LEGAL TECHNIQUE AND LOGIC

MOOT COURT COMPETITION

UNIVERSITY OF SAN CARLOS

MAY 2019

IN THE MATTER BETWEEN

BASPIAN RIGHTS ORGANIZATION

AND

GOVERNMENT OF THE REPUBLIC OF BASPIA

MEMORIAL FOR THE RESPONDENT

Contents
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 INDEX OF AUTHORITIES

Treaties, Conventions and Charters

1. United Nations Framework Convention on Climate Change Preamble
(May 1, 1992)
2. The International Covenant on Civil and Political Rights (Dec 16,
1966)
3. The International Convention on the Elimination of all Forms of
Racial Discrimination (Dec 21, 1965)
4. Optional Protocol to the International Covenant on Civil and Political
Rights (Dec 16, 1966)

UN Documents
1. Social and economic impact of large refugee populations on host
developing countries, social and economic impact of large refugee
population on host developing countries, UNHCR Standing
Committee (Jan 6, 1997)
2. Report of the Conference of the Parties on its 21st Session, United
Nations Framework on Climate Change (Jan 29, 2016)

Laws
1. The Sedition Act 1948 (July 19, 1948)

Journals and Articles

1. Preserving the Right to a Healthy Environment: European
Jurisprudence, Lucretia Dogaru (Aug 25, 2014)
2. The Rule of Prior Exhaustion of Local Remedies in the International
Law Doctrine and its Application in the Specific Context of Human
Rights Protection, D’Ascoli, Silvia & Scherr, Kathrin Maria (2007)
3. ‘One step forward, two steps back? The fading contours of (in)justice
in competing discourses on climate migration’, Bettini, G., Nash, S. L.
and Gioli, G. (June 2016)
4. Overview of the Rule Requiring the Exhaustion of Domestic
Remedies Under the Optional Protocol to CEDAW, International
Women’s Rights Action Watch Asia Pacific, Sullivan, Donna (2008)
5. Exhaustion of Local Remedies in International Investments Law,
International Institute for Sustainable Development, Brauch, Martin
Dietrich (Jan 2017)

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Jurisprudence
1. Salgado v. United Kingdom U.N. Doc. A/62/38 (Jan 22, 2007)
2. Oposa v. Factoran, G.R. No. 101083 (July 30, 1993)

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 STATEMENT OF THE FACTS

Baspia and Andria are members of the United Nations; The

Constitution of Baspia has Bill of Rights which guarantees civil and political
rights and incorporates the Corona Human Rights Convention.

Baspia ratified the 1965 International Convention on the Elimination

of all forms of Racial Discrimination (ICERD), the 1951 Refugee
Convention and the 1967 Protocol, the United Nations Framework
Convention on Climate Change (UNFCCC).

Plume Trees Limited (PTL), a Baspian company, undertook a

scientific study on global warming with the aim of finding the actual impact
of global warming and possible its solutions. In its report, it concluded that
“it is scientifically proven that the artificially-enhanced Plume trees can
double the quantity of oxygen currently being emitted.” After this report,
PTL started its project of planting special Plume trees, however, these areas
were largely occupied by Andrian immigrants fleeing the effects of global
warming in Andria.

Following pressure from the general public, Baspian Senators

resolved that all Andrian who were illegally in the country be deported
forthwith.

On 13 July 2014, Baspian Rights Organization (BRO) approached the

High Court of Baspia with applicants for refugee status in Baspia which
ruled that the applicants did not qualify as a refugee, and lost the case.

Baspians and Andrians have distinct physical characteristics. Andrians

are small in stature and have dark skin while Baspians are taller in stature
and have a lighter skin color. These visible differences have contributed and
resulted in racism and discrimination among them in Baspia.

During the celebration of Baspian Festival, some groups, like the

famous “in and Out Broadway” theatre group, give performances that
stereotype different ethnic groups in Baspia. Human Rights, BRO, and
Human Rights for Everybody (HRE) accused them of disseminating and
promoting racist images, attitudes, and perceptions in Baspia. In turn, it
created a history of prejudice, hostility, and ignorance towards certain racial
and immigrant groups in Baspia.

