2nd Nalsar PIL Moot Problem, Exams of Law

Download 2nd Nalsar PIL Moot Problem and more Exams Law in PDF only on Docsity!

The Moot Problem

for the

NALSAR UNHCR Public

International Law Moot Court

Competition

15 - 16 May, 2021

Knowledge Partners

INTERNATIONAL COURT OF JUSTICE

SPECIAL AGREEMENT

BETWEEN THE FEDERAL REPUBLIC OF PEMOLA (APPLICANT) AND THE STATE OF

BOLIRIA & REPUBLIC OF MAKONDA (RESPONDENTS) TO SUBMIT TO THE

INTERNATIONAL COURT OF JUSTICE THE DIFFERENCES BETWEEN THE THREE

STATES CONCERNING THE OKUZAN REFUGEES FROM MAYZAN

Jointly notified to the Court on 31 January 2021

SPECIAL AGREEMENT

SUBMITTED TO THE INTERNATIONAL COURT OF JUSTICE BY THE FEDERAL

REPUBLIC OF PEMOLA, STATE OF BOLIRIA AND THE REPUBLIC OF MAKONDA ON

THE DIFFERENCES BETWEEN THEM

CONCERNING THE OKUZAN REFUGEES FROM MAYZAN

The Federal Republic of Pemola (“the Applicant”) and the State of Boliria, Republic of Makonda (“the Respondents”) (hereinafter “the Parties”): Recalling that the Parties are Members of the United Nations and that the Charter of the United Nations calls on Members to settle international disputes by peaceful means, Considering that difference have arisen between them concerning the protection of Okuzan refugees of Mayzan and other related matters; Recognizing that the Parties have been unable to settle these differences by direct negotiations; Desiring further to define the issues to be submitted to the International Court of Justice (“the Court”) for resolution; In furtherance thereof the Parties have agreed as follows: Article 1 The Parties submit the questions contained in the Special Agreement (together with Corrections and Clarifications to follow) (“the Case”) to the Court pursuant to Article 40(1) of the Court’s Statute.

Article 2 It is agreed by the Parties that the Federal Republic of Pemola appear as Applicant and the State of Boliria and Republic of Makonda as Respondent, but such agreement is without prejudice to any questions of the burden of proof. Article 3 (a) The Court is requested to decide the Case on the basis of the rules and principles of international law, including any applicable treaties (b) The Court is also requested to determine the legal consequences, including the rights and obligations of the Parties, arising from its judgement on the question presented in the Case. Article 4 (a) Procedures shall be regulated in accordance with the applicable provisions of the Official Rules of the 2 nd^ NALSAR Public International Law Moot Court Competition, 2021. (b) The Parties request the Court to order that the written proceedings should consist of Memorials presented by each of the Parties not later than the date set forth in the Official Schedule of the 2 nd^ NALSAR Public International Law Moot Court Competition, 2021. Article 5 (a) The Parties shall accept any Judgement of the Court as final and binding upon them and shall execute it in its entirety and in good faith. (b) Immediately after the transmission of any judgement, the Parties shall enter into negotiations on the modalities for its execution. In witness whereof, the undersigned, being duly authorised, have signed the present Special Agreement and have affixed thereto their respective seals of office. Done in The Hague, The Netherlands, this thirty first day of January in the year two thousand twenty-one, in triplicate in the English language.

STATEMENT OF AGREED FACTS

CASE CONCERNING THE OKUZAN REFUGEES OF MAYZAN

(Federal Republic of Pemola v. State of Boliria and Republic of Makonda)

1. The Democratic Republic of Mayzan, is a sovereign coastal country that shares its borders with the State of Boliria in the North-East, the Federal Republic of Pemola to the North-West and the southern border of Mayzan is the Calasian Sea. These three countries are part of the continent of Kuwei which is located to the north of the Calasian Sea. To the south of the sea is the continent of Beyul. The country closest to Kuwei is the peninsular Republic of Makonda.
2. The Republic of Mayzan’s is a secular unitary republic as laid down in its 1960 Constitution. The President is responsible for deciding and supervising the general policies of Mayzan. The President is the Commander-in-Chief of the armed forces, controls the military intelligence and security operations, and has the sole power to declare a state of emergency and war in the country. Should it come to such a situation, it is in their power to entrust the command of the Mayzan armed forces to the current Minister of Interior Affairs. According to the Constitution of the Republic of Mayzan the powers of the government are vested in the legislative, the judicial and the executive branches, functioning under the supervision of the President.
3. For convenience in governing its territory, Mayzan is divided into four provinces. These are: Eastern Province, Western Province, Northern Province and Southern Province. After the enactment of the Constitution, Mayzan adopted representative constitutional democracy as the form of governance. Despite criticism on the fairness and transparency in the electoral system, elections are held every 5 years to elect successive governments.
4. Mayzan’s economy is largely dependent on its fishing industry. With very few big urban centres and a majority of the population living in small towns or villages, the natural topography of the country has gained attention of travellers over the last 30 years. State investment in tourism in the last three decades has made Mayzan a popular

