Sr04 - Applicant Memorial

TEAM CODE: SR04
FOURTH PROF. N. R. MADHAVA MENON SAARCLAW

MOOTING COMPETITION SAARC ROUND (2018-19)
Before
THE INTERNATIONAL COURT OF JUSTICE
UNHCR................................................................................................ APPLICANT (1)

v.
REPUBLIC OF EDEN& OTHERS ......................................................... RESPONDENT
WITH
REPUBLIC OF ARDENIA .................................................................. APPLICANT (2)
v.
REPUBLIC OF EDEN ............................................................................ RESPONDENT
Upon Submission to the International Court of Justice
MEMORANDUM ON BEHALF OF THE APPLICANT(S) DRAWN AND

FILED BY THE AGENTS FOR THE APPLICANT(S)
FOURTH PROF. N.R. MADHAVA MENON SAARCLAW MOOTING COMPETITION 2019
TABLE OF CONTENTS
INDEX OF AUTHORITES……………………………………………………………………..3
CASES………………………………………………………………………………………….....3
STATUTES………………………………………………………………………………………..4
TREATISES……………………………………………………………………………………....4
OTHER AUTHORITIES………………………………………………………………………….6
STATEMENT OF JURISDICTION…………………………………………………………....9
STATEMENT OF FACTS……………………………………………..………………………10
SUMMARY OF ARGUMENTS……………………………………………………………….14
ARGUMENT ADVANCED……………………………………………………………………16
[1]. Applications filed by Republic of Ardenia and High Commissioner of Refugees before
the Hon’ble International Court of Justice are maintainable…………………………...16
1.1 The Hon’ble Court has the jurisdiction to entertain the petitions filed before it………...16
1.1.1 Act of Republic of Eden constitute breach of ergaomnes obligations…………...17
1.2 UN High Commissioner for Refugees has locus standi before the Hon’ble Court……...17
1.3 Republic of Eden albeit a third state, is bound by the principle of non- refoulement…...18
1.3.1. Principle of non-refoulement is a peremptory norm…………………………….18
1.3.2.The principle of non-refoulement has attained the status of customary

international law………………………………………………………………...19
1.4 The issue of nationalization of Ardenia Power Corporation Ltd. is not admissible……..20
[2]. The ‘order of deportation’ by Republic of Eden is grossly illegal and breach of
international obligations…………………………………………………………………..22
2.1 Rights of deportees are protected under the current framework on refugees…………...22
2.1.1.Government induced intentional environmental degradation is a form of

persecution…………………………………………………………….............23
MEMORIAL ON BEHALF OF APPLICANT(S) Page 1

2.1.2 Rights of deportees protected under various international instruments……….…23
2.1.3Deportees recognized as ‘Refugees’ by UN High Commissioner for Refugees and

tacitly by Republic of Eden……………………………………………..............24
2.1.4 Deportation violates the ‘right against discrimination’ of Ardenian nationals…25
2.2 Principle of non-refoulement has evolved overtime to accommodate the interest of

Climate Refugees………………………………………………………………………25
2.2.1 Rule of interpretation of Treaty in the light of its context, object and
purpose……………………………………………………………………........26
2.2.2 Definition has been explicitly enlarged in later regional

treaties………………………………………………………………………………...26
2.2.3. UN General Assembly has expanded the mandate of UNHCR beyond the
‘traditional definition’ of refugee……………………………………………....27
[3]. The deportation of Ms. Irwin from Republic of Eden to Kingdom of NWF violates her
basic rights…………………………………………………………………………………29
3.1 Ms. Irwin has inalienable human rights recognized under various international
instruments……………………………...……………………………………………...29
3.2 Ms. Irwin is protected under the principle of non-refoulement and other principles of
refugee protection………………………………………………………...……………..32
3.3 Ms. Irwin must not be repatriated by virtue of principles of legitimate expectation…….35
[4]. The nationalization of Ardenia Power Corporation Ltd. does not violates rights of
Republic of Eden………………………………………………………………………..………37
4.1 ICJ has no jurisdiction as to decide the dispute relating to nationalization………..........37
4.2 Nationalization is the exercise of permanent sovereignty of natural resources……….....37
4.3 The nationalization was done for public purpose and national interest…………….........41
4.4 Republic of Ardenia has no obligation as to compensate Republic of Eden…………….43
PRAYER FOR RELIEF SOUGHT……………………………………………………...……45

INDEX OF AUTHORITES
CASES
1. A.A v. Denmark , CCPR/C/122/D/2595/2015...................................................................... 30
2. A.A.S. v. Denmark , CCPR/C/117/D/2464/2014 ................................................................. 36
3. Agip Co. v. The Republic of Congo, (ICSID), 21 I.L.M. 726 735.81 (1982). ....................... 41
4. Ahmed vs Austria, 71/1995/577/663.................................................................................... 33
5. Anglo-Iranian Oil Company case (United Kingdom v. Iran), 93 Rep 114 (I.C.J.: 1952). ...... 39
6. Application of the Convention on the Prevention and Punishment of the Crime of Genocide,
Bosnia and Herzegovina vs. Yugoslavia, 595 Rep 615,616 (I.C.J.: 1996). ........................... 17
7. Attorney-General of Hong Kong v. Ng Yuen Shiu, 2 AC 629 (1983) .................................. 36
8. Banco Nacional de Cuba v. Chase Manhattan Bank, 658 F.2d 875 2d (Cir. 1981)................ 46
9. Barcelona Traction, Light and Power Company Limited Belgium vs. Spain, 3 Rep (ICJ:
1970). .................................................................................................................................. 17
10. Certain German interests in Polish Upper Silesia, Germany v Poland, PCIJ Series A no 7 22
(1926). ................................................................................................................................ 42
11. Chahalvs The United Kingdom, 23 EHRR 413 (1997)......................................................... 32
12. D v. Board of Immigration, BIA Leuis 15 (1993) ................................................................ 34
13. Dem. Rep. Congo v. Uganda, I.C.J. 168 (2005) ................................................................... 40
14. Exxonmobil v. Venezuela, ICSID, Case No. ARB/07/27, ¶ 301 (2014) ............................... 45
15. INS vs Cardoza Fouseca, 46 USSC 407 (1987) ................................................................... 33
16. James et al. v. The United Kingdom,Judgment, 98 E.C.H. Rep 9 32.46. (1986) ................... 44
17. Joseph Adjeivs Ministry of Employment &Immigrati, 7:2d IMM 169 (L.R.: 1989) ............. 33
18. KhudiramChakma vs. State of Arunachal Pradesh, 1 SCC 615 (1994). ................................ 30
19. Kirkwood vs United Kingdom, (10479/83), 37 D & R 158 .................................................. 32
20. KudhiramChakma v. State of Arunachal Pradesh, 1 SCC 614 (1994)................................... 29
21. Lazo-Majano v. INS, 813 F2d 1432, 1434.99 (1987) ........................................................... 34
22. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 226 Rep 258.83
(I.C.J.: 1996) ....................................................................................................................... 17
23. Libyan Am. Oil Co. (LIAMCO) v. Gov't of Libyan Arab Republic, 20 I.L.M. 1, 53 (1981). 40

24. Luis de Raedt v. UOI, 3 SCC 544 (1993)............................................................................. 29

25. M.I v. SwEden (2149/12) .................................................................................................... 31
26. Military and Paramilitary Activities in und against Nicaragua (Nicaragua v. United States of
America), 14 Rep (I.C.J.: 1986) ........................................................................................... 19
27. Minister for Immigrati on and Multi-cultural Affairs v. Khawar, 3 CHRLD 346 (2002) ...... 34
28. NHRC v. State of Arunachal Pradesh, AIR 1234 (SC:1996) ................................................ 37
29. North Sea Continental Shelf, Germany v. Denmark, Germany v. Netherlands, 3 (I.C.J.:1969)
............................................................................................................................................ 20
30. P. Nedumaran v. UOI, WMP Nos. 17372, 17424, 18085 and 18086of 1992 ........................ 37
31. Portugal v. Australia, 90 Rep 102.29 (I.C.J.: 1995) ........................................................ 17, 41
32. R v. Secretary of State for the Home Department, Ex parte Sivakumaran and Conjoined
Appeals (UN High Commissioner for Refugees Intervening), 958 AC (1988) ..................... 21
33. Republic of Guinea v. Democratic Republic of the Congo, 582 Rep 8 (I.C.J.: 2007 ............. 21
34. Stephen M. Schwebel, The Story of the U.N.'s Declaration on Permanent Sovereignty over
Natural Resources, 463,469 (A.B.A. J., 1963) ..................................................................... 41
35. The Government of Kuwait v. American Independent Oil Company (Aminoil), 21 LL.M. 976
1012, 1025 (1982). .............................................................................................................. 42
36. TOPCO v. Libya, 17 I.L.M. 1 87 (1978) .............................................................................. 43
37. X v. Denmark (CCPR/C/110//2007/2010) ........................................................................... 30
38. X v. SwEden (CCPR/C/103/D1833/2008) ........................................................................... 30
STATUTES
1. Charter of Economic Rights and Duties of States, UNGA Res. 3281 (XXIX) ...................... 39
2. Statute of UNCHR .............................................................................................................. 18
3. Charter of United Nations ........................................................................................ 15, 16, 17
4. Statute of International Court of Justice ......................................................................... 15, 18
TREATISES
1. American Convention on Human Rights or ‘Pact of San Jose, Costa Rica’, ´ Organization of
American States (OAS) Treaty Series No. 35, 9 ILM 673. Article 22(8), (1969). ................. 27
2. Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees
in Central America, Mexico and Panama, Section 3 (3), (1984) ........................................... 27
3. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, UN General Assembly ..................................................................................... 20
4. Convention Governing the Specific Aspect of Refugee Problems in Africa, Organisation for
African Unity, Article 1 (2), (1974) ..................................................................................... 26
5. Convention on Biological Diversity, 1760 UNTS 79, Article 3, (1992)................................ 40
6. Convention Relating to the International Status of Refugees, 159 LNTS 3663 (28 October
1933) ................................................................................................................................... 15
7. Convention Relating to the Status of Refugees, UN General Assembly,Treaty Series, vol.
189, p. 137,Article 42, (1951) .............................................................................................. 20
8. Convention right of non refoulement—the right against expulsion of a refugee to the frontiers
of a territory where her life or liberty would be threatened, Article 33 (1951) ...................... 31
9. Convention to Suppress the Slave Trade and Slavery, 60 LNTS 25, (25 September 1926) ... 25
10. Declaration of States parties to the 1951 Convention ........................................................... 20
11. Declaration of the United Nations Conference on the Human Environment (the Stockholm
Declaration), Principle 1, (1972).......................................................................................... 23
12. Declaration on Territorial Asylum, UN General Assembly .................................................. 20
13. Draft articles on Responsibility of States for Internationally Wrongful Acts, International
Law Commission ................................................................................................................ 17
14. ICSID convention ................................................................................................................ 21
15. Institute of International Law: Resolutions Adopted at its Bath Session, American Journal of
International Law 15, 15 (1951)........................................................................................... 30
16. International Convention on the Protection of the Rights of All Migrant Workers, Article 8,
(1990) ................................................................................................................................. 32
17. International Covenant on Civil and Political Rights, United Nations General Assembly ..... 24
18. Introductory Note by Office of High Commissioner of the United Nations High
Commissioner of Refugees, Convention and Protocol Relating to Status of Refugees,
(December, 2010) ................................................................................................................ 25
19. New York Declaration for Refugees and Migrants, GA Res 71/1, UN GAOR ..................... 36
20. Permanent Sovereignty over Natural Resources, General Assembly resolution 1803 (XVII),
Article 4, (1962). ................................................................................................................. 44
21. Resolution on Permanent Sovereignty and Natural Resources, Article 1, (1962) .................. 38