In 2013, Baspian Legislature amended the Anti-Discrimination Act

(Chapter 23:06) to include a section which makes the stereotyping of other
races a criminal offense.

In 2014 during Baspian Festival, Ragnar Lodbrok, a leading and

powerful religious monk in Baspia, performed a stereotypical show
mimicking Andrian stereotype. Ragnar Lodrbok, his performers and number
of religious leaders were arrested and dragged off stage after being charged

4
under the Anti-Discrimination Act for racially abusing Andrians. They wore
blackface makeup made by smearing burnt cork on a layer of cocoa butter or
black grease. They also wore costumes often worn by Andrians.

Ragnar Lodbrok and four others organized an interview with a local

radio station, during which they lambasted both the DNC and the President
of Baspia. Ragnar Lodbrok was quoted saying: “DNC is a useless
newspaper owned by Zvidum-dum and whose criticism of Baspian religion
not only threatens the religion but the state itself. The conduct of DNC’s
owners is tolerated by a corrupt and immoral President who allows the
harassing of those who seek to preserve our culture and religion”.

Immediately after the interview, Ragnar Lodbrok and those

accompanying him were arrested outside the radio studio for insulting the
President under the Public Order Act which criminalizes subversive
statements against the person of the President.

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 STATEMENT OF JURISDICTION

Pursuant to Article 79, paragraph 1, of the International Court of

Justice Rules of Court, the Government of Republic of Baspia
(“Respondent”) filed a preliminary timely objection to the Baspian Rights
Organizations (“Applicant/Petitioner”) application instituting
proceedings, challenging this Court’s jurisdiction over the subject matter of
the dispute between Respondent and Applicant.

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 QUESTIONS PRESENTED (ISSUES)

1. Whether or not the removal, deportations of Andrians and refusal to

grant them refugee status is proper; and

2. a.) Whether the arrest of Lodbrok and other personalities was proper;
b.) Whether their arrest was a violation of their freedoms.

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 SUMMARY OF PLEADINGS/ARGUMENTS

In summary, the defense intends to present the following arguments:

I. Procedural Arguments

1. That this case is inadmissible for failure to exhaust domestic

remedies
2. That this Honorable Court has no jurisdiction to hear the instant
case;

II. For the First Issue

1. That Baspia’s deportation of illegal immigrants is proper,

considering that they impede Baspia’s rights as a sovereign
country;
2. That they are not inconsistent with Baspia’s International
obligations.

III. For the Second Issue

1. That Lodbrok and his other co-accused have violated certain

laws and were justifiably arrested under the same;
2. That their arrest does not violate their freedom of expression, as
the restriction of the same is permissible on grounds of public
morals and there was no violation of the equal protection of the
law.

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 PROCEDURAL ARGUMENTS

I. ADMISSIBILITY

A. Failure to exhaust domestic remedies

The rule on the exhaustion of local remedies aims to safeguard

the sovereignty of the state by requiring individuals to seek redress for
any harm allegedly caused by a state within its domestic legal system
and procedures before pursuing international proceedings against that
state.1

The case filed by the BRO against Baspia before this Honorable
Court is inadmissible because domestic remedies were not exhausted.

The first claim is inadmissible because the BRO failed to

comply with the admissibility rules required by this Honorable Court
as provided in Article 5(2)(a) and (b) of the Optional Protocol to the
ICCPR2:

2. The Committee shall not consider any communication

from an individual unless it has ascertained that:

(a) The same matter is not being examined under

another procedure of international investigation or
settlement;
(b) The individual has exhausted all available
domestic remedies. This shall not be the rule where the
application of the remedies is unreasonably prolonged.

