Resp Moot NLS

T2 - R
IN THE
INTERNATIONAL COURT OF JUSTICE
AT THE PEACE PALACE
THE HAGUE
NETHERLANDS
THE NALSAR PUBLIC INTERNATIONAL LAW MOOT COURT COMPETITION, 2021
THE CASE CONCERNING THE OKUZAN REFUGEES OF MAYZAN
THE FEDERAL REPUBLIC OF PEMOLA
(APPLICANT)
V.
THE STATE OF BOLIRIA AND REPUBLIC OF MAKONDA
(RESPONDENT)
MEMORIAL for RESPONDENTS

TABLE OF CONTENTS

LIST OF ABBREVIATION .............................................................................................. V
TABLE OF AUTHORITIES ............................................................................................ VI
STATEMENT OF JURISDICTION ................................................................................ XI
IDENTIFICATION OF ISSUES .................................................................................... XII
SUMMARY OF FACTS ................................................................................................ XIII
SUMMARY OF PLEADINGS ...................................................................................... XVI
PLEADINGS ....................................................................................................................... 1
ISSUE 1: THAT BOTH BOLIRIA AND MAKONDA HAVE CONFORMED WITH ALL
OBLIGATIONS UNDER INTERNATIONAL LAW TO PROVIDE PROTECTION TO THE OKUZAN
REFUGEES WHO FALL UNDER THEIR JURISDICTION. ......................................................... 1
A. THE RESPONDENTS HAVE CONFORMED WITH ALL INTERNATIONAL OBLIGATIONS TO

PROVIDE PROTECTION 1
1. Boliria has fulfilled all its obligations under international law towards refugees 1
a. Boliria has undertaken refugee status determination process 1

b. There has been cooperation with UNHCR 2
c. Boliria has provided right to livelihood to the refugees 2
d. Boliria has adhered to the obligation of non-refoulement 2
2. Makonda has fulfilled all its obligations under international law towards refugees 3
B. THE RESPONDENTS HAVE NO JURISDICTION OVER REFUGEES AT HIGH SEAS 3
1. There is no jurisdiction over refugees on high seas under UNCLOS 3
a. The respondents have no effective control over refugees 4

b. There is no international obligation towards stateless vessels on high seas 4
2. The duty to protect is not absolute 5
II
ISSUE 2: THAT BOLIRIA’S MEASURES OF CESSATION OF REFUGEE STATUS AND
MAKONDA’S MEASURES INTERDICTING THE OKUZAN PEOPLE ON THE CALASIAN SEA ARE
NOT VIOLATION OF THEIR OBLIGATIONS UNDER INTERNATIONAL LAW. ........................... 5
A. THERE IS NO VIOLATION OF THE CONVENTION RELATING TO THE STATUS OF
REFUGEES OF 1951 AND ITS PROTOCOL RELATING TO THE STATUS OF REFUGEES OF 1967 5
1. The cessation of refugee status is in accordance with article 1c (5) and 1c (6) of the
1951 convention 5
a. There is a fundamental change in character 6

b. The change in circumstances is of enduring nature 7
c. Mayzan has restored protection for Okuzans 8
2. The acts of respondents are not in violation of their obligation under art. 33 of the
convention relating to the status of refugees, 1951. 8
a. Makonda has no effective jurisdiction over the interdicted ships 10

b. In arguendo, refoulement is justified as an exception under art. 33(2) 11
B. THERE IS NO VIOLATION UNDER THE CONVENTION AGAINST TORTURE AND OTHER

CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT OF 1984 12
1. Circumstances do not satisfy the definition of torture 12
2. There is no future risk of torture 13
C. THERE IS NO VIOLATION UNDER THE INTERNATIONAL COVENANT ON CIVIL AND
POLITICAL RIGHTS OF 1966 14
1. There is No violation of non-refoulement under Article 7 14
2. There is no violation of right to life under article 6 14
3. There is no infringement of right to liberty and freedom from arbitrary detention 14
D. THERE IS NO VIOLATION UNDER THE UNITED NATIONS CONVENTION ON THE LAW

OF THE SEA OF 1982 15
1. Respondents have right to visit under art. 110 of UNCLOS 15
2. Respondents have right to take appropriate measures under art. 8(7) of migrant
smuggling protocol 15
III
ISSUE III: THAT BOLIRIA AND MAKONDA DO NOT HAVE AN ERGA OMNES PARTES
OBLIGATION TO THE PRINCIPLE OF NON-REFOULEMENT. ................................................ 16
A. THE RESPONDENTS OWE DO NOT THE DUTY OF NON-REFOULEMENT TO THE STATE
PARTIES TO THE 1951 REFUGEE CONVENTION OR THE 1984 CONVENTION AGAINST TORTURE
16
1. The case of Belgium v. Senegal cannot be relied upon 16
a. Common interest is not the same as an obligation erga omnes partes 17

b. Treaty interpretation was not undertaken to establish that common interest implies
an obligation erga omnes partes 17
c. The judgment does not address several key issues 18
d. The court’s position is not supported by ARSIWA 21
2. There is no common interest to prevent refoulement under any convention to which

the respondents are parties 22
ISSUE IV: THAT THERE IS NO SITUATION OF STATELESSNESS FOR THE OKUZANS

PEOPLE THAT ARISES IN THIS CASE AND BOLIRIA AND MAKONDA HAVE NO
OBLIGATION TO ADDRESS IT .......................................................................................... 23
A. THE OKUZANS ARE NOT STATELESS 23
1. There is no situation of de jure statelessness 23
2. There is no situation of de facto statelessness 24
B. BOLIRIA AND MAKONDA HAVE NO OBLIGATION TO PREVENT STATELESSNESS OF OKUZANS

25
1. The applicants are not parties to any statelessness convention 25
2. There exists no positive obligation to grant nationality under international law 25
PRAYER FOR RELIEF XVI
IV
LIST OF ABBREVIATION
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
MoU Memorandum of Understanding
PCIJ Permanent Court of International Justice
RSD Refugees Status Determination
UN Charter United Nations Charter
UNGAR United Nations General Assembly

Resolution
UNHCR United Nations High Commissions of

Refugees
UNTS United Nations Treaty Series
V
TABLE OF AUTHORITIES
TREATIES & CONVENTIONS

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Dec. 10, 1984, 1465 U.N.T.S. 85.............................................................................. 14, 15, 25
Convention on the Reduction of Statelessness, Aug. 30, 1961, 989 U.N.T.S 175 ................. 28
Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137.1, 2, 6, 10,
13, 25, 27
Convention Relating to the Status of Stateless Persons, Sept. 28, 1954, 360 U.N.T.S 117... 26,
29
European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov.
4, 1950, E.T.S. 5 ................................................................................................................. 23
International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 1719, 16,
30
Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267 ..................... 26
United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 . 3, 4, 18
INTERNATIONAL COURT OF JUSTICE & PERMANENT COURT OF INTERNATIONAL JUSTICE

Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgement, 1996, I.C.J.
Rep. 616 (July 11) ............................................................................................................... 17
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 2007 I.C.J. Rep. 104 (Feb.
26) ...................................................................................................................................... 17
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.
Rwanda), Judgment, Jurisdiction and Admissibility, 2006 I.C.J. G.L. No. 126 (Feb. 3) ....... 17
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgement,
2002 I.C.J. Rep. 3 (Feb. 14) ................................................................................................ 11
Barcelona Traction Case, 1970 I.C.J. (Belgium v. Spain) 1970, I.C.J Rep. 3 (Feb. 5) .......... 19
East Timor (Portugal v. Australia), Judgment, 1995, I.C.J. Rep. 102 (June 30) .................... 17
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, 2004, I.C.J. Rep. 199 (July 9) ................................................................ 17
Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain),
Judgement, 2001 I.C.J. Rep. (Mar. 16) .................................................................................. 6
VI
Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986
I.C.J. Rep. 14 (June 27) ......................................................................................................... 4
Nottebohm Case (Liechtenstein v. Guatemala), Second Phase, Judgement, 1955 I.C.J. Rep. 4
(Apr. 6) ............................................................................................................................... 24
Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment,
2012, I.C.J. G.L. No. 144 (July 20) .......................................................................... 16, 17, 21
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,
Advisory Opinion, 1951, I.C.J. Rep. 23 (May 28) ............................................................... 17
S.S. Lotus (Fra. v. Tur.), Judgment, 1927 P.C.I.J. (ser. A), No. 10......................................... 4
EUROPEAN COURT OF HUMAN RIGHTS

Hirsi Jamaa and Others v. Italy, Eur. Ct. H.R. 97, 132 (2012)...........................................4, 10
UNITED NATIONS TREATY BODIES

AA v. Switzerland, U.N. Committee Against Torture, U.N. Doc. CAT/C/38/D/268/2005
(2007). ................................................................................................................................ 13
BS v. Canada, U.N. Committee Against Torture, U.N. Doc. CAT/C/27/D/166/2000 (2001) 12
Dadar v. Canada, U.N. Committee Against Torture, U.N. Doc. CAT/C/35/D/258/2004, (2005)
........................................................................................................................................... 13
Dauphin v. Canada, U.N. Human Rights Committee, U.N. Doc. CCPR/C/96/D/1792/2008
(2009) ................................................................................................................................. 14
Israil v. Kazakhstan, U.N. Human Rights Committee, U.N. Doc.CCPR/C/103/D/2024/2011
(2011) ................................................................................................................................. 14
JHA v. Spain, U.N. Committee Against Torture, U.N. Doc. CAT/C/41/D/323/2007 (2008) 11
Samba Jalloh v. Netherlands, U.N. Human Rights Committee, U.N. Doc.
CCPR/C/74/D/794/1998 (2002) .......................................................................................... 15
SS v. Netherlands, U.N. Committee Against Torture, U.N. Doc. CAT/C/30/D/191/2001 (2003)
........................................................................................................................................... 14
TM v. Sweden, U.N. Committee Against Torture, U.N. Doc. CAT/C/31/D/228/2003 (2003)
........................................................................................................................................... 12
OTHER COURTS
Case of Expelled Dominicans & Haitians v Dominican Republic, Inter-Am. Ct. H.R. (ser. C)
No. 282 (Aug. 28, 2014) ..................................................................................................... 27
Mileva v. Canada (Minister of Employment and Immigration) [1991] 3 F.C. 398 (C.A.)....... 6
VII
Naim Molvan, Owner of Motor Vessel “Asya” v. Attorney-General for Palestine [1948] A.C.
351........................................................................................................................................ 4
Prosecutor v Milošević, Case No. IT-99-37-PT, (Int'l Crim. Trib. for the Former Yugoslavia
Oct. 11, 2002) ....................................................................................................................... 8
R (on the application of European Roma Rights Centre et al.) v. Immigration Officer at Prague
Airport et al., ex parte European Roma Rights Centre et al. [2004] UKHL 55 (UK HL, Dec. 9,
2004) .................................................................................................................................. 10
S.S.H.D. v. M.A.(Somalia) [2018] E.W.C.A. Civ. 994 ...................................................... 6, 8
Sale, Acting Commissioner, Immigration and Naturalization Service v. Haitian Centers
Council Inc. (1993) 509 U.S. 155 ........................................................................................ 10
United States v. Marino-Garcia and Others, 679 F.2d 1373 (11th Cir. 1982). ...................... 15
Yusuf v. Canada (Minister of Employment and Immigration) [1992] 1 F.C.629 [C.A.] ......... 8
JOURNALS & ARTICLES