22. States Parties to the 1951 Convention relating to the Status of Refugees and the 1967
Protocol, United Nations High Commissioner for Refugees ................................................. 19
23. The Declaration of the United Nations Conference on the Human Environment, Stockholm 40
24. UN doc. A/AC.96/830, 7 September 1994 ........................................................................... 27
25. United Nations Convention on the Law of the Sea (LOSC), 3 UNTS 1833 (1982). .............. 40
26. Universal Declaration of Human Rights .............................................................................. 30
27. Vienna Convention on Law of Treaties.................................................................... 17, 26, 38
28. Written Reply by Minister of State for Home Affairs, Shri KirenRijiju in LokSabha (5 th May,
2015) ................................................................................................................................... 25
OTHER AUTHORITIES
1. Alexander Orakhelashvili, Peremptory Norms in International Law .................................... 19
2. Annual Report of Inter-American Commission on Human Rights, OEA/Ser.L/II.66, doc. 10,
Rev. 1, 190-193 (1984-85)................................................................................................... 26
3. Aristide Zolberg, AstriSuhrke and Sergio Aguayo, Escape From Violence: Refugees and
Conflict in the Developing World, (New York: Oxford University Press, 1989) .................. 23
4. Barry N. Stein and Silvano M. Tomasi, eds., Refugees Today, International Migration
Review, (15 Spring-Summer 1981) ..................................................................................... 23
5. Conclusion on the International Protection of Refugees: General, 25 (XXXIII), (b) United
Nations High Commissioner for Refugees (1982) ................................................................ 18
6. Conventi on Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, (Dec 10, 1984) ................................................................................................ 32
7. David Harris, Cases and Material on International Law, pg 476 7th edition (1986). .............. 39
8. E. F. Kunz, The Refugee in Flight: Kinetic Models and Forms of Displacement, International
Migration Review, 125-146, (2 Summer 1973) .................................................................... 23
9. F. Williams, International Law and the Property of Aliens, 28 (9 B.Y.I.L. 1928) ................. 44
10. G.A. Res. 2200A (XXI), U.N. Doc. A/6316 (1966), 999 UNTS 171, article 7, (Dec. 16,
1966) ................................................................................................................................... 29
11. G.A. Res. 40/144, U.N. Doc. A/RES/40/144 (Dec 13, 1985) ............................................... 36
12. George Elian, The Principle of Sovereignty over Natural Resources, (Sijthoff & Noordhoff,
1979). .................................................................................................................................. 41

13. Guy S. Goodwin-Gill, the Refugee in International Law ...................................................... 19

14. H. Lambert, The Conceptualization of ‘Persecution’ by the House of Lords: Horvath v.
Secretary of State for the Home Department, p. 30 (1/2 International Journal of Refugee
Law, 2001) .......................................................................................................................... 33
15. Hall, D., The economics of ending PFI, (The Mint Magazine Dec 10, 2017). ...................... 44
16. Human Rights Committee, Communication No. 469/1991 (Charles Chitat Ng v. Canada),
para 14.1 and 15.3 (Nov. 5, 1993)........................................................................................ 29
17. I. Seidl-Hohenveldem, International Economic Law, 138 (2nd ed. MartIllus NIJhoff.
Dordrecht 1992). ................................................................................................................. 43
18. J.C. Hathaway, The Law of Refugee Status, Toronto, 104-105 (Butterworths, 1991) ........... 33
19. Jane McAdam, Climate Change 'Refugees' and International Law: On or off the World Map?
6,7 (Speech delivered at the Australian Human Rights Centre 21st Anniversary Symposium,
University of New South Wales, 2 May 2007) ..................................................................... 24
20. Jean Allain, The jus cogens Nature of non-refoulement ....................................................... 19
21. Kuosmanen, Jaakko. What's So Special About Persecution? 1 Ethical Theory and Moral
Practice 129-140, (2014)..................................................................................................... 22
22. Levitt, The Responsibility to Protect: A Beaver without a Dam?, 153 (Michigan Journal of
International Law, 2003). .................................................................................................... 35
23. Lillian A. Miranda, The Role of International Law in Intrastate Natural Resource Allocation:
Sovereignty, Human Rights and Peoples-Based Development, 798 (Vanderbilt Journal of
Transnational Law, 2012). ................................................................................................... 41
24. M. Pellonpaa. and M. Fitzmaurice, Taking of Property ... III the PractIce of the Iran-Umted
States Claims Tribunal, 19 N.Y.I.L. 53 63 (1988). ............................................................... 43
25. M. Sornarajah, the Internat Ional Law On Fore IGN Investment, 448, (3 Cambridge
University Press, 2010)........................................................................................................ 44
26. Mcadam, Jane, Complementary Protection in International Refugee Law, 135 (2007) ......... 23
27. McGregor, J. Refugees and the Environment. In R. Black & V. Robinson (eds) In Geography
and Refugees: Patterns and Processes of Change, 78 (1993) ................................................ 23
28. Nico J. Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties,
(Cambridge University Press, 1997) .................................................................................... 40

29. No. 146/1996/767/964 1 45, European Court of Human Rights, Judgment given at Strasbourg
(May 2, 1997)...................................................................................................................... 28
30. OHCHR, Report of the OHCHR on the Relationship between Climate Change and Human
Rights , UN. Doc. A/HRC/10/61 (Jan. 15, 2009) ................................................................. 24
31. Pereira, Exploration and Exploitation of Energy Resources, 207 (2012) .............................. 40
32. Scope, nature and purpose of temporary protection regimes, UN High Commissioner for
Refugees (UNHCR), UNHCR Commentary on the Draft Directive on Temporary Protection
in the Event of a Mass Influx, Section 3, (15 September 2000) ............................................ 27
33. Sir ElihuLauterpacht and Daniel Bethlehem, The Scope and Content of the Principle of Non-
Refoulement: Opinion, (Cambridge University Press, June 2003) ........................................ 26
34. Stephan Zamora, Economic Relations and Development in the United Nations and
International Law,p. 259. (Cambridge University Press, 1997) ............................................ 43
35. T. Ananthachari, Refugees In India: Legal Framework, Law Enforcement And Security, ISIL
Year Book Of International Humanitarian And Refugee Law, (Isilybihrl 2001) ................... 25
36. Temporary Refuge No. 19 (XXXI), Executive Committee 31st session. Contained in United
Nations General Assembly Document No. 12A (A/35/12/Add.1) (1980) ............................. 27
37. The Principle of Non-Refoulement as a Norm of Customary International Law ................... 19
38. The Responsibility to Protect. Report of the International ComMs.ion on Intervention and
State Sovereignty, (December 2001).................................................................................... 35
39. The Scope and Content of the Principle of Non-Refoulement: Opinion, (Cambridge
University Press, June 2003) ............................................................................................... 31
40. Trevisanut, Dr. Seline, International Law and Practice: The Principle of Non-Refoulement
And the De-Territorialization of Border Control at Sea, (Leiden Journal of International
Law : 661. doi:10.1017/S0922156514000259 September 1, 2014)....................................... 31
41. vol. 24 VON STERNBERG, MARK R., the Evolving Law of Non-Refoulement and Its
Influence on the Convention Refugee Definition. In Defense of the Alien, 205-223, (2001) . 27
42. vol. 55, no. 1, Jaswal, Paramjit S., and Stellina Jolly, Climate Refugees: Challenges And
Opportunities For International Law. 45-58 (Journal of the Indian Law Institute, 2013) ...... 26
43. Vol. 8, F. W. Garcia-Amador, Calvo Doctrine, Calvo Clause , 2-5 (Encycl. P.LL., 1980). ... 41

STATEMENT OF JURISDICTION
Republic of Ardenia submits the present dispute against Republic of Eden to the jurisdiction of
the Hon’ble Court conferred upon it under Article 36 of the Statute of International Court of
Justice. The relevant article runs as follows-
“Article 36- 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.
2. The states parties to the present Statute may at any time declare that they recognize as
compulsory ipso facto and without special agreement, in relation to any other state accepting the
same obligation, the jurisdiction of the Court in all legal disputes concerning:
a. the interpretation of a treaty;

b. any question of international law;
c. the existence of any fact which, if established, would constitute a breach of an
international obligation;
d. the nature or extent of the reparation to be made for the breach of an international
obligation.
3. The declarations referred to above may be made unconditionally or on condition of
reciprocity on the part of several or certain states, or for a certain time.
4. Such declarations shall be deposited with the Secretary-General of the United Nations, who
shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court.
5. Declarations made under Article 36 of the Statute of the Permanent Court of International
Justice and which are still in force shall be deemed, as between the parties to the present Statute,
to be acceptances of the compulsory jurisdiction of the International Court of Justice for the
period which they still have to run and in accordance with their terms.
6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by
the decision of the Court.”

STATEMENT OF FACTS
(Part-1)
1. Republic of Eden is a South Asian country with the Republic of Ardenia on its North-eastern
side and the Kingdom of NWF on its western side.
2. In year 2002, the Republic of Eden entered into a development project agreement with the
Republic of Ardenia i.e. 'Development of Mega Hydro- Electricity Project - 2012' on river
'Tuvalu' which flows 200 km in Republic of Ardenia and and around 1800 k.m. in Republic
of Eden. The entire Mega dam project was to be developed and financed by one of the Govt.
companies of Republic of Eden, i.e., Mega Hydro Electricity Project Corporation Ltd.
(hereinafter; MHEPC Ltd.).
3. The project caused the displacement of a large number of people. As the project was located
on the border of two states, the Govt. of Eden was liberal in handling the migrant citizens of
Ardenia in its territory and also assisted in rehabilitation by running a special program and
granted 10 years long stay visa irrespective of verifying the nationality of citizens. Nearly
10000 people from Ardenia have been rehabilitate dunder this Special Program.
(Part-2)
1. Mrs. Irwin along with her two children came to Eden due to Mega Structure Dam but had no
document of citizenship.
2. In beginning of 2018, the government of Eden prepared a national register of all foreigners in
Eden after 2000 and started the deportation of Mrs. Irwin to Ardenia but Ardenia refused to
take her back.
3. Ms. Irwin in her deposition before the competent authorities of Eden stated that she is a
national from Kingdom of NWF. She was forced to leave her country of origin/nationality in
very peculiar circumstances in year 1997 itself. From Kingdom of NWF, she managed
herself to enter in Republic of Ardenia and escaped the authorities along with her children
before getting further displaced in year 2002-03due to construction of mega structure –dam.
She further revealed that the UNCHR authorities have recorded her country of nationality as
Kingdom of NWF.

4. Subsequently, The High Commissioner of UNCHR made a passionate appeal to the Republic
of Eden not to deport Ms. Irwin and her two children back to Kingdom of NWF or Republic
of Ardenia in the peculiar facts.
5. The Republic of Eden vide its executive decision has taken all the measures to deport and
relocate all the displaced/ refugee including Ms. Irwin from Republic of Ardenia; who
entered the territory due to displacement caused in year 2002-03.Notwithstanding a
constitutional guarantee of equality and against discrimination on ground of sex – a woman's
place in society in Republic of Ardenia is low.
(Part-3)
1. Climate change is much spoken and debated phenomenon but The Refugee protection regime
under the International Law is very narrow and misses the new set of refugee 'Climate
Change Refugee' in its entirety.
2. In year 2007, Calling for a “long-term global response” to deal with climate change, along
with unified efforts involving the Security Council, Member States and other international
bodies, Secretary-General of UN said that projected climate changes could not only have
serious environmental, social and economic implications, but implications for peace and
security as well.
3. The Republic of Ardenia; which was a non-permanent member of UNSC in year2013,
emphasised and made a passionate statement through its Foreign Minister for the intervention
of UNSC in relation to the Climate Change and asked for a 15-member body to keep the
issue of climate change under continuous review.
(Part-4)
1. Oxenberg is a prominent city in Republic of Ardenia which faced one of its worst water crisis
in 2017. The experts speculated the climate change and the change in ecosystem caused due
to implementation of Mega Hydro-Electricity Project.
2. Subsequently, the government of Ardenia nationalized the Ardenia Power Corporation Ltd.
By bringing an ordinance and took over the control of management of Mega Hydro-
Electricity Project in national interest.