The High Court in Baspia provides an effective redress as

evidenced from its reasonable and timely judgment with respect to
their application for refugees status. However, they failed to avail of
the same remedy, given the opportunity to file a case, with regards to
their unsubstantiated claims on the alleged violation of the
Government of the Republic of against Andrian’s rights and its failure
to observe with its international obligation.

The second claim is also inadmissible because (1) the case is

currently pending before the High Court and (2) they have not yet
obtained a final decision from the highest court. This implies that

1 Brauch, Martin Dietrich, Exhaustion of Local Remedies in International Investments

Law, International Institute for Sustainable Development (2017)
2 Optional Protocol to the International Covenant on Civil and Political Rights Art. 5 (2)
(a) & (b)

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 appeals have not been pursued at the highest appellate court level
which is necessary to meet the requirement of exhaustion of domestic
remedies.3

In the present case, it is clear that the BRO is well aware of the
hierarchy of courts but did not respect the same and instead, directly
filed a case before this Honorable Court without seeking any finality
of judgment at the domestic level, hence, domestic remedies were not
exhausted.

B. Burden of proof to prove that exhaustion of domestic remedies would

be futile lies with the Applicant

The burden of proof to prove that domestic remedies have been

exhausted or that the exhaustion of such would be futile lies with the
Applicant. In other words, “a petitioner should provide a detailed
information about which domestic remedies have been tried or why it
was not possible to make use of them.”4

The Applicant may contend that there are exceptions to the rule
on the exhaustion of domestic remedies which may be considered
before this Honorable Court5:

1. Unavailability of domestic remedies

2. Lack of effectiveness and adequacy
3. Denial of justice
4. Unwarranted delay in rendering a final judgement

However, by examining the foregoing facts and circumstances

of the case, it is clear that the BOR was not denied of access to all the
domestic remedies available to them nor was they prevented from
exhausting the same. In fact, they were even afforded due process
when they approached the High Court and submitted the list of
applicants for refugee status. This only proves that the remedy
provided by the state is available, adequate and effective.

Furthermore, there was no unwarranted delay in rendering the

decision on the matter nor the unfavorable judgement against the BOR
necessarily amounts to a denial of justice. The ruling of the High
Court that the applicants did not qualify as refugees was based on

3 Sullivan, Donna, Overview of the Rule Requiring the Exhaustion of Domestic

Remedies Under the Optional Protocol to CEDAW, International Women’s Rights Action
Watch Asia Pacific (2008)
4 Candidate No. 695, The Principle of Exhaustion of Domestic Remedies in the Inter-
American System of Human Rights: A reasonable obstacle or an impossible barrier?,
Faculty of Law, University of Oslo (2004)
5 D’Ascoli, Silvia & Scherr, Kathrin Maria, The Rule of Prior Exhaustion of Local
Remedies in the International Law Doctrine and its Application in the Specific Context of
Human Rights Protection, EUI Working Papers Law (2007)

10
 merits. Hence, the absence of these exceptions cannot dispense the
rule on exhaustion of domestic remedies and must be duly observe by
the BOR.

This means that where the domestic remedies are not

exhausted, and no exception is applicable, the case shall be rejected
and no consideration of the merits shall be done.6

II. JURISDICTION

The main reason for the existence of the principle of exhaustion

of domestic remedies is “the indispensable necessity to harmonize the
international and the national jurisdictions - assuring in this way the
respect due to the sovereign jurisdiction of States”.7

It further serves the purpose of giving the state where the

violation occurred “an opportunity to redress it by its own means,
within the framework of its own domestic system before its
international responsibility can be called into question”.8

The present case clearly falls under the jurisdiction of the

Republic of Baspia. The state has to be afforded with the opportunity
to address the issue first at the domestic level before it is presented to
this Honorable Court, otherwise, it would deprive the Republic of
Baspia of its jurisdiction over the case.

The failure of the BOR to substantiate their claims and raise

their complaint before the Constitutional Court and then to the
Supreme Court would be a bar to the admissibility of the case, hence,
this Honorable Court cannot assume jurisdiction over the case unless
the Republic of Baspia is able to provide effective remedies to the
alleged wrong so as to avoid encroachment on the jurisdiction of the
state.

