TC – 503 (R)

5TH VIVEKANAND INSTITUTE OF PROFESSIONAL STUDIES

INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

INTERNATIONAL COURT OF JUSTICE

THE PEACE PALACE
THE HAGUE, THE NETHERLANDS

THE CASE CONCERNING IDRIS-BARTOVIA INTERNATIONAL INVESTMENT

AGREEMENT, 2017 & OBLIGATION OF BOTH NATIONS REGARDING
MARKOVIAN REFUGEES

STATE OF BARTOVIA STATE OF IDRIS

V.

(APPLICANT) (RESPONDENT)

SUBMITTED BEFORE THE INTERNATIONAL COURT OF JUSTICE

MEMORANDUM ON BEHALF OF THE RESPONDENT

 5TH VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

TABLE OF CONTENTS

INDEX OF AUTHORITIES...................................................................................................... 3

STATEMENT OF JURISDCITION.......................................................................................... 7

STATEMENT OF FACTS ........................................................................................................ 8

ISSUES PRESENTED............................................................................................................. 10

SUMMARY OF PLEADINGS................................................................................................ 11

ARGUMENTS ADVANCED ................................................................................................. 12

ISSUE I - WHETHER IDRIS CAN BE HELD LIABLE TO THE INVESTORS OF

BARTOVIA ............................................................................................................................. 12

[A] Idris has merely amended the Agreement ..................................................................... 12

[1] The ruling by the WTO Panel for Dispute settlement ................................................ 12

[2] The ruling is binding on Idris ..................................................................................... 12

[3] Idris amended the International Investment Agreement ............................................ 13

[B] Idris has not withdrawn from the Agreement ................................................................ 13

ISSUE II - WHETHER IDRIS IS JUSTIFIED IN COLLECTIVELY EXPELLING THE

RAGAANS TO BARTOVIA .................................................................................................. 14

[A] Idris is not bound by the principle of non-refoulement or other similar international
obligations. ........................................................................................................................... 14

[1] Ragaans are undocumented migrants and not refugees in Idris. ................................ 15

[2] Alternatively, the Ragaans are a threat to national security and integrity of Idris. .... 15

[3] Idris enjoys the right to grant or refuse asylum. ......................................................... 16

[B] Collective expulsion of the Ragaans is justified. ........................................................... 17

[C] Bartovia is bound by international law to accept the Ragaans. ..................................... 18

[1] Bartovia caused forced repatriation of the Ragaans to Idris. ..................................... 19

[2] Bartovia violated its obligation to not cause foreseeable damage in territory of other
States. ............................................................................................................................... 19

Memorial on Behalf of Respondent Page 1

 5TH VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

[3] Alternatively, Bartovia is in violation of the clean hands principle. .......................... 20

ISSUE III - WHETHER IDRIS HAS VIOLATED ITS INTERNATIONAL OBLIGATIONS

AND HUMAN RIGHTS IN ITS TREATMENT OF THE RAGAANS ................................. 20

[A] The arrests carried out by Idris authorities were in accordance with law, and hence not
arbitrary ................................................................................................................................ 21

[1] The Ragaans had formed ties with extremist groups ................................................. 21

[2] The authorities were working to safeguard national security .................................... 22

[B] Idris is not liable for human rights violations in the separation of families .................. 23

[1] Idris has not ratified Convention of Rights of Child, or United National Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ..... 23

[2] Idris has ensured the welfare of the child ................................................................... 23

[C] Bartovia is precluded from bringing any claims against Idris ....................................... 24

PRAYER .................................................................................................................................... x

Memorial on Behalf of Respondent Page 2

 5TH VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

INDEX OF AUTHORITIES

CASES
Asylum Case (Colombia v. Peru) [1950) I.C.J. Rep. 266 (1950)]. ............................................ 5
Case Concerning the Military and Parliamentary Activities in and Around Nicaragua
(Nicaragua v. United States of America), (1986) I.C.J. 14, ..................................................... 13
Case Concerning the Military and Parliamentary Activities in and Around Nicaragua
(Nicaragua v. United States of America), (1986) I.C.J. 14........................................................ 9
Corfu Channel Case (Great Britain v. Albania) 1949 ICJ 4 at 22. ............................................ 8
Suresh v. Minister of Citizenship and Immigration, [2002] 1 S.C.R. ¶ 88 (India). ................... 6
The Diversion of Water from the Meuse (Netherlands v. Belgium), 1937 P.C.I.J.(ser.A/B)
No.70 (Jun. 28, 1985) ................................................................................................................ 9

STATUTES AND CONVENTIONS

1951 Convention relating to Status of Refugees……………………………………………4,7
1967 Protocol Relating to the Status of Refugees, 1967……………………………………..4
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment,1987...................................................................................................................... 12
Convention on the Rights of the Child, G.A. 44/25 of 20 November 1989 ............................ 12
Convention on the Status of Stateless People, 1954 ................................................................ 11
International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families,1990. .............................................................................................. 3
International Covenant on Civil and Political Rights, 1966. ..................................................... 3
Statute of the International Court of Justice, 1945 .................................................................... 3
Universal Declaration of Human Rights, 1948 (A/65/223). ...................................................... 6
Vienna Convention on the Law of Treaties 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679. ............ 12

ARTICLES AND JOURNALS

Agnes G Hurwitz, The Collective Responsibility of States to Protect Refugees(1 ed, Oxford,
2009) (2009)............................................................................................................................... 8
American Convention on Human Rights, Treaty Series No. 36; 1144 UNTS 123; 9 ILM 99
(1969). ........................................................................................................................................ 7
Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals
(1987) I.L.J.156; UN Doc A/CN.4/546, 2, para 2. .................................................................... 9