3. While the Constitution of Eden guarantees a Fundamental right to life and liberty and the
inviolability of human dignity and basic rights has been its governing principles, the
Republic of Eden itself is a developing economy, facing problems like illiteracy, poverty,
child labour, gender inequality, and unemployment.
4. The Republic of Ardenia has requested the Govt. of Republic of Eden to grant refugee status
and protect the basic rights and dignity of the 'climate refugees' who have fled to the
Republic of Eden who fled and crossed into the territory of Eden due to construction/
building of Mega Structure dam and continue giving support like before. It also cited the lack
of resources, impending water crisis in one of its largest city of Oxenberg and also reminded
of its liability/ responsibility towards humanity in backdrop of climate change.
5. The government of Eden held itself not responsible for the life, liberty and security of the
‘illegal refugees’ and also communicated to Kingdom of NWF in connection to Ms. Irwin
and her family.
6. Subsequently, negotiation started between the Republic of Eden and the Republic of Ardenia
but failed.
7. Upon this development, the UNCHR approached the ICJ as an specialised agency of UN
specially highlighting the plights of refugee like Ms. Irwin and against the deportation
process of Republic of Eden and supports the stand taken by Republic of Ardenia against the
Eden with regard to the deportation of around 10000 migrants who moved to the territory of
Eden due to displacement caused by Mega Structure Dam. UNCHR has also made party to
Kingdom of NWF along with Republic of Eden and Republic of Ardenia.
8. The Republic of Ardenia has also approached the International Court of Justice under Article
36 suing Republic of Eden as it failed to protect the basic dignity and liberties of victims who
were 'Climate Refugees', not sharing the environmental assessment report, its impact on the
human life and threats of water crisis to cities like Oxenberg under the unprecEdented
circumstances and global changes brought due to the Climatic and other environment
degrading conditions.

(Part-5)
1. The International Court of Justice in the exercise of its extra-ordinary power, considering the
similarity of legal issues pending before it as brought by Republic of Ardenia vs. Republic of
Eden clubbed the issue raised by UNCHR against the Republic of Eden.
2. The Republic of Eden not only opposes the jurisdiction of ICJ to adjudicate upon the status
and protection of 'Displaced People' from Ardenia vis-à-vis its obligation under International
Law towards illegal migrants. It also opposes that these displaced people are not 'Climate
Refugee' as well as the disputes relating to nationalisation of Ardenia Power Corporation Ltd.
and supply of Water for its domestic need could be re-negotiated and the dispute settlement
mechanism contemplated under Mega Hydro-Electricity Development Agreement.
3. The two disputes namely Between Republic of Ardenia vs. Republic of Eden and UNCHR
vs. Republic of Eden& Ors. have been scheduled for hearing before the ICJ on 13 -14
February 2018.

SUMMARY OF ARGUMENTS
1. Present applications filed by Republic of Ardenia and High Commissioner of Refugees

before the Hon’ble International Court of Justice is maintainable.
Application filed by Republic of Ardenia and Office of High Commissioner of Refugee for
Eden’s failure to protect the basic liberty and dignity of Ardenian nations because firstly, the
Court has jurisdiction to adjudicate upon the dispute under UN Charter and furthermore, the
acts of Eden constitutes erga omnes obligation. Secondly, United Nations High
Commissioner for Refugees has locus in the matter because of authorization from General
Assembly. Thirdly, Republic of Eden, though not a signatory to the Refugee Convention, is
bound by principle of non refoulement as it has become a peremptory norm and a principle of
Customary International law.
Furthermore, the application of Republic of Eden with regard to Nationalization of Ardenia

Power Corporation Ltd. is not maintainable as firstly, Eden cannot give diplomatic protection
to an Ardenian Company. Secondly, the agreement contemplated alternative dispute
settlement clause.
2. The ‘order of deportation’ by Republic of Eden is illegal and breach of international

obligations.
Ardenian Refugees residing in Republic of Ardenia fall within the existing framework for
refugee protection as they have ‘well founded fear of persecution.’ Firstly, they have fear of
persecution which is based on religious lines. Secondly, Republic of Eden has itself by
conduct identified them as refugee and cannot denounce them. Deportation of Refugee would
further amount to the ‘right against discrimination’ of the Ardenians. Moreover, it is a
contention of Applicants that the principle of non refoulement has evolved over time to
accommodate the interest of climate refugees. Refugee convention must be interpreted in
light of its object and purpose.

3. Deportation of Miss Irwin to Kingdom of NWF violates her basic rights and liberty.
Deportation of Miss Irwin violates her universal, interdependent, and inviolable human rights
which have been recognized under international instruments like Universal Declaration of
Human Rights, International Covenant on Civil and Political Rights. Secondly, Miss Irwin is
protected under the principle of non-refoulement and other principles of refugee protection as
she has ‘well founded fear of persecution in Kingdom of NWF because of her political
opinion. Thirdly, sudden deportation of Miss Irwin after a prolonged stay of 10 year falls foul
of her legitimate expectations and international instruments like Convention on the
Elimination of All Forms of Discrimination against Women.
4. Nationalization of Ardenia Power Corporation Ltd. does not violate any right of
Republic of Eden.
Republic of Ardenia has absolute sovereignty over the resources within its territory and
APCL was an Ardenian entity. The nationalization was justified as firstly, Ardenia Power
Corporation was obstructing the sovereign function of Government of Ardenia. Secondly, the
act was done in exigent public interest and national utility. Thirdly, agreement has been
observed in good faith by Republic of Ardenia.

ARGUMENT ADVANCED
[1]. Applications filed by Republic of Ardenia and High Commissioner of Refugees before
the Hon’ble International Court of Justice are maintainable.
Applications filed against the ‘order of deportation’ passed by Republic of Eden are
maintainable since Firstly, Hon’ble Court has jurisdiction under the United Nations Charter;
also the acts constitute breach of erga omnes obligations. Secondly, UNHCR has no locus
standi before the Court. Thirdly, Republic of Eden is bound by principle of non-refoulement.
Fourthly, the issue of nationalization of Ardenia Power Corp. is not admissible.
1.1.The Hon’ble Court has the jurisdiction to entertain the petitions filed before it.
1. It is a humble submission of the Applicant state and UNHCR that the Hon’ble International
Court of Justice does have the jurisdiction to adjudicate upon the dispute as jurisdiction of
the Court comprises all matters specially provided for in Charter of United Nations. 1 Article
1 of United Nation’s Charter provides that it is the purpose of United Nation to bring about
the settlement of International disputes or situations which might lead to breach of peace, in
conformity with the principle of justice and international law. 2 The onus falls particularly
upon the Court, it being the principle judicial organ of United Nations. 3 Furthermore, all
members are bound to settle international dispute by peaceful means in such a manner that
international peace, security and justice are not endangered. 4 Unfortunately, Government of
Eden has not come out with any positive step for pacific settlement of dispute.
2. Where the continuance of any dispute which is likely to endanger the maintenance of
International peace and security , the party shall first of all seek solution by negotiation,
inquiry, mediation, conciliation, arbitration, judicial settlement, or other peaceful method of
their own choice.5 This outlines a clear obligation to settle disputes in good faith by peaceful
means which is not followed by Republic of Eden which has also accepted the compulsory
jurisdiction the Hon’ble Court. Legal disputes should as a general rule is referred by parties
1
Statute of International Court of Justice, Article 36 (1945).
2
Charter of United Nations, Article 1 (1941).
3
Statute of International Court of Justice, Article 1 (1945); Charter of United Nations, Article 92 (1941)
4
Charter of United Nations, Article 2(3) (1941).
5

to the International Court of Justice in accordance with provisions of Statute.6 Moreover, the
spirit and underlying obligations of the UN Charter, in any case raise presumption of a
residual jurisdiction of the Hon’ble Court when one of the parties has refused any of the
peaceful method of settlement outlined in Article 33 of the Charter.
1.1.1. Act of Republic of Eden constitute breach of erga omnes obligations.
3. It is a submission of the Applicant state the failure on part of Republic of Eden is a breach
of erga omnes obligation. Every State, by virtue of its membership in the international
community, has a legal interest in the protection of certain basic rights and the fulfillment of
certain essential obligations.7 In certain cases in view of the importance of Rights involved,
all states can be held to have a legal interest in their protection.8 Some wrongful acts engage
the responsibility of the concerned state towards international community as a whole. 9 It is
submitted that refoulement is an obligation erga onmes.
1.2. UN High Commissioner for Refugees has locus standi before the Hon’ble Court.
4. It is submitted before the Hon’ble Court that United Nations High Commissioner of
Refugee does have the locus standi to appear before the Hon’ble Court as High
Commissioner is bound to engage in such additional activities as the determined by General
Assembly. 10 It is submitted that such a task has been conferred upon UNHCR as no
specialized agency can approach International Court of Justice, even for an advisory
opinion, unless authorized by General Assembly. 11 UNHCR has approached the Court as the
specialized agency of United Nations12 hence it has to be presumed that there was relevant
authorization.
6
Charter of United Nations, Article 36(3) (1941).
7
Draft articles on Responsibility of States for Internationally Wrongful Acts,International Law Commission, Article
2 (2001).
8
Barcelona Traction, Light and Power Company Limited Belgium vs. Spain, 3 Rep (ICJ: 1970).
9
East Timor (Portugal v. Australia),90 Rep 102.29(I.C.J.: 1995); Legality of the Threat or Use of Nuclear Weapons,
Advisory Opinion, 226 Rep 258.83(I.C.J.: 1996);Application of the Convention on the Prevention and
Punishment of the Crime of Genocide, Bosnia and Herzegovina vs. Yugoslavia, 595 Rep 615,616(I.C.J.: 1996).
10
Statute of UNCHR, Rule 9 (1950).
11
12
¶ 50, Page 11, MOOT PROPOSITION, 4th Prof. N.R. MadhavaMenon SAARCLAW Mooting Competition,
SAARC Round 2019.

1.3. Republic of Eden albeit a third state, is bound by the principle of non- refoulement.
5. It is submitted before the Hon’ble Court that although Republic of Eden is not a party to
United Nations Convention Related to the Status of Refugees, it is still under the obligation
to protect ten thousand Ardenians being bound by the principle of non-refoulement.
Republic of Eden cannot deport the Ardenian refugees as firstly, the principle of non
refoulement has attained the status of Jus Cogens i.e. a peremptory norm from which no
derogation is authorized to any state. Secondly, it a submission of applicant state, without
prejudice to previous argument, that ‘principle of non-refoulement’ has achieved that status
of customary international law.
1.3.1. Principle of non-refoulement is a peremptory norm.
6. Jus cogens norms are considered a central part of the international legal order, and as such,
13
they are beyond the law of treaties and supersede agreements between states.
Establishment of peremptory norm does not require judicial pronouncement. Non-
refoulement meets both of the requirements as laid under the Vienna Convention, 196914 for
a jus cogens norm: it is accepted by ‘the international community of States as a whole’ as a
‘norm from which no derogation is permitted.’ 15 Jus cogens norms are created when a
consensus emerges on two levels: first, on a categorical level focusing on the basic nature of
peremptory norms and factors that make those norms peremptory, and second, at a
normative level, examining whether a norm that categorically qualifies as part of jus cogens
is so recognized under international law. 16 Moreover, it is now settled that the principle is of
a fundamentally norm-creating character such that it can be used to form the basis of a
general rule of law. 17
7. In 1982, the Executive Committee of UNHCR had reaffirmed that the principle of non-
refoulement which was progressively acquiring the character of a peremptory rule of
international law.18 The 1984 Cartagena Declaration highlighted that the principle should be
13
101, Alexander Orakhelashvili, Peremptory Norms in International Law29, 30 (4 Oxford University Press, 2006).
14
Vienna Convention on Law of Treaties, 1155 U.N.T.S. 331, 8 I.L.M. 679,Article 53, (1969).
15
Jean Allain, The jus cogens Nature of non-refoulement, INT’L J. REFUGEE L. 13(4) 538 (2002).
16
101, Alexander Orakhelashvili, Peremptory Norms in International Law36 (4 Oxford University Press, 2006).
17
Guy S. Goodwin-Gill, the Refugee in International Law, 117 (1996).
18
Conclusion on the International Protection of Refugees: General, 25 (XXXIII), (b) United Nations High
Commissioner for Refugees (1982).