tourism destination. It is estimated that 78% of the working population of Mayzan are either employed in the fisheries or earn an income from tourism. 17 % of the population rely on agriculture and 5 % are involved in other sectors.

5. Looking at the demographics of the country, approximately 67% are ethnic Mayzanos, and Okuzans make up 28%, and the final 5% of the population belong to other ethnic groups. A majority of Mayzanos follow the religion of Kyarim whereas Okuzans practice Shinzou. Okuzans share very similar ethnic features to the Bolirians and the Okuza language is very close in sound and structure to the Bolirian language. Most Okuzan settlements can be found in the North-East districts of Mayzan in the Eastern Province, close to the border with Boliria. Expert Ethnographers have stated that while there are shared similarities between the Okuzans and Bolirians, which is perhaps as a result of proximity in geographic location, the Okuzans are a distinct ethnic group indigenous to the country of Mayzan.
6. Historically, the Okuzans have been a marginalised group in the Democratic Republic of Mayzan. There is a general misconception among the citizens of Mayzan that Okuzans are in fact Bolirian people who settled in Mayzan illegally. The Okuzans predominantly depend on agriculture and livestock rearing for their livelihood and over 96 % of the population live in the Eastern Province. Two-thirds of the Eastern province is hilly-terrain and socio-economic development in the area has been significantly slower than in other parts of Mayzan. Employment and livelihood opportunities are limited in this part of the country. Access to healthcare, education and other basic services is difficult which is why most young Mayzanos shift out of the Eastern Province when possible for better opportunities. Literacy rates among the Okuzan are very low, with only 20% of the population having finished secondary school. However, the National Democratic Party (NDP) government (in power between 1988-1993 and subsequently 2003-2008) brought about affirmative action and scholarships at the school and university level for academically gifted Okuzans. The misbelief that Okuzans are illegal immigrants and the perceived special treatment that was given to them led to hostility towards Okuzans by the majority Mayzanos. There had been a steady increase in cases of violence against the Okuzans which led the NDP

10. Mobilizing the Okuzan people, in 2016, the Okuzan People’s Front was started seeking to be part of the government processes. OPF declared that they would peacefully protest and democratically fight for the equal treatment of all people in Mayzan. They demanded the government protect the rights of citizens equally. The OPF quickly grew a strong social media presence and used their platform to bring awareness to the plight of Okuzans in Mayzan. The group received support from across the world and many donated to their cause to keep the movement alive.
11. In late 2017, leading up to the next election, Mr. Baden Haler, the Minister for Interior Affairs, made several speeches drumming up anti-Okuzan sentiments among the people in the audience. He stated that the Okuzan people are not truly citizens of Mayzan and they are trying to divide the Mayzano State with their protests. He said that the Okuzan people are paid by the enemies of Mayzan to ensure the destruction of the country. Other political leaders in MNF, taking after Mr. Haler’s lead, began to use similar rhetoric in their campaigns for re-election. As a result of this, violence against Okuzan people increased sharply in 2017-18. NGOs like the MHRC, Okuzan Rights Group and Amnesty International reported on these incidents and called for the government to take swift action to bring perpetrators to justice. However, no action was ever taken.
12. On 15 January 2018, the MNF government was re-elected with a substantial mandate and OPF failed to secure any seats in parliament. Fearing for their future, OPF and Okuzan community leaders made a call for a nationwide protest to be observed on 18 January 2018. Mayzan witnessed nationwide protests on this day and these protests were overwhelmingly successful in the Eastern Province. News media reported that there was a large-scale mobilization of people from all walks of life who were concerned about the MNF government’s next term and what it meant for the human rights of the people of Mayzan.
13. On 31 May 2018, the MNF Government made an announcement to review the citizenship of the people of Mayzan. In its press statement announcing this move the government said:

“National security reports received by the Ministry of Interior Affairs has given the Government reason to believe that there are several thousand illegal immigrants living in the country and benefiting from rights that are exclusively reserved for the citizens of Mayzan. In order to handle this issue, the Government of Mayzan will be reviewing the citizenship documents of all the people currently residing in Mayzan commencing on 02 July 2018. Those determined to be within the sovereign territory of Mayzan without valid documentation would be detained and deported.”

