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Memorial for Applicant, 2nd NALSAR-UNHCR Moot 2021
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MEMORIAL for APPLICANT
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_1. There is a duty to render assistance to those in distress at sea ............................. 2
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1. There is an Erga Omnes Partes obligation to Non-Refoulement as per the judgement of Belgium v Senegal ............................................................................... 15 a. All state parties to the Refugee Convention and the Convention Against Torture have a Common Interest in Compliance with the Principle of Non-Refoulement 17 b. Non-Refoulment is a Collective Obligation under ARSIWA 18 B. IN ARGUENDO, THE APPLICANT HAS STANDING TO MAKE A CLAIM FOR THE CESSATION OF THE BREACH OF THE OBLIGATION OF NON-REFOULEMENT AS IT IS OWED TO THE WHOLE INTERNATIONAL COMMUNITY ........................................................................................ 19 ISSUE IV: THAT BOLIRIA AND MAKONDA HAVE AN OBLIGATION UNDER INTERNATIONAL LAW TO PREVENT THE OKUZAN PEOPLE FROM BEING LEFT STATELESS .......................... 19 A. THE OKUZANS REFUGEES FROM MAYZAN ARE STATELESS ................................... 19 _1. The Okuzans are de jure stateless ...................................................................... 19
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¶ Paragraph ARSIWA Articles on Responsibility of States for Internationally Wrongful Acts Art. Article CAT Committee Against Torture CEDAW Convention on Elimination of All Forms of Discrimination Against Woman CERD Convention on Elimination of All Forms of Racial Discrimination CIL Customary International Law CRC Convention on Rights of Child ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice ILC International Law Commission ILM International Legal Material MNF Mayzan National Front MoU Memorandum of Understanding PCIJ Permanent Court of International Justice UN Charter United Nations Charter UNGAR United Nations General Assembly Resolution UNHCR United Nations High Commissions of Refugees UNTS United Nations Treaty Series
VI Concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order, 2008 I.C.J. Rep. (Oct. 15) ............................................................................................................ 15 Gabikovo-Nagymaros Project (Hung. v. Slovk.), Judgment, 1997 I.C.J. Rep. 7 (Sept. 25) ..... 6 Matter of South-West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, 1962, I.C.J. Rep. 319 (Dec. 21)......................................................................... 23 Nottebohm Case (Liechtenstein v. Guatemala), Second Phase Judgement, 1955, I.C.J. Rep. 4 (Apr. 6) ............................................................................................................................... 20 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, 2012, I.C.J. G.L. No. 144 (July 20) ..................................................................................... 15 RICHARD BARNES, THE INTERNATIONAL LAW OF THE SEA AND MIGRATION CONTROL IN EXTRATERRITORIAL IMMIGRATION CONTROL (Bernard Ryan and ValsamisMitsilegas eds., MartinusNijhoff Publishers, 2010) ........................................................................................ 2 The Mavrommatis Palestine Concessions case (Greece v. U.K.), Judgement, 1924 P.C.I.J. (ser. A) No. 2, at. 31 (Aug. 30) ..................................................................................................... 3 U.N. High Commissioner for Refugees, Guidelines on International Protection No. 3: Cessation of Refugee Status under Article 1C (5) and (6) of the 1951 Convention relating to the Status of Refugees (the “Ceased Circumstances” Clauses), U.N. Doc. HCR/GIP/03/ (2003) ................................................................................................................................... 6 EUROPEAN COURT OF HUMAN RIGHTS Hirsi Jamaa and Others v. Italy, Eur. Ct. H.R. 97, 132 (2012)............................................... 3 Klass v. Germany, 2 Eur. Ct. H. R. 214 (1978). ................................................................... 10 Mayeka and Mitunga v. Belgium, Eur. Ct. H.R. 23, 55 (2008) ........................................... 14 Medvedyev v. France, Eur. Ct. H.R. 39 (2010).................................................................... 10 Soering v. United Kingdom , Eur. Ct. H.R. (ser. A) (1989)..................................................... 9 U.N. TREATY BODIES Agiza v. Sweden, U.N. Committee Against Torture, U.N. Doc. CAT/C/34/D/233/2003 (2005). ............................................................................................................................................. 6 Bachan Singh Sogi v. Canada, U.N. Committee Against Torture, U.N. Doc. CAT/C/39/297/2006 (2007) ................................................................................................ 12 BS v. Canada, U.N. Committee Against Torture, U.N. Doc. CAT/C/27/D/166/2000 (2001) 10