acknowledged as jus cogens.”19 Furthermore, citing the ruling of this Court in Nicaragua’s
Case 20 it has been asserted that state practice need not be in rigorous conformity for a
peremptory norm to emerge and must be set aside as irrelevant to its legal standing. 21
1.3.2. The principle of non-refoulement has attained the status of customary
international law.
8. Statute of International Court of Justice mandates that the Hon’ble Court, in adjudication of
disputes, shall apply international custom as evidence of general practice accepted as law. 22
It is a submission of the applicant state that principle of non-refoulement has become a rule
of customary international law. The view is based on consistent ‘state practice’ combined
with the recognition on part of states that the principle has normative character ‘opinio
juris’.23It has been laid that before any norm laid down in a treaty can be considered to be
norm of customary international law, is must fulfill some requirements. Firstly, wide and
representative participation in the convention, secondly, extensive and uniform state
practice, thirdly, inclusion of specially affected states (pertinent states), and fourthly,
absence of any reservations by the parties. 24
9. It is a contention that in the case of norm at hand all the requirements are fulfilled as the
principle has been embodied in numerous international treaties including United Nations
Convention Relating to the Status of Refugee, 25 United Nations Convention against
Torture,26United Nations Declaration on Territorial Asylum 27to which approximately 150
states around the globe are parties. 28 Furthermore, under Refugee Convention no state is
allowed to make reservation to Article 33 which embodies the principle of non-
19
Cartagena Declaration on Refugees,Organization of American States, O.A.S. Ser.L/V/II.66, doc. 10, rev.1, §
III(5), referring to § II(b) (1984)
20
Military and Paramilitary Activities in und against Nicaragua (Nicaragua v. United States of America), 14 Rep
(I.C.J.: 1986).
21
Jean Allain, The jus cogens Nature of non-refoulement, INT’L J. REFUGEE L. 13(4) 540 (2002).
22
Statute of International Court of Justice, Article 38 (1945).
23
The Principle of Non-Refoulement as a Norm of Customary International Law. Response to the Questions Posed
to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2
BvR 1953/93, 2 BvR 1954/93, United Nations High Commissioner for Refugees, (1994).
24
North Sea Continental Shelf, Germany v. Denmark, Germany v. Netherlands, 3 (I.C.J.:1969).
25
Convention Relating to the Status of Refugees,UN General Assembly,Article 33,Treaty Series, vol. 189, p. 137
(1951).
26
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,UN General
Assemblyvol. 1465, p. 85,Article 3, (1984).
27
Declaration on Territorial Asylum,UN General AssemblyA/RES/2312(XXII),Article 3, (1967).
28
States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol, United Nations
High Commissioner for Refugees, (2015).

refoulement.29As far the state practice is concerned it is submitted that even in cases where
the states that are not a party to Refugee Convention have sought to justify a case of
refoulement on their part by providing additional clarification and/ or by claiming that the
person in question was not to be considered a refugee. 30 Such clarification to representations
by the High Commissioner shows implicit confirmation of acceptance of principle.
Additionally, the conduct of states inconsistent with rule should ideally be treated as a
breach of those rules, not as indication of recognition of a new rule. 31State parties to the
Convention in 2001 issues a declaration recognizing in particular that the core principle of
non-refoulement is embedded in customary international law. 32
1.4. The issue of nationalization of Ardenia Power Corporation Ltd. is not admissible.
10. It is submitted by the Applicant State that the Hon’ble Court does not have jurisdiction to
adjudicate upon the issue of nationalization of Ardenia Power Corporation Ltd as the same
has been reserved to be resolved under methods contemplated under Dispute Settlement
Clause. 33 Consent of parties to arbitration, unless expressly stated otherwise, be deemed to
such arbitration to the exclusion to the exclusion of any other remedy. 34No State is entitled
to bring an international claim in respect of which one of its national and another
contracting state have consented to submit to arbitration unless such state has failed to abide
by the award. 35 Furthermore, Ardenian Power Corporation is an Ardenian entity i.e.
Ardenian national by the virtue of the fact of it being incorporated under the laws of
29
Convention Relating to the Status of Refugees, UN General Assembly,Treaty Series, vol. 189, p. 137,Article 42,
(1951).
30
The Principle of Non-Refoulement as a Norm of Customary International Law. Response to the Questions Posed
to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2
BvR 1953/93, 2 BvR 1954/93, United Nations High Commissioner for Refugees, (1994).
31
Military and Paramilitary Activities in und against Nicaragua (Nicaragua v. United States of America), 14 Rep
88.186 (I.C.J.: 1986).
32
Declaration of States parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees,
Ministerial Meeting of States Parties, Geneva, Switzerland, 12-13 December 2001, UN Doc.
HCR/MMSP/2001/09, 16 January 2002. The Declaration was welcomed by the UN General Assembly in
resolution A/RES/57/187, para. 4,
adopted on 18 December 2001.
33
Clarification to query number 6, Clarification regarding moot proposition, 4th Prof. N.R. MadhavaMenon
SAARCLAW Mooting Competition, SAARC Round 2019.
34
ICSID convention,Article 26, (2006).
35
ICSID convention,Article 27, (2006).

Republic of Ardenia. 36 It has been categorically laid out that state of nationality of
corporation is the only state entitled to exercise diplomatic protection in matter pertaining to
the corporation. It is the normal rule of nationality which governs the question of diplomatic
protection by substitution.37
________________________________________________________________________
36
SAARC Round 2019.
37
AhmadouSadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), 582 Rep 8(I.C.J.: 2007).

[2]. The ‘order of deportation’ by Republic of Eden is grossly illegal and breach of
international obligations.
It a humble submission of the petitioner that the order of deportation of 10,000 Ardenian
nationals by Republic of Eden is a gross violation of its international obligation and
deportee’s Human Rights as firstly, the rights of deportee’s are protected under the existent
refugee regime. Secondly, principle of non refoulement has evolved under Customary
International Law to include climate refugees.
2.1.Rights of deportees are protected under the current framework on refugees.

1. The principle of Non-refoulement is a part of customary international law and has been
embodied in number of international treaties, most pertinent being the United Nations
Convention Related to the Status of Refugees. 38 It defines refugee as a person who firstly,
owing to well founded fear of being persecuted, and secondly, for the reasons of race,
religion, caste, nationality, membership of a particular social group or political opinion. 39
2. Persecution is defined as unfair cruel treatment.40 It refers to asymmetrical threat resulting
out of unjust discriminatory targeting resulting in sustained harm. 41 Well founded fear
indicates that so long as an objective situation is established by the evidence, it need not be
shown that the situation will probably result in persecution, but it is not enough that
persecution is a reasonable possibility. 42 Evidences of real and substantial danger of
persecution are sufficient to establish fear of persecution. 43 In both the arts and the social
scientific literature, a refugee is understood as someone who is forced to flee involuntarily. 44
38
Refugee convention, UNHCR,Article 33, (1951).
39
Refugee Convention, UNHCR,Article 1A (2), (1951).
40
Meaning of ‘persecution’, Cambridge Dictionary; Meaning of ‘persecution’, Collins Dictionary.
41
17, Kuosmanen, Jaakko. What's So Special About Persecution? 1 Ethical Theory and Moral Practice 129-
140,(2014).
42
INS vs Cardoza Fouseca, 480 US 421 (1987).
43
R v. Secretary of State for the Home Department, Ex parte Sivakumaran and Conjoined Appeals (UN High
Commissioner for Refugees Intervening), 958 AC (1988).
44
7 E. F. Kunz, The Refugee in Flight: Kinetic Models and Forms of Displacement, International Migration Review,
125-146, (2 Summer 1973); Barry N. Stein and Silvano M. Tomasi, eds., Refugees Today, International
Migration Review, (15 Spring-Summer 1981); Aristide Zolberg, AstriSuhrke and Sergio Aguayo, Escape From
Violence: Refugees and Conflict in the Developing World, (New York: Oxford University Press, 1989).

2.1.1. Government induced intentional environmental degradation is a form of

persecution.
3. It is respectfully submitted that the refugees satisfy both the criteria states in the definition as
they have a genuine fear of persecution and the fear is based on their religious and ethical
identity. Government induced environmental degradation is a form of persecution. 45Ardenian
refugees predominantly hail from a particular Christian ethnic/ tribal ‘Mao’ Community and,
therefore, part of minority religious community. 46
4. Independent expert on the question of Human Rights and extreme poverty have pointed out
that environmental degradation disproportionately affects those living in extreme poverty
(para.37). Environmental Changes impact the rights of certain vulnerable groups
disproportionately, with factors such as poverty, gender, age, indigenous or minority status,
and disability reinforcing the disparate impacts.47 Adding the adjective "environmental" to
the category "refugee" is generally unhelpful given that environmental change cannot
meaningfully be separated from political and economic changes. 48 Whereas, it has long been
received doctrine that persecution need not flow from a governmental source; serious harm
can be inflicted and emanate from nongovernmental agents, provided that either government
acts in collusion with these social forces or is effectively unable to control them. 49 This
doctrine extension has been explicitly recognized in international law in the Handbook on
Procedures and criteria for determining Refugee Status.50
2.1.2 Rights of deportees protected under various international instruments.
5. Article 3 of Asia-Africa Legal Consultative Organization (ALCO) 1996 Principle

Concerning Treatment of Refugee lays down that no asylum seeker be subjected to
expulsion, except for the overriding reason of national security or safeguarding the
45
Mcadam, Jane, Complementary Protection in International Refugee Law, 135 (2007)
46
SAARC Round 2019.
47
7 OHCHR, Report of the OHCHR on the Relationship between Climate Change and Human Rights , UN. Doc.
A/HRC/10/61 (Jan. 15, 2009).
48
9 McGregor, J.Refugees and the Environment. In R. Black & V. Robinson (eds) In Geography and Refugees:
Patterns and Processes of Change, 78 (1993).
49
McMullen v. INS, 658 F.2d 1312, 9th Cir. 1981.
50
Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and 1964
Protocol Relating to Refugee Status (Handbook). UNHCR: Geneva.

population, if there is well founded fear of persecution of endangering life, physical integrity
or liberty. There is 'a fundamental right to freedom, equality and adequate conditions of life,
in an environment of a quality that permits a life of dignity and well- being'. 51
6. Article 14 of Universal Declaration of Human Rights declares that everyone has the right to
seek asylum in other country and this right is only bridled in case of genuine non-political
crimes or in case from acts contrary to the purpose and principles of United Nations. It is a
humble submission of the petitioners that the refugees which have recognized as such by the
UNHCR are required to be protected from forcible return to a country where they face threat
to their life or freedom. 52 Nansen Principle 1, Responses to climate and environmentally
related displacement need to be informed by adequate knowledge and guided by the
fundamental principles of humanity, human dignity, human rights and international
cooperation.
2.1.3Deportees recognized as ‘Refugees’ by UN High Commissioner for Refugees

and tacitly by Republic of Eden.
7. Whereas, In India there is no legislation dealing with the issue of refugee, the refugees are
registered under the mandate of the United Nations High Commissioner for Refugees which
looks after concerns. 53 Moreover, Long Term Visas are granted to refugees only and that too
after due security verification. 54 In Syed Ata Mohammadi v. Union of India55 Bombay High
Court unequivocally held that there is no question of deportation of an Iranian refugee since
he was recognized so by UNHCR. Madras High Court in P. Nedumaran v. Union of India56
outlining the credibility of UNCHR was pleased to held that since UNCHR was involved in
ascertaining the voluntariness of refugees, it being a world agency, it was not for the Court
to consider whether the consent to return was voluntary or not. Hence, since the status of the
51
Declaration of the United Nations Conference on the Human Environment (the Stockholm Declaration), Principle
1,(1972).
52
SAARC Round 2019.
53
Written Reply by Minister of State for Home Affairs, Shri KirenRijiju in LokSabha (5th May, 2015), Refugee
Determination System. Press Information Bureau, Government of India.
54
Ibid.
55
Syed Ata Mohammadi vs. State, Criminal writ petition no.7504 (BOM:1994).
56
P. Nedumaran v. Union of India, 2 ALT 291 (1993).

people has been recognized as such by UNHCR and Republic of Eden in 2002, 57 now
republic of Eden cannot question their status as refugees.
8. Whereas, Eden is a signatory to International Convention on Civil and Political Rights and
Article 13 the same mandates that any alien lawfully within the territory of a state party to
the present Covenant may be expelled there from only in pursuance of a decision reached in
accordance with law.58 It is a contention of the petitioner state that the Eden has acted in
breach of this provision as it seeks to deport the people who were rehabilitated under the
special program by the government of Eden vides an executive decision.59
2.1.4 Deportation violates the ‘right against discrimination’ of Ardenian nationals.
9. It may be pointed out that Republic of Eden has followed a very liberal policy in granting
refugee to various groups including to Buddhist Tibetans, Hindus and Christians of Sri
Lanka, Hindus and Muslims from the then East Pakistan, Hindus, Muslims, Christians and
Buddhists from Bangladesh and Sikhs and Muslims from Afghanistan. 60 Denial of refugee
status of Ardenian Christians would be a violation of their ‘right to equality’, enshrined under
Article 14, and is available to foreigners and non-citizens of Eden also.
2.2 Principle of non-refoulement has evolved overtime to accommodate the interest of

