5th VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

TEAM CODE: 522-A

BEFORE THE HONOURABLE INTERNATIONAL COURT OF JUSTICE,

AT THE PEACE PALACE,
THE HAGUE, NETHERLANDS

UNDER A SPECIAL AGREEMENT SIGNED BY STATE OF IDRIS AND BARTOVIA

IN THE MATTERS OF

THE STATE OF BARTOVIA….......................................................................APPLICANT

VERSUS

THE STATE OF IDRIS ……….......................…..….….........................….RESPONDENT

CONCERNING IDRIS - BARTOVIA INTERNATIONAL INVESTMENT

AGREEMENT, 2017 & OBLIGATION OF BOTH NATIONS REGARDING
MARKOVIAN RAGAANS

COUNSEL APPEARING ON BEHALF OF PETITION

MÉMORIAL POUR LE DEMANDEUR

MEMORIAL ON BEHALF OF THE PETITIONER

 5th VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

TABLE OF CONTENTS

LIST OF ABBREVIATIONS .................................................................................................. iii

INDEX OF AUTHORITIES...................................................................................................... v

CASES ................................................................................................................................... v

TREATIES AND CONVENTION ....................................................................................... vi

BOOKS AND ARTICLES ..................................................................................................vii

DYNAMIC LINK ...............................................................................................................vii

STATEMENT OF JURISDICTION...................................................................................... viii

STATEMENT OF FACTS ....................................................................................................... ix

STATEMENT OF ISSUES ...................................................................................................... xi

ISSUE 1- THAT IDRIS IS LIABLE TO PAY COMPENSATION AND DAMAGES TO

THE BARTOVIAN INVESTORS......................................................................................... 1

ISSUE 2- THAT IDRIS IS BOUND BY THE CUSTOMARY INTERNATIONAL

PRINCIPLE OF NON-REFOULEMENT. ............................................................................ 3

2.1 RAGAANS LEFT BARTOVIA VOLUNTARILY ..................................................... 4

2.1.1 BARTOVIA FULFILLED ITS OBLIGATIONS TO BEST OF ITS ABILITIES.

......................................................................................................................................... 4

2.1.2 RAGAANS LEFT BARTOVIA IN SEARCH OF BETTER LIVING

CONDITIONS. ............................................................................................................... 5

2.2 OBLIGATION OF IDRIS ............................................................................................ 6

2.2.1 RAGAANS ARE REFUGEES IN IDRIS ............................................................. 6

2.2.2 IDRIS HAS TO ABIDE BY THE PRINCIPLE OF NON-REFOULEMENT. .... 6

ISSUE 3- THAT IDRIS HAS VIOLATED ITS OBLIGATIONS UNDER MIGRANT

WORKERS CONVENTION AND DECLARATION ON THE ALIEN RIGHTS. ............. 8

3.1 OBLIGATION UNDER MIGRANT WORKERS CONVENTION ........................... 8

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3.1.1 THERAGAANS ARE MIGRANT WORKERS IN IDRIS................................... 8

3.1.2 RAGAAN’S COLLECTIVE EXPULSION AND ARBITRARY ARRESTS

ARE INVALID ............................................................................................................... 9

3.2 OBLIGATION UNDER DECLARATION ON ALIEN RIGHTS ............................ 11

ISSUE 4– THAT FORCEFUL SEPARATION OF CHILDREN FROM THEIR

FAMILIES AMOUNTS TO VIOLATION OF HUMAN RIGHTS ESPECIALLY CHILD
RIGHT. ................................................................................................................................. 12

RELIEF FOR PRAYER ......................................................................................................... xvi

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LIST OF ABBREVIATIONS

S. NO ABBREVIATION FULL FORM

1. ⁋ Paragraph
2. & And
3. § Section
4. AC Appeal Cases
5. ACHPR African Commission on Human and Peoples' Rights
6. ACHR American Convention on Human Rights
7. Annex. Annexure
8. Appl. Application
9. Appx. Appendix
10. Art. Article
11. BIA Bureau of Indian Affairs
12. CCPR International Covenant on Civil and Political Rights
13. Com. Communication
14. Co. Corporation
15. DCR domestic content requirement
16. Dec. December
17. Doc. Document
18. ECtHR European Court of Human Rights
19. Ed. Edition
20. Eng. English
21. EWHC England and Wales High Court
22. Gen. General
23. Govt. Government
24. HL Hac Lege
25. Hon’ble Honourable
26. Id. The same

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27. i.e That is

28. ICCPR The International Covenant on Civil and Political Rights
29. ICJ International Court of Justice
30. ICRMW International Convention on the Protection of the Rights of
All Migrant Workers and Members of Their Families
31. KB King’s Bench
32. Ltd. Limited
33. No. Number
34. Nov. November
35. OHCHR United Nations High Commissioner for Human Rights
36. QB Queens Bench
37. Prop. Proposition
38. Rep. Report
39. SCR Supreme Court Reports
40. Sept. September
41. SMEs Small and medium enterprise
42. UK United Kingdom
43. U.N.T.S United Nations Treaty Series
44. UN United Nations
45. UNHRC United Nations Human Rights Council
46. UNICEF The United Nations Children's Fund
47. UOI Union of India
48. US United State
49. v. Versus
50. VCLT Vienna Convention on the Law of Treaties
51. VIPS Vivekananda Institute of Professional Studies
52. Vol. Volume
53. w.e.f With effect from
54. WTO World trade organization

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INDEX OF AUTHORITIES

CASES:
1. A. v. Australia, Com. No. 560/1993, UN Doc. CCPR/C/59/D/560/1993 (1997) .............. 12
2. Abdolkhani and Karimnia v. Turkey, ECtHR, op. cit., fn. 627, ¶133. .............................. 12
3. Andric v. Sweden, Appl. No. 45917/99, ECHR (1999).......................................................6
4. Berdzenishvili and Others v. Russia, Appl. No. 14594/07, 14597/07, 14976/07, 14978/07,
15221/07, 16369/07, and 16706/07, (2017). ...................................................................... 11
5. Conka v. Belgium, Appl. No.51564/99, (2002)............................................................10,11
6. D.S., S.N. and B.T. v. France, Appl. No. 18560/91, (1992). ............................................. 11
7. Davis Contractors Ltd. v. Freham UDC, (1956) AC 696. ................................................... 2
8. F.K.A.G. v. Australia, CCPR, op. cit., fn. 656, ¶ 9.3......................................................... 12
9. Georgia v. Russia, Appl. No. 13255/07, ECHR § 45 (2014). ............................................ 10
10. Hirsi Jamaa and Others v. Italy, Appl. No. 27765/09, (2012). .......................................... 10
11. J Lauritzen AS v. Wijsmuller BV, (1990) 1 Lloyd’s Rep 1,8. ............................................ 1
12. Johansen v. Norway, Appl. No. 17383/90, III ECHR 966, 23 EHRR 33 (1996). ............. 14
13. Keshmiri v. Turkey (No. 2), Appl. No. 22426/10, ECtHR ¶34 (2012). ............................ 12
14. Kindler v. Canada, 2 SCR 779 (1991). .............................................................................. 11
15. Maritime National Fish Ltd v. Ocean Trawlers Ltd, (1935) AC 524. ................................. 2
16. Mikolenko v. Estonia, Appl. No. 10664.05, ECtHR ¶65 (2009) ....................................... 12
17. National Carriers Limited v. Panalpina (northern) limited (1981) AC 675, 700. ................ 2
18. Ocean Tramp Tanker Corporation v. V/O Sovfracht, (1964) 2 The Eugenia 226,237 (QB).
........................................................................................................................................... 2,3
19. Paal Wilson & Co A/S v. Partenreederei Hannah Blumenthal, (1983) 1 AC 854. .............. 2
20. Re Moore & Company and Landauer& company, (1921) 2 AC 519 (KB). ........................ 3
21. Rencontre Africaine pour la Défense des Droits de l’Homme c. Zambia, Com. No. 71/92
(1997) ................................................................................................................................. 11
22. Saadi v. United Kingdom, (2008) 70 ECHR 79. ............................................................... 12
23. Shioshvili and Others v. Russia, Appl. No. 19356/07, (2016). ......................................... 10
24. Soering v. The United Kingdom, Appl. No. 1/1989/161/217, (1989) ECHR. ..................11
25. Sultani v. France, Appl. No. 45223/05, ECHR §81 (2007).................................................6
26. The Commission decisions Becker v. Denmark, Appl No. 7011/75, ECHR (1975)...........6