“This is why the international system is secondary.” 9 It is there

to rectify only when the state commits violations, and to check

6 Ibid.
7 Candidate No. 695, The Principle of Exhaustion of Domestic Remedies in the Inter-
American System of Human Rights: A reasonable obstacle or an impossible barrier?,
Faculty of Law, University of Oslo (2004)
8 Brauch, Martin Dietrich, Exhaustion of Local Remedies in International Investments
Law, International Institute for Sustainable Development (2017)
9 Candidate No. 695, The Principle of Exhaustion of Domestic Remedies in the Inter-
American System of Human Rights: A reasonable obstacle or an impossible barrier?,
Faculty of Law, University of Oslo (2004)

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 whether the remedies in each state fulfil the requirements on the
exhaustion of domestic remedies concerning access to justice.10

“As long as local remedies have not been exhausted by the

individual concerned, one can not qualify the State’s action as
amounting to an internationally wrongful act.”11 Therefore, no
internationally responsibility can arise until their claims has been
decided with finality by the local courts and authorities of the
Government of the Republic of Baspia.

SUBSTANTIVE ISSUES

Granting, for the sake of argument, that this Court does indeed have
jurisdiction in hearing this case, the same would still not prosper on the
following grounds:

I. THE DECISION OF THE BASPIAN GOVERNMENT TO DEPORT

ALL ILLEGAL ANDRIAN IMMIGRANTS IS PROPER.

A. THE ILLEGAL IMMIGRANTS’ OCCUPATION OF BASPIAN

LAND IS DETRIMENTAL TO STATE INTEREST.

Given that some areas where special Plume trees are proposed to be
planted were largely occupied by the Andrian immigrants, they could hinder
Baspia’s project to alleviate the negative effects of global warming, which
include oxygen depletion detrimental to the country’s marine life, through
the Plume trees. Planting of the special Plume trees is beneficial not only to
Baspia but also to the rest of the world as climate change adversely affects
all countries and societies in ways that could be irreversible if no change is
effected by the individuals living in it. An acceleration in the reduction of
global greenhouse gas emissions would be ideal so as to prevent the
worsening condition of this planet.12 PLT has provided a solution to this
challenge in the form of Plume trees. It is scientifically proven that the
artificially-enhanced Plume trees can double the quantity of oxygen
currently being emitted. The Republic of Baspia should, therefore, not be
prevented from engaging in acts that will further the collective effort to stop
global warming which, in the first place, was what drove the Andrians out of
their lands.

More people are recognizing the fundamental human right to a healthy

and balanced environment. In fact, Philippine jurisprudence highlights the

10 Ibid.
11 D’Ascoli, Silvia & Scherr, Kathrin Maria, The Rule of Prior Exhaustion of Local
Remedies in the International Law Doctrine and its Application in the Specific Context of
Human Rights Protection, EUI Working Papers Law (2007)
12 Report of the Conference of the Parties on its 21st Session, United Nations Framework on Climate
Change, January 29, 2016, https://unfccc.int/resource/docs/2015/cop21/eng/10a01.pdf

12
importance of this solemn obligation by stating that it need not be put into
writing because it is assumed to exist from the inception of humankind but
now that it is expressly enshrined in their Constitution, its necessity and
significance has been solidified.13 The Supreme Court in Oposa v.
Factoran,14 ruled that the right to a balanced and healthful ecology carries
with it the correlative duty to refrain from impairing the environment,
meaning that the environment is entrusted to each and every generation and
they are tasked to protect it so that succeeding generations may be able to
enjoy and reap the benefits of having a healthy ecology.

European jurisprudence, as well, recognized that this fundamental

human right is inalienable because to deny it would be tantamount to a
breach of other rights protected under the European Convention of Human
Rights such as the right to life, right to private and family life, or right to
property.15 Continuing to ignore the present problem of global warming
would be detrimental for both Baspians and Andrians because, by doing so,
Baspia will eventually be reduced to the same uninhabitable state as Andria
now.

