head of State for Alleja saying “ and if we don’t, it will be just as bad as economic sanctions without it actually being a sanction, so we will not even be able to protest it.”

8.

This information was immediately lapped up by mainstream media around the world, evoking mixed reactions, with many denouncing what was dubbed as Ratanka’s “ strong armed” practices while some questioned the authenticity of OWA’s

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information. In the week after the release, “OWA” was the search term with the most significant growth worl dwide as measured by Internet search engines like Google.

9. This was followed by many more such frequent leaks, where OWA began publishing

diplomatic cables, containing sensitive informa tion, which OWA claimed were received fr om an anonymous source. The contents of the diplomatic cables including numerous unguarded comments and revelations regarding: critiques and praises about the host countries of various Ratankian embassies; political manoeuvring regarding climate change; discussion and resolutions including those that are part of bilateral talks between States not involving Ratanka towards ending ongoing tension in oil producing nations; efforts and resistance towards nuclear disarmament; actions in the war on terror; particularly measures taken by other States to deal with non- state actors . This came to be known in contemporary media as the ‘Communigate’

largest leak of diplomatic cables and State

scandal and OWA claimed that it was “ records in history ”

the

10. This gave rise to large- scale dissatisfaction against the practices and policies of the Government of Ratanka, on the international level. Faced with such widespread public discontent, Ratanka’s Ministry of External Affairs, t hrough diplomatic channels, requested CUP to take immediate affirmative act ion against the OWA. On 4 th May, 2014 , Ratanka’s Minister of External Affairs, Mr. Henis Kampberg , met with his counterpart of CUP. At that meeting, Mr. Henis Kampberg reiterated t hat the information being published by OWA was part of the intelligence gathered by Ratanka and were ‘State Secrets and State Property ’ and in light of the same, CUP was expected to take steps to prevent OWA from publishing such information and that inaction on the part of CUP would be understood by Ratanka to be an irretrievable breakdown of diplomatic relations.

11. Considering the gravity of the leaks and the secretive nature of the information therein, the FIA began its own investigation to ascertain how such information had been leaked. As part of its investigation FIA probed into the profiles and status of the employees and ex - employees of the Ministry of External Affairs of Ratanka (being about 3500 in no.) who may have had access to such information. The FIA narrowed down on Bobert Tires as the likeliest sources of the leaks.

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12. One week later the Minister of Home Affairs, blocked OWA’s website on which such information was being displayed. OWA filed a petition challenging the action of the Government of CUP in the High Court Queen’s Bench Divisio n, praying for the immediate activation of OWA’s website. OWA argued that such an action on the part of CUP’s govt. was against the right of free speech which was ‘inviolable and protected’ under the laws of CUP. The High Court Queen’s Bench Division while delivering its judgement on 11 th July 2014 upholding the right to free speech, stated that the deactivation of OWA’s website would be an act of ‘excessive pre - censorship’ and accordingly partly allowed the petit ion, observing that the Government of CUP had not brought an action against any particular posts that were specifically inflammatory on an international scale and which could therefore be perceived as being covered under the reasonable restrictions excepti on to the right to free speech. It said that if an appropriate action is brought against a specific release of information that would be considered independently to determine if it jeopardized the safety and security of CUP or its friendly relations with foreign States. CUP has appealed against this judgment , which is presently pending in the Court of Appeal, Civil Division.

13. On 9 th September, 2014, OWA released a report on its website detailing the illegal activit ies undertaken by Ratanka in a territory outside the mainland of Ratanka. The report stated that at these detention camps there was rampant torture of ‘prisoners of war’ in specialised concentration facilities in contravention of Article 16 of the UN Convention on Torture. The Ratankian Army had i n the past repeatedly denied these allegations and said that these reports evoke a false sense of sympathy for the worlds most hardened terrorists. The report in fact stated that such is the disdain that Ratanka has for international law and the law of for eign states; that it does not even bother to determine if its methods are permitted by the laws of foreign states.