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27. Union Inter-Africaine des Droits de l’Homme & others v. Angola, Com.No.159/96,
(1997).................................................................................................................................11
28. Vilvarajah and others v. The United Kingdom, Appl. No. 45/1990/236/302-306, ECHR
(1991).................................................................................................................................11

TREATIES AND CONVENTION:

1. Committee on the Rights of the Child, Gen. Comment No. 14, (2013). .......................... 14
2. African Commission on Human and Peoples' Rights 1981 ................................................. 8
3. American Convention on Human Rights 1969 ............................................................... 8,15
4. African Charter 1981 .......................................................................................................... 9
5. Charter of Fundamental Rights of the European Union 2012. .......................................... 10
6. Convention concerning the status of refugees coming from Germany, League of Nations
1938...................................................................................................................................... 7
7. Convention relating to the International Status of Refugees, League of Nations 1933 ....... 7
8. Declaration of the Rights of the Child, Principle 2 (1959) ................................................ 13
9. European Convention on Human Rights 1953 ................................................................. 8,9
10. European Convention on Human Rights of Protocol 4, 1953 ........................................... 10
11. Geneva Convention 1949 .................................................................................................. 5,7
12. International Covenant on Civil and Political Rights 1996 ......................................... 8,9,14
13. International convention on protection of the right of all Migrant Workers and member of
their families 1990 .......................................................................................................... 9,10
14. Provisional Arrangement concerning the status of refugees coming from Germany 1938 . 7
15. Cartagena Declaration on Refugees, Colloquium on the International Protection of
Refugees in Central America, Mexico and Panama
1984………………………………………………………………………………………..7
16. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment 1984.................................................................................................................. 8
17. United Nation Committee on the Rights of the Child (CRC) 2005. .................................. 15
18. United Nation High Commissioner for Refugees 1994 ....................................................... 8
19. United Nations General Assembly Resolution 1950 ........................................................... 5
20. United Nation High Commissioner for Refugees, ExCom Conclusion on the Provision of
International Protection Including Through Complementary Forms of Protection
2005....................................................................................................................................15
21. United Nations Convention on the Rights of the Child 1989 .................................. 13,14,15

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BOOKS AND ARTICLES:

1. ADRIAN EDWARDS, UNHCR VIEWPOINT: ‘REFUGEE’ OR ‘MIGRANT’ – WHICH IS
RIGHT?,UNHRC THE REFUGEE AGENCY ........................................................................... 6, 7
2. CHRISTINA BOSWELL, ADDRESSING THE CAUSES OF MIGRATORY AND REFUGEE
MOVEMENTS: THE ROLE OF THE EUROPEAN UNION,73 IFMC (2002). ................................. 6
3. ERICA STIEF, IMPRACTICAL RELIEF AND THE INNOCENT VICTIMS: HOW UNITED STATES
IMMIGRATION LAW IGNORES THE RIGHTS OF CITIZEN CHILDREN, 79 UMKC L REV 477 AT
493 (2010). ......................................................................................................................... 14
4. HANS,GLOBALISATION AND GOVERNANCE: CONTRADICTIONS OF NEOLIBERAL MIGRATION
MANAGEMENT,174 HWWI (2002). ........................................................................................ 6
5. J. D HOWLEY, UNLOCKING THE FORTRESS: PROTOCOL NO. 11 AND THE BIRTH OF
COLLECTIVE EXPULSION JURISPRUDENCE IN THE COUNCIL OF EUROPE SYSTEM’, 21
GEORGETOWN IMMIGRATION L.J. 117-118 (2006). ............................................................ 11
6. JAMES DWYER, THE RELATIONSHIP RIGHTS OF CHILDREN, 121,168 (2006). ..................... 14
7. LANDO AND BEALE, PRINCIPLES OF EUROPEAN CONTRACT LAW, 328 PARTS 1 AND 2
(2000). .................................................................................................................................. 2
8. LAURA HAMMOND, VOLUNTARY REPATRIATION AND REINTEGRATION 499(FIDDIAN
QASMIYEN, LOESCHER, LONG & SIGONA, THE OXFORD HANDBOOK OF REFUGEE &
FORCED MIGRATION STAUDIES, 1ST ED. 2014). .................................................................... 5
9. SASSEN, SASKIA, LOSING CONTROL? SOVEREIGNTY IN AN AGE OF GLOBALIZATION 76, 80
(NEW YORK: COLOMBIA UNIVERSITY PRESS, 2ND ED. 1996). ............................................... 6
10. SIR WILLIAM REYNELL ANSON, J. BEATSON, ANDREW S. BURROWS, JOHN CARTWRIGHT,
ANSON’S LAW OF CONTRACTS 465 (30TH ED. 2016)............................................................. 3
11. GOODWIN GILL / MCADAM, THE REFUGEE IN INTERNATIONAL LAW 344 (3RD ED.

2011).............................................................................................................................7
12. 3 TUGRUL ANSAY, LEGAL PROBLEMS OF MIGRANT WORKERS, RECUEIL DES COURS DE

L’ACADÉMIE DE DROIT INTERNATIONAL 7-77 (1977)………………………......................8

13. FIDDIAN QASMIYEN, LOESCHER, LONG & SIGONA, THE OXFORD HANDBOOK OF REFUGEE &
FORCED MIGRATION STAUDIES, 1ST ED. 2014…………………………………………...4, 17

DYNAMIC LINK:
1. http://www.westlaw.com
2. http://www.judis.nic.in
3. http://www.refworld.org

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STATEMENT OF JURISDICTION

The State of Idris and the State of Bartovia have agreed to submit this dispute “concerning
Idris - Bartovia International Investment Agreement, 2017 and related issues” to the
International Court of Justice pursuant to Article 40, paragraph 1 of the Statute of this Court
and by virtue of a Special Agreement signed in The Hague, The Netherlands, on 10th
October, 2018 and jointly notified to the Court on the same date. In accordance with Article
36, paragraph 1 of the Statute, the Court has jurisdiction to decide all matters referred to it for
decision. Both parties shall accept the Court’s decision as final and binding and execute it in
good faith.