Climate Refugees.
10. It is submitted that the 1951 refugee Convention is a mere consolidation of previous
61
international instruments providing a comprehensive codification. Prior to 1951
convention, the principle was embodied in Convention relating to the International Status of
Refugees (1933 Refugee Convention),62 Convention to Suppress Slave Trade and Slavery. 63
The concept of non-refoulement is relevant in number of context and is not exclusively of
57
SAARC Round 2019.
58
International Covenant on Civil and Political Rights, United Nations General Assembly, Article 13, (1966).
59
SAARC Round 2019.
60
T. Ananthachari, Refugees In India: Legal Framework, Law Enforcement And Security, ISIL Year Book Of
International Humanitarian And Refugee Law, (Isilybihrl 2001).
61
Introductory Note by Office of High Commissioner of the United Nations High Commissioner of Refugees,
Convention and Protocol Relating to Status of Refugees, (December, 2010).
62
Convention Relating to the International Status of Refugees, 159 LNTS 3663 (28 October 1933).
63
Convention to Suppress the Slave Trade and Slavery, 60 LNTS 25, (25 September 1926).

treaty nature.64 It is submitted that principle of non-refoulement which is an integral part of

Customary International Law has always been in constant flux, dynamic and in ever
changing phase.
11. The document was an international response to the human tragedy of extreme nationalism,
fascism and world war. While the drafters were looking back at a human tragedy that had
already happened, international community is now looking at a human tragedy in making. 65
Being inactive and allowing the tragedy to evolve would represent a systematic violation of
human rights of the poor and future generations. 66
2.2.1 Rule of interpretation of Treaty in the light of its context, object and purpose.
12. Whereas, Article 31 of the Vienna Convention on law of Treaties lays down as a general rule
of interpretation that a treaty shall be interpreted in good faith in their context and in light of
its object and purposes.67 Subsequent practice in the application of treaty and relevant rules
of international law applicable between parties shall be taken into account in its construction.
68
Furthermore, special meaning can be given to terms if it is established that parties so
intended. 69
2.2.2 Definition has been explicitly enlarged in later regional treaties.
13. Whereas, after the adoption of Refugee Convention in 1951, which was seventy years ago,
other instruments have come having into being enlarged definition of ‘refugee’ expanding
the protection and ambit of non-refoulement. For instance OAU Convention adopted by
Organization for African Unity in 1969 lays down that the term “refugee” shall also apply to
every person who owing to external aggression, occupation, foreign domination or events
seriously disturbing public order in either part or the whole of his country, is compelled to
64
Sir ElihuLauterpacht and Daniel Bethlehem, The Scope and Content of the Principle of Non-Refoulement:
Opinion, (Cambridge University Press, June 2003).
65
vol. 55, no. 1, Jaswal, Paramjit S., and Stellina Jolly, Climate Refugees: Challenges And Opportunities For
International Law. 45-58 (Journal of the Indian Law Institute, 2013).
66
7 Jane McAdam, Climate Change 'Refugees' and International Law: On or off the World Map?6,7 (Speech
delivered at the Australian Human Rights Centre 21st Anniversary Symposium, University of New South Wales,
2 May 2007).
67
Vienna Convention on Law of Treaties,Article 31 (1), (1969).
68
Vienna Convention on Law of Treaties,Article 31 (3) (b), (1969).
69
Vienna Convention on Law of Treaties,Article 31 (4), (1969).

leave his place of habitual residence in order of to seek refuge.70The Convention adopts the
situational standard where the person is compelled to leave place of habitual residence.
14. Furthermore, Cartagena Declaration on Refugees 71 adopted in 1984 Like the African
Convention which it seeks to build upon, the Cartagena Declaration combines the
Convention refugee definition with an enlarged component based on flight from objective
conditions such as generalized violence or mass violations of Human Rights which have
proved to be threatening to social existence in general. 72 Section 3 paragraph 5 further goes
on to proclaim that the principle should be acknowledged and observed as a rule of jus
cogens. Pact of American Countries in 1969 American Convention on Human Rights puts an
injunction on return or deportation of an alien to the country of origin if in that country his
right to life is at stake.73 It is humbly submitted that the Ardenian refugee fall squarely within
this extended definition as they were compelled to leave their habitual residence because of
seriously disturbing order without proper resettlement.
2.2.3. UN General Assembly has expanded the mandate of UNHCR beyond the
‘traditional definition’ of refugee.
15. Moreover, the protective mandate has itself been enlarged and expanded over time by
General Assembly to include vague categories of person seeking international protection.
The High Commissioner’s core mandate covers refugees, that is, all persons outside their
country of origin for reasons of feared persecution, conflict, generalized violence, or other
circumstances that have seriously disturbed public order and who, as a result, require
international protection. 74 UNHCR has turned with increasing regularity to the refugee
definitions set forth in the Cartagena Declaration and OAU Convention. 75
70
Convention Governing the Specific Aspect of Refugee Problems in Africa, Organisation for African Unity,
Article 1 (2), (1974).
71
Annual Report of Inter-American Commission on Human Rights, OEA/Ser.L/II.66, doc. 10, Rev. 1, 190-193
(1984-85).
72
Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America,
Mexico and Panama,Section 3 (3), (1984)
73
American Convention on Human Rights or ‘Pact of San Jose, Costa Rica’, ´ Organization of American States
(OAS) Treaty Series No. 35, 9 ILM 673.Article 22(8), (1969).
74
See UN doc. A/AC.96/830, 7 September 1994, paras. 8, 10-11, 31-32. (taken from -note on the mandate of the
high commissioner for refugees and his office)
75
vol. 24VON STERNBERG, MARK R., the Evolving Law of Non-Refoulement and Its Influence on the
Convention Refugee Definition. In Defense of the Alien, 205-223, (2001).

16. Whereas the idea of temporary refuge has been recognized in case of large scale influx,76
thereby extending the principle of non-refoulement beyond the ‘fear of persecution’
dimension by including the definition provided in the Cartagena Declaration. 77 Under the
contemporary framework there is no need to resolve whether flight is the product of Human
Rights violation connected to one of the refugee ground.78
17. Judicial pronouncements have already been given on the same lines by numerous Courts.
European Court of Human Rights applied the foregoing principle in D v. United
Kingdom79where an AIDS victim was subject to deportation from United Kingdom. Court
while quashing the order of deportation granted relief, determining that the alien would not
receive adequate medical attention in St. Kitts and, as a result, would undergo a hastened and
particularly painful death. The Court recognized that the states are powerless to send aliens to
such deplorable conditions: to do so would constitute a human rights violation on part of the
remitting state. 80 Refoulement in the present circumstance of climate refugees would also
offend Article 7 of International Covenant on Civil and Political Rights which prohibit
inhumane and degrading treatment by parties. 81Refoulement is prohibited if the individual
would encounter, in the country of reparation, a risk that his or her right to life may be
violated and if such circumstances extradition is made then the party itself may be in
violation of the Covenant.82
18. It is submitted that climate refugees can be accommodated under the expanded definition as
the raison d'être of any such principle is to provide fundamental freedoms to all humans and
recognizing the social and humanitarian nature of the problem, the exclusion of vulnerable
section of climate refugee from the scheme would defeat the very purpose of having such a
framework.
________________________________________________________________________
76
Temporary Refuge No. 19 (XXXI), Executive Committee 31st session. Contained in United Nations General
Assembly Document No. 12A (A/35/12/Add.1)(1980).
77
Scope, nature and purpose of temporary protection regimes,UN High Commissioner for Refugees
(UNHCR), UNHCR Commentary on the Draft Directive on Temporary Protection in the Event of a Mass
Influx,Section 3, (15 September 2000).
78
vol. 24VON STERNBERG, MARK R., the Evolving Law of Non-Refoulement and Its Influence on the
Convention Refugee Definition. In Defense of the Alien, 205-223, (2001).
79
No. 146/1996/767/964 1 45, European Court of Human Rights, Judgment given at Strasbourg (May 2, 1997).
80
Id at para 45.
81
G.A. Res. 2200A (XXI), U.N. Doc. A/6316 (1966), 999 UNTS 171, article 7, (Dec. 16, 1966)
82
Human Rights Committee, Communication No. 469/1991 (Charles Chitat Ng v. Canada),para 14.1 and 15.3(Nov.
5,1993).

[3]. The deportation of Ms. Irwin from Republic of Eden to Kingdom of NWF violates her
basic rights.
1. It is submitted before the Hon’ble Court that the deportation of Ms. Irwin from Republic of
Eden to Kingdom of NWF violates her basic human rights which are universal,
interdependent, interrelated and indivisible. Firstly, the Edenian Constitution and its
precedents recognize international instruments as incorporated into domestic legislation and
are enforced as such83. Secondly, the principle of non-refoulement and other principles of
refugee protection have become part of customary international law and therefore binding
even though Eden has not signed the 1951 Convention. Thirdly, the principle of legitimate
expectation gives the locus standi to Ms. Irwin against deportation.
2. That Eden has signed a range of international instruments and participated in various
international declarations and General Assembly resolutions would indicate the full range of
obligation that Eden has expressly adhered to.
3.1 Ms. Irwin has inalienable human rights recognized under various international
instruments.
3. It is humbly submitted that Ms. Irwin being recognized as a refugee by UNHRC84 has some
basic and fundamental human rights granted under various International Statutes.
4. That the core of protection for refugee women lies in the grant of asylum. This is the
cornerstone of international protection of refugees, derived directly from the right to seek and
enjoy asylum set out in Article 14 of the Universal Declaration of Human Rights. 85The Right
to enjoy asylum, has to be interpreted in the light of the instrument as a whole, and must be
taken to mean something that the State which has granted asylum to the person, should not
later return him to the country whence he came 86. Moreover, the Article carries considerable
83
Luis de Raedt v. UOI, 3 SCC 544(1993); KudhiramChakma v. State of Arunachal Pradesh, 1 SCC 614 (1994).
84
SAARC Round 2019.
85
Universal Declaration of Human Rights, Article 14(1), G.A. Res. 217A (III), U.N. GAOR, 3d Sess., at 71, U.N.
Doc. A/810 (1948) (herein after as UDHR)
86
50 Institute of International Law: Resolutions Adopted at its Bath Session, American Journal of International Law
15, 15 (1951).