A. THERE IS VALID LEGAL BASIS FOR THEIR EXPULSION.

B. EXPULSION OF REFUGEES IN THE PRESERVATION OF

NATIONAL SECURITY IS VALID GROUND UNDER BASPIA’S
INTERNATIONAL OBLIGATIONS

Article 32 of the UNHCR Convention and Protocol Relating to the

Status of Refugees discusses the expulsion of refugees, which states that:

1. The Contracting States shall not expel a refugee lawfully in their territory
save on grounds of national security or public order.

2. The expulsion of such a refugee shall be only in pursuance of a decision

reached in accordance with due process of law. Except where compelling
reasons of national security otherwise require, the refugee shall be allowed
to submit evidence to clear himself, and to appeal to and be represented for
the purpose before competent authority or a person or persons specially
designated by the competent authority.

In other words, a country is not compelled to accept or keep refugees

when such will be detrimental to public order. From the facts of the case, it
can be clearly inferred that since that tumults and riots have recently been
erupting due to the refugees’ presence, the security of the country could be
compromised. Thus, in order to prevent further acts of violence and even
terrorism to spread, it is only fitting for Baspia to tighten its own security by
controlling the influx of refugees. A country has the right to maintain its
13 Oposa v. Factoran, G.R. No. 101083 (July 30, 1993).
14 Ibid.
15 Lucretia Dogaru, Preserving the Right to a Healthy Environment: European Jurisprudence, Science
Direct (Aug. 25, 2014), https://www.sciencedirect.com/science/article/pii/S1877042814036568

13
own security, and if this would mean the expulsion or at least the tightening
of the control of the entry of refugees, then Article 32 as stated above would
be sufficient to support its legality.

A. THE LARGE NUMBER OF ANDRIAN REFUGEES IN BASPIA

WOULD PUT A HUGE STRAIN ON THE RESOURCES IN THE AREA.

From their moment of arrival, the Andrians would compete with the
local citizens for scarce resources such as land, water, housing, food, and
medical services. Under the United Nations Framework Conventions on
Climate Change (UNFCCC),16 States have the sovereign right to exploit
their own resources pursuant to their own environmental and developmental
policies, and the responsibility to 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.

Over time, their presence would lead to more substantial demands on

natural resources, education and health facilities, energy, transportation,
social services, and employment. Increased demand for food and other
commodities can lead to price rises in the market which will stimulate local
economic activity, although, again, not benefiting the poorest. 17 The Baspian
government would not be able to provide the needs of their own people. This
could fuel the tension between the Baspians and the Andrians.

While it is a moral obligation for richer countries to help their

neighbors struck by heinous disasters, it is not their sole burden for they also
have their needs and interests to meet. Traditionally, questions of
distribution and transfer of resources (‘responsibility’ and justice) have been
at the crux of climate change politics, both in and outside the form of climate
negotiations. The principle of common but differentiated responsibilities
was a cornerstone of the original text of the United Nation Framework
Convention on Climate Change (UNFCCC 1992, 3.1), and the heavily
caveated inclusion of climate justice’ in the preamble of the Paris Agreement
(UNFCCC 2016) indicates that these discussions remain greatly contested.18

Problems are aggravated when the Andrians are a substantial

proportion of the local, if not national population. In many instances,
refugees become an added impediment to, or risk jeopardizing, the
development efforts of the host country. Their negative aspects may be felt
long after a refugee problem is solved; for example, the damage to the
environment is a process and does not end with the repatriation of refugees.

16 UNITED NATIONS FRAMEWORK CONVENTIONS ON CLIMATE CHANGE. PREAMBLE.

17 UNHCR Standing Committee, Social and economic impact of large refugee populations on host
developing countries, social and economic impact of large refugee population on host developing countries
(Jan 6, 1997)
18 Bettini, G., Nash, S. L. and Gioli, G.‘One step forward, two steps back? The fading contours of
(in)justice in competing discourses on climate migration’, Geographical Journal, 183(4), pp. 348, 352-353
(2017)

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II. LODBROK’S AND THE OTHER’S ARRESTS ARE JUSTIFIED.