Frederick J. Kenney Jr. & Vasilios Tasikas, The Tampa Incident: IMO Perspectives and
Responses on the Treatment of Persons Rescued at Sea, 12 PAC. RIM L & POL'Y J. (2003)..... 5
Gregor Noll, Seeking Asylum at Embassies: A Right to Entry under International Law? 17(3)
INT’L J. REFUG. LAW (2006) ................................................................................................ 10
Jeffrey L. Blackman, State Successions and Statelessness: The Emerging Right to an Effective
Nationality Under International Law, 19 MICH. J. INT. LAW (1998)..................................... 26
Joan Fitzpatrick, The Refugee Convention, 1951: The Travaux Préparatoires Analysed with a
Commentary. Edited by Paul Weis. New York: Cambridge University Press, 1995., 90 AM. J.
INT'L L. (1996) ...................................................................................................................... 9
Johannes M.M. Chan, The Right to a Nationality as a Human Right, 12 HUM. RTS. L.J. (1991)
........................................................................................................................................... 26
R. R. Churchill & A. V. Lowe, The Law of the Sea, 80 INT'L & COMP. L.Q. (2008) ............... 3
BOOKS
A NA’IM, HUMAN RIGHTS IN CROSS-CULTURAL PERSPECTIVES: A QUEST FOR CONSENSUS
(University of Pennsylvania Press, 1992). ........................................................................... 13
ANNE T. GALLAGHER & FIONA DAVID, THE INTERNATIONAL LAW OF MIGRANT SMUGGLING
(2014). .............................................................................................................................5, 15
E. FELLER, V. TÜRK, & F. NICHOLSON, REFUGEE PROTECTION IN INTERNATIONAL LAW:
UNHCR'S GLOBAL CONSULTATIONS ON INTERNATIONAL PROTECTION (Cambridge University
Press., 2003). ........................................................................................................................ 9
VIII
GERARD-RENÉ DE GROOT, NATIONALITY AND STATELESSNESS UNDER INTERNATIONAL LAW
(Alice Edwards & Laura van Waas eds., 2014).................................................................... 27
GUY S. GOODWIN-GILL, REFUGEE IN INTERNATIONAL LAW (3rd ed. 2007) .......................... 1, 6
HEIJER, MAARTEN DEN. "THE RESPONSIBLE ACTOR" EUROPE AND EXTRATERRITORIAL
ASYLUM (Hart Publishing, 2012)......................................................................................... 16
JAMES CRAWFORD & MARTTI KOSKENNIEMI, THE CAMBRIDGE COMPANION TO INTERNATIONAL
LAW (Cambridge University Press., 2012)........................................................................... 11
JOSEPH, S., SCHULTZ, J., & CASTAN, M., THE INTERNATIONAL COVENANT ON CIVIL AND
POLITICAL RIGHTS: CASES, MATERIALS, AND COMMENTARY (3rd ed. 2013) .......................... 15
MALCOLM SHAW, INTERNATIONAL LAW (2008) .................................................................... 3
MANFRED NOWAK, MORITZ BIRK & GIULIANA MONINA, THE UNITED NATIONS CONVENTION
AGAINST TORTURE AND ITS OPTIONAL PROTOCOL: A COMMENTARY (Oxford University Press,
2019) .................................................................................................................................. 13
MARILYN ACHIRON, NATIONALITY AND STATELESSNESS: A HANDBOOK FOR
PARLIAMENTARIANS N° 11 (UNHCR, 2005) ....................................................................... 24

MWLTEMINELI-CIGER, TEMPORARY PROTECTION IN LAW AND PRACTICE (Brill Nijhoff, 2018)
........................................................................................................................................... 23
OPPENHEIM, INTERNATIONAL LAW: VOLUME I PEACE (R. Jennings and A. Watts eds., 2008)
(1992) ................................................................................................................................... 3
PAUL WEIS, THE REFUGEE CONVENTION, 1951: THE TRAVAUX PRÉPARATOIRES ANALYZED
WITH A COMMENTARY BY DR. PAUL WEIS (Cambridge University Press, 1995) ................... 12
THOMAS GAMMELTOFT-HANSEN, ACCESS TO ASYLUM: INTERNATIONAL REFUGEE LAW AND
THE GLOBALISATION OF MIGRATION CONTROL (2011) ......................................................... 10
JAMES C. HATHAWAY, THE RIGHTS OF REFUGEES UNDER INTERNATIONAL LAW (2005)..... 2, 9
UNITED NATIONS DOCUMENTS

Atle Grahl-Madsen, Commentary on the Refugee Convention, Articles 2-11, 13-37, UNHCR
(Oct. 13, 1997) .................................................................................................................... 10
Executive Committee of High Commissioners’ Programme, Conclusion on Protection
Safeguards in Interception Measures, Doc. No. 97 (LIV) – 2003, Oct. 10, 2003 .................. 15
Executive Committee of the High Commissioner’s Programme, Conclusion No. 69 (XLIII),
U.N. Doc. A/AC.96/804, at 94-95 (1992) .......................................................................... 6, 7
G. A. Res. 217 A (III), Universal Declaration of Human Rights (Dec. 10, 1948) ................ 26
IX
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 (Nov.
15, 2000)............................................................................................................................. 16
International Law Commission, Draft Articles on Responsibility of States for Internationally
Wrongful Acts, Nov. 2001, Supplement No. 10 (A/56/10), chp.IV.E.1 ................................ 21
U.N. Committee Against Torture, General Comment No. 1: Implementation of Article 3 of the
Convention in the Context of Article 22 (Refoulement and Communications), U.N. Doc
A/53/44, Annex IX (1997). ................................................................................................. 13
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) .................... 13
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/03/03 (2003)
............................................................................................................................................. 6
U.N. High Commissioner for Refugees, Note on the Cessation Clauses, U.N. Doc.
EC/47/SC/CRP.30 (May 30, 1997)........................................................................................ 7
U.N. Human Rights Committee, CCPR General Comment No. 27: Article 12 (freedom of
movement), HRI/GEN/1/Rev.9 (Vol. I) (1999)...................................................................... 8
U.N. Human Rights Committee, General Comment No. 31 on The Nature of the General Legal
Obligation Imposed on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add. 1326
(2004) ................................................................................................................................. 14
UN Human Rights Committee, CCPR General Comment No. 17: Article 24 (Rights of the
Child), HRI/GEN/1/Rev.9 (Vol. I) (1989) ........................................................................... 26
Staff Working Document, “Study on the International Law Instruments in Relation to Illegal
Immigration by Sea,” at ¶ 2.2.2, S.E.C. (2007) 691 final (May 15, 2007) ............................ 15
X
STATEMENT OF JURISDICTION
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.1Therefore 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.
XI
IDENTIFICATION OF ISSUES
The state of Boliria and Makonda respectfully requests this Hon’ble Court to adjudge:
ISSUE 1: That Boliria and Makonda have conformed with all obligations under
international law to provide protection to Okuzan refugees who fall under their
jurisdiction.
ISSUE 2: That Boliria’s measures of cessation of refugee status and Makonda’s measures
interdicting the Okuzan people on the Calasian Sea are not in violation of their obligations
under international law.
ISSUE 3: That Boliria and Makonda do not have an erga omnes partes obligation to the
principle of non-refoulement.
ISSUE 4: That There is no situation of statelessness for the Okuzan people that arises in
this case and Boliria and Makonda have no obligation to address it.
XII
SUMMARY OF FACTS
1960 Republic of Mayzan adopted its constitution
2006 Okuzan Protection Against Violence Act 2006 enacted by NDP

Government
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.
2017-2018 Increase in violence against Okuzan people also reported
15 January 2018 MNF government was re-elected
18 January 2018 Nationwide protest organised 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.
XIII
02-03 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.
1stweekof Thousands of Okuzans crossed border to seek asylum in Boliria.

September 2018 Bolirian Government and UNHCR provided shift camps, food and
sanitary amenities.
04 Bolirian Government started RSD process to provide documentation

November2018 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 with effect of 01 January 2021.
Okuzan refugees in Boliria started moving to Beyul continent through
Calasian sea to seek asylum.
September 2020 Makonda and its neighboring countries started receiving Okuzan
people in their ports.
XIV
03 November Makonda, Joran and Ligos entered into a MoU on maritime security in
2020 respect to The Calasian Sea to prevent illegal migration and illegal
entry.
Nov.- Dec. 2020 More than 10000 Okuzan people were interdicted
05 January 2021 Joint press statement of Foreign Ministers of Makonda, Joran and
Ligos that
all the measures undertaken by with regard to maritime surveillance

were in accordance with their international legal obligations. Also, in
Boliria, the Jinoras, an Okuzan family were the first to be sent back to
Mayzan.
15 January 2021 Story in Makonda Daily Newspaper that more than 200 people
Okuzan Refugees) drowned in the Calasian Sea on the night of 13
January 2021.
20 January 2021 HRA released a report which includes case studies about the continued
Human rights violations in the Eastern Province of Mayzan and
violation of the principle of non-refoulment by Boliria and Makonda.
25th January 2021 Trilateral dialogue between Pemola, Boliria and Makonda to negotiate
a solution for Okuzan people. This meeting concluded without a
solution.
31 January 2021 Pemola, Makonda and Boliria enter into this special agreement to
submit the dispute over the nature of legal obligations to the ICJ
XV
SUMMARY OF PLEADINGS
ISSUE I: Boliria and Makonda have duly fulfilled all of their obligations towards the
Okuzan refugees under international law.
While there was a threat to the human rights of the Okuzans in Mayzan, Boliria housed and
more than adequately afforded them every protection under the Refugee Convention to which
they were entitled, including the right to non-refoulement, the right to freedom of movement,
the right to livelihood, as well as the right to identity documents. Makonda has also afforded
every protection under international law to all the refugees that were in its territory. There exists
no obligation to grant protection to the Okuzans who are outside the jurisdiction of the
Respondents.
ISSUE II: That Boliria’s measures of cessation of refugee status and Makonda’s measures
interdicting the Okuzan people on the Calasian Sea are not in violation of their
obligations under international law.
Circumstances have fundamentally changed since the Okuzans had fled their country due to
fear of arrests by the Government of Mayzan. In light of the Memorandum of Understanding
between Boliria and Mayzan, the state of emergency imposed in the eastern province has been
lifted and Mayzan has agreed to welcome all its citizens back. There remains no real threat of
persecution in Mayzan and the Okuzans have ceased to be Convention refugees. Therefore,
their refugee status has been rightfully revoked. Moreover, the interdiction by Makonda does
not amount to refoulement since neither is Boliria forcefully sending the Okuzans back to
Mayzan, nor is there a threat of persecution remaining.
ISSUE III: That Boliria and Makonda do not have an erga omnes partes obligation to the
Non-refoulement is not an obligation erga omnes partes as per the dicta propounded in Belgium
v Senegal as that particular case cannot be relied upon due to several flaws in its reasoning.
Simply the presence of a common interest does not entitle any State party to make a claim
against another, as was argued by two judges in the same case. Treaty interpretation was not
undertaken to glean a common interest under the CAT Convention, and the Convention did not
intend to create an obligation erga omnes partes since on the one hand it expressly provides a
provision to that effect, while on the other it also allows state parties to make reservations
XVI
against the same. Not only is the Court’s stance not supported by the Treaty, but also ARSIWA.
Moreover, there exists no common interest to prevent non-refoulement under these
Conventions.
ISSUE IV: That there is no situation of statelessness for the Okuzan people that arises in
this case and Boliria and Makonda have no obligation to address it.
The Okuzans have not been declared to non-nationals of Mayzan after the citizenship review
process, and hence still are Mayan citizens. Even those without valid citizenship documents
would have the same arranged for by the Government of Mayzan. Moreover, international law
does not go so far as to impose the obligation to grant nationality on particular states, but rather
simply affirms the right to a nationality, which Boliria is not bound to grant since the Okuzans
have a legal bond with Mayzan and they do not meet the criteria for the same laid down in
Boliria’s domestic nationality laws.
XVII
PLEADINGS
ISSUE 1: THAT BOTH BOLIRIA AND MAKONDA HAVE CONFORMED WITH