moral authority and embodies the legal prerequisite of regional declarations and
instruments.87
5. That Article 13 of International Covenant on Civil and Political Rights88 which states that
refugees who are lawfully residing in the territory of a State Party may be expelled only in
pursuance of a decision reached in accordance with law. In the instant case Ms. Irwin is
being deprived off of her right to seek asylum without authority of a just law.
6. That the ICCPR also contemplates that the refugee has the right to be allowed to submit
reasons against her expulsion, have the case reviewed and be represented before a competent
authority. 89 This position was also expounded in the case of A.A v. Denmark90, the Human
Rights Committee considered that the risk must be personal, that there is high threshold were
providing substantial grounds to establish that the real risk of irreparable harm exists.91 Thus
all relevant fact and circumstances must be considered, including the general human rights
situation in the author’s country of origin. 92 However, this basic requirement of the statute
has not been complied with by Republic of Eden as Ms. Irwin was not given this opportunity.
Further, this right becomes important in this case as it relates to Article 33 of the 1951
Convention. 93
7. That Article 7 of the ICCPR contemplates that no one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment. The state party is required to take into
consideration the events and hardships which the asylum seekers went through in NWF and
Ardenia because of her sexual orientation, in order to access the alleged risk she would face,
if returned. In similar circumstances, the HRC considered the deportation of a woman would
constitute a violation of Art. 7 of the covenant. 94
8. That Article 1(1) of International Covenant on Economic, Social and Cultural Rights 95 states
that the Covenant secures the right to self-determination. Art. 2(2) states that the States
Parties to the present Covenant undertake to guarantee that the rights enunciated in the
87
KhudiramChakma vs. State of Arunachal Pradesh, 1 SCC 615 (1994).
88
(herein after as ICCPR)
89
International Covenant on Civil and Political Rights, United Nations General Assembly, Article 13, (1966).
90
A.A v. Denmark, CCPR/C/122/D/2595/2015
91
X v. Denmark (CCPR/C/110//2007/2010)Dpara. 9.2;X v. SwEden (CCPR/C/103/D1833/2008), para. 5.18
92
X v. Denmark (CCPR/C/110/D/2007/2010) para. 9.2; and X v. SwEden (CCPR/C/103/D1833/2008), para. 5.18
93
Convention right of non refoulement—the right against expulsion of a refugee to the frontiers of a territory where
her life or liberty would be threatened, Article 33 (1951).
94
M.I v. SwEden (2149/12)
95
(herein after as ICESCR)

present Covenant will be exercised without discrimination of any kind as to race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth or other
status and Art. 2(3) contemplates that the developing countries, would give due regard to
human rights and guarantee the economic rights recognized in the present Covenant to non
nationals. Further, Art. 7 (ii) (b) states that the States Parties recognize the right of everyone
to the enjoyment of just and favourable conditions of work which ensure, in particular Safe
and healthy working conditions.
9. That the Convention on the Elimination of All Forms of Discrimination against Women 96
requires that State Parties ensure the protection of women from sexual exploitation 97, their
proper medical care 98 and their right to education and employment. 99 These rights are
extremely important in the refugee context, since refugee women are especially vulnerable.
In addition, Article 9 addresses the right of women to change or retain their nationality. Thus
the convention being binding on EDEN will protect Ms. Irwin from refoulement.
10. That Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment 100 is one of the most important provisions in international human
rights law relating to refugees. It is one of the few articles to provide for non-refoulement.
The provision states that no State Party shall expel, return or extradite a person to another
State where there are substantial grounds for believing that she would be in danger of being
subjected to torture.
11. That Ms. Irwin along with her children is migrant worker and is protected under 1990
International Convention on the Protection of the Rights of All Migrant Workers and
Members of their Families. The Covenant contemplates that state parties to shall ensure the
protection of rights of migrant workers in accordance with the international instruments
concerning human rights, and to respect and to ensures that all migrant workers and members
of their families shall be free to leave any State, including their State of origin. 101 This right
shall not be subject to any restrictions except those that are provided by law, are necessary to
96
Convention on the Elimination of All Forms of Discrimination Against Women, (Dec 18, 1979),
http://www2.ohchr.org/english/law/cedaw.htm (hereinafter CEDAW)
97
Id. at art. 6
98
Id. at art. 12
99
Id. at art. 10-11.
100
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (Dec 10, 1984),
available at http://www2.ohchr.org/english/law/cat.htm (hereinafter CAT)
101
International Convention on the Protection of the Rights of All Migrant Workers, Article 8, (1990).

protect national security, public order, public health or morals or the rights and freedoms of
others and are consistent with the other rights recognized in the present part of the
Convention. Further, the right to life of migrant workers and members of their families shall
be protected by law 102 and no one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment. 103
12. Art. 17 of the Additional Protocol on Terrorism of the South Asian Association for the
Regional Cooperation of January 2004 permits SAARC nations not to extradite and,
perforce, to protect those being prosecuted or punished on account of their race, religion,
nationality, ethnic origin or political opinion.
13. It is submitted that Deportation of Ms. Irwin from Eden will render her stateless as Republic
of Ardenia has refused to accept her as its citizen.
3.2 Ms. Irwin is protected under the principle of non-refoulement and other principles of
refugee protection.
14. Non-refoulement 104 is a principle which forbids a country receiving asylum seekers from
returning them to a country in which they would be in likely danger of persecution based on
"race, religion, nationality, membership of a particular social group or political opinion". 105
15. It is humbly submitted that the principle of non refoulement and other principles of refugee
protection have now become part of customary international law and are therefore
enforceable even though Eden has not signed the 1951 Convention. Further it has also
become jus cogens of international law.
16. That Article III of the Asian-African Legal Consultative Organization's 1996 Principles
Concerning Treatment of Refugees also states that no one seeking asylum in accordance
with these Principles should, except for overriding reasons of national security or
safeguarding the populations, be subjected to measures such as rejection at the frontier,
return or expulsion which would result in compelling him to return to or remain in a territory
102
International Convention on the Protection of the Rights of All Migrant Workers, Article 9, (1990)
103
International Convention on the Protection of the Rights of All Migrant Workers, Article 10,16, (1990)
104
Refugee convention, UNHCR,Article 33, (1951); Kirkwood vs United Kingdom, (10479/83), 37 D & R 158;
Chahalvs The United Kingdom, 23 EHRR 413(1997); Ahmed vs Austria, 71/1995/577/663
105
27 (3)Trevisanut, Dr. Seline,International Law and Practice: The Principle of Non-Refoulement And the De-
Territorialization of Border Control at Sea, (Leiden Journal of International Law :
661. doi:10.1017/S0922156514000259September 1, 2014).

if there is a well-founded fear of persecution endangering his life, physical integrity or liberty
in that territory.106
17. It is vehemently submitted that Ms. Irwin has well founded fear of persecution 107 .
Persecution means the sustained or systemic violation of basic human rights demonstrative of
a failure of state protection 108 or the failure of State protection against a serious harm,
including persistent discriminatory acts. 109
18. It is submitted that she was forced to leave her country of origin due to well founded fear of
persecution due to gender and political opinion. She was assaulted and harassed by her
husband who was having a different political opinion. She was twice hospitalized after being
beaten and assaulted. Further, she along with her family was threatened by some persons of
opposite political opinion and thus was forced to migrate in hostile circumstances as she was
denied the protection of law in her country of origin owing to the volatile and archaic laws
which are discriminatory against women.
19. It is submitted that forceful repatriation of Ms. Irwin will result in grave danger to her life
and liberty as she would be forced to be in the same circumstances which led her forced
migration.
20. It is vehemently submitted that Ms. Irwin is unwilling to seek the protection of country of
origin as she completely lack national protection. The gravity of situation is self evident by
the fact that she was forced to leave her family, her property, secure job and a known
environment for completely new and unfamiliar surroundings. To re- establish her after all
the hardships and suffering in the new country.
21. It is well established that the laws of NWF along with Ardenia are archaic, volatile and
discriminatory against women. Women are also disadvantaged in the criminal justice
delivery system. Further, laws like sexual offenses ordinance and laws in rape cases are
106
The Scope and Content of the Principle of Non-Refoulement: Opinion, (Cambridge University Press, June
2003), http://www.refworld.org/docid/470a33af0.html
107
Refugee convention, UNHCR,Article 1(2), (1951).
108
J.C. Hathaway, The Law of Refugee Status, Toronto,104-105 (Butterworths, 1991); INS vs Cardoza Fouseca, 46
USSC 407 (1987); R vs Secretary of the Home Department Ex Parte Sivakumaran, 1 AII E.R.193 (H.L.:1988);
Joseph Adjeivs Ministry of Employment &Immigrati, 7:2d IMM 169 (L.R.: 1989).
109
13 H. Lambert, The Conceptualization of ‘Persecution’ by the House of Lords: Horvath v. Secretary of State for
the Home Department, p. 30 (1/2 International Journal of Refugee Law, 2001).

discriminatory, inhuman and against women. 110 Women in these states have been suffering in
the situation which forced Ms. Irwin to migrate. In these circumstances Ms. Irwin should not
be refouled, either to Ardenia or NWF.
22. It is well settled that Other forms of gender-related physical harm such as rape, dowry-related
violence, female genital mutilation, domestic abuse and trafficking are acts which have been
regarded as infliction of physical and mental pain and suffering thus held to constitute
‘persecution’ within the Refugee provisions 111
23. It is further submitted that State sovereignty implies responsibility and the primary
responsibility for the protection of its people lies with the state itself and that where the
population is suffering serious harm as result of internal war and insurgency, external
aggression repression or state failure and the state in question is unwilling or unable to halt or
avert it the principle of non-intervention yields to the international responsibility to
protect112.Principle itself mandates Republic of Eden to protect the rights of Ms. Irwin.
24. Further, Art. 1 and 2 of SAARC Statute also states that it is the objective of the Association
to contribute to mutual trust, understanding and appreciation of one another's problems and
respect the principles of sovereign equality, territorial integrity, political independence, non -
interference in the internal affairs of other States and mutual benefit. Eden is obligated to
consider the situation of NWF and Ardenia and act accordingly to secure the interests of their
citizens.
25. It is submitted that while adopting the New York Declaration for Refugees and Migrants UN
General Assembly agreed to develop comprehensive responses based on the principles of
international cooperation and on burden and responsibility-sharing. Further, it also envisaged
to develop an international protection regime which means States are responsible for
protecting the rights of their citizens. When governments are unable or unwilling to do this,
people may face such serious threats that they are forced to leave their country and seek
110
SAARC Round 2019.
111
Lazo-Majano v. INS, 813 F2d 1432, 1434.99 (1987). See also Matter of Sharmin, A73-556-883 (IJ Dec. New
York, NY, 27 September 1996); D v. Board of Immigration, BIA Leuis 15 (1993); Minister for Immigrati on and
Multi-cultural Affairs v. Khawar, 3 CHRLD 346 (2002).
112
The Responsibility to Protect. Report of the International ComMs.ion on Intervention and State Sovereignty,
(December 2001); 25 Levitt, The Responsibility to Protect: A Beaver without a Dam?, 153 (Michigan Journal of
International Law, 2003).

safety elsewhere. If this happens, another country has to step in to ensure that the refugees’
basic rights are respected.113
3.3 Ms. Irwin must not be repatriated by virtue of principles of legitimate expectation.
26. It is submitted that a legitimate expectation is said to arise “as a result of a promise,
representation, practice or policy made, adopted or announced by or on behalf of government
or a public authority.”114 Therefore it extends to a benefit that an individual has received and
can legitimately expect to continue that benefit which he expects to receive.
27. In the instant case, Govt. of Eden was liberal in handling the migrant citizens of Ardenia in
its territory and also assisted in rehabilitation by running a long stay special program. The
persons concerned also resisted the displacement which was not heard to and to avoid the
resistance of the same, the Govt. of Eden initially allowed them to migrate into its territory.
Further, it also granted 10 year long stay visa to these persons including Ms. Irwin and her
children and even did not bothered to verify her nationality. Further, Ms. Irwin and her
children were allowed to stay in the territory of Eden after expiry of visa for the past 6 years.
Therefore, it is submitted that Ms. Irwin has been reviving this benefit and can legitimately
expect to continue the same. This is a well-recognized principle of law.
28. Further, Article 7 of the Declaration on the Human Rights of Individuals Who Are Not
Nationals of the Country in Which They Live 115 speaks of expulsion only in accordance with
the law and reflects the spirit of Art 13 of ICCPR.116In the instant case Ms. Irwin is being
deprived off of her right to seek asylum without authority of a just law. It is submitted that
Ms. Irwin is being deported by an arbitrary executive decision which has no authority of law.
It is prima facie discrimination and inequality.
29. That the ICCPR also contemplates that the refugee has the right to be allowed to submit
reasons against her expulsion, have the case reviewed and be represented before a competent
113
New York Declaration for Refugees and Migrants, GA Res 71/1, UN GAOR, 71st sess, Agenda Items 13 and
117, UN Doc A/RES/71/1 (3 October 2016) para 68 (‘New York Declaration’) (emphasis added).
114
Attorney-General of Hong Kong v. Ng Yuen Shiu, 2 AC 629 (1983); R v. Secretary of State for the Home
Department, Ex parte Ruddock & others, 1 WLR 1482 (1987).
115
G.A. Res. 40/144, U.N. Doc. A/RES/40/144 (Dec 13, 1985), http://www.un.org/documents/
ga/res/40/a40r144.htm.
116
Supra note 85.