Memorial on Behalf of Respondent Page 3

 5TH VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

Bruin & Wouters, p. 5-6, 29 I.L.J. (2003); Farmer, p. 13, 47 I.L.J. (2009); Feller, p. 514, 32
I.L.J. (2006)................................................................................................................................ 6
Crawford, State Responsibility Second Report, Addendum 2, ¶ 314; Articles on
Responsibility of State for Internationally Wrongful Acts, 2001, Chapter V-Circumstances
Precluding Wrongfulness, Commentary (9). ............................................................................. 9
Crawford, The Standing of States: A Critique on Article 40 of I.L.C.’s Draft Articles on State
Responsibility, in M. Andenas (ed.) Judicial Review on the International Perspective: Liber
Amoricum in Honour of Lord Slynn of Hadley, p. 23 (2002). ................................................ 11
G Fitzmaurice, The General Principles of International Law, Considered from the Standpoint
of the Rule of Law, 92(2) RdC 1, 119 (1957). ...................................................................... 9,13
Goodwin-Gill, G.S., Non-Refoulement and the New Asylum Seekers, 26 Virg. J.I.L. 897 ..... 5
Gregor Noli, Negotiating Asylum 357-62 (1 ed., Martinus Nijhoff, 2000) (2000). .................. 5
Guy Goodwin-Gill, The Refugee in International Law, 366, 367-8 (2d ed., Oxford University
Press,1998) (1996). .................................................................................................................... 5
Jaya Ramji-Nogales, “The Right to Have Rights”: Undocumented Migrants and State
Protection, 63 Kan. L. Rev. 1045 (2015). .................................................................................. 4
Jaya Ramji-Nogales, Undocumented Migrants and the Failures of Universal Individualism,
47 VAND. J. TRANSNAT’L L. 699 (2014). ............................................................................ 4
L.V. Oppenheim, International Law and Practice, 669 (7th ed., Oxford University Press,
1995) (1975)............................................................................................................................. 11
Lauterpacht & Bethlehem, Principles of Public International Law (2d ed., Oxford University
Press, 2003) (2000). ................................................................................................................... 6
Mortem Kjaerum, Article 14, The Universal Declaration of Human Rights: A Commentary
(1ed., Asborn Eide et al. eds., 1992) (1992). ............................................................................. 5
RY Jennings, Some International Law Aspects of the Refugee Question, (1939) 20 British
Yearbook of International Law 98, 111 ..................................................................................... 8
Stephen B. Young, Between Sovereigns: A Re-examination of Refugee Status in
Transnational Legal Problems, in Transnational Legal Problems of Refugees 339,347
(Michigan Yearbook of International Legal Studies ed., 1982). ............................................... 6
Tara J. Melish, From Paradox to Subsidiarity: The United States and Human Rights Treaty
Bodies, 34 Yale J. Int’l L. 389, 404–05 (2009). ........................................................................ 4
Victor Mosoti, The WTO Agreement on Trade Related Investment Measures and the Flow of
Foreign Direct Investment in Africa: Meeting the Development Challenge, 15 Pace Int'l L.
Rev. 181 (2003). ........................................................................................................................ 2

Memorial on Behalf of Respondent Page 4

 5TH VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

INTERNET ARTICLES
Charles T. Kotuby, JR.General Principles of due process of law, Duke University, Available
Online at https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1392&context=djcil
(Accesed on June 2013) ........................................................................................................... 10
Hugh Massey, U.N.H.C.R. and De Facto Statelessness, Legal and Protection Policy Research
Series, http://www.unhcr.org/4bc2ddeb9.pdf.(Accessed on March 2012) .............................. 11
Right to liberty and security of person and freedom from arbitrary arrest and detention, Office
of High Commissioner, Human Rights, Available Online at
https://www.ohchr.org/_layouts/15/WopiFrame.aspx?sourcedoc=/Documents/HRBodies/CC
PR/GConArticle9/Submissions/RightPersonalLibertyAndSecurity.doc&action=default&Defa
ultItemOpen=1 (Accessed on 2005) ........................................................................................ 10

UNITED NATIONS DOCUMENTS

Articles on Responsibility of State for Internationally Wrongful Acts, 2001, A/RES/62/61. ... 9
Declaration on Territorial Asylum, G.A. res. 2312 (XXII), 22 U.N. GAOR Supp. (No. 16) at
81, U.N. Doc. A/6716 (1967). ................................................................................................... 7
Draft articles on the expulsion of aliens, with commentaries 2014, Yearbook of the
International Law Commission, 2011, vol. II, Part Two. .......................................................... 7
Draft Declaration on Rights and Duties of States, 1949, Yearbook of the International Law
Commission, 1949 G.A. Assembly resolution 375 (IV) of 6 December 1949. ......................... 6
Draft Declaration on Rights and Duties of the State, 1949...................................................... 11
General Assembly (GA) resolution 3449(XXX), Measures to ensure the human rights and
dignity of all migrant workers, 9 December 1975, para. 2. ....................................................... 3
U.N. General Assembly, Declaration on Territorial Asylum, A/RES/2312(XXII) (Dec. 14,
1967). ......................................................................................................................................... 5

MISCELLANEOUS
Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under
the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.¶ 5. .................. 4
American Convention on Human Rights, Treaty Series No. 36, 1144 UNTS 123, 9 ILM 99
(1969). ........................................................................................................................................ 7
CCPR, General Comment No. 15, op. cit., fn. 30, para. 9. ........................................................ 4
Final report of the Special Rapporteur, Mr. David Weissbrodt, submitted in accordance with
Sub-Commission decision 2000/103, Commission resolution 2000/104 and Economic and
Social Council decision 2000/283 (E/CN.4/Sub.2/2003/23), 26 May 2003, para. 11 ............... 6

Memorial on Behalf of Respondent Page 5

 5TH VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

General Assembly resolution 45/158 of 18 December 1990. .................................................... 8