ALL OBLIGATIONS UNDER INTERNATIONAL LAW TO PROVIDE
PROTECTION TO THE OKUZAN REFUGEES WHO FALL UNDER THEIR
JURISDICTION.
1. The 1951 Convention provides for certain standards of treatment to be accorded to the
refugees.2 It is humbly submitted the Okuzan refugees under the jurisdiction of Boliria
and Makonda were provided with protection as given by international law.
A. THE RESPONDENTS HAVE CONFORMED WITH ALL INTERNATIONAL OBLIGATIONS TO

PROVIDE PROTECTION
1. Boliria has fulfilled all its obligations under international law towards
refugees
2. Boliria has complied with all its treaty obligations under the 1951 Convention Relating
to the Status of Refugees to protect the Okuzan refugees under its jurisdiction, to the
extent that even the United Nations high Commissioner for Human Rights recognized
and lauded its efforts, citing it as an example to other nations in honoring a State’s
commitments under the Refugee Convention.3
a. Boliria has undertaken refugee status determination process

3. To fulfill its obligation of providing identity papers to the refugees on its soil who do
possess valid travel documents,4 at the very outset, Boliria set up temporary camps5 and
promptly started the Refugee Status Determination (RSD)6 whereby it registered and
provided documentation to the refugees7 despite their humungous numbers, and
Boliria’s limited budget and resources. This even led to the overworking of the Bolirian
case workers.8 Moreover, Boliria fulfilled its duty as a Contracting State to apply the
conventions to the Refugee Convention without discriminating on the basis of race,
2
GUY S. GOODWIN-GILL, REFUGEE IN INTERNATIONAL LAW 84 (3rd ed. 2007).
3
Compromis, ¶ 19.
4
Convention Relating to the Status of Refugees art. 27, July 28, 1951, 189 U.N.T.S. 137.
5
Compromis, ¶ 18.
6
Compromis, ¶ 19.
7
Compromis, ¶ 21.
8
Compromis, ¶ 20.
1
religion, or country of origin,9 or because they are refugees. All Okuzans were registered
and provided all protections under the Convention indiscriminately.
b. There has been cooperation with UNHCR

4. To comply with the obligation of cooperating with the Office of the United Nations High
Commissioner for Refugees,10 Boliria was in constant contact with the UNHCR and
received food, supplies, and sanitation facilities for the benefit of the Okuzan refugees.11
c. Boliria has provided right to livelihood to the refugees

5. To abide by its obligation to accord to refugees lawfully staying in its territory the “most
favorable treatment accorded to nationals of a foreign country in the same
circumstances” with respect to the right to engage in wage-earning employment,12
Boliria allowed the Okuzans access to livelihoods,13 to the extent that they searched for
jobs in direct competition with the Bolirian workforce, causing resentment among the
Bolirian Citizens.14
6. To honor the obligation of allowing to Okuzans lawfully in its territory the right to
choose their place of residence and to move freely within its territory,15 Boliria allowed
them to leave the refugee camps so that they could have better facilities inside the
country.16
d. Boliria has adhered to the obligation of non-refoulement

7. The main protection provided to refugees under international law is rendered as an
obligation not to send them back to the country where they face persecution.17 To
comply with the obligation of non-refoulement,18Boliria welcomed the refugees and did
not return them back to Mayzan while the emergency was imposed, during which time
there was a threat to their freedom.
9
10
11
Compromis, ¶ 18.
12
13
Compromis, ¶ 19.
14
Compromis, ¶ 22.
15
16
Compromis, ¶ 19.
17
JAMES C. HATHAWAY, THE RIGHTS OF REFUGEES UNDER INTERNATIONAL LAW 278–656 (2005).
18
2
2. Makonda has fulfilled all its obligations under international law towards
refugees
8. Article 33 of the Convention relating to the Status of Refugees states that, a refugee must
not be expelled in any manner whatsoever by a contracting state to the frontiers of a
territory where his life and freedom would be threatened on account of his nationality,
political opinion, race, membership to a social group or religion.19Makonda has also
complied with all its obligations under international law,20 including the obligation of
non-refoulement by accommodating all the 3000 refugees that had reached its territory.
It has provided all the 3000 refugees who reached Makonda with all the protection
provided under the International law. Thus, Makonda has provided adequate protection
to all Okuzans towards whom it was obliged.
B. THE RESPONDENTS HAVE NO JURISDICTION OVER REFUGEES AT HIGH SEAS

9. After the announcement of cessation of refugee status, Okuzans from Boliria started
fleeing the nation on boats of smugglers.21 The respondents submit that they have no
obligation to provide protection to Okuzans as they do not fall within their jurisdiction.
1. There is no jurisdiction over refugees on high seas under UNCLOS

10. Jurisdiction as defined in International Law, “is the extent of each state’s right to regulate
conduct or consequences of events.”22 In maritime aspect, UNCLOS divides the sea into
different maritime zones, states enjoy different rights in these zones. Firstly, the internal
waters and the territorial sea, which includes all the waterbodies within state and an
adjacent belt of twelve nautical miles from the base line.23 States enjoy exclusive
jurisdiction over this area, however, foreign ships are provided with right to innocent
passage. 24 Secondly, there is contiguous zone which may extend up to 12 nautical miles
from the territorial sea.25 Thirdly, there is exclusive economic zone which extends up to
200 nautical miles from the baseline.26 In all the above mentioned maritime zones a
coastal state exercises some kind of jurisdiction.
19
Id.
20
Compromis, ¶ 25.
21
Id.
22
OPPENHEIM, INTERNATIONAL LAW: VOLUME I PEACE 456 (R. Jennings and A. Watts eds., 2008) (1992).
23
United Nations Convention on the Law of the Sea art. 2, Dec. 10, 1982, 1833 U.N.T.S. 397.
24
MALCOLM SHAW, INTERNATIONAL LAW 569 (2008); R. R. Churchill & A. V. Lowe, The Law of the Sea, 80 INT'L
& COMP. L.Q. 204 (2008).
25
United Nations Convention on the Law of the Sea art. 33(1)(a), Dec. 10, 1982, 1833 U.N.T.S. 397.
26
3
11. Lastly, there is high seas which consists of all parts of the sea not included in the internal
waters, territorial waters, the exclusive economic zone and archipelagic waters of an
27
archipelago. It is a principle of customary international law, and is codified in the
High Seas convention and UNCLOS that sovereignty cannot be acquired by any state
over any part of high seas.28 Prescriptive and enforcement jurisdiction on high seas can
be exercised by a flag state only over its ship.29
a. The respondents have no effective control over refugees

12. The litmus test for determining the exercise of jurisdiction as postulated by several
international courts is that of “effective control”.30 The exercise of effective control is
essential for contracting states to be able to be held them liable for acts or omission
imputable to them.31 The respondents had no effective control over the Okuzans while
they were being smuggled at high seas.32
b. There is no international obligation towards stateless vessels on high

seas
13. PCIJ in the lotus decision has held that ‘in consonance with the principle of freedom of
seas, no state can exercise any kind of jurisdiction over a foreign vessel, in absence of
any territorial sovereignty upon the high seas.’33 Moreover, Stateless vessels on the high
seas do not enjoy protection of any flag state.34 In Asya v Attorney General of Palestine,
Lord Simonds stated that “No comity or breach of international obligation can arise, if
a vessel does not satisfies the elementary condition of being a flagged vessel.”35
Therefore, no protective obligation arises towards the stateless vessels which are
smuggling the migrants at the high seas.
27
28
Supra note 24; Convention on the High Seas art. 2, Apr. 29, 1958, 450 U.N.T.S. 11; United Nations Convention
on the Law of the Sea art. 87, Dec. 10, 1982, 1833 U.N.T.S. 397; United Nations Convention on the Law of the
Sea art. 89, Dec. 10, 1982, 1833 U.N.T.S. 397.
29
Supra note 24, at 614.
30
Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14,
¶ 116 (June 27).
31
Hirsi Jamaa and Others v. Italy, Eur. Ct. H.R. 97, 132 (2012).
32
Clarifications No. 43.
33
S.S. Lotus (Fra. v. Tur.), Judgment, 1927 P.C.I.J. (ser. A), No. 10, at 25.
34
Naim Molvan, Owner of Motor Vessel “Asya” v. Attorney-General for Palestine [1948] A.C. 351, at 369.
35
Id.
4
2. The duty to protect is not absolute
14. Distress is defined as a situation where refugees are in a grave and imminent
danger.36However, in the instant case not all refugee boats face an imminent threat which
requires an urgent attention. Moreover, the vessel which faces danger has to raise
distress calls or signals in order to trigger a rescue operation from the master of flag
ship.37 In the present case there is no record of any distress call received by Makonda or Boliria
to aid the Okuzans being smuggled.
15. Both Boliria and Makonda are not parties to the SAR and SOLAS conventions, thus, the
obligations under those conventions are not binding on the respondents.38 Furthermore,
previously states have stated that some migrant smuggling vessels have deliberately
incapacitated vessels in order to trigger a search and rescue.39 Rescue operations would
encourage irregular movement (pull factor) such search and rescue operations amount
to pull factors encourage more migrants to undertake more unsafe journeys. Therefore,
more and more Okuzans will be subjected to danger at sea.
ISSUE 2: THAT BOLIRIA’S MEASURES OF CESSATION OF REFUGEE STATUS