VII Dadar v. Canada, U.N. Committee Against Torture, U.N. Doc. CAT/C/35/D/258/2004 (2005) ........................................................................................................................................... 11 JHA v. Spain, U.N. Committee Against Torture, U.N. Doc. CAT/C/41/D/323/2007 (2008) 10 Mutombo v. Switzerland, U.N. Committee Against Torture, U.N. Doc. CAT/C/12/D/13/ (1994) ................................................................................................................................. 11 OTHER COURTS E. v. Chief Constable of the Royal Ulster Constabulary 1 A.C. 536 (2009).......................... 14 S.S.H.D. v. M.A.(Somalia) [2018] E.W.C.A. Civ. 994 .......................................................... 6 Sale, Acting Commissioner, Immigration and Naturalization Service v. Haitian Centers Council Inc. (1993) 509 U.S. 155 .......................................................................................... 9 Scaramanga v. Stamp, 5 C.P.D. 295 (1880) ........................................................................... 2 The Matter of Anudo Ochieng (Anudo V. United Republic of Tanzania), 012/2015, African Court on Human and Peoples' Rights [Afr. Comm’n H.P.R.] (Aug. 22, 2018) ..................... 23 ARTICLES & JOURNALS Aoife Duffy, Expulsion to Face Torture - Non-Refoulement in International Law , 20 INT’L J. REFUG. LAW (2008)............................................................................................................. 12 Colin Aldrin Fieman, A State's Duty to Protect Refugees under Customary International Law: A Case Study of Thailand and the Cambodian Displaced Persons , COLM. HUM. RTS. L. REV. (1989) ................................................................................................................................... 1 Guy S Goodwin-Gill, The Haitian Refoulement Case: A Comment , 6(1) INT’L J. REFUG. LAW (1994). .................................................................................................................................. 9 Mark Pallis, Obligations of States towards Asylum Seekers at Sea: Interaction and Conflicts Between Legal Regimes , 14 INT. J. REFUG. LAW (2002) ........................................................ 3 ARTICLES ANNE T. GALLAGHER & FIONA DAVID, THE INTERNATIONAL LAW OF MIGRANT SMUGGLING (2014) ................................................................................................................................. 13 Christian J. Tams, Individual States as Guardians of Community Interests, in FROM BILATERALISM TO COMMUNITY INTEREST: ESSAYS IN HONOUR OF BRUNO SIMMA (Ulrich Fastenrath et al. eds., 2011) ................................................................................................. 17 DOUGLAS GUILFOYLE, SHIPPING INTERDICTION AND THE LAW OF THE SEA (2009)................ 13
IX Executive Committee of the High Commissioner’s Programme, Conclusion No. 69 (XXXII), U.N. doc. A/AC.96/895 (1992) ............................................................................................. 4 Executive Committee of the High Commissioner’s Programme, Discussion Note on the Application of the “Ceased Circumstances” Cessation Clause in the 1951 Convention, U.N. Doc. EC/SCP/1992/CRP.1 (1991) ......................................................................................... 7 G. A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948) .............2, 22 G.A. Res. 55/25, Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime art. 8(7) (Nov. 15, 2000) ................................................................................................................... 13 Interim Measures for Combating Unsafe Practices Associated with the Trafficking or Transport of Migrants by Sea, IMO Doc. MSC/Circ.896/Rev.1 (June 12, 2001).................................... 3 U.N. Committee Against Torture, General Comment No. 4 on the Implementation of Article 3 of the Convention in the context of article 22, U.N. Doc. CAT/C/GC/4 (2017).................... 11 U.N. Committee on the Elimination of Racial Discrimination, General recommendation No. XXX, U.N. Doc. HRI/GEN/1/Rev.9 (Vol.II) (2008)............................................................ 15 U.N. General Assembly, Declaration on Territorial Asylum , U.N. Doc. A/RES/2312(XXII) (Dec. 14, 1967) ..................................................................................................................... 2 U.N. High Commissioner for Refugees, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol(Jan.26) ................................................................................................ 8 U.N. High Commissioner for Refugees, Roundtable on Temporary Protection: 19-20 July
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Article 36(1) of the ICJ statute reads: “ 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 .” Article 40(1) of the statute reads: “ 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 .” It is hereinafter most respectfully submitted that the Parties have submitted 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.^1 Therefore pursuant to Art. 36(1) of the ICJ statute read with Article 40(1), this Hon’ble Court has jurisdiction over the present case. (^1) Art. 1, Special Agreement submitted to the International Court of Justice by the Federal Republic of Pemola, the State of Boliria and the Republic of Makonda on the differences between them concerning the Okuzans Refugees from Mayzan.