A. THE ARREST OF RAGNAR UNDER THE PUBLIC ORDER ACT

FOR MAKING SUBVERSIVE STATEMENTS AGAINST THE PERSON
OF THE PRESIDENT IS PROPER

The International Covenant on Civil and Political Rights (ICCPR)

allows certain restrictions to fundamental rights and freedoms, including
freedom of expression, on the condition that these restrictions be specified
by law, serve a legitimate aim and are necessary for a democratic society.
Some of these permissible restrictions include restrictions for the protection
of national security or of public order.

Article 19 of the ICCPR19 provides that “everyone shall have the right
to freedom of expression; this right shall include freedom to seek, receive
and impart information and ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or through any other media of
his choice.”

However, these rights may be legitimately restricted under three

conditions provided that these conditions concur together. First, that
restriction is provided by law. Second, the grounds for restriction is specific:
(i) for the respect of the rights and reputation of others; (ii) for the protection
of national security or public order or of public health or morals. Thirdly, the
restriction is necessary to a democratic society and proportionate.

Under the proportionality test, the Court is required to consider

whether the restriction is the ‘least restrictive means’ for achieving the
relevant purpose, in this case: protecting the public from an act of violence,
terrorism or similar.

Thus, it is argued that the arrest of Ragnar is proper because of the

prevailing racist hostility between the Andrians and Baspians at the time.
This complies with the three conditions for which a restriction of speech can
be legitimately restricted. The restriction is also provided by law through the
Public Order Act. The restriction is necessary for the protection of national
security or public order because of the current security environment. In the
case at bar, Baspia is currently engulfed in a rising racial tension between
Andrians and Baspians. Hence, subversive statements against the President
under such a volatile condition may destabilize public order. The restriction
is necessary to a democratic society and is proportionate. Herein, the arrest
of persons making subversive statements against the President is
proportionate to the prevailing security condition of the country. Subversive
statements herein must be suppressed before it incites racial violence.

19 The International Covenant on Civil and Political Rights, Article 19

15
 This is further supported in a case of Malaysia wherein the Sedition
20
Act criminalizes “seditious tendencies” that cause “hatred or contempt, or
excite disaffection” against the government or its ruler, as well as
“seditious” speech questioning the special privileges of the Malay people.
This law has been used in recent times to charge a high-profile professor and
commentator, among others, with sedition for making critical comments
about government acts. The professor was charged based on a quote from an
online article describing the collapse of an opposition state government in
2009 as “legally wrong” and resulting from a “secret meeting.”

From this extract, it is argued that the statement incited as “legally

wrong” does not hold the same gravity as that which Ragnar Lodbrok had
issued in a radio station where he said, “the conduct of DNC’s owners is
tolerated by a corrupt and immoral President who allows the harassing of
those who seek to preserve our culture and religion.”

Therefore, following the Malaysian ruling, it is submitted that Ragnar

Lodbrok made subversive statements against the President. The arrest and
charges made against him under the Public Order Act were conducted
lawfully.

B. LODBROK AND OTHERS VIOLATED THE 1965 INTERNATIONAL

CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL
DISCRIMINATION

The charge against Ragnar Lordbrok and his cohorts under the Anti-
Discrimination Act are proper. The act complies with the obligation of
Baspia under (ICERD).21 It is stated in the convention that state parties must
condemn any form of racial discrimination and undertake to pursue by all
means without delay a policy of eliminating racial discrimination in all its
form and promote understanding in among all races. 22 The government of
Baspia had acted within its rights for the state has a duty to protect its
citizens from any forms of discrimination. The disturbances caused by
Ragnar Lodbrok and his cohorts amounted to a dissemination of ideas based
on racial superiority or hatred, incitement to racial discrimination as well as
all acts of violence or incitement to such acts against any race or group of
persons of another color or ethnic origin, and also the provision of any
assistance to racist activities, including the financing thereof.23