Art. 40 (1) Cases are brought before the Court, as the case may be, either by the notification
of the special agreement or by a written application addressed to the Registrar. In either case
the subject of the dispute and the parties shall be indicated.

Art. 36(1) The jurisdiction of the Court comprises all cases which the parties refer to it and
all matters specially provided for in the Charter of the United Nations or in treaties and
conventions in force.

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STATEMENT OF FACTS

1. Bartovia is a low-lying riverine country bound by Idris to the north, east and west, Markovia
to the southeast and by the Bay of Benegal to the south. The land is vulnerable to both floods
and droughts.

BACKGROUND:BARTOVIA- MARKOVIA REFUGEE CRISIS

2. Markovia is an underdeveloped nation which has witnessed insurgency since its

independence in 1948. Ragaans are a group of people who have settled in this country for
hundreds of years. There had been several displacements of Ragaans. A campaign by
Markovian govt. as search for illegal migrants produced a wave of refugees to Bartovia.
Furthermore, in 2005 Markovian govt. intensified its campaign against ethnic minorities.
Authorities issued arrest warrants against 10,000 students for an alleged insurgency plot.
3. To maintain good relations with Bartovia, Markovia entered into an international agreement
with Bartovia for safe and voluntary repatriation of Ragaan refugees. In 2011, devastating
cyclones hit Bartovia in which Bartovian economy, which was based on cash crops, got
severely hit and experienced a general economic slowdown. Businesses closed down and
unemployment increased.
4. Repatriation came to a virtual halt in 2012 when Markovian authorities demanded
reverification of individual refugees who are already repatriated. Fresh cases of Ragaans
coming from Markovia to Bartovia also surfaced. In 2013, Bartovian Armed forces started
pushing back groups of Ragaans coming from Markovia at borders. Tension, chaos and
confusion began to mount inside refugee camps, which caused clashes between Bartovian
forces and Ragaans armed forces. In search of better life, Ragaans started to flee from
Bartovia to the neighbouring area Mizo in Idris where cheap and fast labour was becoming
popular in manufacturing solar panels by SMEs.

IDRIS NATIONAL SOLAR PROGRAM

5. In 2010, Idris launched National Solar Program aiming to establish Idris global leader in solar
energy. To incentivize production, the govt. under this program guarantees the sale of energy
produced. Thereafter, it would sell such energy through distribution utilities to ultimate

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consumer. To be eligible for benefits under this program, the producer must compulsorily
fulfil the domestic content requirement.
6. In late 2017, the WTO panel for dispute settlement held this program to be in the violation of
its ‘national treatment’ obligation. As a result of this ruling, domestic SMEs of solar cells and
modules suffered huge losses and were closed down because foreign investors started using
solar cells produced in third states. Abrupt closure caused loss of employment among people
– both Ragaans and localities. State wide protests ensued in which Ragaans were targeted,
abused and arbitrarily arrested and tortured. In response, Ragaans formed allegiance with
extremist groups and formed an organized armed group.
7. In early 2017, Idris had entered into an International investment agreement with Bartovia
whereby investors from Bartovia agreed to invest in production of solar energy in Idris
subject to domestic content requirement for initially a period of 5 years. But after WTO
decision and closing of SMEs due to losses and unavailability of cheap labour, Idris
communicated about its inability to provide solar cells and waived DCR. However, DCR for
modules kept and that too at increased prices. Govt. of Bartovia in interests of its investors
called upon govt. of Idris to comply with its treaty obligations.
8. Govt. of Idris reacted by announcing its intention to deport Ragaans, being undocumented
migrants in Idris, back to Bartovia. Govt. alleged having security inputs indicating links of
Ragaans with certain extremist groups. Many migrants were charge sheeted and sent to jails
to be prosecuted instead of deportation. This led to mass scale separation of families
especially of children from their parents who were forced to leave country without their
guardians.
9. Submission to the ICJ – To solve this dispute, both countries entered into a special
agreement thereby submitting the matter to ICJ.

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STATEMENT OF ISSUES

THE STATE OF BARTOVIA RESPECTFULLY SUBMITS THE FOLLOWING ISSUES

FOR CONSIDERATION BEFORE THIS HON’BLE COURT:

ISSUE 1- WHETHER IDRIS IS LIABLE TO PAY COMPENSATION AND

DAMAGES TO THEBARTOVIAN INVESTORS.

ISSUE 2- WHETHER IDRIS IS BOUND BY THE CUSTOMARY INTERNATIONAL

PRINCIPLE OF NON-REFOULEMENT.

ISSUE 3- WHETHER IDRIS HAS VIOLATED ITS OBLIGATIONS UNDER

MIGRANT WORKERS CONVENTION AND DECLARATION ON THE ALIEN
RIGHTS.

ISSUE 4– WHETHER FORCEFUL SEPARATION OF CHILDREN FROM THEIR

FAMILIES AMOUNTS TO VIOLATION OF HUMAN RIGHTS ESPECIALLY
CHILD RIGHTS.

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LEGAL PLEADING

ISSUE 1- THAT IDRIS IS LIABLE TO PAY COMPENSATION AND DAMAGES TO

THE BARTOVIAN INVESTORS.

1. In last few decades, world has transformed into a global village. The international business
transactions take place on the day-to-day basis and are generally governed under law of
contracts. Contract can be defined as a legally enforceable agreement. For an agreement to be
valid there shall be an offer and acceptance. In the current case, Bartovia and Idris entered
into an international investment agreement whereby investors from Bartovia agreed to invest
in the production of solar energy. Subsequently, bids were made by the investors which were
accepted by the government of Idris.1 Thus, constituting a valid contract.
2. Essentially, it is a contract between investors from Bartovia and govt. of Idris but the treaty
assigned acts as the protection of investors of host state2 in home state.3 When the judgement
from WTO came, the govt. of Idris refused to honour the contract as per the origin terms. It is
hereby contended that there is no direct link between WTO decision and Idris running away
from its obligations under the Contract. The contention of Idris is inadmissible in this context,
the reason being that it is a Self-Induced Frustration.
3. Investors were supposed to supply capital and govt. of Idris had to make sure that the DCR
requirements are being fulfilled. But because the local producers of solar cells were not
efficient enough to compete with foreign made products, they had to stop the manufacturing
process. Thus, Idris is bound to pay compensation for causing damages to investors in
Bartovia.
4. In case of J Lauritzen AS v. Wijsmuller BV, The Super Servant Two4 it was held that a party
cannot rely on its own self- induced frustration to say that contract is frustrated, as it won’t.
Some legal systems accept that changes of circumstances may justify modifying a contract
where to maintaining the original contract would produce intolerable results incompatible to
justice.5 But many legal systems, including English Law, concerned that if modification

1
Moot prop. ¶14.
2
Moot Prop., Appx. A, art.2.
3
Id. at art.2.
4
J Lauritzen AS v. Wijsmuller BV, (1990) 1 Lloyd’s Rep. 1,8.
5
LANDO AND BEALE, PRINCIPLES OF EUROPEAN CONTRACT LAW, 328 Parts 1 and 2 (2000).