14. On 9 th September 2015 the OWA published each country’s negotiating position to a proposed multilateral convention to identify and codify the civil use of nuclear energy and power. The Nuclear Annex sought to regulate state schemes for nuclear power stations and associated industries.

15. On 2 nd October, 2014 , Ratanka’s official response to the Communigate scandal was published online, wherein Mr. Henis Kampberg was quoted as stating that ‘Mr. Bobert Tires had been declared as an enemy of the State, responsible for leaks to OWA & that

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OWA was a terrorist organisation that was functioning as a rogue association and it was a threat to global securit y.’ He said “Bobert Tires must be brought to justice and prosecuted in Ratanka”

16. Ratan ka’s lawmakers and called for Bobert Tires to be charged with espionage or for conspiracy to obtain secret documents, arguing that he intended to sabotage Ratanka's foreign policy and endangered lives of Ratankians by revealing all of the above information.

17. On 12 th October, 2014 Bobert Tires was arrested by the CUP’s Criminal Investigation Division, and produced before a Magistrate’s Court. The Magistrate’s Court granted bail to Bobert Tires under the provisions of Bail Act, 1932. However, as a condition to the grant of bail, Bobert Tires was required to immediately hand over his Scandinatian Passport and travel documents as security for his surrender into custody.

18. Simultaneously, authorit ies in Ratanka began criminal investigations against Bobert Tires with a view to prosecute him under the Ratanka Espionage Act, 1917. Ratanka’s Attorney General was quoted as stating that there was “an active, ongoing criminal investigation into OWA and Bobert Tires”. It emerged through newspaper reports that Bobert Tires and others were likely to be formally indicted on various charges including “ treason, sedition and communicating national security information to an unauthorized source”, “theft of Ratankian Government property”, and “ causing to be published , intelligence belonging to the Federal Government of Ratanka, having knowledge that intelligence published on the internet is accessible to the enemy” and also “aiding the enem y,” . A conviction under a scheme of these charges was punishable with Capital Punishment

19. Bobert Tires complied with this condition. He was thereafter released on bail. While he was out on bail, Bobert Tires came in contact with Ms. Tolo Koure, an Executive Assistant to the Ambassador of the Republic of Anghore (“Anghore”) in CUP. Anghore is a lesser developed nation. Tolo Koure while sympathising with Bobert Tires, expressed admiration for the work carried out by OWA and advised him to meet with the Ambassador of Anghore. A t abloid in CUP, known as ‘The Moon photographed Bobert Tires outside the Embassy of Anghore and published the

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photograph captioned: “One Nation’s Traitor is another’s Messiah! Clandestine discussions with the OWA Mastermind!”

20. A week la ter Anghore announced that Bobert Tires had been granted political asylum, and that Bobert Tires was at the Anghorian E mbassy in CUP. The following day, the Ambassador of Anghore confirmed that Bobert Tires could stay at the embassy indefinit ely. Anghore reasonably believes that he [Bobert Tires] may become a victim of political persecution.

21. On 22 nd October, 2014 Ratanka issued an Extradition Request to CUP under the provisions of the Extradition Treaty of 2003 (“BET”) between Ratanka and CUP, on the grounds that Bobert Tires was required to be tried in Ratanka, for various crimes comm itted by him. The Government of CUP approached the Anghorian Embassy for the immediate release of Bobert Tires for his deportation to Ratanka for trial. CUP maintained that the grant of political asylum was in itself an illegal and void act given that Bobert Tires was on bail at the time.

22. However, the Anghorian Embassy refused to release Bobert Tires, maintaining that the action against him was politically motivated and posed an imminent threat to his life. The Anghorian Embassy as stated that it was not obliged to release Bobert Tires, since it was under no treaty obligation and that there was “strong evidence” that Bobert Tires faced possible persecution for political offences in the event that he was released.