AND MAKONDA’S MEASURES INTERDICTING THE OKUZAN PEOPLE ON THE
CALASIAN SEA ARE NOT VIOLATION OF THEIR OBLIGATIONS UNDER
INTERNATIONAL LAW.
A. THERE IS NO VIOLATION OF THE CONVENTION RELATING TO THE STATUS OF REFUGEES

OF 1951 AND ITS PROTOCOL RELATING TO THE STATUS OF REFUGEES OF 1967
16. The Applicant submits that the cessation of refugee status by Boliria is in accordance
with Article 1C (5), Article 1C (6) and interdiction of Okuzans by Makonda does not
violates Article 33 of the Convention Relating to the Status of Refugees 1951.
1. The cessation of refugee status is in accordance with article 1c (5) and 1c (6)
of the 1951 convention
17. The ceased circumstances clause propounds that the refugee convention shall cease to
apply on a person when the circumstance due to which he/she was given the refugee
status cease to exist.40 This change in circumstances must be fundamental in nature
36
ANNE T. GALLAGHER & FIONA DAVID, THE INTERNATIONAL LAW OF MIGRANT SMUGGLING (2014).
37
Id.
38
Compromis, ¶ 33.
39
Frederick J. Kenney Jr. & Vasilios Tasikas, The Tampa Incident: IMO Perspectives and Responses on the
Treatment of Persons Rescued at Sea, 12 PAC. RIM L & POL'Y J. 143 (2003).
40
Convention Relating to the Status of Refugees art. 1C (5), July 28, 1951, 189 U.N.T.S. 137; Convention Relating
to the Status of Refugees art. 1C (6), July 28, 1951, 189 U.N.T.S. 137.
5
which removes the basis of any fear of persecution. 41The ExCom conclusions adopted
in 1992 highlighted the essentials for cessation of refugee status, it states that assessment
must be made keeping in mind the fundamental, stable and durable character of
changes. 42 In Mileva v. Canada43, the court held that the fear of persecution in past does
not provide basis to the claimant, the question is whether or not, at the time his claim is
being decided, he has good grounds to fear persecution.
18. In Public International law, a memorandum of understanding MoU denotes a less formal
international instrument than a typical treaty or international agreement. An MoU may
be a legally binding document (i.e. a treaty), depending on certain elements which
include actual terms, inclusion of actual commitments, and particular circumstances like
parties’ intent and signatories’ position.44 In the present case, it is not possible to
determine whether the MoU between Boliria and Mayzan is legally binding from the
factual matrix. However, since MoUs provide a formal basis for cooperation and joint
activities between states, Boliria is not obliged to discard the MoU in question simply
because it may not be legally binding, especially in light of Mayzan’s act of lifting the
emergency indicating its intention to honor its commitment under the same.
a. There is a fundamental change in character

19. Cessation based on ceased circumstances comes into play only when changes have taken
place that address the causes of displacement which lead to the recognition of refugee
status.45 Grounds for cessation do not go beyond verifying that grounds for recognition
of refugee status continue to exist, the test is whether there has been a significant and
non-temporary change.46 Under the MOU signed between Boliria and Mayzan, the latter
has agreed to welcome back all the Mayzan citizens. The root cause of Mayzan citizens
leaving the country was the review of citizenship, now Mayzan has agreed to provide
citizenship to all the Mayzan citizens outside Mayzan.
41
Supra note 2.
42
Executive Committee of the High Commissioner’s Programme, Conclusion No. 69 (XLIII), U.N. Doc.
A/AC.96/804, at 94-95 (1992).
43
Mileva v. Canada (Minister of Employment and Immigration) [1991] 3 F.C. 398 (C.A.).
44
Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Judgement,
2001 I.C.J. Rep. (Mar. 16).
45
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/03/03 (2003).
46
S.S.H.D. v. M.A.(Somalia) [2018] E.W.C.A. Civ. 994.
6
20. UNHCR identifies fundamental change as development in governance that leads to a
complete political transformation47, this transformation is evidenced by significant
reforms, repeal of oppressive laws, re-establishment of legal protection and security
against discriminatory actions.48 These rights need not be exemplary in nature, rather
they should show significant improvements and should be progressive towards positive
protection of human rights, these conditions provide a necessary basis for fundamental
change.49 The emergency which was imposed in the eastern province was a direct result
of the bombings that took place on 1st of July, 2018, and was imposed to maintain law
and order situation in the eastern province.50 In May 2020, the Mayzan government took
a positive and progressive step and lifted up the emergency 51and provided people of
eastern provinces with all their basic rights.
21. Successful voluntary repatriation taking place after fundamental change, also provides
evidence of fundamental change in circumstances, such kind of repatriation promotes
the consolidation of such developments.52 The Jinoras family and other Okuzan families
voluntarily repatriated to Mayzan and have been successfully re-established there
according to the MOU.53 Therefore, it can be said that there is a fundamental change in
circumstances.
b. The change in circumstances is of enduring nature

22. If the application of ceased circumstances clause is prematurely applied, it can result a
person to return in a volatile situation which can cause additional renewed stability.
positive developments in a country of origin must be durable and stable.54 States have
decided that no particular time frame can be laid down to assess durable change in
circumstances. 55 UNHCR has indicated that the length of waiting period should vary
based on the circumstances. In cases where the change has occurred peacefully, through
a democratic and constitutional process with respect to human rights and legal
47
U.N. High Commissioner for Refugees, Note on the Cessation Clauses, U.N. Doc. EC/47/SC/CRP.30 (May 30,
1997).
48
Id. ¶ 20.
49
Id. ¶ 24.
50
Compromis, ¶ 16.
51
Compromis, ¶ 22.
52
Supra note 47.
53
Compromis, ¶ 27.
54
Supra note 45.
55
Supra note 42.
7
guarantees.56 Boliria took a six-month waiting period to assess developments and
changes in Mayzan, the cessation of refugee status took place only after 1st January 2021.
c. Mayzan has restored protection for Okuzans

23. Okuzans can return to Mayzan as the country has restored its protection for them. A
refugee must be able to effectively re-avail him or herself of the protection of his or her
own country.57 Protection goes beyond physical security or safety as it includes enabling
residents to exercise their rights, including right to basic livelihood. 58 In Yusuf v.
Canada, the Federal Court of Appeal of Canada faced with the question of cessation
stated that the issue is simple one and the only issue is the possibility of persecution in
future.59
24. Mayzan has assured that it will grant citizenship to all the citizens in Boliria, it will do
this irrespective if the citizens have documents to prove their citizenship or not. 60Those
citizens who do not have documents will have their documents arranged for, this
citizenship will help them enjoy rightful protection of the Mayzan. Further, the two-
week detention period is a part of procedure established by law under the Mayzan
Immigration Control Act, 1988 and is same for everyone.61
25. Moreover, the report by HRA should have no evidentiary value in the Hon’ble court and
it cannot act as an amicus curia, as was held by Judge Shahabudden, “An amicus curiae
is limited to his essential function as a friend of the court, as distinguished from being a
friend of the accused.”62 Their interest should not be assimilated to the interest of party
to a dispute. HRA appears to be amicus of the applicant instead of the court.
2. The acts of respondents are not in violation of their obligation under art. 33 of
the convention relating to the status of refugees, 1951.
26. The main protection provided to refugees under international law is rendered as an
obligation not to send them back to the country where they face persecution.63 Article
33 of the Convention relating to the Status of Refugees states that, a refugee must not be
56
Supra note 47.
57
International Covenant on Civil and Political Rights art. 12(4), Dec. 19, 1966, 999 U.N.T.S. 171; U.N. Human
Rights Committee, CCPR General Comment No. 27: Article 12 (freedom of movement), HRI/GEN/1/Rev.9 (Vol.
I) (1999).
58
Supra note 45.
59
Yusuf v. Canada (Minister of Employment and Immigration) [1992] 1 F.C.629 [C.A.].
60
Compromis, ¶ 23.
61
Compromis, ¶ 24.
62
Prosecutor v Milošević, Case No. IT-99-37-PT, (Int'l Crim. Trib. for the Former Yugoslavia Oct. 11, 2002),
https://www.icty.org/x/cases/slobodan_milosevic/regdec/en/reg-11102002.htm .
63
Supra note 17.
8
expelled in any manner whatsoever by a contracting state to the frontiers of a territory
where his life and freedom would be threatened on account of his nationality, political
opinion, race, membership to a social group or religion.64
27. According the definition of non-refoulement as provided in the Article 33, the refugee
must not be expelled to the frontier of a territory where he may face persecution, 65 in
the instant case, the refugees who were interdicted were not pushed back to Mayzan
where they faced a threat of persecution. The interdiction of refugees was according to
the maritime and security measures adopted by the three states, Joran, Ligos and
Makonda.66 Further, Interdiction only means prohibition, this act prohibition took place
on high seas where Makonda does not exercises effective jurisdiction.67 Hence, no
refoulement occurred.
28. In arguendo, even if it is considered that interdiction and cessation of Okuzans lead them
to Mayzan, it is pertinent to note that Mayzan is a safe host now. In MOU signed between
Mayzan and Boliria, Mayzan has agreed that it will welcome all the Mazyan citizens
back and grant them their citizenship after providing them with documents.68 As there
is no threat to life or freedom of Okuzans in Mayzan, Article 33 becomes in applicable69
in the present case.
29. Art. 33 does not applies to the refugees who have not yet entered the territory of the state
where they seek asylum, the commentary on the Refugee Convention observes that, “If
a Contracting State has placed its frontier guards right at the frontier, and has fenced off
its territory, so that no one can set foot on it without having been permitted to do so, the
State may refuse admission to any comer without breaking its obligations under
Article.”70 Article 33 produces the strange result, that, “if a refugee has succeeded in
eluding the frontier guards, he is safe; if he has not, it is his hard luck”. If the frontier
control post is at some distance (a yard, a hundred meters) from the actual frontier, so
that anyone approaching the frontier control point is actually in the country, he may be
64
65
Joan Fitzpatrick, The Refugee Convention, 1951: The Travaux Préparatoires Analysed with a Commentary.
Edited by Paul Weis. New York: Cambridge University Press, 1995., 90 AM. J. INT'L L.175–176 (1996).
66
Compromis, ¶ 26.
67
Convention on the Law of the Sea art. 89, Dec. 10, 1982, 1833 U.N.T.S. 397.
68
Compromis, ¶ 23.
69
Sir Elihu Lauterpacht & Daniel Bethlehem, The scope and content of the principle of non-refoulement:
Opinion, in E. FELLER, V. TÜRK, & F. NICHOLSON, REFUGEE PROTECTION IN INTERNATIONAL LAW: UNHCR'S
GLOBAL CONSULTATIONS ON INTERNATIONAL PROTECTION 87-177 (Cambridge University Press., 2003).
70
Atle Grahl-Madsen, Commentary on the Refugee Convention, Articles 2-11, 13-37, UNHCR (Oct. 13, 1997),
https://www.unhcr.org/publications/legal/3d4ab5fb9/commentary-refugee-convention-articles-2-11-13-
37bremwritten-professor.html .
9
refused permission to proceed farther inland, but he must be allowed to stay in the bit of
the territory which is situated between the actual frontier line and the control post.71
30. In the case of Chris Sale, Acting Commissioner, Immigration and Naturalization
Service, et al, Petitioners v Haitian Centres Council, the Supreme Court of USA
declared in a ratio of 8:1 that the practice of United States to interdict refugees at high
seas was not in violation of principle of non-refoulement.72 Neither the domestic law of
United States nor its obligations under refugee convention prevented the coast guard
ships of USA from prohibiting the entry of refugees and migrants.73A number of
domestic decisions have held a similar view if such a condition arises.74
a. Makonda has no effective jurisdiction over the interdicted ships