14. This announcement was met by outrage among rights groups which saw this as a direct response to Okuzan people trying consolidate and fight for their rights. On 01 June 2018, the United Nations High Commissioner for Human Rights called for the immediate suspension of this process and called upon the Government of Mayzan to uphold the rights of the people in its territory and arrive at a rights-based solution to handle the situation of irregular migration in the. On 29 June 2018, a report was brought out by the Mayzan Human Rights Centre which found that this process would unfairly impact the Okuzan people as low levels of education and being a largely rural population, very few Okuzans had access to documentation that proved their citizenship. Professor Buten Kaya from the Centre for Statelessness and Inclusion at Mayzan National University wrote an editorial for the Mayzan Herald in which he concluded that “Depsite the jus soli citizenship law in the country, it is well within the realm of possibility that this exercise in citizenship scrutiny could result in a situation of statelessness of true-born citizens of Mayzan. All because they do not have a piece of paper.”
15. On 01 July 2018, 3 bombs exploded at parking garages at the 3 busiest market centres in Tobe, Garol, and Palim, the 3 biggest cities of Mayzan. There were a total of 5 deaths and 14 injured in these attacks. Early next morning, on 02 July 2018, a video was released on YouTube under the name Freedom Fighters of Okuzan (FFO). The FFO claimed responsibility for the attacks that had taken place over the weekend. The FFO said that this was a warning to government to stop the citizenship scrutiny process

18. By the first week of September 2018 , thousands of Okuzans had crossed into Boliria as a result of events that had occurred in Mayzan. The Bolirian government reacted quickly to the influx of Okuzans by creating temporary camps. The United Nations High Commissioner for Refugees (UNHCR) assisted the government by providing food supplies, tents and sanitation facilities to the incoming refugees. By the end of October 2019 , UNHCR estimated that more than 100 ,0 00 Okuzans were living in the make- shift camps on the Bolirian side of the border. Despite the government's quick and positive response to the inflow of Okuzan people, as well as the assistance by the humanitarian organizations on the ground, the condition of the camps were reported to be deplorable. The Bolirian Times reported the paucity of food supply and sanitary amenities.
19. To this end, the Ministry of Home Affairs, Bolirian Government started the process of Refugee Status Determination (RSD) on 0 4 November 201 8 , in order to provide the Okuzan refugees with documentation so that they may leave the camps and have access to livelihoods and better facilities within the country. The UN High Commissioner for Human Rights lauded the Bolirian Government’s efforts and stated that “Boliria is setting an example to other countries on what it means to honour a State’s commitment to the Convention relating to the Status of Refugees”
20. Despite its best efforts, the Bolirian government was unable to keep up with influx of Okuzan people into Boliria. Caseworkers who were conducting the RSD process were overworked and the number of cases continued to increase without reprieve as the situation in Mayzan remained tense. Furthermore, Boliria is a developing country and could only redirect a certain budget and number of resources towards the assistance of the Okuzan asylum-seekers and refugees.
21. In June 2019, Boliria had registered and provided documentation to over 2 00, Okuzan refugees. The state of emergency in the Eastern Province of Mayzan continued to be implemented almost a year later. The people in the province continued to be cut off from the rest of the world with no access to internet. Curfews continued to be implemented and military presence only increased in the area. The Government of

Mayzan claimed that this continued state of emergency was in order to ensure the peace and security of its citizens. By mid-2019, the influx of Okuzan to Boliria has reduced to about a few dozen every month.