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would undermine certainly and alter the risks allocated by the contract i.e. only where after
its formation, a change of circumstances beyond one’s control occur, which make Contractual
performance illegal or Impossible, only in such a situation, it is provided for by the Doctrine
of Frustration, as per which contract is deemed to be discharged.
5. Likewise, in the case of National Carriers Limited v. Panalpina (northern) limited,6court
held that frustration of contract takes place when there supervenes an event, which so
significantly changes the nature, not merely the expense or onerousness, of the outstanding
contractual rights and obligations from what the parties could reasonably have contemplated
at the time of its execution that it would be unjust to hold them to that in the new
circumstances. In another case7 where the failure of the contract was the result of party’s own
election, the judicial Committee of the Privy Council held that reliance cannot be placed upon
a self-induced frustration.
6. Similar conclusions have been reached, where in breach of contract; a charterer of a ship
allowed the ship to enter a war- zone where she was trapped,8 and where parties to arbitration
proceedings were in breach of their mutual contractual obligations to apply to the arbitral
tribunal for direction to prevent delay in the conduct of arbitration.9 Here the other party
claims WTO decision to be that supervening event which has rendered the contract frustrated.
But it is hereby contended that it does not satisfy that criteria. Let us examine this-
a) It is not changing the very nature of the contract but rather it is merely changing the costs of
performance of contract. It is not hardship or inconvenience or material loss itself which
calls the principle of frustration into play, there must be as well such a change in the
significance of the obligation that the thing undertaken would, if performed, be a different
thing from that contracted for.10
b) Idris were quite aware of the fact that they were in violation of national treatment
obligation. At this point, Idris can’t take ignorance of law as an excuse. Besides, the
decision has no bearing in this particular case as it is only barring the restrictions put
forward by them on foreign imports and not on domestic produce.
7. A party performing an obligation under a contract must perform that obligation exactly
within the time frame set by the contract and exactly to the standard required by the

6
National Carriers Limited v. Panalpina (northern) ltd. (1981) AC 675, 700.
7
Maritime National Fish Ltd v. Ocean Trawlers Ltd, (1935) AC 524.
8
Ocean Tramp Tanker Corporation v. V/O Sovfracht, (1964) 2 The Eugenia 226,237(QB).
9
Paal Wilson & Co A/S v. Partenreederei Hannah Blumenthal, (1983) 1 AC 854.
10
Davis Contractors Ltd. v. Freham UDC, (1956) AC 696.

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contract.11Primarily, the comparison is between the rights and obligations of the party after
the event, assuming the contract still binds them, and what their rights and obligations would
have been had the event not occurred.12
8.Here also, if we do this very comparison, we will find very little change in the obligations.
The primary objectives of the contract can still be fulfilled in current circumstances. The
standard required was of safe foreign investments in order to achieve sustainable development
of both the countries. By not providing the solar cells, Idris is violation of one of the core
requirement of the contract. Additionally, increase in solar module’s costs is unjust. If there is
slightest deviation from the terms of contract, the party not in default will be entitled to say
that the contract has not been performed and will be entitled to sue for damages for breach.13
9. When a particular contract is signed and prescribes a certain form in which it is to be carried
out then no other form of performance is valid. As in the case of Re Moore & Company and
Landauer & company,14 where the canned fruit was packed in cases of 24 tins instead of
agreed 30 tins per case. Therefore, it was held to be not the performance of the contract.
Similarly, in our case too, the contention that now Bartovian investors are free to buy solar
cells from any part of world bears no significance as contract had DCR as an essential
requirement. Until and unless, Idris comes good on this condition, contract will be deemed to
be not performed by the Idris govt. Further the increase in prices is completely in violation of
contractual obligation.

ISSUE2- THAT IDRIS IS BOUND BY THE CUSTOMARY INTERNATIONAL

PRINCIPLE OF NON-REFOULEMENT.

“Peace can only last where human rights are respected, where the people are fed, and where
individuals and nations are free." -14th Dalai Lama.
10. Ragaans are the people whose rights are in question here. Markovia, the country of their
habitual residence has detained them, terrorized them15 and persecuted them.16 This forced
them to desert their homes and live a life of a refugee. Material assistance like food, shelter

11
SIR WILLIAM REYNELL ANSON, J. BEATSON, ANDREW S. BURROWS, JOHN CARTWRIGHT, ANSON’S LAW OF
CONTRACTS 465 (30th ed. 2016).
12
Ocean Tramp Tankers Corporation v. V/O Sovfracht, (1964) 2 The Eugenia 226, 239(QB).
13
Id. at 466.
14
Re Moore & Company and Landauer& company, (1921) 2 AC 519 (KB).
15
Moot Prop. ¶ 4.
16
Id. at ¶7.

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and medical care is though critical but imparting legal protection is more important.17A
refugee is safeguarded in international law under Refugee convention, 1951 and in the last few
decades, many of its provisions have become part of customary international law.
11. The issue in front of us is regarding the fact that which country is obligated to give refuge to
Ragaans and take care of them as per international law. The countries in dispute are Bartovia
and Idris. It is hereby contended that Bartovia does not have any obligation as Ragaans left the
state voluntarily and Idris has the obligation to take care of them as per the customary
international principle of non-refoulement.

2.1 RAGAANS LEFT BARTOVIA VOLUNTARILY.

2.1.1 BARTOVIA FULFILLED ITS OBLIGATIONS TO BEST OF ITS ABILITIES.

12. Most people in the world have had the experience of leaving the place where they grew up.
Maybe they will only move as far as the next village or city. But for some people, they will
need to leave their country entirely. Some people leave home to get a job or an education.
Others are forced to flee persecution or human rights violations.18 The fear and persecution
forms the basis of the flight of the Ragaans from Markovia.
13. Bartovia is a signatory to Refugee convention and recognises its obligations to give refuge to
valid refugees in their territory. In furtherance of the same, Bartovia acted for the welfare of
the Ragaans. For people involuntarily displaced from their homes, return might seem like an
ideal solution.19 In UNHCR’s preferential hierarchy to seek permanent solutions for the
problem of refugees, voluntary repatriation has the first priority.20 So in light of the same,
Bartovia entered into an agreement with Markovia for safe and voluntary repatriation of
refugees.21 When agreement between Markovia – Bartovia occurred, Bartovia made sure that
it accords every protection to the Ragaans under the agreement. These protections included –
ensuring access to basic services and livelihood in Markovia, issuance of identity cards for
national verification, not criminalising returnees for illegal exit, no restriction on number of
people being repatriated etc.22 So, fear of Ragaan’s persecution was reduced to great extent.