31. Firstly, the interpretation of article 33(1) in accordance with article 31(3)(c) of VCLT
does not justify the extraterritorial nature of non-refoulement as, human rights treaty law
is not applicable rationae loci wherever the jurisdiction extends. 75 Further, if the refugee
convention is primarily interpreted by considering rationae loci applicability of the CAT
and the ICCPR, this is a flawed methodology of interpretation as not all parties to the
refugee convention are parties to ICCPR or CAT, hence these are not coextensive76.
32. Secondly, even if the principle of non-refoulement is applied extraterritorially, in every
existing jurisprudence the jurisdiction of state is identified only over the flag ships, even
in cases like Hirsi Jamaa v. Italy77, the ECHR stated that the interception was violation
of principle of non-refoulement as the refugees were on board the Italian government
ships which comprised of Italian military personnel thus, the refugees were under
exclusive de facto and de jure control of Italian authorities.78 In the instant case, the
boats smuggling the refugees were interdicted at high seas, there is no evidence that
Okuzans from these boats boarded the ships that were under control of Makonda, thus
71
Id.
72
Sale, Acting Commissioner, Immigration and Naturalization Service v. Haitian Centers Council Inc. (1993) 509
U.S. 155.
73
Id.
74
R (on the application of European Roma Rights Centre et al.) v. Immigration Officer at Prague Airport et al., ex
parte European Roma Rights Centre et al. [2004] UKHL 55 (UK HL, Dec. 9, 2004).
75
THOMAS GAMMELTOFT-HANSEN, ACCESS TO ASYLUM: INTERNATIONAL REFUGEE LAW AND THE
GLOBALISATION OF MIGRATION CONTROL 75−76 (2011).
76
Gregor Noll, Seeking Asylum at Embassies: A Right to Entry under International Law? 17(3) INT’L J. REFUG.
LAW 542, 546 (2006).
77
Hirsi Jamaa v. Italy, 77 Eur. Ct. H.R. 97,132 (2012).
78
JHA v. Spain, U.N. Committee Against Torture, U.N. Doc. CAT/C/41/D/323/2007 (2008).
10
it cannot be held that Okuzans were under effective jurisdiction of Makonda.79
Therefore, there is no violation of the obligation of non-refoulement.
33. Thirdly, even if it is considered that the Okuzans were under the jurisdiction of the
respondents, certain interests of states are so essential that acts against them qualify
sufficiently close to prompt those states jurisdiction80. Protective jurisdiction is different
from prescriptive and enforcement jurisdiction and is used when there is a security threat
from the nonnationals.81 States have used protective principle to prevent unlawful entry
of illegal migrants82, to prevent drug trafficking.83
b. In arguendo, refoulement is justified as an exception under art. 33(2)

34. According to the exception to the principle of non-refoulement in Article 33(2) of the
1954 Convention, states do not have to grant refugee status if there is reason to believe
the contender is a threat to national security.84 The national security exception contains
a single test: are there “reasonable grounds for regarding the refugee in question as a
danger to the security of the country” of refugee.85 Article 33(2) does not identify the
types of acts that could trigger the national security exception but rather leaves that to
the discretion of the states, allowing for the possibility of broad application.86
35. There was a huge influx of refugees in Boliria, there was growing resentment in the
people of Boliria towards Okuzans refugee as they were provided with basic amenities
at the expense of tax payers, this could have led to a potential crisis and disruption in
public order87, similar situation would have arisen in Makonda with the increase in the
illegal influx of Okuzan Refugees. Further, a threat to national security also arises on
grounds that there are serious reasons to believe that Okuzans fleeing form Mayzan were
indulged in crimes against peace and humanity.88
79
Compromis, ¶ 27.
80
Bruno Simma & Andreas Th. Müller, Exercise and limits of jurisdiction, in JAMES CRAWFORD & MARTTI
KOSKENNIEMI, THE CAMBRIDGE COMPANION TO INTERNATIONAL LAW 134–157 (Cambridge University Press.,
2012).
81
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgement, 2002 I.C.J. Rep.
3 (Feb. 14).
82
Supra note 34.
83
Maritime Drug Law Enforcement Act 1986, 46 U.S.C. § 1903 (United States).
84
Convention Relating to the Status of Refugees art. 33(2), July 28, 1951, 189 U.N.T.S. 137.
85
Supra note 69.
86
Supra note 69.
87
Compromis ¶ 22.
88
Convention Relating to the Status of Refugees art. 1(F), July 28, 1951, 189 U.N.T.S. 137.
11
36. Meaning of ‘Public Order’ is same as the meaning of ‘National Security’, therefore,
measures taken to maintain public order are security measures.89 To prove there is a
national security threat there should be; firstly, there should be a prospective danger,
which in this case arises from Okuzans; Secondly, the danger must be to the country of
refugee in this case Makonda; Thirdly, in this case the assessment of risk to the country
of refuge is greater than the risk faced by Okuzans, as Mayzan is readily accepting the
Okuzans back and providing protection. 90
B. THERE IS NO VIOLATION UNDER THE CONVENTION AGAINST TORTURE AND OTHER

CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT OF 1984
37. Article 3 of the convention obligates state parties to practice non-refoulement and not
expel, extradite, or return a person to another state where there are substantial grounds
that he would be subjected to torture.91 But similar to the refugee convention, obligations
under the convention against torture also apply within states jurisdiction.
1. Circumstances do not satisfy the definition of torture

38. Article 3 is applicable only to instances of torture,92 definition of torture as defined in
article 1 does not apply to the present case. Neither did Okuzans suffered any risk of
torture nor there exists any condition where they may face cruel and inhuman treatment,
moreover, the committee has expressly stated that the scope of article 3 does not apply
to degrading, cruel or inhuman treatment as defined in article 16.93
39. Moreover, conditions of pains and suffering arising out of lawful sanctions are not
considered as torture,94 ‘... the mere risk of being arrested and tried is not sufficient to
conclude that there is also a risk of being subjected to torture’95, detention is clearly
outside the scope of article 3. The arrest made after the bombings were in accordance
89
PAUL WEIS, THE REFUGEE CONVENTION, 1951: THE TRAVAUX PRÉPARATOIRES ANALYZED WITH A
COMMENTARY BY DR. PAUL WEIS (Cambridge University Press, 1995).
90
Supra note 69.
91
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3, Dec. 10,
1984, 1465 U.N.T.S. 85.
92
BS v. Canada, U.N. Committee Against Torture, U.N. Doc. CAT/C/27/D/166/2000 (2001).
93
TM v. Sweden, U.N. Committee Against Torture, U.N. Doc. CAT/C/31/D/228/2003 (2003).
94
A Na’im, Towards a Cross-Cultural Approach to Defining International Standards of Human Rights: The
Meaning of “Cruel Inhuman or Degrading Treatment”, in A NA’IM, HUMAN RIGHTS IN CROSS-CULTURAL
PERSPECTIVES: A QUEST FOR CONSENSUS 29–32 (University of Pennsylvania Press, 1992).
95
AA v. Switzerland, U.N. Committee Against Torture, U.N. Doc. CAT/C/38/D/268/2005, ¶ 8.5 (2007).
12
with law to suppress FFO,96 even the emergency was lawfully enforced to maintain law
and order97, the Okuzans cannot claim these conditions as torture.
2. There is no future risk of torture

40. The subjective fear of an individual that he or she may be tortured is not considered, as
the risk element under article 3 is an objective one.98 Therefore, the existence of risk of
torture is determined by general situation in the receiving country and personal elements,
and if the country is providing the person with internal protection then there is no case
of torture.99 Since, Mayzan has started accepting Okuzans
41. The probability of facing torture relates to the phrase ‘would be in danger of being
subjected to torture’, the level of risk of facing torture should go beyond theory or
suspicion and must be highly probable.100 This case does not fulfil the evidences required
to prove risk of torture:
42. Firstly, there should be a consistent pattern of gross human rights violation.101 Neither
there has been gross human right violation in Mayzan nor there is a pattern.
43. Secondly, there should be instances in the recent past of torture,102 there is no such
instance of torture in that Okuzans have faced in the recent past 2 years, moreover such
a situation should be conducive to genocide which is not the case.103
44. Lastly, the applicant has to establish that there is a real, personal, present or foreseeable
risk of facing torture,104 there is no existing risk of torture that could be counted as
substantial ground as the Mayzan has agreed to provide protection to all the Okuzans.
Further, in SS v Netherlands, with the commencement of peace talks between the Tamil
96
Compromis, ¶ 16.
97
Id.
98
Margit Ammer& Andrea Schuechner, Art.3 Principle of Non-Refoulement, in MANFRED NOWAK, MORITZ BIRK
& GIULIANA MONINA, THE UNITED NATIONS CONVENTION AGAINST TORTURE AND ITS OPTIONAL PROTOCOL: A
COMMENTARY 98 (Oxford University Press, 2019).
99
Id.
100
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); U.N. Committee Against Torture, General
Comment No. 1: Implementation of Article 3 of the Convention in the Context of Article 22 (Refoulement and
Communications), U.N. Doc A/53/44, Annex IX (1997).
101
1984, 1465 U.N.T.S. 85.
102
Dadar v. Canada, U.N. Committee Against Torture, U.N. Doc. CAT/C/35/D/258/2004, (2005).
103
Supra note 100.
104
Id.
13
rebel groups and the Sri Lankan government it was held extradition of the Tamil author
to Sri Lanka was less likely to put him at risk of torture. 105
C. THERE IS NO VIOLATION UNDER THE INTERNATIONAL COVENANT ON CIVIL AND

POLITICAL RIGHTS OF 1966
1. There is No violation of non-refoulement under Article 7

45. State parties are under an obligation to ensure that they secure covenant rights to all the
persons who are under its control,106 states cannot expel, extradite, deport or remove a
person if there are substantial grounds to establish that they may suffer irreparable loss
or may face torture, cruel, inhuman and degrading treatment.107 However, in the instant
case there is no condition where the Okuzans may face cruel or degrading treatment or
suffer irreparable loss.
2. There is no violation of right to life under article 6