Human Rights Comm., General Comment 15, The Position of Aliens Under the Covenant,
¶5, U.N. Doc. HRI/GEN/1/Rev. 9 (Vol. I) (May 27, 2008). ..................................................... 4
Note on Non-Refoulement (Submitted by the High Commissioner)Note on Non-Refoulement
(Submitted by the High Commissioner) EC/SCP/2. .................................................................. 5
Principles Concerning Treatment of Refugees, 1966, art. 111(1), reprinted in U.N.H.C.R.,
Collection of International Instruments Concerning 201, 203 (1979). ...................................... 5
U.N.H.C.R., Ministerial Meeting, The Declaration of States Parties to the 1951 Convention,
2001 Preamble ¶ 4, (Dec 12 and 13). ......................................................................................... 3

Memorial on Behalf of Respondent Page 6

 5TH VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

STATEMENT OF JURISDICITION

The State of Bartovia (Bartovia) and the State of Idris (Idris) appear before the International
Court of Justice (“this Court”) through submission of a Special Agreement in accordance with
Article 40(1) of its Statute, for resolution of all disputes concerning Idris-Bartovia International
Investment Agreement, 2017 and obligation of both nations regarding the Markovian Ragaans.
This Court has jurisdiction over the dispute pursuant to Article 36(1) of its Statute. The parties
agree to accept this Court's decision as final and binding, and to execute it in good faith in its
entirety.

Memorial on Behalf of Respondent Page 7

 5TH VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

STATEMENT OF FACTS

BARTOVIA, IDRIS AND MARKOVIA

1. Bartovia, Idris and Markovia are neighboring countries.
2. Markovia was home to the Ragaans who had settled over several years in the country near
the common boundary with Bartovia.
3. In 1998, the Markovia government launched a campaign causing many of these Ragaans to
move to Bartovia.
4. In 2005, the remaining Ragaans were terrorized by the army and they subsequently fled to
Bartovia.
5. In 2010, Markovia agreed to admit the Ragaan refugees back in its territory if they proved
prior residence. Majority of the refugees feared persecution and refused to go back.

THE MARKOVIAN RAGAANS

6. In 2011, a cyclone struck Bartovia. It caused a major setback to the Bartovian economy.
The Bartovian public assumed a general mood of hostility towards the Ragaans as they
blamed the influx of these refugees as a cause of unemployment.
7. The Bartovian Armed Forces started pushing back the Ragaan refugees coming from
Markovia. The State announced that they would not let the refugees permanently settle in
their country as it itself was a developing nation and the Ragaans were an additional burden
on its limited resources.
8. There were instances of the Bartovian Armed Forces raiding camps and making arrests
against all those refugees who opposed the process of repatriation.
9. The Ragaans, therefore, fled Bartovia and went to the neighbouring country of Idris where
they were employed as fast and cheap labour under the Idris National Solar Program.

IDRIS NATIONAL SOLAR PROGRAM

10. In 2010, Idris had launched a National Solar Program.
11. It entered into a long term power purchase agreement with the various solar power
producers across the country guaranteeing them sale of the energy produced by them and the
price they would obtain.
12. One of the pre-requisites for a power producer to participate under the program is to use
domestically sourced inputs i.e. the solar cells and the modules.

Memorial on Behalf of Respondent Page 8

 5TH VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

13. Idris had also entered into an International Investment Agreement with Bartovia.
Investors from Bartovia agreed to invest in production of solar energy in Idris for a period of
five years, subject to DCR.
14. Later in 2017, The WTO Panel for Dispute settlement ruled that Idris’ National Solar
Program was in violation of its ‘national treatment’ obligation by discriminating between
solar cells and modules based on their place of origin.
15. This amounted to a violation of the nation’s obligations under WTO Agreements and
TRIMs.
16. The producers of solar cells and modules in Idris suffered huge losses and were forced to
shut down.
17. Idris decided to remove the domestic content requirement for solar cells.
18. Bartovia called upon Idris to comply with its obligations under the agreement as Bartovia
did not have any solar cell manufacturing units. It was argued by Bartovia that the alteration
had caused damage to the investors in Bartovia.

REPATRIATION OF THE RAGAANS

19. The solar power cell producers suffered losses and were forced to shut down, there was a
loss of livelihood not only among the migrant Ragaans but also among the nationals of the
country.
20. The nationals realized they were competing with the Ragaans for livelihood and
developed a feeling of hatred and hostility.
21. The Ragaans formed an alliance with the extremist groups and formed an organised
armed group. The Government of Idris believed that this was a serious threat to the national
security of Idris that allegedly indicated violence.
22. Idris, thus, announced that it was going to deport the Ragaans back to Bartovia.

Memorial on Behalf of Respondent Page 9

 5TH VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

ISSUES PRESENTED

ISSUE I - WHETHER IDRIS CAN BE HELD LIABLE TO THE INVESTORS OF

BARTOVIA

ISSUE II - WHETHER IDRIS IS JUSTIFIED IN COLLECTIVELY AND

FORCIBLY EXPELLING THE RAGAANS TO BARTOVIA

ISSUE III - WHETHER IDRIS HAS VIOLATED ITS INTERNATIONAL

OBLIGATIONS AND HUMAN RIGHTS IN ITS TREATMENT OF THE RAGAANS

Memorial on Behalf of Respondent Page 10

 5TH VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

SUMMARY OF PLEADING

ISSUE I - WHETHER IDRIS CAN BE HELD LIABLE TO THE INVESTORS OF

BARTOVIA
Idris cannot be held liable to the investors of Bartovia as the ruling of the World Trade
Organization necessitated the removal of the domestic content requirement and it is binding
on the state of Idris. Moreover, Idris has not withdrawn from the International Investment
Agreement as claimed by the State of Bartovia. Therefore, there lies no liability on Idris to
the investors of Bartovia for the IIA.

ISSUE II - WHETHER IDRIS IS JUSTIFIED IN COLLECTIVELY EXPELLING

THE RAGAANS TO BARTOVIA
Idris is justified in expelling the Ragaans from its territory as it enjoys the sovereign right to
refuse asylum in case of prospective danger from asylum seekers. Further, Idris is not bound
by the principle of non-refoulement as the Ragaans are only undocumented migrants.
Alternatively, since the Ragaans posed a serious threat to the national security of Idris due the
alleged indications of communal and sectarian violence and there was a threat to peace and
security. Bartovia is bound by international law to accept the Ragaans as it was because its
own conduct that the Ragaans illegally entered Idris.