17
GUY S. GOODWIN-GILL, THE INTERNATIONAL LAW OF REFUGEE PROTECTION 36 (Fiddian Qasmiyen,
Loescher, Long & Sigona, The Oxford handbook of refugee & forced migration staudies, 1 st ed. 2014).
18
Dan Kitwood, refugees, asylum-seekers and migrants, AMNESTY INTERNATIONAL
(Sept. 3, 2018), https://www.amnesty.org/en/what-we-do/refugees-asylum-seekers-and-migrants/.
19
LAURA HAMMOND, VOLUNTARY REPATRIATION AND REINTEGRATION 499 (Fiddian Qasmiyen, Loescher,
Long & Sigona, The Oxford handbook of refugee & forced migration staudies, 1 st ed. 2014).
20
UNGA Resolution, Annex. ¶1, Dec. 14, 1950, A/RES/428 (V).
21
Moot Prop. ¶5.
22
Moot Prop., Appx. B.

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14. Art. 2623 states that each Contracting State shall accord to refugees lawfully in its territory the
right to choose their place of residence to move freely within its territory, subject to any
regulations applicable to aliens generally in the same circumstances. Bartovia cannot stop
Ragaans from moving from one place to another. Right to move is one of the protections
which is given to refugees under Refugee convention.

2.1.2 RAGAANS LEFT BARTOVIA IN SEARCH OF BETTER LIVING CONDITIONS.

15. Migrants are such people who choose to move not because of a direct threat of persecution or
death, but mainly to improve their lives by finding work, or in some cases for education,
family reunion, or other reasons.24 Macro theories emphasise the structural, objective
conditions which act as "push" and "pull" factors for migration.
16. Economic opportunities in destination countries are also of crucial importance in influencing
decisions to migrate and the direction of flows. Thus in addition to macro push factors and
migration systems, there are a number of significant "pull" factors in receiving countries. 25
Probably the most important of these is the widespread demand for cheap, low-skilled
labour.26 As manufacturing companies have been forced to become more flexible and
competitive under the pressures of globalisation, many have become increasingly dependent
on the supply of low-cost, flexible labour, often employed on an irregular basis.27 These were
the circumstances which attracted Ragaans to move from Bartovia to Idris, being created by
the Idris’s policy on solar energy. They moved in search of work and industries in Idris
readily accepted them to ensure cheap labour.
17. Ragaans were never forced to leave the country of Bartovia but rather they voluntarily moved
in search of more safe location for their well- being. So, when they decided to move from the
Bartovia for reasons other than the fear of persecution i.e. better living opportunities, it
relieves Bartovia from its obligation under the Refugee convention. Now Bartovia becomes
merely the transient country and their final destination is Idris. Bartovia got discharged from
its obligations as soon as the Ragaans voluntarily left the place. They have sought the refuge

23
Geneva Convention art.22, Aug. 12, 1949, 75 U.N.T.S. 287.
24
Adrian Edwards, UNHCR viewpoint: ‘Refugee’ or ‘migrant’ – Which is right?, UNHRC THE REFUGEE
AGENCY (Sept.3, 2018, 2:47M), http://www.unhcr.org/news/latest/2016/7/55df0e556/unhcr-viewpoint-refugee-
migrant-right.html.
25
Christina Boswell, Addressing the causes of migratory and refugee movements: the role of the European
Union, 73 IFMC (2002).
26
SASSEN, SASKIA, LOSING CONTROL? SOVEREIGNTY IN AN AGE OF GLOBALIZATION 76, 80 (New York:
Colombia University Press, 2nd ed. 1996).
27
Hans, Globalisation and Governance: Contradictions of NeoLiberal Migration Management, 174 HWWI
(2002).

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in an altogether different country. Hence, once they move forward to a different country they
no longer hold rights in the country of temporary refuge.

2.2 OBLIGATION OF IDRIS

2.2.1. RAGAANS ARE REFUGEES IN IDRIS

18. Refugees are defined under art. 1 of Refugee convention as – the persons who owing to well-
founded fear of being persecuted for reasons of race, religion, nationality, membership of a
particular social group or political opinion, is outside the country of his nationality and is
unable or, owing to such fear, is unwilling to avail himself of the protection of that country;
or who, not having a nationality and being outside the country of his former habitual
residence as a result of such events, is unable or, owing to such fear, is unwilling to return to
it.28 This fact is quite evident that Ragaans are habitual residents of country of Markovia (and
not Bartovia). The situation in Markovia is still not good enough that Ragaans could be sent
back to that place. There fear of persecution is based on well-founded reason.
19. So, they do fulfil the requirement of being the refugees. Also, a refugee does not cease to be
a refugee or become a ‘migrant’ simply because they leave one host country to travel to
another. A person who meets the criteria for refugee status remains a refugee, regardless of
the particular route they travel in search of protection or opportunities to rebuild their life,
and regardless of the various stages involved in that journey.29

2.2.2. IDRIS HAS TO ABIDE BY THE PRINCIPLE OF NON-REFOULEMENT.

20. It is important to understand the principle of non-refoulement which states - No Contracting
State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers
of territories where his life or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political opinion.30 This non-
refoulement principle, cornerstone of international protection of refugees,31 is also the most
vital tool that asylum seekers have in order to be able to enter to the State‘s host territory and

28
Geneva Convention art. 3, Aug. 12, 1949, 75 U.N.T.S. 287.
29
Adrian Edwards, UNHCR viewpoint: ‘Refugee’ or ‘migrant’ – Which is right? UNHRC THE REFUGEE AGENCY
(Sept.3, 2018), http://www.unhcr.org/news/latest/2016/3/56e95c676/refugees-migrants-frequently-asked-
questions-faqs.html.
30
Geneva Convention art. 33, Aug. 12, 1949, 75 U.N.T.S. 287.
31
Regional Refugee Instruments & Related, Cartagena Declaration on Refugees, Colloquium on the
International Protection of Refugees in Central America, Mexico and Panama ¶III.5, Nov. 22, 1984, available
at: (Sept. 4, 2018), http://www.refworld.org/docid/3ae6b36ec.html.

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receive protection.32 In refugee law, the principle has existed since 1933 and it is now clearly
a provision of customary international law binding on all States.33
21. This view is based on a consistent practice combined with recognition on the part of States
that the principle has a normative character. This principle has been incorporated in
international treaties adopted at the universal and regional levels to which a very large
number of States have now become parties. The principle has, moreover, been reaffirmed in
the 1967 United Nations Declaration on Territorial Asylum. Finally, the principle has been
systematically reaffirmed in conclusions of the UNHCR Executive Committee and in
resolutions adopted by the United Nations General Assembly.34 In international human rights
law, the legal basis of the principle of non-refoulement lies in the obligation of all States to
recognise, secure and protect the human rights of all people present within their jurisdiction.35
22. The essence of the principle is that a State may not oblige a person to return to a territory
where he may be exposed to persecution.36 The obligations arising out of customary
international laws are binding on each state and they have to follow the same. Idris, too, is
also under the obligation to respect the non-refoulement principle and could not expel them
from their country.
23. Idris claims that they are not bound by this principle because Ragaans are a threat to national
peace and security. They have allegedly found their links with extremist groups which have
caused sectarian and communal violence.37 But on carefully examining the facts, it is clear
that it was first Idris govt. which acted arbitrarily against the refugees by arresting, torturing
and even killing them.38 Only as a reaction, a part of these Ragaan populations made some
crooked remarks. But their involvement in communal violence became an issue only after the
WTO decision and their subsequent failure to perform their obligation under the investment
treaty. Till then, they were handling this issue internally. They never deported Ragaans before