46. In Dauphin v. Canada, the HRC stated that claims of infringement of right to life cannot
be claimed by a person only on the basis that the authorities in the country of deportation
would not be able to protect the person from being ill-treated are inadmissible and
unsubstantiated.108 Right to life can be claimed in circumstances of genocide or there is
a serious threat where the person could be sentenced to death.109
3. There is no infringement of right to liberty and freedom from arbitrary

detention
47. The detention period induced by Mayzan is accordance to its domestic law and detention
is done to ensure that whoever enters Mayzan territory without authorization can have
any claim to remain in the country examined and provided with documents.110 If
detention is not induced there is a strong likelihood that people will escape and abscond
105
SS v. Netherlands, U.N. Committee Against Torture, U.N. Doc. CAT/C/30/D/191/2001 (2003).
106
U.N. Human Rights Committee, General Comment No. 31 on The Nature of the General Legal Obligation
Imposed on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add. 1326 (2004).
107
International Covenant on Civil and Political Rights art. 7, Dec. 19, 1966, 999 U.N.T.S. 171.
108
Dauphin v. Canada, U.N. Human Rights Committee, U.N. Doc. CCPR/C/96/D/1792/2008 (2009).
109
Israil v. Kazakhstan, U.N. Human Rights Committee, U.N. Doc.CCPR/C/103/D/2024/2011 (2011).
110
JOSEPH, S., SCHULTZ, J., & CASTAN, M., THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS:
CASES, MATERIALS, AND COMMENTARY (3rd ed. 2013).
14
into the community.111 As the detention is not arbitrary and according to law,112
therefore, the interdiction and cessation won’t lead to infringement of right to liberty.
D. THERE IS NO VIOLATION UNDER THE UNITED NATIONS CONVENTION ON THE LAW OF

THE SEA OF 1982
48. The interdiction operation by Makonda are legitimate under international laws.
Interdiction has no general legal definition, however, UNHCR has most commonly
referred to interdiction as measures taken by state to prevent a vessel from commencing
a journey.113
1. Respondents have right to visit under art. 110 of UNCLOS

49. The article 110 of UNCLOS provides right to visit (board and inspect) to official vessels
over stateless vessels.114 Therefore, Makonda’s coastal ships had a right to board and
inspect the ships used for smuggling of Okuzans. The united states court of appeal has
stated that ‘vessels with no nationality are international pariahs and therefore have no
rights to move freely.’115Flagless ships used for irregular migration or transportation
have no freedom of navigation on the high seas.116 Although, UNCLOS provides with
the most fundamental rules, it has no provisions relating to migrant smuggling and is
also silent on what course can the official vessels take after boarding the stateless
ships.117
2. Respondents have right to take appropriate measures under art. 8(7) of

migrant smuggling protocol
50. The migrant smuggling protocol reaffirms this position as given in UNCLOS and
authorizes states to take ‘appropriate measure under relevant international and domestic
law’.118 The protocol recognizes an additional right of action with respect to the vessels
suspected of being smuggling migrants.119 The term ‘appropriate measures’ as defined
111
Id.
112
Samba Jalloh v. Netherlands, U.N. Human Rights Committee, U.N. Doc. CCPR/C/74/D/794/1998 (2002).
113
Executive Committee of High Commissioners’ Programme, Conclusion on Protection Safeguards in
Interception Measures, Doc. No. 97 (LIV) – 2003, Oct. 10, 2003.
114
Convention on the Law of the Sea art. 110, Dec. 10, 1982, 1833 U.N.T.S. 397.
115
United States v. Marino-Garcia and Others, 679 F.2d 1373 (11th Cir. 1982).
116
Staff Working Document, “Study on the International Law Instruments in Relation to Illegal Immigration by
Sea,” at ¶ 2.2.2, S.E.C. (2007) 691 final (May 15, 2007).
117
ANNE T. GALLAGHER & FIONA DAVID, THE INTERNATIONAL LAW OF MIGRANT SMUGGLING 409-430 (2014).
118
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).v
119
Id.
15
in the UN drug control regime suggests that it would include right to seize the ship, to
prohibit it, to instigate criminal jurisdiction, and to place the crew under arrest.120
Makonda had reasons to believe that migrants were being smuggled from boats as it has
already received 3000 of them,121 therefore under the protocol it has exercised its right
to take appropriate measures under its domestic law, which states that Makonda should
prevent illegal entry to its territories. 122
ISSUE III: THAT BOLIRIA AND MAKONDA DO NOT HAVE AN ERGA OMNES
PARTES OBLIGATION TO THE PRINCIPLE OF NON-REFOULEMENT.
51. The Respondent submits that Pemola has no right to intervene in this matter for the
enforcement of the obligation of non-refoulement since it is not an obligation erga omnes
partes.
A. THE RESPONDENTS OWE DO NOT THE DUTY OF NON-REFOULEMENT TO THE STATE

PARTIES TO THE 1951 REFUGEE CONVENTION OR THE 1984 CONVENTION AGAINST
TORTURE
1. The case of Belgium v. Senegal cannot be relied upon

52. In Belgium v Senegal,123 the ICJ dealt with the question “whether being a party to the
Convention is sufficient for a State to be entitled to bring a claim to the Court
concerning the cessation of alleged violations by another State party of its
obligations under that instrument?”124 The grounds on which the Court supported the
ruling with regard to the admissibility, which gave rise to erga omnes partes obligation
jurisprudence in international law, are not founded either in conventional or customary
law.125 Hence, its dicta cannot be considered to hold that an erga omnes partes obligation
towards the principle of non -refoulement. To allow a state to monitor the
implementation of a treaty on the basis of erga omnes partes goes beyond the legal
framework of the Torture Convention,126 as well as the Refugee Convention.
120
HEIJER, MAARTEN DEN. "THE RESPONSIBLE ACTOR" EUROPE AND EXTRATERRITORIAL ASYLUM (Hart
Publishing, 2012).
121
Compromis, ¶ 25.
122
Compromis, ¶ 26.
123
Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment, 2012, I.C.J.
G.L. No. 144, ¶ 69 (July 20).
124
Id. ¶ 67.
125
Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Separate opinion of Judge
Skotnikov, at. 5, 2012, I.C.J. G.L. No. 144 (July 20).
126
Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Dissenting Opinion, at. 11,
2012, I.C.J. G.L. No. 144 (July 20).
16
a. Common interest is not the same as an obligation erga omnes partes
53. In Belgium v Senegal, the ICJ referred to the dicta in the Barcelona Traction case as well
as its Advisory Opinion in the case concerning Reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide127 to conclude that common
interest in compliance with the obligations under a Convention entitles a State party to
bring a case for breach of the same against any other State party.
54. However, as noted by Judge Skotnikov in his separate opinion in the same case,
indivisible obligations that are owed by any State party to all other States parties are
included in various international instruments, especially those that are concerned with
protection of human rights. If a common interest can be observed in any of these
instruments, its obligations would become applicable erga omnes partes in all such
instruments, as per the Belgium v Senegal judgment.
55. The ICJ has never held that the existence of a common interest alone would be enough
to entitle a State to bring a claim in the Court, even though the Court has referred to, the
Court has referred to obligations erga omnes in a number of cases128 since the Barcelona
Traction Judgment.
56. Moreover, Judge Xue held in her dissenting opinion that “Notwithstanding the fact that
the States parties have a common interest in their observance, by virtue of treaty law,
the mere fact that a State is a party to the Convention does not, in and by itself, give that
State standing to bring a case in the Court.”129
b. Treaty interpretation was not undertaken to establish that common

interest implies an obligation erga omnes partes
57. It cannot be concluded that a common interest is one and the same thing as the right of
any State party to the Convention against Torture to invoke the responsibility of any
other State party before the ICJ on the grounds of a breach of an obligations erga omnes
partes without interpreting the Convention, which is what happened in Belgium v
127
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
1951, I.C.J. Rep. 23 (May 28).
128
East Timor (Portugal v. Australia), Judgment, 1995, I.C.J. Rep.102, ¶ 29 (June 30); Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Yugoslavia), Preliminary Objections, Judgment, 1996, I.C.J. Rep. 616, ¶ 31 (July 11); Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004, I.C.J. Rep. 199, at 155-
157 (July 9); Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda),
Judgment, Jurisdiction and Admissibility, 2006 I.C.J. G.L. No. 126, ¶ 6 (Feb. 3); Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
Judgment, 2007 I.C.J. Rep. 104, ¶ 147 (Feb. 26).
129
Supra note 126.
17
Senegal. The court merely limited itself to quoting from the Preamble and labeling the
convention as being similar to the Genocide Convention. “This is hardly sufficient,” as
was observed by Skotnikov.130 A similar view was adopted by Judge Xue, who held that
the Court went beyond treaty interpretation and deviated from established jurisprudence
by choosing to base its reasoning with regard to admissibility on erga omnes partes
obligations instead of interpreting the Constitution.
c. The judgment does not address several key issues
i. There is discrepancy between court’s view and convention’s

provisions
58. To substantiate its opinion that simply sharing of a common interest by the State parties
to the CAT Convention, and any all other such treaties having erga omnes partes
obligations by virtue of its parties having a common interest towards their protection,
equates to “a procedural right of one State party to invoke the responsibility of another
for any alleged breaches of such obligations”, the ICJ should have provided an
explanation as to how such instruments could simultaneously also provide for the right
of a State party to make reservations against ICJ’s jurisdiction. On one hand, the
Convention allows parties to make reservations against the court’s jurisdiction, while on
the other hand the court holds that a common interest under the Convention is enough
for an uninjured State party to enforce obligations against any State before the ICJ. This
appears to defeat the purpose of allowing reservations under a Convention. Appropriate
explanation or justification is not provided in Belgium v Senegal.131
ii. The court’s conclusion on admissibility is against the terms of the

convention
59. Additionally, State parties to the Convention against torture have the right to shield
themselves from scrutiny of the Committee against Torture, on top of the right to shield
themselves from accountability before the ICJ. It is extremely pertinent to note that
although this scrutiny is based on the principle of erga omnes,132 it is optional. Article
21 states “A State Party to this Convention may at any time declare . . . that it recognizes
the competence of the Committee to receive and consider communications to the effect
that a State Party claims that another State Party is not fulfilling its obligations under
130
Supra note 125.
131
Supra note 125.
132
Barcelona Traction Case, 1970 I.C.J. (Belgium v. Spain) 1970, I.C.J. Rep. 3, ¶ 33 (Feb. 5).
18
this Convention . . . No communication shall be dealt with by the Committee under this
article if it concerns a State Party which has not made such a declaration.”133 It is highly
questionable that the erga omnes partes nature of obligations would be made optional
by the drafters if a common interest to prevent torture would also make all obligations
applicable erga omnes partes, thus nullifying their optional nature. The Judgment does
not address this issue at all.134
60. If the logic adopted by the Court, that a common interest would grant a State standing
to invoke the responsibility of any other State simply on account of being a State party
to a particular Convention, were correct, no such opt-out or opt-in provisions would have
been allowed in that Convention. “The simple truth is that the Convention does not go
as far as the Court suggests.”135
61. This fact was also observed by Judge Xue, who held that the conclusion related to
admissibility is contrary to the provisions under the CAT Convention since the
communication mechanism under Article 21 was created to serve the common interest
of the state parties with respect to the obligations under the Convention, whereby a State
party may send communications to the Committee against Torture alleging that another
party is not fulfilling its conventional obligations. This makes the court’s concern that
no State would be able to make a claim against the breach of obligations by another State
in many cases if a special interest were required completely unfounded,136 as the
Convention provides for the same.
62. Under Article 21 of the Torture Convention, communications against a State party to the
effect that it is not fulfilling its conventional obligations can only be made by another
State Party if the former recognizes the competence of the Committee. Moreover, under
Article 30 (2), each State party is entitled to declare at the time of ratification that it does
not consider itself subject to the jurisdiction of the ICJ under Article 1 of the Convention.
63. It is submitted that the State parties did not intend to create obligations erga omnes
partes under the Convention. If it were so, the obligations under Articles 21 and 30
would be mandatory instead of optional. The Court’s decision in this case was flawed
as it went beyond the scope of the Convention’s provisions to declare all obligations
erga omnes partes, something which was criticized by Judge Xue when she stated “In
133
1984, 1465 U.N.T.S. 85.
134
Supra note 125.
135
Id.
136
Supra note 126.
19
accordance with treaty law, any interpretation and application of the object and purpose
of the Convention should not contradict, or even override, the clear terms of the
treaty.”137 Therefore, any obligation under the torture convention, including non-
refoulement, is not applicable erga omnes partes as that would override the clear terms
of the treaty.
iii. There is no express provision providing erga omnes partes right