authority. 117 This position was also elucidated and explained by HRC in A.A.S. v.
Denmark118 referring the decision in X. v. Denmark 119. This basic requirement of the statute
has not been complied with by Republic of Eden. Without prejudice to the other arguments
submitted above Ms. Irwin is an asylum seeker whose case was needed to be examined
properly and situation and living condition of her country of origin should have been
considered but Eden has failed to do so.
30. Further she has also legitimate expectation in the light of the National laws of Eden which
are in consonance with International Human rights instruments 120 and secure each and every
person right to life and personal liberty along with equality. Under similar circumstances
Indian SC in the case of National Human Rights Commission v. State of Arunachal
Pradesh121, held that If there exists a ‘reasonable apprehension’ or a ‘well-grounded fear of
persecution’ or ‘a clear and present danger’, foreigners would be entitled to the protection of
Article 21 of the Constitution and the state government would be required to act impartially
and carry out its legal obligations to safeguard the life, health and well-being of foreigners. 122
31. It is also submitted that Ms. Irwin has been selflessly contributing towards education and the
upliftment of children of displaced population. She had been a law abiding person and living
peacefully without threatening the peace & security of Eden and is not a threat to its national
interest and until the situation in her country of origin improves. Moreover with regard to the
criminal act of her children it is vehemently submitted by the petitioners that the nature of the
offence was not serious as it is self-evident from the quantum of punishment 123, further the
drug ‘pseudoephedrine’ was possessed erroneously in the absence of knowledge and in the
guise of medicine as the same is used for common cold and flu 124. Further it is also submitted
that they had no past criminal record. Thus, if closely examined Ms. Irwin and her children
do not have any ground to be deported.
117
Supra note 86.
118
A.A.S. v. Denmark, CCPR/C/117/D/2464/2014
119
X. v. Denmark, (CCPR/C/110/D/2007/2010) para. 9.2
120
SAARC Round 2019.
121
NHRC v. State of Arunachal Pradesh, AIR 1234(SC:1996)
122
P. Nedumaran v. UOI, WMP Nos. 17372, 17424, 18085 and 18086of 1992 in Writ Petiti on Nos. 12298 and
12343 of 1992.
123
SAARC Round 2019.
124
https://www.webmd.com/drugs/2/drug-1480-6012/pseudoephedrine-plus-oral/pseudoephedrine-oral/details

[4]. The nationalization of Ardenia Power Corporation Ltd. does not violates rights of
Republic of Eden.
It is submitted that the nationalization of APCL 125 does not violates the rights of Republic
of Eden as:
4.1 ICJ has no jurisdiction as to decide the dispute relating to nationalization.
1. It is humbly submitted by the petitioner state that ICJ has no jurisdiction as to decide the
dispute relating to nationalization of APCL as both the parties are bound by the Dispute
Settlement Clause of the agreement which contemplates that in case if the dispute has not
been settled within six months, the dispute may at the choice of the investor, after
notifying the other party be submitted to the competent Court of the party in whose
territory the investment is made i.e. Republic of Ardenia or to arbitration by the ICSID or
an Ad-hoc arbitrational tribunal. 126
2. It is submitted that the well recognized principle of pacta sunt servenda of international
law which states that parties should respect the treaty in good faith 127. Thus, Republic of
Eden is estopped from raising the issue of nationalization before ICJ.
3. It is submitted that in the well-known case of Anglo-Iranian Oil Company128, the dispute
between Iran and the United Kingdom over the nationalisation of the company in
question, was referred to the Court, it declared that it had no jurisdiction on the issue.
4. Further, without prejudice to other arguments, it is also submitted that the Republic of
Eden has alternate remedy to challenge the nationalization process in the Courts of
Ardenia itself.
4.2 Nationalization is the exercise of permanent sovereignty of natural resources.
5. It is submitted that states have sovereign rights over their natural resources and the rights
of people and nation to permanent sovereignty over their natural wealth and resources
125
Ardenia Power Corporation Ltd. (Herein after as APCL)
126
Supra 33.
127
Vienna Convention on Law of Treaties, 1155 U.N.T.S. 331, 8 I.L.M. 679,Article 26, (1969)
128Anglo-Iranian Oil Company case (United Kingdom v. Iran), 93 Rep 114 (I.C.J.: 1952).

must be exercised in the interest of their national development and of the well being of the
state concerned129 and nationalization of APCL is exercise of that right.
6. The right to PSNR can be defined as the right of all States and/ or people to dispose freely
of the natural resources, of any kind, found within their territory, including the maritime
space. 130 The term “dispose of” in relation to PSNR means “to have at one’s disposal
powers of decision making as to how natural resources are to be used”131. Thus, the rights
that emanate from the right to PSNR, inter alia, include the right to decide the manner of
resource exploitation; to control the use, conservation and management of natural
resources; to grant license for the exploitation of resources; and to supervise the activities
of foreign companies and take measures to ensure that such activities comply with its
laws, rules and regulations132.
7. The right of PSNR is further strengthened upon the passing of the Charter of Economic
Rights and Duties of States in 1974, which addresses the economic relationship of
developing and industrialized States, Art. 2(1) of the Charter of Economic Rights and
Duties of States 1974 also contemplates that state has and self freely exercise, full
permanent sovereignty including possession, use and disposal, over all its wealth, natural
resources and economic activities. 133 Clearly the 1974 charter does not mention any public
purpose limitation upon the power to expropriate134.
8. The right to expropriate or nationalize foreign investment is inherent in the sovereignty of
each State and was generally recognized long before the permanent-sovereignty
resolutions were adopted.135
9. Stockholm Declaration contemplates that States have, in accordance with the Charter of
the United Nations and the principles of international law, the sovereign right to exploit
their own resources pursuant to their own environmental policies, and the responsibility to
129
Resolution on Permanent Sovereignty and Natural Resources, Article 1, (1962); Gess, 13 ICLQ 398 (1964);
O’Keefe, 8 JWTL 239 (1974).
130
Permanent sovereignty over natural resources, UN General Assembly resolution 1803, para 1, (1962).
131
36 Nico J. Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties, (Cambridge University
Press, 1997).
132
Charter of Economic Rights and Duties of States, UNGA Res. 3281 (XXIX), Article 2(2)(b), (1974).
133
Charter of Economic Rights and Duties of States, UNGA Res. 3281 (XXIX), Article 2(1), (1974).
134
David Harris, Cases and Material on International Law, pg 476 7th edition (1986).
135
Schrijver, op. cit., at 285.

ensure that activities within their jurisdiction or control do not cause damage to the
environment of other States or of areas beyond the limits of national jurisdiction. 136
10. Subsequent international treaties have also recognized the sovereign right of all coastal
States over marine resources. For example, in its various provisions the United Nations
Convention on the Law of the Sea (LOSC)137 expressly recognizes the sovereign rights of
all coastal States to exploit their marine resources. Article 193 of the LOSC provides a
general provision stating that: “States have the sovereign right to exploit their natural
resources pursuant to their environmental policies and in accordance with their duty to
protect and preserve the marine environment”.
11. Similarly, the Convention on Biological Diversity (CBD), which regulates both terrestrial
and marine resources, explicitly recognizes the sovereign right of all States “to exploit
their own resources pursuant to their own environmental policies” 138.
12. The right to PSNR, which originally emerged as a political claim by colonized peoples
and newly independent States attempting to control their natural resources, has later
become a recognized principle of international law applicable to all States. 139
13. Permanent sovereignty could be regarded as jus cogens that is, a peremptory norm similar
to the prohibition on slavery or the general prohibition on the use of force, making it
unlawful for states to derogate from that norm in future agreements 140
14. The State’s definitive, indisputable, and uncontested supremacy over its territory involves
a reality which is beyond discussion: permanent sovereignty over the resources of that
territory141.
15. Various arbitral tribunals have supported this view. The tribunal in Libyan American Oil
Co. ("LIAMCO") v Libya, for example, opined that, "the said Resolutions, if not a
unanimous source of law, are evidence of the recent dominant trend of international
opinion concerning the sovereign right of States over natural resources."142
136
The Declaration of the United Nations Conference on the Human Environment, Stockholm, Principle 21, (1972).
137
United Nations Convention on the Law of the Sea (LOSC), 3 UNTS 1833 (1982).
138
Convention on Biological Diversity, 1760 UNTS 79, Article 3, (1992).
139
45 Lillian A. Miranda, The Role of International Law in Intrastate Natural Resource Allocation: Sovereignty,
Human Rights and Peoples-Based Development, 798 (Vanderbilt Journal of Transnational Law, 2012).
140
16 Pereira, Exploration and Exploitation of Energy Resources, 207 (2012).
141
12 George Elian, The Principle of Sovereignty over Natural Resources, (Sijthoff&Noordhoff, 1979).
142
Libyan Am. Oil Co. (LIAMCO) v. Gov't of Libyan Arab Republic, 20 I.L.M. 1, 53 (1981).

16. This position was reaffirmed in Texaco v Libya, where the tribunal held that Resolution
1803 reflected the tenets of customary international law.143Their rationale was based on
the said Resolution's reference to international law when it addresses nationalization. 144
Moreover, the principle has been accepted by the International Court of Justice ("ICJ"), as
is clearly reflected in the East Timor Case145.
17. In Congo v Uganda, 146the ICJ explicitly recognized the principle permanent sovereignty
over natural resources as "a principle of customary international law." 147
18. In the Aminoil case,148 the tribunal held that the sovereign right of a State to nationalize
foreign property prevailed even over an express stabilization clause. A further illustration
of this recognition is found in the Agip case, the arbitration under the auspices of the
International Centre for the Settlement of Investment Disputes, (ICSID) the tribunal held
that the right of a State to nationalize is beyond doubt today by reason of concordant and
"constant international practice”. 149
19. Further, it is also submitted that the most well-known doctrine concerning the law of State
responsibility for injuries to aliens is the ‘Calvo doctrine’ 150 , which is based on two
cardinal principles: (l) the 'non-intervention' principle, according to which a sovereign
independent State, by reason of the principle of equality, enjoys the right to freedom from
foreign interference in any form, whether by diplomacy or by force; and (2) the 'equality
of treatment' principle, under which aliens could not claim any greater measure of
protection than nationals. 151
20. The duty not to intervene implies that the choice of policies of another state cannot give a
state the right to intervene, whether directly or indirectly, e.g. by exercising economic or
political coercion. On the contrary, states are rather under the duty to cooperate with one
another inter alia in order to maintain international peace and security
143
Libyan Am. Oil Co. (LIAMCO) v. Gov't of Libyan Arab Republic, 20 I.L.M. 29,30 (1981).
144
Libyan Am. Oil Co. (LIAMCO) v. Gov't of Libyan Arab Republic, 20 I.L.M. 29 (1981); 49 Stephen M.
Schwebel, The Story of the U.N.'s Declaration on Permanent Sovereignty over Natural Resources, 463,469
(A.B.A. J., 1963).
145
East Timor (Portugal v. Australia),90 Rep (I.C.J.: 1995)
146
Dem. Rep. Congo v. Uganda, I.C.J. 168 (2005).
147
Dem. Rep. Congo v. Uganda, I.C.J. 244 (2005).
148
The Government of Kuwait v. American Independent Oil Company (Aminoil), 21 LL.M. 976 1012, 1025 (1982).
149
Agip Co. v. The Republic of Congo, (ICSID), 21 I.L.M. 726 735.81 (1982).
150
Vol. 8, F. W. Garcia-Amador, Calvo Doctrine, CalvoClause , 2-5 (Encycl. P.LL., 1980).
151
Vol. 8, F. W. Garcia-Amador, Calvo Doctrine, CalvoClause , 62-65 (Encycl. P.LL., 1980); Bring, op. cit., 111-
113.

21. It is vehemently submitted by the petitioner state that APCL is a legal person which was
registered and incorporated under the law of Republic of Ardenia. 152 And it is the settled
jurisprudence that the State has unfettered right over its property and persons. Domestic
law governs the companies registered under it.
22. In view of the foregoing considerations, the Court may safely conclude that the right of
States to expropriate or nationalise foreign property is unanimously accepted. This right is
an attribute of sovereignty of the State, as well as its jurisdiction in internal matters. Thus
clearly establishing that Ardenia has every right to nationalize the APCL.
4.3 The nationalization was done for public purpose and national interest.
17. It is submitted that the petitioner state has observed the agreement in good faith and that
the nationalization of the APCL does not vitiate the bilateral agreement as nationalization
does not violate any of the terms of the agreement.
18. As reflected in the TOPCO v. Libya case, under customary international law a ‘lawful’
expropriation must be, at a minimum, for a public purpose, non-discriminatory and
accompanied by appropriate or fair compensation.153 It is submitted that in the instant case
all these requisites have been duly satisfied by the petitioner state.
19. In the German Interests in Polish Upper Silesia case, the PCIJ held that international law
permits the expropriation of alien property for reasons of "public utility”.154
20. Public utility or public purpose has not been defined however, expropriation for public
utility purposes means, Expropriation the aim and result of which was to benefit the
community as a whole rather than any particular person.155
21. Further various jurists have opined that as a rule, the State concerned will be held to be the
best judge of its public interest.156
152
SAARC Round 2019.
153
TOPCO v. Libya, 17 I.L.M. 1 87 (1978).
154
Certain German interests in Polish Upper Silesia, Germany v Poland, PCIJ Series A no 7 22 (1926).
155
White, op. cit., at 146. See also the observations of Verwey and Schrijver in this regard in Verwey and Schrijver,
op. cit., at 9.
156
I. Seidl-Hohenveldem, International Economic Law, 138 (2nd ed. MartIllusNIJhoff. Dordrecht 1992).