ISSUE III - WHETHER IDRIS HAS VIOLATED ITS INTERNATIONAL

OBLIGATIONS AND HUMAN RIGHTS IN ITS TREATMENT OF THE RAGAANS.
Idris has neither violated any of its obligations under International law in its treatment of the
Ragaans, nor has violated any human rights in their arrests or deportation. The arrests and
prosecutions carried out by the authorities were in consonance with process and procedure of
law. Therefore, to protect and safeguard peace in the nation and maintain an environment of
security their arrests and deportation was justified. It is further argued that Idris has worked
for the benefit of the child and has ensured its welfare be paramount. Idris is not bound by the
specifics of the treaties it has not ratified. Bartovia is precluded from bringing any claims
against Idris as per the Clean Hands rule.

Memorial on Behalf of Respondent Page 11

 5TH VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

ARGUMENTS ADVANCED

ISSUE I - WHETHER IDRIS CAN BE HELD LIABLE TO THE

INVESTORS OF BARTOVIA

Idris cannot be held liable to the Investors of Bartovia as [A] the Agreement has merely been
amended because of the decision of the World Trade Organisation (WTO) and [B] it has not
withdrawn from the agreement and is still performing its obligation.

[A] Idris has merely amended the Agreement

The State of Idris cannot be held liable to the Investors because of [1] the ruling by the WTO
Panel for Dispute settlement, [2] the ruling being binding on Idris, and as a consequence
thereof, [3] the subsequent amendment by Idris to the International Investment Agreement.

[1] The ruling by the WTO Panel for Dispute settlement

WTO declared the clause in the Agreement relating to the domestic content requirement of its
solar cells and modules to be violative of global trading rules under the WTO agreement and
Trade Related Investment Measures (TRIMs). This ruling was received based on a complaint,
and the WTO panel ruled against Idris.1
However, even after considering all the violations, the WTO’s ruling only affects the
domestic content requirement; it does not affect the National Solar Program or its
implementation any further. The interests of the investors, therefore, remain protected, there
is no damage caused to the investors and it does not affect their investment.

[2] The ruling is binding on Idris

The State of Idris is a signatory to the Marrakesh Agreement establishing the World Trade
Organisation and it has also been ratified by the nation.2 Therefore, all the provisions of the
Marrakesh Agreement shall apply to Idris. In addition to that, all of the decisions by the

1
Compromis, ¶ 12.
2
Compromis, ¶ 18.

Memorial on Behalf of Respondent Page 12

 5TH VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

dispute settlement panel of the WTO would also apply to Idris.

Moreover, all the members of the World Trade Organisation are also de-facto signatories to
the Trade Related Investment Measures (TRIMs).3 Therefore, Idris is also bound by the
TRIMs. Failure to follow a direct order of the Panel would have led to a direct violation of
the terms and conditions prescribed by the WTO.

[3] Idris amended the International Investment Agreement

The International Investment Agreement has been amended to remove the clause creating a
mandatory domestic content requirement because of the ruling of the WTO panel. This
amendment does not take away the obligation of Idris to perform the Agreement. Idris is still
performing all the obligations necessary.

[B] Idris has not withdrawn from the Agreement

Idris has not withdrawn from the Idris-Bartovia International Investment Agreement and is
still performing its obligations under the agreement, except for Article 5 of the Agreement 4
that had to be amended because it stated the domestic content requirement. The amendment
does not take away all the other obligations of the State under the IIA, and Idris has not
claimed to ignore the terms of the Agreement altogether. The only change is in Article 5 of
the Agreement5, which does not affect investors since it only mentions a change in the
procurement of raw materials. The final product, the solar power plant which will produce the
solar energy, remains the same. Thus, the investors, having invested in solar energy, will be
able to reap the benefits of their investments regardless of the sourcing of the raw materials.
This amendment does not affect the investors of Bartovia, and Idris has not withdrawn
completely from the IIA, therefore, there is no liability of the State of Idris towards the
investors of Bartovia.

3
Victor Mosoti, The WTO Agreement on Trade Related Investment Measures and the Flow of Foreign Direct
Investment in Africa: Meeting the Development Challenge, 15 Pace Int'l L. Rev. 181 (2003).
4
Compromis, Excerpts from Idris-Bartovia International Investment Agreement for Supply and Installation of
Solar Power Systems, 2017, Pg 13.
5
Ibid.

Memorial on Behalf of Respondent Page 13

 5TH VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

ISSUE II - WHETHER IDRIS IS JUSTIFIED IN COLLECTIVELY

EXPELLING THE RAGAANS TO BARTOVIA

Idris is justified in collectively expelling the Ragaans to Bartovia as [A] it not bound by the
principle of non-refoulement or other similar international obligations and [B] collective
expulsion of the Ragaans is justified under international law. Further, [C] Bartovia is bound
by international law to accept the return of the Ragaans.

[A] Idris is not bound by the principle of non-refoulement or other similar

international obligations.

Customary international law principles are the oldest source of international law that are
binding on all states before the International Court of Justice, under Article 38(1) of the ICJ
Statute.6 Non-Refoulement is a well-recognized principle of customary international law that
provides for the prohibition of refoulement of refugees and asylum-seekers.7 Some of the
instruments that incorporate the principle of non-refoulement include 1951 Refugee
Convention, the International Covenant on Civil and Political Rights8 (ICCPR) and
International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families (ICRMW).9
In the present case, Idris is not bound by the customary international law principle of non-
refoulement and other similar international obligations as [1] the Ragaans are undocumented
migrants. Alternatively, [2] the Ragaans are a threat to the national security and integrity of
Idris. Further, [3] Idris also enjoys the right to refuse asylum to Ragaans.