64. Even in the case of treaties that allow any State party to invoke the responsibility of any
other State, the right is expressly provided in the Convention’s clauses. For example,
Article 33 of the European Convention on Human Rights138 explicitly states “Any High
Contracting Party may refer to the Court any alleged breach of the provisions of the
Convention and the Protocols thereto by another High Contracting Party.” Even more
importantly, no reservations to the jurisdiction of the European Court of Human Rights
are allowed under the European Convention. Where there is an erga omnes partes nature
of obligations, it is expressly stated, and hence reservations against the relevant court’s
jurisdiction ought not to be permitted, because the two aspects would be in
contravention. It is submitted that the approach adopted in Belgium v. Senegal is against
what was envisaged under the Torture Convention, and thus cannot be relied upon.
65. The Court provides no explanation to support its view that each State party to the Torture
Convention can make a claim against an alleged breach by another State party as implied
by the common interest of the State parties’ in compliance with the relevant obligations
under the CAT Convention.139 The ICJ fails to mention the European Convention on
Human Rights140 or any other similar treaty.
66. This was eloquently put by Judge Skotnikov, who held that “If one accepts the logic of
the Judgment, it would make no difference whether such an express provision was
included in or excluded from a treaty by its drafters. This cannot be right.”141 He also
noted that no precedent has been cited which involves any State instituting proceedings
before the ICJ or any other international judicial forum for breach of an obligation
applicable erga omnes partes simply on the grounds of it being a State party to the CAT
or a similar treaty.142 Most importantly, the Court does not address the issue of how
137
Id, at 7.
138
European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, E.T.S. 5.
139
Supra note 123.
140
Supra note 138
141
Supra note 125.
142
Supra note 125.
20
something that is expressly stated in one treaty can simply be implied in another in
respect of the same entitlement.
67. Another pertinent fact that does not find any mention by the Court, one which reflects
State practice or lack thereof, is that “The inter-State human rights complaints
mechanisms (including the one provided for in Article 21 of the Convention against
Torture) have never been used.” It can be easily gleaned that enforcement of an
obligation erga omnes partes is something unprecedented under international law, as
state practice evidences. The judgment completely overlooks this fact. Even Judge Xue
in her dissenting opinion143 noted that the Court’s pronouncement that “any State party
to the Convention may invoke the responsibility of another State party with a view to
ascertaining the alleged failure to comply with its obligations erga omnes partes” is not
backed by State practice under the application of the Genocide Convention.
68. The Respondent submits that since neither the Refugee Convention144 nor the
Convention against Torture145 expressly provides any of its obligations as applicable
erga omnes partes, which is done in cases where it is the intention of the drafters as seen
in the case of the European Convention on Human Rights, it cannot be concluded that
non-refoulement under these Conventions is an obligation erga omnes partes.
d. The court’s position is not supported by ARSIWA

69. Another important source which the ICJ does not refer to in Belgium v Senegal are the
draft Articles on Responsibility of States for Internationally Wrongful Acts146 adopted
by the International Law Commission, which hold that “certain provisions, for example
in various human rights treaties, allow invocation of responsibility by any State party”,
without implying that such invocation can be done under treaties which do not have
express provisions to that effect.147
70. Furthermore, the commentary also notes “In order to take such steps, i.e., to invoke
responsibility in the sense of the articles, some more specific entitlement is needed. In
particular, for a State to invoke responsibility on its own account it should have a specific
143
Supra note 126.
144
Convention relating to Status of Refugees, July 28, 1951, 189 U.N.T.S. 137.
145
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3, Dec. 10,
1984, 1465 U.N.T.S. 85.
146
International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts,
Nov. 2001, Supplement No. 10 (A/56/10), chp.IV.E.1, at 118.
147
Yearbook of the International Law Commission, 2001, Vol. II, Part Two, at 127, UN. Doc.
A/CN.4/SER.A/2001/Add. 1 (Part 2).
21
right to do so, e.g., a right of action specifically conferred by a treaty, or it must be
considered an injured State.”148
71. The Respondent submits that no such right of action is conferred on States parties by
either the Refugee Convention or the Convention against Torture. Thus, the principle of
non-refoulement under these conventions is not an obligation erga omnes partes, and
hence the Applicants do not have the right to invoke any responsibility just by virtue of
being a State party.
2. There is no common interest to prevent refoulement under any convention to

which the respondents are parties
72. A common interest to comply with the obligation of non-refoulement is not mentioned
either explicitly or impliedly either in the preamble or any of the provisions of the 1951
Refugee Convention, the 1967 Protocol Relating to the Status of Refugees,149 or the
1984 Convention Against Torture, nor can it be gleaned from their interpretation. None
of the delegates at the Conference of Plenipotentiaries on the Status of Refugees and
Stateless Persons150 representing various states ever talked about the existence of this
common interest.151 Therefore, an obligation erga omnes partes cannot be created on
the basis of a non-existent common interest.
73. Moreover, Jurisprudence is not sufficient to prove its erga omnes partes character. No
jurisprudence has ever regarded non-refoulement as one of erga omnes partes. Further,
a custom can evolve only through interstate practice in which governments effectively
agree to be bound through the medium of their conduct.152 This standard has not yet
been met in the case of the duty of non-refoulement as erga omnes partes. Thus, Pemola
cannot be allowed to proceed.
148
Id. at 117.
149
Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267.
150
U.N. Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Nov. 27, 1951, U.N.
Doc. A/CONF.2/SR.24.
151
Supra note 89.
152
MWLTEMINELI-CIGER, TEMPORARY PROTECTION IN LAW AND PRACTICE (Brill Nijhoff, 2018).
22
ISSUE IV: THAT THERE IS NO SITUATION OF STATELESSNESS FOR THE
OKUZANS PEOPLE THAT ARISES IN THIS CASE AND BOLIRIA AND MAKONDA
HAVE NO OBLIGATION TO ADDRESS IT
A. THE OKUZANS ARE NOT STATELESS
1. There is no situation of de jure statelessness

74. The 1954 Convention includes a strictly legal definition of a stateless person: “a person
who is not considered as a national by any State under the operation of its law”153 (what
is known as de jure stateless).
75. The respondent submits that in the case of Okuzan refugees, Boliria and Makonda had
given the status of refugees under 1951 Refugee Convention.154 The definition of
stateless person as per the 1954 convention considers those persons as stateless who can
prove that they have no nationality and no legal bond with any relevant country. The
respondent has received no claim of statelessness from any individual and owes no
obligations to address it.
76. The respondent submits that Okuzan refugees do not come under the definition of 1954
convention as they do not fulfil the essential of de jure statelessness. The nationality of
Okuzans is intact as per Mayzan’s laws, they have not been declared non-nationals, and
can establish a legal bond with Mayzan. They had fled due to fear of arrests,155 not
because of deprivation of nationality.
77. Even though Boliria has no obligation under 1961 convention of reduction of
statelessness, it has signed an MoU with Mayzan to send the Okuzans back to the
territory of their nationality. The MoU aims to eliminate any concern regarding the
nationality of Okuzan refugees. The MoU explicitly mentions that Mayzan has agreed
to take back all Mayzan citizens who are currently living in Boliria.156 Furthermore, for
those who do not have documentation to prove their citizenship, documentation will be
arranged by the Government of Mayzan.157 This eliminates any situation of de jure
statelessness described in 1954 Convention.
78. In the case Nottenbohm (Liechtenstein v. Guatemala),158 the International Court of
Justice stated that: “According to the practice of States, to arbitral and judicial decisions
153
Convention Relating to the Status of Stateless Persons art. 1(1), Sept. 28, 1954, 360 U.N.T.S 117.
154
Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137.
155
Compromis, ¶ 17.
156
Compromis, ¶ 23.
157
Id.
158
Nottebohm Case (Liechtenstein v. Guatemala), Second Phase, Judgement, 1955 I.C.J. Rep. 4 (Apr. 6).
23
and to the opinion of writers, nationality is a legal bond having as its basis a social fact
of attachment, a genuine connection of existence, interest and sentiments, together with
the existence of reciprocal rights and duties.”159 The citizens of Mayzan who can
produce valid documentation to establish a genuine and effective link such as birth,
habitual residency and/or descent with the territory of Mayzan will remain nationals of
the country, and even if they do not have documentation, the same would be arranged
for by the Ministry of Interior Affairs of Mayzan.160 It is certain, at the least, that
Okuzans have no legal bond with Boliria.
79. This exercise of citizenship review by the Government of Mayzan is not arbitrary and
discriminatory and, at best, might be claimed to aim to remove the issue of illegal
immigrants in the territory as per their domestic law161 and sovereign right. Mayzan
plans to deport only illegal immigrants to the territory of their nationality as they are
non-nationals of Mayzan, which will not lead to stateless of Okuzans.
80. The respondent submits that after assessing both facts as well as state’s laws in the case
of Okuzan refugees from Mayzan, it found no evidence of statelessness. The evidence
relating to refugees’ personal circumstances and evidence regarding the nationality laws
of Mayzan fail to substantiate any concern on statelessness which respondent have
obligation to address.
2. There is no situation of de facto statelessness