32
GOODWIN GILL / MCADAM, THE REFUGEE IN INTERNATIONAL LAW 344 (3rd ed. 2011).
33
Convention relating to the International Status of Refugees, League of Nations, art. 3, Oct. 28,1933,
Provisional Arrangement concerning the status of refugees coming from Germany art. 4, July 4, 1938,
Convention concerning the status of refugees coming from Germany, League of Nations art. 5, Feb. 10, 1938.
34
UN High Commissioner for Refugees (UNHCR), The Principle of Non-Refoulement as a Norm of Customary
International Law. Response to the Questions Posed to UNHCR by the Federal Constitutional Court of the
Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93, 31 January 1994,
available at: (Aug. 24, 2018) http://www.refworld.org/docid/437b6db64.html.
35
ECHR art. 1, Sept. 3, 1953, ETS 5; ICCPR art. 2, Dec. 16, 1996, 999 U.N.T.S. 171; ACHPR art. 1, June 27,
1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58; ACHR art. 1, Nov. 29, 1969,The Convention against Torture art. 3,
Dec. 10 1984, 1465 U.N.T.S. 85.
36
Id. at 36.
37
Moot prop. ¶ 15.
38
Id. at ¶ 13.

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but rather always arrested them. So, it could be said that they accepted Ragaans as part of
their territory and are subsequently running from their duty.

ISSUE 3- THATIDRIS HAS VIOLATED ITS OBLIGATIONS UNDER MIGRANT

WORKERS CONVENTION AND DECLARATION ON THE ALIEN RIGHTS.

24. State of Idris is not merely in contravention of Customary international law of non-
refoulement but rather it has failed to discharge its multiple obligations under the
international law. Out of these violations, two are of special importance. Firstly, Art. 22 of
the Convention on protection of the rights of all migrant workers and members of their
families and secondly, Declaration on the human rights of individuals who are not nationals
of the country in which they live. Both of these will be discussed one after another.

3.1 OBLIGATION UNDER MIGRANT WORKERS CONVENTION

3.1.1 THERAGAANS ARE MIGRANT WORKERS IN IDRIS

25. The term "migrant worker" refers to a person who is to be engaged, is engaged or has been
engaged in a remunerated activity in a State of which he or she is not a national.39 The term
“migrant worker” is generally understood as referring to a person who has travelled to a
foreign country in order to obtain gainful employment.40Firstly the Ragaan’s are migrant
worker as, they are not the nationals of Idris and secondly they were indulged as labour in the
SMEs producing solar cells and modules in exchange of wages.
26. The convention not only safeguards the migrant workers but their family members too. The
term ''members of the family" refers to persons married to migrant workers or having with
them a relationship that, according to applicable law, produces effects equivalent to
marriage, as well as their dependent children and other dependent persons who are
recognized as members of the family by applicable legislation or applicable bilateral or

39
International convention on protection of the right of all Migrant Workers and member of their families, art. 2,
Dec. 18, 1990, A/RES/45/158.
40
3 TUGRUL ANSAY, LEGAL PROBLEMS OF MIGRANT WORKERS, RECUEIL DES COURS DE L’ACADÉMIE DE DROIT
INTERNATIONAL 7-77 (1977).

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multilateral agreements between the States concerned.41So these people are also accorded
with the same protections as other migrant workers.
27. Individuals, including migrants, should not be subjected to arbitrary arrest or detention under
international human rights law.42 All migrant workers and their families regardless of their
legal status are also entitled to the right to be free from arbitrary arrest and detention, which is
protected by international human rights standards against deprivation of liberty, such as those
in ICCPR (Art. 9).43 Art. 16(4) of the ICRMW44 specially protects migrant workers and their
families from individual or collective arbitrary arrest or detention. The Committee on
Migrant Workers notes that in order for arrest or detention to not be arbitrary, it must be
“prescribed by law,” “pursue a legitimate aim under the ICRMW,” be “necessary in the
specific circumstances,” and “proportionate to the legitimate aim.”

3.1.2 RAGAAN’S COLLECTIVE EXPULSION AND ARBITRARY ARRESTS ARE INVALID

28. The well-established definition of “collective expulsion” is - “any measure of the competent
authorities compelling aliens as a group to leave the country, except where such a measure is
taken after and on the basis of a reasonable and objective examination of the particular cases
of each individual alien of the group.”45 The prohibition set out in Art. 4 of Protocol 446 to
the ECHR states that - collective expulsion of aliens are prohibited, it is noted that Art.
19(1)47 of the Charter of Fundamental Rights of the European Union also provides that
‘Collective expulsions are prohibited.’
29. Similarly, Art. 22(1) ICMW48 stipulates as follows: ‘Migrant workers and members of their
families shall not be subject to measures of collective expulsion. Each case of expulsion shall
be examined and decided individually.49 In the case of Georgia v. Russia (I),50 the Court
concluded that the expulsions of Georgian nationals had not been carried out on the basis of a

41
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their
Families art. 4, Dec. 18, 1990, A/RES/45/158.
42
African Charter art. 6, June 27, 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58; American Convention art. 7, Nov.
22, 1969 ; ArCHR art 14; ECHR art. 5, Sept. 3, 1953, ETS 5; ICCPR art. 9, Dec. 16, 1996, 999 U.N.T.S. 171.
43
ICCPR art. 9, Dec. 16, 1996, 999 U.N.T.S. 171.
44
International convention on protection of the right of all Migrant Workers and member of their families, art.
16(4), Dec. 18, 1990, A/RES/45/158.
45
Andric v. Sweden, Appl. No. 45917/99, ECHR (1999); Čonka v. Belgium, Appl. No. 51564/99, ECHR § 59
(2002); Sultani v. France, Appl. No. 45223/05, ECHR §81 (2007); and the Commission decisions Becker v.
Denmark, Appl. No. 7011/75, ECHR (1975).
46
ECHR of Protocol 4 art. 4, Sept. 3, 1953, ETS 5.
47
Charter of Fundamental Rights of the European Union art. 19 (1), Oct. 26, 2012, 2012/C 326/02.
48
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their
Families art. 22(1), Dec. 18, 1990, A/RES/45/158.
49
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their
Families art. 22(1), Dec. 18, 1990, A/RES/45/158.
50
Georgia v. Russia, Appl. No. 13255/07, ECHR § 45 (2014).