6
Article 38(1), Statute of the International Court of Justice, June 26, 1945, 59 Stat. 1055, 33 U.N.T.S. 933.
7
U.N.H.C.R., Ministerial Meeting, The Declaration of States Parties to the 1951 Convention, 2001 Preamble ¶
4, (Dec 12 and 13).
8
International Covenant on Civil and Political Rights, Dec. 16, 1966, S.Treaty Doc. No. 95-20, 6 I.L.M. 368
(1967), 999 U.N.T.S. 171.
9
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their
Families, General Assembly resolution 45/158 of 18 December 1990.

Memorial on Behalf of Respondent Page 14

 5TH VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

[1] Ragaans are undocumented migrants and not refugees in Idris.

Undocumented migrants are migrants who enter the State in an irregular fashion, without
having the proper documentation.10 They have been defined as “individuals without any
lawful immigration status or any special claim to protection against deportation.”11 These are
individuals who have neither a visa nor a claim to asylum to fall back on. If they are caught
by state authorities, they can be deported at any time.12
The right to territorial security to undocumented migrants is not supported in any
international human rights treaty or any soft law produced by human rights treaty bodies.13
Indeed, these treaties and interpretive bodies have consistently stated that they do not extend
the right to territorial security to undocumented migrants. 14
While the ICCPR awards non-citizens lawfully in the territory certain rights in removal
proceedings, the same protections do not apply to the undocumented. 15 The United Nations
Human Rights Committee (UNHRC) has interpreted the procedural due process clause in the
ICCPR as inapplicable to undocumented migrants.16 The ICRMW protects only certain rights
for certain workers. The treaty states in no uncertain terms that it does not offer any right to
“regularization” for undocumented migrants or their families. 17
The Ragaans constitute undocumented migrants under international law as they do not have a
lawful immigration status in Idris and therefore, cannot claim right against deportation.18
Therefore, their right to territorial security is not supported by either soft law or other
international instruments.

[2] Alternatively, the Ragaans are a threat to national security and integrity of Idris.
Non Refoulement is enshrined in Article 33(1) of the 1951 Convention19, which is also
binding on State Parties to the 1967 Protocol.20 The Convention’s refugee definition is not an

10
General Assembly (GA) resolution 3449(XXX), Measures to ensure the human rights and dignity of all
migrant workers, 9 December 1975, para. 2.
11
Jaya Ramji-Nogales, Undocumented Migrants and the Failures of Universal Individualism, 47 VAND. J.
TRANSNAT’L L. 699 (2014).
12
Ibid.
13
Ibid.
14
Tara J. Melish, From Paradox to Subsidiarity: The United States and Human Rights Treaty Bodies, 34 Yale J.
Int’l L. 389, 404–05 (2009).
15
CCPR, General Comment No. 15, op. cit., fn. 30, para. 9.
16
Human Rights Comm., General Comment 15, The Position of Aliens Under the Covenant, ¶5, U.N. Doc.
HRI/GEN/1/Rev. 9 (Vol. I) (May 27, 2008).
17
Jaya Ramji-Nogales, “The Right to Have Rights”: Undocumented Migrants and State Protection, 63 Kan. L.
Rev. 1045 (2015).
18
Compromis, ¶15.
19
Convention Relating to the Status of Refugees, 1951, 189 U.N.T.S. 137 (Jul. 28, 1951).

Memorial on Behalf of Respondent Page 15

 5TH VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

21
absolute guarantee of protection. While the principle of non-refoulement is basic in
character, it is recognized that there may be certain cases in which an exception to the
principle can legitimately be made.22 Article 33(2) contains an exception to the prohibition
on refoulement, designed to protect the community of refugees from those convicted of
particularly serious crimes or who constitute a danger to security.23
Continued stay of the Ragaans has caused arbitrary destruction of property, arrests, torture and
killings. 24The government had also intercepted future threat of communal and sectarian violence
in Idris.25 Due to this prospective danger to the national security of the country, the principle of
non-refoulement does not bind Idris.

[3] Idris enjoys the right to grant or refuse asylum.

State has the sovereign right to grant or refuse asylum in its territory to a refugee.26 There is
insufficient state practice or opinio juris to demonstrate the obligation to grant asylum to asylum
seekers under customary international law.27 The burden to prove that practice to grant asylum is
a local custom, peculiar to particular regions, in such a manner that it has become binding on the
28
other party, rests on the party making such a claim. The 1967 Declaration on Territorial
Asylum emphasizes in Article 1, that every State shall be the judge of the grounds upon which it
will extend protection to asylum seekers.29 Further, right to asylum is not recognized under
regional agreements such as European Convention on Human Rights.30
In international law, right to asylum is viewed as a right of the state rather than of the
individual.31 Universal Declaration of Human Rights (UDHR)32 provides individuals the right

20
Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951
Convention relating to the Status of Refugees and its 1967 Protocol.¶ 5.
21
Goodwin-Gill, G.S., Non-Refoulement and the New Asylum Seekers, 26 Virg. J.I.L. 897.
22
Note on Non-Refoulement (Submitted by the High Commissioner)Note on Non-Refoulement (Submitted by
the High Commissioner) EC/SCP/2.
23
Ibid.
24
Compromis ¶13.
25
Compromis ¶15.
26
Principles Concerning Treatment of Refugees, 1966, art. 111(1), reprinted in U.N.H.C.R., Collection of
International Instruments Concerning 201, 203 (1979).
27
Gregor Noli, Negotiating Asylum 357-62 (1 ed., Martinus Nijhoff, 2000) (2000).
28
Asylum Case, Colombia v. Peru, (1950) I.C.J. Rep. 266 (1950).
29
U.N. General Assembly, Declaration on Territorial Asylum, A/RES/2312(XXII) (Dec. 14, 1967).
30
Guy Goodwin-Gill, The Refugee in International Law, 366, 367-8 (2d ed., Oxford University Press,1998)
(1996).
31
Mortem Kjaerum, Article 14, The Universal Declaration of Human Rights: A Commentary (1ed., Asborn
Eide et al. eds., 1992) (1992).
32
Art 14(1), Universal Declaration of Human Rights, 1948 (A/65/223).