81. De facto stateless persons are persons outside the country of their nationality who are
unable or, for valid reasons, are unwilling to avail themselves of the protection of that
country.162The individual is thus unable to demonstrate that he/she is de jure stateless,
yet he/she has no effective nationality and does not enjoy national protection. S/he is
considered to be de facto stateless.
82. The respondent submits that Okuzan refugees do not fulfil the essentials of de facto
statelessness. They would continue to enjoy national protection resulting from their
genuine and effective link with Mayzan when they return to Mayzan.
83. The final act of the 1961 Convention163 addresses the issue of de facto stateless persons
with a non-binding recommendation: “that each Contracting State, when it recognizes
159
MARILYN ACHIRON, NATIONALITY AND STATELESSNESS: A HANDBOOK FOR PARLIAMENTARIANS N° 11 9
(UNHCR, 2005).
160
Compromis, ¶ 23.
161
Compromis, ¶ 24.
162
Hugh Massey, UNHCR and De Facto Statelessness, 61, LPPR/2010/01(UNHCR, 2010).
163
Convention on the Reduction of Statelessness, Aug. 30, 1961, 989 U.N.T.S 175.
24
as valid the reasons for which a person has renounced the protection of the State of which
he is a national, consider sympathetically the possibility of according to that person the
treatment which the Convention accords to stateless persons.”164 The Okuzan refugees
have not renounced the protection of Mayzan. The respondents have not received any
application of renunciation of nationality or claim for the status of stateless.
84. Furthermore, they do not possess any valid reason to be unwilling to avail the national
protection of Mayzan when the government has agreed to welcome them back and
arrange their documents. The reason for the imposition of the emergency was not to
deprive them of their nationality, but to deal with domestic terrorist threats. The
emergency has been lifted now, leaving the Okuzans without any reason not to go back.
85. The respondent submits that de facto stateless as per the final act of 1961 convention
comes with a non-binding recommendation which Boliria and Makonda are under no
obligation to address.
B. BOLIRIA AND MAKONDA HAVE NO OBLIGATION TO PREVENT STATELESSNESS OF

OKUZANS
1. The applicants are not parties to any statelessness convention

86. The 1961 Convention on the Reduction of Statelessness hand explicitly requires
“Contracting States” to grant their nationality to children born in their territory if they
would otherwise be stateless. Thus, it is only those states that are party to the 1961
Convention that have a treaty obligation to grant nationality to stateless children born in
their territory.165 It is submitted that neither are the Respondents parties to the 1961
treaty or the 1954 Convention Relating to the Status of Stateless Persons,166 nor would
the children born in their territory be stateless because of the fact that their parents have
not been stripped of their nationality and those without citizenship documents would
have their documents arranged by Mayzan. Therefore, none of the obligations under the
Statelessness Conventions apply to the Respondents.
2. There exists no positive obligation to grant nationality under international law

87. International human rights law does not explicitly impose a positive obligation on States
to grant nationality, and even general and specific human rights instruments do not
164
Supra note 159.
165
Convention on the Reduction of Statelessness art. 1(1), Aug. 30, 1961, 989 U.N.T.S 175.
166
Compromis, ¶ 33.
25
impose a positive obligation to grant nationality, but rather simply recognizes a right to
nationality without stating upon whom a corresponding responsibility to confer
nationality falls. Even Article 15 of the UDHR167 does not carry a specific corresponding
obligation on states to confer nationality. The article fails to indicate precisely to which
nationality one has the right and under what circumstances that right arises.168
88. As per the Human Rights Committee, the ICCPR169 ‘does not necessarily make it an
obligation for States to give their nationality to every child born in their territory.’170
The ICCPR does not refer to the right to nationality in Article 15 of the Declaration at
all. The only mention of nationality at all is in Article 24, which states that "[e]very child
has the right to acquire a nationality." However, this provision is undermined by the
failure to specify upon whom a corresponding obligation to grant nationality falls. After
examining the travaux preparatoires to the ICCPR,171 Johannes Chan came to the
conclusion that the “complexity of this problem resulted in this Covenant's exclusion of
a general right to nationality."172
89. All international treaties simply say that children possess a right to ‘a’ nationality. The
obligation to ensure ‘a’ nationality does not oblige a state to grant its nationality to a
child born in the state.173 It has been argued by Gerard-René de Groot and Jaap Do that
the provisions in the ICCPR with respect to a child’s right to a nationality do not require
the birth state to grant its nationality to stateless children.174 This stance is also visible
in the views of the Human Rights Committee175 which has concluded that states need
only ensure nationality ‘in cooperation with other States.’176
90. Furthermore, Boliria’s citizenship laws explicitly state that:
a. Any person born, within or outside the territory of Borilia, to parents who are both
Borilian citizens will qualify for citizenship of Borilia.
167
G. A. Res. 217 A (III), Universal Declaration of Human Rights art. 15 (Dec. 10, 1948).
168
Jeffrey L. Blackman, State Successions and Statelessness: The Emerging Right to an Effective Nationality
Under International Law, 19 MICH. J. INT. LAW 33 (1998).
169
International Covenant on Civil and Political Rights art. 24, Dec. 16, 1966, 999 U.N.T.S. 171.
170
UN Human Rights Committee, CCPR General Comment No. 17: Article 24 (Rights of the Child),
HRI/GEN/1/Rev.9 (Vol. I) (1989).
171
Supra note 89.
172
Johannes M.M. Chan, The Right to a Nationality as a Human Right, 12 HUM. RTS. L.J. 4 (1991).
173
William Thomas Worster, The Obligation to Grant Nationality to Stateless Children Under Treaty Law, TILR
(July 02, 2019), https://tilburglawreview.com/articles/10.5334/tilr.154/#n29.
174
GERARD-RENÉ DE GROOT, NATIONALITY AND STATELESSNESS UNDER INTERNATIONAL LAW 146–147 (Alice
Edwards & Laura van Waas eds., 2014).
175
Supra note 170.
176
Supra note 170; Case of Expelled Dominicans & Haitians v Dominican Republic, Inter-Am. Ct. H.R. (ser. C)
No. 282, ¶ 258 (Aug. 28, 2014).
26
b. Any person who has lived continuously, in the territory of Borilia with valid
documentation for a period of 7 years, is qualified to apply for citizenship of
Borilia.177
91. The Okuzans do not hold Bolirian citizenship, so their children who were born in these
two years do not qualify for citizenship under its domestic laws. They have also not lived
in Boliria with valid documents for seven years. Therefore, it is submitted that the
Respondents are under no obligation to grant nationality to either the Okuzans or their
children as their domestic laws prohibit this, and as their genuine and effective link is
with Mayzan.
177
Clarifications No. 13.
27
PRAYER FOR RELIEF
WHEREFORE, IN LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED, REASONS

GIVEN AND AUTHORITIES CITED, THIS HON’BLE COURT MAY BE PLEASED TO
ADJUDGE AND DECLARE THAT:
I. That Boliria and Makonda have conformed with all obligations under international
law to provide protection to Okuzan refugees who fall under their jurisdiction
II. That Boliria’s measures of cessation of refugee status and Makonda’s measures
interdicting the Okuzan people on the Calasian Sea are not violation of their
obligations under international law
III. That Boliria and Makonda do not have an erga omnes partes obligation to the
IV. That there is no situation of statelessness for the Okuzan people that arises in this
case and Boliria and Makonda have no obligation to address it.
OR PASS ANY SUCH ORDER OR DIRECTIONS THE HON’BLE COURT DEEMS FIT AND
PROPER IN THE FURTHERANCE OF JUSTICE, EQUITY AND GOOD CONSCIENCE, ALL OF
WHICH IS RESPECTFULLY SUBMITTED.
Sd /-
AGENTS FOR THE RESPONDENTS
XVIII

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T2 - R

INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE NALSAR PUBLIC INTERNATIONAL LAW MOOT COURT COMPETITION, 2021

THE CASE CONCERNING THE OKUZAN REFUGEES OF MAYZAN

THE FEDERAL REPUBLIC OF PEMOLA

THE STATE OF BOLIRIA AND REPUBLIC OF MAKONDA

MEMORIAL for RESPONDENTS

LIST OF ABBREVIATION .............................................................................................. V

TABLE OF AUTHORITIES ............................................................................................ VI

STATEMENT OF JURISDICTION ................................................................................ XI

IDENTIFICATION OF ISSUES .................................................................................... XII

SUMMARY OF FACTS ................................................................................................ XIII

SUMMARY OF PLEADINGS ...................................................................................... XVI

REFUGEES WHO FALL UNDER THEIR JURISDICTION. ......................................................... 1

A. THE RESPONDENTS HAVE CONFORMED WITH ALL INTERNATIONAL OBLIGATIONS TO

a. Boliria has undertaken refugee status determination process 1

B. THE RESPONDENTS HAVE NO JURISDICTION OVER REFUGEES AT HIGH SEAS 3

1. There is no jurisdiction over refugees on high seas under UNCLOS 3

a. The respondents have no effective control over refugees 4

2. The duty to protect is not absolute 5

A. THERE IS NO VIOLATION OF THE CONVENTION RELATING TO THE STATUS OF

a. There is a fundamental change in character 6

a. Makonda has no effective jurisdiction over the interdicted ships 10

B. THERE IS NO VIOLATION UNDER THE CONVENTION AGAINST TORTURE AND OTHER

1. Circumstances do not satisfy the definition of torture 12

2. There is no future risk of torture 13

C. THERE IS NO VIOLATION UNDER THE INTERNATIONAL COVENANT ON CIVIL AND

POLITICAL RIGHTS OF 1966 14

1. There is No violation of non-refoulement under Article 7 14

2. There is no violation of right to life under article 6 14

3. There is no infringement of right to liberty and freedom from arbitrary detention 14

D. THERE IS NO VIOLATION UNDER THE UNITED NATIONS CONVENTION ON THE LAW

1. Respondents have right to visit under art. 110 of UNCLOS 15

A. THE RESPONDENTS OWE DO NOT THE DUTY OF NON-REFOULEMENT TO THE STATE

1. The case of Belgium v. Senegal cannot be relied upon 16

a. Common interest is not the same as an obligation erga omnes partes 17

2. There is no common interest to prevent refoulement under any convention to which

ISSUE IV: THAT THERE IS NO SITUATION OF STATELESSNESS FOR THE OKUZANS

A. THE OKUZANS ARE NOT STATELESS 23

1. There is no situation of de jure statelessness 23

2. There is no situation of de facto statelessness 24

B. BOLIRIA AND MAKONDA HAVE NO OBLIGATION TO PREVENT STATELESSNESS OF OKUZANS

1. The applicants are not parties to any statelessness convention 25

2. There exists no positive obligation to grant nationality under international law 25

PRAYER FOR RELIEF XVI

ARSIWA Articles on Responsibility of States for

CAT Committee Against Torture

CEDAW Convention on Elimination of All Forms of

CERD Convention on Elimination of All Forms of

CIL Customary International Law

CRC Convention on Rights of Child

ICCPR International Covenant on Civil and Political

ICESCR International Covenant on Economic, Social

ICJ International Court of Justice

ILC International Law Commission

ILM International Legal Material

MoU Memorandum of Understanding

PCIJ Permanent Court of International Justice