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1960 Republic of Mayzan adopted its constitution 2008 MNF formed government in Mayzan. 2013 MNF re-elected as Government of Mayzan 2016 Okuzan Protection Against Violence Act 2006 was repealed. 2017 Anti-Okuzan speeches by MNF political leaders in election campaigns. 15 Jan. 2018 MNF government was re-elected 18 Jan. 2018 Nationwide protest organized by Okuzan People’s Front. 31May 2018 Announcement of Citizenship review process by MNF government against illegal immigrants in Mayzan which will start from 02 July 2018 01 June 2018 United Nations High Commissioner for Human Rights called for the immediate suspension of the citizenship review process 29 June 2018 Report by Mayzan Human Rights Centre that very few Okuzans had access to documentation to prove their citizenship because of low levels of education and a rural based population. 01 July 2018 Bombing in 3 biggest cities of Mayzan. Freedom Fighters of Okuzans took responsibility of the attacks. Their actions were condemned by OPF. 02 July 2018 Minister for Interior Affairs responded against the attacks and measures to be taken by government to maintain law and order. President declared a state of emergency, imposed curfew and cut access to internet in Eastern Province. 09 August 2018 Mayzan Herald reported arrest of more than 3000 Okuzans and many were charged under Mayzan Terrorism Law, 2015. 1 stweekof September 2018 Thousands of Okuzans crossed border to seek asylum in Boliria. Bolirian Government and UNHCR provided shift camps, food and sanitary amenities.
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November Bolirian Government started Refugee Status Determination (RSD) process to provide documentation to Okuzan Refugees which was lauded by UN Commissioner for Human Rights. June 2019 Boliria registered and provide identification documentation to over 200,000 Okuzan refugees while the state of emergency continued to be implemented in Eastern Province of Mayzan. May 2020 Emergency was lifted by Mayzan Government and 300,000 Okuzan refugees were registered in Boliria. June 2020 Visit of Bolirian Prime Minister to Mayzan. 08 June 2020 Boliria and Mayzan Government signed an MoU in which Mayzan agreed to allow all Mayzan citizens currently living in Boliria. 15 June 2020 Boliria announced that it would commence the process of cessation of refugee status of Okuzan refugees in its territory and refugee protection for Okuzans in Boliria would and with effect of 01 January
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ISSUE I: That Boliria and Makonda have an obligation under international law to provide protection to all those Okuzan asylum seekers from Mayzan who seek its protection. The Okuzan refugees still face the threat of persecution in Mayzan that has been culminated during the tenure of its incumbent populist government in the backdrop of decades of ethnic violence and discrimination. Even the state organs have been violating human rights consistently. As a result, the Okuzans are unwilling to return to Mayzan, as is evidenced by their actions of voluntarily endangering their lives by trying to cross the sea, and are entitled to all the protections under the refugee convention that have been afforded to them till date. The Respondents have an obligation to provide protection to all the Okuzan asylum seekers under art. 98 of Law of the sea and bring them to a place of safety. ISSUE II: That 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. The cessation of refugee status deprives them of various rights that they are entitled to under various international treaties. The cessation is not in accordance with art. 1 C (5) of the Convention Relating to the Status of Refugees. The alternative is to cross an ocean illegally at the risk of drowning, which cannot be considered to a real option. The Interdiction measures employed by Makonda violates the obligation of non-refoulement placed upon the Respondents under numerous conventions as well as international customary law. Makonda’s interdiction and refoulement to a state that is returning the Okuzans back to Mayzan breaches the same obligation. ISSUE III: That Boliria and Makonda have an erga omnes obligation to the principle of non-refoulement. It has been established by the ICJ in the case of Belgium v. Senegal that an obligation under a multilateral treaty may be invoked by any State party against another if all State parties have a common interest in complying by that obligation. Such a common interest to prevent torture, which is protected by the obligation of non-refoulement, was interpreted to exist under the CAT Convention in this very case. Moreover, the State parties to Refugee Convention possess the common interest to protect the human rights of refugees including by way of the principle of
XVI non-refoulement. The obligation of non-refoulement further constitutes a collective obligation under ARSIWA, which empowers even an uninjured State party like Pemola to hold the State breaching it responsible. ISSUE IV: That Boliria and Makonda have an obligation under international law to prevent the Okuzan people from being left stateless. The Okuzans have been left de jure stateless as per the definition of statelessness provided under the 1961 Statelessness Convention which is now a part of customary international law, as well as de facto stateless by virtue of their unwillingness to return to Mayzan due to valid reasons of continued persecution. This is especially true for the Okuzan children born in the territory of the Respondents, since they will be ineligible to irrespective of possession of proper documents since Mayazn follows the citizenship law of jus soli.
2 Universal Declaration of Human Rights states that “Everyone has a right to seek and enjoy in other countries asylum from persecution”.^9 In pursuance of this, the General Assembly in 1967 adopted the declaration on territorial asylum^10 , it was agreed that the grant of asylum should be respected by states^11 and asylum shall be granted by a state in exercise of its sovereignty,^12 but this does not means states can violate art. 33 of the Convention relating to the Status of Refugees.^13 C. THE RESPONDENTS HAVE A DUTY TO RENDER ASSISTANCE AT SEA
1. There is a duty to render assistance to those in distress at sea
3 agreements and cooperation with neighbouring states.^21
2. There is a duty protect under SAR and SOLAS conventions