Memorial on Behalf of Respondent Page 16

 5TH VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

to seek and to enjoy in other countries asylum from persecution but this merely affords the
individual a right ‘to seek’ asylum not a right ‘to receive’ it.33
Every state has an obligation towards its citizens to guarantee them security.34 National
security of the state has become a growing concern. 35 Non-refoulement cannot be claimed by
an asylum seeker who may be reasonably regarded as threat to the national security. 36
Prospective danger from the refugee is important and not his past conduct.37 Risk of national
security may be in distant events that indirectly have a real possibility of harming national
security.38

Therefore, Idris has the right to refuse asylum to the Ragaans as their continued stay caused
arbitrary destruction of property, arrests, torture and killings.39 The government had also
intercepted future threat of communal and sectarian violence in Idris.40 Due to this
prospective danger to the national security of the country, Idris may refuse asylum to the
Ragaans.

[B] Collective expulsion of the Ragaans is justified.

The term ‘collective expulsion’ is often used to indicate expulsion of alien populations “as a
group”.41 A general prohibition on collective expulsions follows from the procedural
safeguards against arbitrary expulsions: if each alien is entitled to an individual decision on
his or her expulsion, mass or collective expulsions would be prohibited.42

33
Stephen B. Young, Between Sovereigns: A Re-examination of Refugee Status in Transnational Legal
Problems, in Transnational Legal Problems of Refugees 339,347 (Michigan Yearbook of International Legal
Studies ed., 1982).
34
Article 4, Draft Declaration on Rights and Duties of States, 1949, Yearbook of the International Law
Commission, 1949 G.A. Assembly resolution 375 (IV) of 6 December 1949.
35
Bruin & Wouters, p. 5-6, 29 I.L.J. (2003); Farmer, p. 13, 47 I.L.J. (2009); Feller, p. 514, 32 I.L.J. (2006).
36
Supra 17, Art. 33(2).
37
Lauterpacht & Bethlehem, Principles of Public International Law (2d ed., Oxford University Press, 2003)
(2000).
38
Suresh v. Minister of Citizenship and Immigration, [2002] 1 S.C.R. ¶ 88 (India).
39
Compromis ¶13.
40
Compromis ¶15.
41
Final report of the Special Rapporteur, Mr. David Weissbrodt, submitted in accordance with Sub-Commission
decision 2000/103, Commission resolution 2000/104 and Economic and Social Council decision 2000/283
(E/CN.4/Sub.2/2003/23), 26 May 2003, para. 11
42
Expulsions of aliens in international human rights law, OHCHR Discussion paper Geneva, September 2006,
Pg 15, ¶3.

Memorial on Behalf of Respondent Page 17

 5TH VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

While such expulsion of aliens is prohibited under international law, there are exceptions to
it.43 Draft Articles on Expulsion of Aliens44, adopted by the International Law Commission,
recognize the possibility for a State to adopt measures that derogate from certain
requirements of the present draft articles insofar as it is consistent with its other obligations
under international law.45 It states that most of that the obligation of States under this
instrument is not absolute in nature and the State may derogate from the same in times of any
threat to the nation.46 Further, the articles also state all expulsions must be assessed in light of
the current nature of threat to national security and public order. 47 Even, regional instruments
have recognized that the States may derogate from their obligations regarding expulsion in
times of public emergencies that threaten the independence and security of the State parties. 48
Further, Article 3 of the Declaration on Territorial Asylum, adopted by the General
Assembly, not only acknowledges the national security exception, but also appears to
authorize further exceptions 'in order to safeguard the population, as in the case of a mass
influx of persons'.49
In light of the above-mentioned exceptions and the prospective danger to the national security
of Idris, the Idris government is justified in collectively expelling the Ragaans 50. Besides
continuous threat to national security, the Ragaans were also indicated to be associated with
extremist groups that wanted to spread communal and sectarian violence.51

[C] Bartovia is bound by international law to accept the Ragaans.

Bartovia is bound to accept the return of the Ragaans as [1] it caused forcible repatriation of
the Ragaans and [2] foreseeable damage in the territory of Idris.

43
Expulsion of aliens, Memorandum by the Secretariat, International Law Commission Fifty-eighth session
Geneva, 1 May-9 June and 3 July-11 August 2006.
44
Draft articles on the expulsion of aliens, with commentaries 2014, Yearbook of the International Law
Commission, 2011, vol. II, Part Two.
45
Ibid.
46
Ibid. Article 3.
47
Ibid. Article 5 ¶5, Article 9 ¶4.
48
Article 27, American Convention on Human Rights, Treaty Series No. 36, 1144 UNTS 123, 9 ILM 99 (1969).
49
Declaration on Territorial Asylum, G.A. res. 2312 (XXII), 22 U.N. GAOR Supp. (No. 16) at 81, U.N. Doc.
A/6716 (1967).
50
Compromis ¶15.
51
Ibid.

Memorial on Behalf of Respondent Page 18

 5TH VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

[1] Bartovia caused forced repatriation of the Ragaans to Idris.