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reasonable and objective examination of the particular case of each individual and that this
had amounted to an administrative practice in breach of Art. 4 of Protocol No. 4.
30. The facts in current case find Idris in complete violation of these principles. They forced the
Ragaans, who once worked in enterprises there, to forcibly move out of their country. The
main contention of Idris behind justifying their act is the fact that Ragaans are not particularly
the documented migrants. They didn’t enter by first taking permission from Idris govt. or
through showing of valid documents. But it is hereby contended that though a country can
expel an undocumented migrant from their territory but mass expulsion is not permitted. The
decision shall be taken on case to case basis. The blanket rule stating deportation of all people
is held to be in violation of human rights.51
31. In the case of Shioshvili and Others v. Russia,52 the Court found a violation in the case of the
mother and her four children’s deportation, because they had been subjected to the
administrative practice of expelling Georgian nationals in the autumn of 2006, without a
proper examination of their individual cases. The Court reached the same conclusion in the
case of Berd zenishvili and Others v. Russia,53 in respect of fourteen Georgian nationals
whose expulsion had been ordered by domestic courts during the same period.
32. These protections are not affected by the legal or illegal entry of the person. In the case of
D.S., S.N. and B.T. v. France (1993), the European Commission on Human Rights considered
a claim based on an alleged violation of Art. 4 of Protocol to be admissible, despite the fact
that France had argued that the applicants were specifically refused entry into France and
were kept in the international zone of the airport.54 In Conka, it found that the applicants’
right not to be subjected to collective expulsion had been violated, even though at the time of
the expulsion the applicants they were under an order to leave the country.55 If a State party
removes a person within its jurisdiction, and the necessary and foreseeable consequence is a
violation of that persons’ rights under the Covenant in another jurisdiction, the State party
itself may be in violation of the Covenant.56
33. Furthermore, the way in which a migrant is evicted is also important. Although the migrants
concerned may be in the country illegally, the State party’s right to expel foreigners does not

51
Hirsi Jamaa and Others v. Italy, Appl. No. 27765/09, (2012).
52
Shioshvili and Others v. Russia, Appl. No. 19356/07, (2016).
53
Berdzenishvili and Others v. Russia, Appl. No. 14594/07, 14597/07, 14976/07, 14978/07, 15221/07,
16369/07, and 16706/07, (2017).
54
D.S., S.N. and B.T. v. France, Appl. No. 18560/91, (1992).
55
Conka v. Belgium, Appl. No.51564/99, (2002).
56
Kindler v. Canada, 2 SCR 779, (1991).

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justify the manner employed to expel them.57 Hence in theory, art. 4 of Protocol No. 4 is a
procedural guarantee that groups of aliens will not be expelled collectively, but rather as a
group of individuals on the basis of individual review.58 For instance in Vilvarajah and others
v. The United Kingdom,59 the Court applied the principle that States are obliged to refrain
from extraditing aliens to countries where they risk violations of their rights to life, or would
risk being subjected to torture or cruel or inhuman treatment, which was established in the
case of Soering v. The United Kingdom,60 to an asylum case. Later judgement has confirmed
the applicability of this principle without exception, for example, in security or criminal
cases.61

3.2 OBLIGATION UNDER DECLARATION ON ALIEN RIGHTS

34. Declaration defines alien in art. 162 as -any individual who is not a national of the State in
which he or she is present. Aliens shall enjoy, in accordance with domestic law and subject to
the relevant international obligations of the State in which they are present, in particular the
right to life and security of person; no alien shall be subjected to arbitrary arrest or
detention; no alien shall be deprived of his or her liberty except on such grounds and in
accordance with such procedures as are established by law.63 Further, contrary to the actions
of Idris govt., under this obligation - individual or collective expulsion of aliens on grounds
of race, colour, religion, culture, descent or national or ethnic origin is prohibited.64
35. The approach of the Court with respect to detention has been that it must be used only as a
last resort.65 In C v. Australia, the Human Rights Committee found Australia had violated the
right to liberty under Art. 9 of the ICCPR by arbitrarily detaining the applicant, a migrant and
Cambodian national who arrived to Australia by boat. At the time of filing his application, his
detention had lasted for over three and a half years; and there was no available judicial review
of his detention. The Human Rights Committee found that the State’s justifications for

57
Rencontre Africaine pour la Défense des Droits de l’Homme c. Zambia, Com. No. 71/92, (1996); and Union
Inter-Africaine des Droits de l’Homme and others v. Angola, Com. No.159/96, (1997).
58
J. D Howley, Unlocking the Fortress: Protocol No. 11 and the birth of Collective Expulsion Jurisprudence in
the Council of Europe System’, 21 GEORGETOWN IMMIGRATION L.J. 117-118 (2006).
59
Vilvarajah and others v. The United Kingdom, Appl. No. 45/1990/236/302-306, ECHR (1991).
60
Soering v. The United Kingdom, Appl. No. 1/1989/161/217, ECHR (1989).
61
GUY S. GOODWIN-GILL, supra note 17, at 41.
62
Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live,
art. 1, Dec.13, 1985, A/RES/40/144.
63
Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live,
art. 5, Dec.13, 1985, A/RES/40/144.
64
Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live,
art. 7, Dec.13, 1985, A/RES/40/144.
65
Saadi v. UK, (2008) 79 ECHR ¶ 70.

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detention were insufficient to keep the applicant in detention. Additionally, the Committee
found that the State’s restricted ability under recently passed legislation to review the
lawfulness of detention of migrants was in violation of Art. 9(4).66
36. In F.K.A.G. v Australia,67 the Human Rights Committee reaffirmed its general approach on
arbitrariness of detention and held that “detention must be justified as reasonable, necessary
and proportionate in light of the circumstances to be valid. In the case of Keshmiri v. Turkey
(No. 2), the Court found the detention unreasonably prolonged and, therefore, in breach of
Art.5.1 ECHR, because it “continued for many months after the interim measure was applied
and during that time no steps were taken to find alternative solutions.”68 So,Idris govt. has
been in gross violation of obligations enshrined under declaration which is signed and ratified
by them.

ISSUE4– THAT FORCEFUL SEPARATION OF CHILDREN FROM THEIR

FAMILIES AMOUNTS TO VIOLATION OF HUMAN RIGHTS ESPECIALLY
CHILD RIGHT.

37. Idris has acted against Ragaans. They alleged that Ragaans have links with certain extremist
groups and based on that pretext they have detained them. This act of theirs caused gross
violation of child rights. Children’s rights, as defined under the United Nations Convention
on the Rights of the Child (UNCRC),69 is the appropriate way to ensure that these vulnerable
children are protected. Children are entitled, due to their particular status, to special
protection.70 Therefore, States are compelled to adopt exceptional measures71 in order to fully
assist them. But in current case they caused mass scale separation of children from their
parents.72 These children were forced to leave the country without any guardian.
38. Multiple international covenants have established that in all proceedings regarding children,
including deportation proceedings, the best interests of the child must be taken into account.
The ‘best interests’ standard was brought into international law as a concept under the UN
66
A. v. Australia, Com. No. 560/1993, UN Doc. CCPR/C/59/D/560/1993 (1997) .
67
F.K.A.G. v. Australia, CCPR, op. cit., fn. 656, ¶ 9.3.
68
Keshmiri v. Turkey (No. 2), Appl. No. 22426/10, ECtHR ¶ 34 (2012).
69
United Nations Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S 3.
70
UDHR, art.25, Dec. 10, 1948, A/RES/3/217 A.
71
HRC, General Comment No. 17, ¶1; IACtHR, OC-17/02, ¶62.; IACtHR, Case of Bulacio v. Argentina, ¶133;
IACtHR, Case of the ―Street Children‖ v. Guatemala, ¶146; UNHCR, ExCom Conclusion No. 107 (LVIII),
¶b.2.
72
Moot prop. ¶ 15.