23. In response to this, CUP stationed officers of its Metropolitan Police Service outside the Anghorian Embassy to arrest Bobert Tires should he try to leave. The situation on the ground became a live siege of the Embassy and Anghore complained that CUP was violating Diplomatic Privileges by regulating the functioning of Anghorian Embassy by restricting access of people and provisions

24. O n 15 th December, 2014 Ratanka and CUP declared that they were imposing a trade, economic, and financial sanction against Anghore, and that such an embargo had been declared indefinitely. The stated purpose of the embargo was to maintain sanctions on Anghore so long as Anghore refused to “place value on the maintenance of international peace and take substantial measures against the harbouring of terrorists and fugitives”. In response to this, Anghore wrote to the United Nations,

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stating its position that the embargoes be lifted, describing them as an act of force and a viol ation of International Law.

25. Scandinatia and CUP are also signatories to a Multilateral Extradition Treaty of 1995

(“MET”) under which, if an arrest warrant is issued by any of the signatory states, it

is valid throughout all other states that are signatories to the treaty. Once an arrest

warrant is issued under MET, it requires a signatory state to arrest and transfer a criminal suspect or sentenced person to the issuing state so that the person can be put on trial or complete a detention period. Ratanka is not a signatory to MET.

26. On 28 th December 2014, while Bobert Tires was staying at the Anghorian Embassy, Scandinatia issued an arrest warrant against Bobert Tires for allegedly sexually assau lting two women, in 2008, prior to him having left for Ratanka.

27. S candinatian prosecutors sought for Bobert Tires to be extradited to Scandinatia, and Anghorian officials expressed concern over the fact that the Scandination arrest warrant was only a means to cause Bobert Tires lose his status of protection so that he could be extradited to Ratanka. Scandinatia called Anghore's decision “ completely absurd” and “an abuse of the asylum instrument,” Subsequently, Anghorian officials contacted Scandinatian authorities to secure a n assurance that, if extradited to Scandinatia, Bobert Tires would not be extradited to Ratanka. There has, however, been no response received from Scandinatia to this proposal.

28. Soon, after he began his stay at the Anghorian Embassy, it was reported in local

media that Bobert Tires had developed a potentially life threatening heart defect and

a chronic lung condition and was battling for life, within the confines of the

Anghorian Embassy. It was also reported that the requisite medical care could not be

provided to him, as he was unable to leave the Anghorian Embassy for fear of being arrested. This report was ratified in an official statement issued by the Anghorian Embassy a week later, stating that Bobert Tires was out of danger and had been stabilised, but there was fear that his condition could worsen and his health could deteriorate if remedial measure were not undertaken and he was not given prompt and adequate medical care. The Anghorian Embassy also stated that the Anghorian Government had agreed that Bobert Tires could be hospitalised for specialised treatment in Anghore.

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29. The Anghorian Embassy wrote to the Government of CUP expressing hope that CUP would respect its decision and allow Bobert Tires the right to leave for Anghore without any right to arrest, on humanitarian grounds. The Government of CUP rejected this request, on the grounds that the purported illness of Bobert Tires had not been verified by CUP and as such they could not process the same.

30. In the meantime disclosure of information by OWA continued but with less frequency.

31. Given the impasse, Ratanka, CUP and Anghore agreed to have the dispute referred to the International Court of Justice for adjudication under Article 40(1) of the ICJ Statute. The question of admissibility of claims and standing to bring particular claims was however kept open.

32. Given the interests of Ratanka and CUP are aligned, other than two separate references it was agreed that they could be co- applicants.

33. Broadly, Ratanka and CUP contend that Anghore is bound to honour the extradition request and the grant of political asylum is contrary to International Law. CUP further contends that Anghore is subverting its judicial process and its commitment to foreign status. Anghore refutes this and further contends that Ratanka has breached International Law by the manner and nature of information gathered by the FIA. It also claims that Bobert Tires is allowed safe exit to Anghore on humanitarian grounds. Further, it claims that the siege of the Anghorian Embassy is a violation of International Law.

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