An extensive range of international conventions, regional treaties, bilateral agreements and
national provisions provides the framework for regulating migration.
The ICCPR defines such basic rights of all persons irrespective of their migration status as:
the right to life, liberty and security and the right not to be subjected to torture or to cruel,
inhuman or degrading treatment or punishment. Article 2 specifies that such rights are
provided without distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.
Article 16(2) of the ICRMW states that migrants are entitled to effective protection by the
State against violence, physical injury, threats and intimidation, whether by public officials or
private individuals, groups or institutions. 52
The Bartovian Armed Forces had several bloody and violent clashes with the Ragaans. 53
They raided the refugee camps, apprehended the refugees and made a number of arbitrary
arrests.54

[2] Bartovia violated its obligation to not cause foreseeable damage in territory of other
States.
States have an obligation to not adopt any regime which can cause foreseeable damage in the
territory of another state.55 Foreseeability is an essential component for establishing
international requirement for due diligence to prevent harm and minimize the risk thereof.56
This element not only applies when a State foresees any specific damage but also when it
foresees that its conduct will increase some kind of risk.57
Bartovia is in violation of the said obligation as its actions within its territory have resulted in
compromising the territorial sovereignty of Idris. The torture and violence by the Bartovian
Armed Forces against the Ragaans caused them to flee the country on a mass scale. 58 Since
Idris is neighboring country to Bartovia and it also a developed nation 59, Bartovia should
have foreseen that its actions would cause the influx of Ragaans into Idris.

52
General Assembly resolution 45/158 of 18 December 1990.
53
Compromis ¶9.
54
Ibid.
55
RY Jennings, Some International Law Aspects of the Refugee Question, (1939) 20 British Yearbook of
International Law 98, 111; Agnes G Hurwitz, The Collective Responsibility of States to Protect Refugees(1 ed,
Oxford, 2009) (2009).
56
Corfu Channel (Great Britain v. Albania) 1949 ICJ 4 at 22.
57
Ibid.
58
Compromis ¶10.
59
Compromis ¶8.

Memorial on Behalf of Respondent Page 19

 5TH VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

[3] Alternatively, Bartovia is in violation of the clean hands principle.

The principle of ‘Clean Hands’ is a general principle of law60 that recognizes that a party seeking
redressal must not have committed any fault.61 A party ought not to be able to benefit from its
own wrong.62 The Permanent Court of International Justice63, the International Court of Justice64,
jurists65 and state practice79 have held that the principle of clean hands precludes a State guilty of
illegal conduct from making claims with regard to illegalities by other States which have resulted
as a consequence
In the present case, Bartovia itself is responsible for subjecting the Ragaans to torture, violence
and forced repatriation.66 Therefore, it cannot be allowed to make claims with regards to Idris.

ISSUE III - WHETHER IDRIS HAS VIOLATED ITS INTERNATIONAL

OBLIGATIONS AND HUMAN RIGHTS IN ITS TREATMENT OF THE
RAGAANS

It is submitted that Idris has not violated any of its international obligations or principles of
justice and equity in the treatment of the Ragaans as [A] the arrests carried out were in
accordance with the due procedure of law and [B] and there were no violations of human
rights by Idris’ authorities. In furtherance to this, it is submitted that [C] Bartovia is precluded
from bringing any claims against Idris.

60
Articles on Responsibility of State for Internationally Wrongful Acts, 2001, A/RES/62/61.
61
Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (1987) I.L.J.156; UN
Doc A/CN.4/546, 2, para 2.
62
Crawford, State Responsibility Second Report, Addendum 2, ¶ 314;
63
The Diversion of Water from the Meuse (Netherlands v. Belgium), 1937 P.C.I.J.(ser.A/B) No.70 (Jun. 28,
1985; Eastern Greenland case, (1995) I.C.J 23.
64
Case Concerning the Military and Parliamentary Activities in and Around Nicaragua (Nicaragua v. United
States of America), (1986) I.C.J. 14, ¶ 268, ¶ 269.
65
G Fitzmaurice, The General Principles of International Law, Considered from the Standpoint of the Rule of
Law, 92(2) RdC 1, 119 (1957).
66
Compromis ¶9.

Memorial on Behalf of Respondent Page 20

 5TH VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

[A] The arrests carried out by Idris authorities were in accordance with
law, and hence not arbitrary
All persons are protected from arbitrary arrests and detention under international law67.
However, there is no evidence or grounds to call the arrests carried out by Idris’ authorities
invalid as [1] Ragaans had ties with extremist groups in Idris and [2] their arrests was
justified in order to safeguard national security.

[1] The Ragaans had formed ties with extremist groups

It is submitted that the arrests that were carried out were based on reasonable suspicion that
the arrestees were criminals and engaged in extremist activities68. Further, the due process of
law69 as laid out the countries manual was followed and the arrested Ragaans were duly
chargesheeted70, which only proves that the investigation had been completed by the state
authorities in a reasonable amount of time. Further it is submitted that these extremist groups
had an organized armed force in allegiance with Ragaans, which sought to take control over
Mizo.
The government hence carried out the arrests based off of prima facie evidence of links
between the Ragaans and extremely dangerous extremist groups that are known to incite
communal violence in Idris71. They also formed an organized armed group72 which shows
that the arrests that were carried out were based on sufficient evidence that the Ragaans were
going to have a violent breakout.
Therefore, it is submitted that the case of the Ragaans that were arrested falls under the
exception to Article 9 in the ICCPR, as there were sufficient grounds to incarcerate the
Ragaans and the due and fair process of law was followed. It is undoubted that the
deprivation of liberty of an individual is a grave and serious matter, but it is essential that
dangerous elements of the society are dealt with by the justice system of a country in order to

67
Right to liberty and security of person and freedom from arbitrary arrest and detention, Office of High
Commissioner, Human Rights, Available Online at
https://www.ohchr.org/_layouts/15/WopiFrame.aspx?sourcedoc=/Documents/HRBodies/CCPR/GConArticle9/S
ubmissions/RightPersonalLibertyAndSecurity.doc&action=default&DefaultItemOpen=1
68
Compromis, ¶ 13.
69
Charles T. Kotuby, JR.General Principles of due process of law, Duke University, Available Online at
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1392&context=djcil
70
Compromis, ¶ 15.
71
Compromis, ¶ 13.
72
Compromis, ¶ 13.

Memorial on Behalf of Respondent Page 21

 5TH VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

allow civilization to prevail. It is clear that Idris owes no responsibility73 for the persecution
of the Ragaans.