22. In May 2020, the Government of Mayzan lifted the state of emergency in the Eastern Province. By this time, Boliria had registered approximately 300 ,000 Okuzan refugees in its territory. Over the past two years, Boliria had shouldered a large burden by assisting so many Okuzans. Furthermore, there was a growing sentiment of resentment among the Bolirian people for Okuzans who had received basic amenities at the taxpayers’ expense and were now looking for jobs in direct competition with the Bolirian workforce.
23. Seeing a potential crisis on its hands, in early June 2020 the Bolirian Prime Minister was scheduled to visit Mayzan, the matter of Okuzan refugees was added to the agenda of the meeting between the Prime Minister and the President. Consequently, on 08 June 2020, the two governments announced that they had reached a Memorandum of Understanding regarding the Okuzan refugees. The MoU stated that Mayzan agreed to welcome back all Mayzan citizens who were currently living in Boliria. The MoU added that if citizens did not have any documentation to prove their citizenship, they would be detained for a period of two weeks during which the documentation would be arranged for by the Ministry of Interior Affairs.
24. Once the MoU was announced, rights groups in both countries expressed their concerns regarding the detention upon return for those who did not have documentation proving their citizenship. The Government of Mayzan clarified that this was part of the procedure established by law under the Mayzan Immigration Control Act, 1988. On 15 June 2020, owing to the MoU signed with Mayzan, the Government of Boliria announced that it would begin the process of cessation of refugee status of Okuzan refugees within its territory as the circumstances under which refugee status had been provided have ceased to exist. To this effect, refugee protection for Okuzans in Boliria would end with effect of 01 January 2021.

28. On 15 January 2021 , the Makonda Daily News newspaper broke the story that more than 200 people drowned in the Calasian Sea on the night of 13 January 2021. It was reported that all of them were Okuzan refugees from the Eastern Province of Mayzan who were attempting to reach Makonda. As was the case with smuggler boats that had been transporting Okuzans over the past few month, the boat that was travelling on 13 night was filled beyond its capacity. It was suspected that there were no survivors of the tragedy. This incident drew the attention of the international community. World leaders appealed to the concerned States to address the situation and prevent further loss of lives. A strong opinion emerged that there was a need for humanitarian approach to prevent future such incidents.
29. On 20 January 2021 the international NGO Human Rights Alert (HRA), a non-profit human rights organization released a report named ‘The Innocent, The Imprisoned, and The Impunity: The Situation of Okuzans in Mayzan’. In the report, the NGO detailed how Mayzanos who were arrested over two years ago were still in prison with no hope of bail. The report also provided case studies of human rights violations by the armed forces that continue to be stationed in the Eastern Province. Okuzan women had been brutally raped, Okuzan crops had been burned and homes had been razed to the ground. When media outlets questioned the Mayzan government about this damning report, Minister Baden Haler stated that this was false propaganda being spread by groups that had vested interests against Mayzan. Any situation of injustice would be dealt with as per the procedures established by the sovereign laws of Mayzan. It should be noted that the report also briefly discussed the maritime security measures taken by Makonda as well as the cessation of refugee status by Boliria. Human Rights Alert stated that these measures were in clear violation of the principle of non-refoulement. The report also stated that the government of Mayzan refused to provide HRA with any information on the families that had returned from Boliria in the recent weeks.
30. On 25 January 2021 , the Federal Republic of Pemola which shared its western border with Mayzan, initiated a trilateral dialogue between Boliria and Makonda. While very

few Okuzans (approximately 1 000 as per the State’s records) had managed to reach Pemola due to transport routes being unviable, Pemola believed that all nations are bound to resolve refugee crises under the global obligation to protect people from racial discrimination and uphold the principles of non-refoulement. Therefore, Pemola sought to negotiate a solution for the Okuzan people with Boliria and Makonda. The representatives from both Boliria and Makonda insisted that their countries were fulfilling all obligation under international law and the meeting concluded without a solution. It was decided that the dispute over the nature of legal obligations should be referred to the International Court of Justice (ICJ). Accordingly, Pemola, Makonda and Boliria enter into this special agreement on 31 January 2021 and submit the same to the International Court of Justice in accordance with Article 40 (1) of the Statute of the Court. It is agreed in the special agreement that Pemola would act as the Applicant and Boliria and Makonda as the Respondents.

31. Accordingly, Pemola requests the Court to adjudge and declare that: a. Boliria and Makonda have an obligation under international law to provide protection to all those Okuzan asylum seekers from Mayzan who seek its protection; b. Boliria’s measures of cessation of refugee status and Makonda’s measures interdicting the Okuzan people on the Calasian Sea are in violation of their obligations under international law, specifically Convention Relating to the Status of Refugees of 1951 and its Protocol Relating to the Status of Refugees of 1967, the International Covenant on Civil and Political Rights of 1966, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, United Nations Convention on the Law of the Sea of 1982 and under other relevant international laws. c. Boliria and Makonda have an erga omnes obligation to the principle of non- refoulement. d. Boliria and Makonda have an obligation under international law to prevent the Okuzan people from being left stateless.