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Declaration on the Rights of the Child (‘Declaration’), which stated that “the best interests of
the child shall be the paramount consideration” when developing laws that affect children.73
Convention on the Rights of the Child, Art. 3(1) states: “in all actions concerning children,
whether undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the child shall be a
primary consideration.”74Although the child’s ‘best interests’ has not been further defined,
the concept is likely to encompass a broad variety of interests, especially those that enable the
child to develop “physically, mentally, morally, spiritually and socially”.75
39. In the context of deportation decisions, it is almost always in the child’s best interests to live
in the same country as their parents. The moral right of children to maintain relationships
with parents has “robust support” from predominant philosophies, including the welfarist and
autonomy-focused perspectives.76 This right is also endorsed in articles 9 and 10, as well as
the Preamble of the Convention. It states that if a child is separated from one or both parents,
regardless of the reason, the child has a right to maintain direct contact with his or her
parents unless contrary to the child's best interests.77 Art. 23 of the International Covenant on
Civil and Political Rights78 affirms the family as the “fundamental group of society”. The
Applicant respectfully submits that separation of children violates the best interests of the
child in contravention of this well-established international standard.
40. Art. 9 further states that a child must not be separated from his or her parents against the
child’s will “except when competent authorities subject to judicial review determine, in
accordance with applicable law and procedures, that such separation is necessary for the
best interests of the child.” The use of the phrase “applicable law and procedures” has been
interpreted to imply that states have an obligation to create laws and procedures governing
parent/child separation.79 Furthermore, the call for “competent authorities” infers that
countries must have certain authorities that are adept decision makers in the realm of
parent/child separation.80

73
Declaration of the Rights of the Child Principle Supp. No. 16, 2, Dec. 10, 1959, G.A. Res. 1386 UN GAOR,
UN Doc A/4354.
74
Convention on the Rights of the Child art. 3(1), Nov. 20, 1989, 1577 U.N.T.S 3.
75
Declaration of the Rights of the Child Principle 2, Dec. 10, 1959, GA Res 1386, UN GOAR, UN Doc A/4354.
76
JAMES DWYER, THE RELATIONSHIP RIGHTS OF CHILDREN, 121,168 (2006).
77
Convention on the Rights of the Child art.9(3), Nov. 20, 1989, 1577 U.N.T.S 3.
78
International Covenant on Civil and Political Rights art.24, Dec. 16, 1966, 999 U.N.T.S 171, 6 I.L.M. 368.
79
Erica Stief, Impractical Relief and the Innocent Victims: How United States Immigration Law Ignores the
Rights of Citizen Children, 79 UMKC L Rev 477 at 493 (2010).
80
Convention on the Rights of the Child art. 9(3), Nov. 20, 1989, 1577 U.N.T.S 3.

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41. 2013 General Comment on the CRC81 explains that if a decision has the potential to separate
parent and child, “it is indispensable to carry out the assessment and determination of the
child’s best interests.”82 None of these steps has been taken in the current case. The comment
further notes that parent/child separation is only allowable as a last resort, not simply as an
automatic consequence of a state’s immigration laws; separation should not take place if less
intrusive measures could protect the child.83
42. While the phrase ‘best interests’ is most deliberately articulated in relation to children’s rights
in the CRC, multiple other international covenants declare a commitment to the protection of
the child’s best interests as a fundamental human right. The European Convention on Human
Rights (‘ECHR’) has been interpreted by the European Court of Human Rights to mean that
the State must consider that “the mutual enjoyment by parent and child of each other's
company constitutes a fundamental element of family life” and that “domestic measures
hindering such enjoyment amount to an interference with the rights” protected by the
Convention.84
43. Furthermore, the American Convention on Human Rights (‘ACHR’) has a distinct provision
(art. 19) on the rights of the child: “every minor child has the right to the measures of
protection required by his condition as a minor on the part of his family, society, and the
state.”85 This article of prime importance, as it is listed among those that may not be
suspended in time of war, public danger, or other emergency.86 Finally, the International
Covenant on Civil and Political Rights (‘ICCPR’) art. 24(1) States: “every child shall have
the right to such measures of protection as are required by his status as a minor, on the part
of his family, society and the State.” Indisputably, the separation of families through
deportation does not “protect” children.
44. In any event, if refugee status could have not been granted, the CRC has stated that
complementary protection shall be afforded to unaccompanied children. 87 This
complementary protection must be available to the extent-determined by their protection

81
4 Committee on the Rights of the Child, General Comment No. 14, CRC/C/GC/14, 62nd Sess. (2013) at 14.
82
Id. at 14.
83
Id. at 61.
84
Johansen v. Norway, Appl. No. 17383/90, III ECHR 966, 23 EHRR 33 (1996).
85
OAS, American Convention on Human Rights art. 19, Nov. 22, 1969, OR OEA Doc. 36.
86
OAS, American Convention on Human Rights art. 27(2), Nov. 22, 1969, OR OEA Doc. 36.
87
UN Committee on the Rights of the Child (CRC), General comment No. 6 (2005): Treatment of
Unaccompanied and Separated Children Outside their Country of Origin ¶77, Sept. 1, 2005,
CRC/GC/2005/6, available at: (Sept. 5, 2018), http://www.refworld.org/docid/42dd174b4.html.

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 5th VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

needs and must always consider the best interest of the child.88 By ratifying the CRC, Idris is
implicitly bound to uphold the affirmative obligations regarding minors. The definition of
“minor” as set forth in Art. 1 of the CRC to include every human being below the age of
eighteen years.89 States violate Art. 19 and the CRC when they fail to protect minors
regardless of whether the state national majority age is attained prior to eighteen. 90 All of the
victims in this case are minors and accordingly, were deprived of their fundamental human
rights in violation of Art. 19 & the CRC.

88
UNHCR, ExCom Conclusion on the Provision of International Protection Including Through Complementary
Forms of Protection ¶n, Oct. 7, 2005, No. 103 (LVI) - 2005.
89
Convention on the Rights of the Child, art. 1, Nov. 20, 1989, 1577 U.N.T.S 3.
90
General Comment 17, Rights of the child ¶ 4, Aug. 24, 1989, available at: (Sept. 5, 2018)
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/cc0f1f8c391478b7c12563ed004b35e3.

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 5th VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

RELIEF FOR PRAYER

Wherefore, in the light of the facts stated, arguments advanced and authorities cited, it is most
humbly prayed and implored before the International Court of Justice, that it may be
graciously pleased to adjudge and declare that:

1. The Idris cannot withdraw from its obligation under the International Investment
Agreement and pay compensation for the same.
2. The Idris is under an obligation to accept Ragaans as they are bound by customary
International principle of non-refoulement.
3. The collective expulsion and arbitrary arrest of Ragaans by the Idris Government is
against the International law.
4. That Idris has violated the obligation under International Human Right and CRC by
separating children from their parents.

The Court may also be pleased to pass any other order, which it may deem fit in light of
justice equity and good conscience.

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All of which is most humbly prayed

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PLACE: HAGUE, NETHERLANDS AGENT FOR THE STATE OF BARTOVIA

DATED: 10th OCTOBER, 2018 (APPLICANT)

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