[2] The authorities were working to safeguard national security

The population of Mizo had been vulnerable since the closing of the SMEs74 and had
developed feelings of resentment towards the Ragaans. This shows that the locals were
sensitive to communal divide. The Ragaans by forming ties with extremist groups known to
further communal hatred that ends in violence caused a grave and serious threat to the peace
and security of the nation.
While it may be true that it is the widespread discrimination caused the Ragaan to move that
has led to the influx of exodus of the Ragaans into the state, it is the duty of the state to
protect its citizens and nationals when the immigrants form ties with dangerous groups. The
immigration of the Ragaans is not only absolutely illegal, but is also causing severe security
ramifications and creating internal disturbance in the territory of Idris.
All Idris is doing by prosecuting the Ragaans, is performing its legitimate duty not only to
protect state75 but also punish those in ties with dangerous and violent groups by punishing
them under the due process of law. It is argued that the perception of the Ragaans as a
security threat is not without merit or evidence, and this has been addressed by the state of
Idris without violating refugee rights.
Further it is submitted, that the rules of international law relating to diplomatic protection are
based on the view that nationality is an essential condition for securing to the individual the
protection of his rights in the international sphere76. It is established that certain rights and
obligations nevertheless remain reserved for persons who possess the nationality of the State
concerned77. The state of Idris has not violated any of the rights of a stateless person78.
Therefore, the actions taken by Idris were in furtherance of its national interest and are
permitted under the international law.

73
Crawford, The Standing of States: A Critique on Article 40 of I.L.C.’s Draft Articles on State Responsibility,
in M. Andenas (ed.) Judicial Review on the International Perspective: Liber Amoricum in Honour of Lord Slynn
of Hadley, p. 23 (2002).
74
Compromis, ¶ 13.
75
Article 3, Draft Declaration on Rights and Duties of the State, 1949; Universal Declaration on Human Rights,
1948, Art. 2;
76
L.V. Oppenheim, International Law and Practice, 669 (7th ed., Oxford University Press, 1995) (1975).
77
Hugh Massey, U.N.H.C.R. and De Facto Statelessness, Legal and Protection Policy Research Series,
http://www.unhcr.org/4bc2ddeb9.pdf.
78
Convention on the Status of Stateless People, 1954, Art. 3 & 4.

Memorial on Behalf of Respondent Page 22

 5TH VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

[B] Idris is not liable for human rights violations in the separation of
families
The claim by Bartovia that Idris has committed grotesque human rights violations by causing
forceful breakdown of families is denied in totality. It is submitted that [1] Idris is not bound
by the provisions of Convention of Rights of the Child or United National Convention against
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment as the country has
not ratified these treaties and [2] they have fulfilled their obligations by ensuring the welfare
of the child

[1] Idris has not ratified Convention of Rights of Child79, or United National
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment 80
Idris is not obligated to follow the conventions and treaties it has not ratified. Ratification
defines the international act whereby a state indicates its consent to be bound to a treaty if the
parties intended to show their consent by such an act. The institution of ratification grants
states the necessary time-frame to seek the required approval for the treaty on the domestic
level and to enact the necessary legislation to give domestic effect to that treaty81.

[2] Idris has ensured the welfare of the child

The primary goal of all international covenants and conventions is to promote the welfare and
well-being of the child82. It is submitted that Idris’ authorities safely deported the children to
Bartovian borders for the welfare of the child alone.
The families that were separated due the incarceration were because there were reasonable
grounds to believe that the parents had ties with extremist and armed groups. It was necessary
for the welfare of the child that they were separated from such parents who had developed
ties with such groups to ensure a healthy environment for them to grow.

79
Convention on the Rights of the Child, G.A. 44/25 of 20 November 1989.
80
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984,
1465 U.N.T.S. 85.
81
Arts.2 (1) (b), 14 (1) and 16, Vienna Convention on the Law of Treaties 1969, 1155 U.N.T.S. 331, 8 I.L.M.
679.
82
Supra 77. Preamble.

Memorial on Behalf of Respondent Page 23

 5TH VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

[C] Bartovia is precluded from bringing any claims against Idris

The state of Bartovia must not be permitted to make any claims regarding the procedures and
violations even if it were committed by the state of Idris as they shall be in violation of the
Clean Hands Rule. The principle of ‘Clean Hands’83 is a general principle of law that
recognizes that a party seeking redressal must not have committed any fault. A party ought
not to be able to benefit from its own wrong84. The International Court of Justice85 has held
that the principle of clean hands precludes a State guilty of illegal conduct from making
claims with regard to illegalities by other States which have resulted as a consequence86.
It is submitted that Bartovia has committed grotesque human right violations and there were
bloody clashes and large-scale arrests in refugee camps by Bartovian forces 87. It is in fact
Bartovia that has discriminated against and arbitrarily arrested Ragaans that have caused the
Ragaans to migrate to India. It is imperative that Bartovia is not permitted to benefit from the
wrongs it has committed.

83
Supra 58.
84
Ibid.
85
Case Concerning the Military and Parliamentary Activities in and Around Nicaragua (Nicaragua v. United
States of America), (1986) I.C.J. 14.
86
G Fitzmaurice, The General Principles of International Law, Considered from the Standpoint of the Rule of
Law, 92(2) RdC 1, 119 (1957).
87
Compromis,¶ 9.

Memorial on Behalf of Respondent Page 24

 5TH VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2018

PRAYER

For the foregoing reasons, Idris respectfully requests this Hon’ble Court to:

1. DECLARE, that the State of Idris cannot be held liable to the investors of Bartovia.

2. DECLARE, that the State of Idris is justified in the collective expulsion of the
Ragaans.

3. DECLARE, that the State of Bartovia is bound to accept the return of the Ragaans.

4. DECLARE, that the arrests carried out by the State of Idris are not in violation of any
international laws

5. DECLARE, that the State of Idris has not committed any human rights violations

Respectfully submitted on behalf of the Respondents

AGENTS FOR THE RESPONDENTS

Memorial on Behalf of Respondent Page x