22. It is up to the State itself to determine what its public purpose requires, and such a
determination is likely to be overruled by an international tribunal only in very exceptional
circumstances. 157
23. The Court in the case of James et al. v. The United Kingdom opined that “Because of their
direct knowledge of their society and its needs, the national authorities are in principle
better placed than the international judge to appreciate what is 'in the public interest”.158
24. It is vehemently submitted that nationalization presupposes a taking of property in the
public interest.159 This view was endorsed by the statement in the Liamco case, when the
Arbitrator stated that there was no authority to support the application of the public
purpose criterion to the measures of nationalization.160
25. It is submitted that in the Liamco case, Arbitrator Mahmassani stated that there was no
separate public purpose criterion in international law, and motives are irrelevant to this
law it is the general opinion in international law theory that the public utility principle is
not a necessary requisite for the legality of nationalization. 161
26. The petitioner state most humbly submits that the nationalization of the APCL was done
solely for the purpose of public welfare and in national interest as the erstwhile
management of Ardenia Power Corporation Ltd. under the control of Govt. of Eden was
not releasing the amount of water for its people which led to the Oxenberg Water Crisis.
27. In the year 2017, the city of Oxenberg faced one of its worst water crisis. The experts,
environmentalists, policy makers and scientists attributed one of the main causes to such
crisis as the climate change and change in ecosystem caused due to implementation of
'Mega Hydro-Electricity Project' by the Republic of Ardenia. 162
28. The nationalization was done to tackle the direst social crisis of the 21st century and to
save a city having population of approximately 4 million from water scarcity.163 It was
done as the last resort of the crisis as the city of Oxenberg and its residents as well as
157
M. Pellonpaa. and M. Fitzmaurice, Taking of Property ... III the PractIce of the Iran-Umted States Claims
Tribunal, 19 N.Y.I.L. 53 63 (1988).
158
James et al. v. The United Kingdom,Judgment, 98 E.C.H. Rep 9 32.46. (1986).
159
Amerasinghe, op. cit., at 137.
160
Libyan Am. Oil Co. (LIAMCO) v. Gov't of Libyan Arab Republic, 20 I.L.M. 1, 58,59 (1981).
161
Libyan Am. Oil Co. (LIAMCO) v. Gov't of Libyan Arab Republic, 20 I.L.M. 1, 58,59 (1981).
162
SAARC Round 2019.
163
SAARC Round 2019.

authorities prepared themselves by adopting several adaptive and precautionary

measures. 164
4.4 Republic of Ardenia has no obligation as to compensate Republic of Eden.
29. That the nationalization of APCL was done for public purpose and national interest 165 and
it is submitted that the nationalization was lawful, even when no compensation was paid.
This was also held by the Tribunal in Exxonmobil v. Venezuela, concluding that: “the mere
fact that an investor has not received compensation does not in itself render an
expropriation unlawful.”166
30. Under customary international law, host States have a recognized right to regulate,
without many duty to compensate, in order to protect or promote the public interest (a
broad concept that includes public order, public health, national security, human rights,
public morals and environmental protection).
31. That in the absence of specific treaties or other contractual or quasi-contractual obligation
to the contrary, there is no general principle of international law prohibiting a State from
expropriating foreign property without compensation.167 In the instant case at hand there is
no such treaty between Eden and Ardenia.
32. That the legality and justification of expropriation are not subject to the payment of
compensation, but rather it is justified by the fact of its being the exercise of a jurisdiction,
which the State is recognized to possess by international law.168
33. The principle of permanent sovereignty over natural resources implies that compensation
is not a sine qua non for the legality of nationalization. 169And nationalization of foreign
property without compensation may possibly be "a legitimate step justified by
international law.170
164
SAARC Round 2019.
165
SAARC Round 2019.
166
Exxonmobil v. Venezuela, ICSID, Case No. ARB/07/27, ¶ 301 (2014).
167
1. F. Williams, International Law and the Property of Aliens, 28 (9 B.Y.I.L. 1928).
168
Friedman, op. cit., at 204.
169
Bring, op. cit., at 131.
170
Foighel, op. cit., at 40-41.

34. Further it is also submitted that in cases where the state chooses to nationalize, expropriate
or requisition property, it must limit this to sole instances for public purposes, and
compensation shall occur in accordance with national legislation. 171
35. It is also submitted that, in any case where the question of compensation gives rise to a
controversy, the national jurisdiction of the State taking such measures shall be exhausted.
However, upon agreement by sovereign States and other parties concerned, settlement of
the dispute should be made through arbitration or international adjudication. 172
36. Property rights are neither absolute nor universal: they are defined by the laws of each
sovereign state. When a government decides, in the public interest, to reassign property
rights in a specific instance there is no obligation for it to compensate those disadvantaged
by the change. Public interest in a sovereign country is paramount in decisions on
compensation: there is no fixed formula and compensation is ‘determined in each case by
Parliament’173
37. In the case of Banco Nacional de Cuba v. Chase Manhattan Bank174 held that it may well
be the consensus of nations that full compensation need not be paid "in all circumstances,"
and that requiring an expropriating state to pay "appropriate compensation," - even
considering the lack of precise definition of that term - would come closest to reflecting
what international law requires. It is submitted that the compensation under the national
law can be only be decided before the national Courts.
38. Appropriate compensation’ can range from full to no compensation. Case law indicates
that full compensation may be relevant where a foreign investor was invited to undertake a
project and where alternative sources of investment were not available, however, it need
not be paid where there is full scale nationalisation ‘as part of economic reform.175
171
Stephan Zamora, Economic Relations and Development in the United Nations and International Law,p. 259.
(Cambridge University Press, 1997)
172
Permanent Sovereignty over Natural Resources, General Assembly resolution 1803 (XVII), Article 4, (1962).
173
Hall, D., The economics of ending PFI, (The Mint Magazine Dec 10, 2017).
174
BancoNacional de Cuba v. Chase Manhattan Bank, 658 F.2d 875 2d (Cir. 1981).
175
M. Sornarajah, the InternatIonal Law On Fore IGN Investment, 448, (3 Cambridge University Press, 2010).

PRAYER FOR RELIEF SOUGHT
Wherefore, in the lights of facts stated, issues raised, authorities cited & arguments advanced, it is
most humbly prayed & implored before the Hon’ble Court, that it may be graciously pleased to
adjudge & declare –
A. That, the order of deportation passed by Republic of Eden is per se illegal and breach of
its international obligations;
B. That, Republic of Eden is duty bound to protect the life, liberty and basic dignity of
Ardenian nationals;
C. That, Miss Irwin is a refugee and cannot be deported back to Kingdom of NWF for
protection of her life and liberty;
D. That, the Hon’ble Court has no jurisdiction to adjudicate upon the issue of nationalization;
E. That, Republic of Ardenia was justified in Nationalizing Ardenia Power Corporation Ltd.;
And/or
Pass any other relief, that this Hon’ble Court may deem fit and proper in the interest of justice,
equity and good conscience. For this act of Kindness, the petitioners shall be duty bound forever
pray.
The Applicant(s)
[AGENT ON BEHALF OF APPLICANT(S)]
PLACE: ……………….
DATE: ……./……./……

Sr04 - Applicant Memorial

Uploaded by

Copyright:

Available Formats

Sr04 - Applicant Memorial

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Sr04 - Applicant Memorial

Uploaded by

Copyright:

Available Formats

TEAM CODE: SR04

FOURTH PROF. N. R. MADHAVA MENON SAARCLAW

THE INTERNATIONAL COURT OF JUSTICE

UNHCR................................................................................................ APPLICANT (1)

Upon Submission to the International Court of Justice

MEMORANDUM ON BEHALF OF THE APPLICANT(S) DRAWN AND

1.3.1. Principle of non-refoulement is a peremptory norm…………………………….18

1.3.2.The principle of non-refoulement has attained the status of customary

2.1.1.Government induced intentional environmental degradation is a form of

MEMORIAL ON BEHALF OF APPLICANT(S) Page 1

2.1.2 Rights of deportees protected under various international instruments……….…23

2.1.3Deportees recognized as ‘Refugees’ by UN High Commissioner for Refugees and

2.1.4 Deportation violates the ‘right against discrimination’ of Ardenian nationals…25

2.2 Principle of non-refoulement has evolved overtime to accommodate the interest of

2.2.2 Definition has been explicitly enlarged in later regional

4.1 ICJ has no jurisdiction as to decide the dispute relating to nationalization………..........37

4.2 Nationalization is the exercise of permanent sovereignty of natural resources……….....37

4.4 Republic of Ardenia has no obligation as to compensate Republic of Eden…………….43

PRAYER FOR RELIEF SOUGHT……………………………………………………...……45

MEMORIAL ON BEHALF OF APPLICANT(S) Page 2

MEMORIAL ON BEHALF OF APPLICANT(S) Page 3

24. Luis de Raedt v. UOI, 3 SCC 544 (1993)............................................................................. 29

3. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

MEMORIAL ON BEHALF OF APPLICANT(S) Page 5

MEMORIAL ON BEHALF OF APPLICANT(S) Page 6

13. Guy S. Goodwin-Gill, the Refugee in International Law ...................................................... 19

MEMORIAL ON BEHALF OF APPLICANT(S) Page 7

MEMORIAL ON BEHALF OF APPLICANT(S) Page 8

a. the interpretation of a treaty;

MEMORIAL ON BEHALF OF APPLICANT(S) Page 9

MEMORIAL ON BEHALF OF APPLICANT(S) Page 10

MEMORIAL ON BEHALF OF APPLICANT(S) Page 11

MEMORIAL ON BEHALF OF APPLICANT(S) Page 12

MEMORIAL ON BEHALF OF APPLICANT(S) Page 13

1. Present applications filed by Republic of Ardenia and High Commissioner of Refugees

Furthermore, the application of Republic of Eden with regard to Nationalization of Ardenia

2. The ‘order of deportation’ by Republic of Eden is illegal and breach of international

MEMORIAL ON BEHALF OF APPLICANT(S) Page 14

MEMORIAL ON BEHALF OF APPLICANT(S) Page 15

MEMORIAL ON BEHALF OF APPLICANT(S) Page 16

MEMORIAL ON BEHALF OF APPLICANT(S) Page 17

MEMORIAL ON BEHALF OF APPLICANT(S) Page 18

MEMORIAL ON BEHALF OF APPLICANT(S) Page 19

MEMORIAL ON BEHALF OF APPLICANT(S) Page 20

MEMORIAL ON BEHALF OF APPLICANT(S) Page 21

2.1.Rights of deportees are protected under the current framework on refugees.

MEMORIAL ON BEHALF OF APPLICANT(S) Page 22

2.1.1. Government induced intentional environmental degradation is a form of

2.1.2 Rights of deportees protected under various international instruments.

5. Article 3 of Asia-Africa Legal Consultative Organization (ALCO) 1996 Principle

MEMORIAL ON BEHALF OF APPLICANT(S) Page 23

2.1.3Deportees recognized as ‘Refugees’ by UN High Commissioner for Refugees

MEMORIAL ON BEHALF OF APPLICANT(S) Page 24

2.1.4 Deportation violates the ‘right against discrimination’ of Ardenian nationals.

2.2 Principle of non-refoulement has evolved overtime to accommodate the interest of

MEMORIAL ON BEHALF OF APPLICANT(S) Page 25

treaty nature.64 It is submitted that principle of non-refoulement which is an integral part of

2.2.2 Definition has been explicitly enlarged in later regional treaties.

MEMORIAL ON BEHALF OF APPLICANT(S) Page 26