The act of mimicking the Andrian stereotype by wearing black face

make up and other types of stereotyping Andrian culture constitutes as
discrimination as defined in Article 1 “racial discrimination” as “any
distinction, exclusion, restriction or preference based on race, colour,
descent, or national or ethnic origin which has the purpose or effect of

20 The Sedition Act 1948

21 The International Convention on the Elimination of all Forms of Racial Discrimination, 1965
22 ICERD Section 2
23 ICERD Section 4 (a)

16
nullifying or impairing the recognition, enjoyment or exercise, on an equal
footing, of human rights and fundamental freedoms in the political,
economic, social, cultural or any other field of public life.”24

C. THE ARREST OF LODBROK AND OTHER RELIGIOUS

PERSONALITIES DID NOT VIOLATE THEIR FREEDOM OF
RELIGION

The arrest of Ragnar Lodbrok and other religious personalities is not

an attack against freedom of religion because the same was a legitimate
exercise of the State’s police power in compliance with its international
obligations under the International Convention on the Elimination of All
Forms of Racial Discrimination and the International Covenant on Civil and
Political Rights as argued beforehand. Lodbrok and his companions were not
prosecuted for their religion but for their racist and subversive actions
towards a public official.

Under paragraph 3, Article 18 of ICCPR 25, the “freedom to manifest

one's religion or beliefs may be subject only to such limitations as are
prescribed by law and are necessary to protect public safety, order, health, or
morals or the fundamental rights and freedoms of others. Here, the
limitations are clearly set as prescribed by law under the Anti-
Discrimination Act and Public Order Act.

D. RESTRICTION ON FREEDOM OF EXPRESSION IS ALLOWED ON

GROUNDS OF PUBLIC MORALS

Article 19(3)(b) of ICCPR expressly states that the exercise of such

rights are limited due to certain restrictions such that, “the exercise of the
rights provided for in paragraph 2 of this article carries with it special
duties and responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided by law and are
necessary: xxxx (b) For the protection of… public health or morals”

The law seeks to prevent the moral degradation of the individual

mind. The criminal act is the publication for gain, or possessing with a view
to such publication, an article which tends, taken as a whole, to deprave and
corrupt a significant proportion of those likely to see or hear it.

By reason that such right is not absolute, when a State party invokes a
legitimate ground for restriction of freedom of expression, it must
demonstrate in specific and individualized fashion the precise nature of the
threat, and the necessity and proportionality of the specific action taken, in
particular by establishing a direct and immediate connection between the
expression and the threat.

24 ICERD Article 1
25 The International Covenant on Civil and Political Rights, Article 19

17
 On the basis of maintenance of public order, it may, for instance, be
permissible in certain circumstances to regulate speech-making in a
particular public place. Such restrictive measures must conform to the
principle of proportionality; they must be appropriate to achieve their
protective function; they must be the least intrusive instrument amongst
those which might achieve their protective function; they must be
proportionate to the interest to be protected, i.e. public health and morals.

E. NO VIOLATION OF THE EQUAL PROTECTION OF THE LAW

Ragnar's right to equal protection before the law is not violated. The
Baspian High Court ruled that DNC’s actions were within the bounds of
freedom of expression.

DNC's publications were not blasphemous or defamatory. Publishers

like DNC enjoy consideration under the law, their statement is based mainly
on opinions.

Paragraph 1 of article 19 requires protection of the right to hold

opinions without interference. This is a right to which the Covenant permits
no exception or restriction... All forms of opinion are protected, including
opinions of a political, scientific, historic, moral or religious nature. It is
incompatible with paragraph 1 to criminalize the holding of an opinion.19

A free, uncensored and unhindered press or other media is essential in

any society to ensure freedom of opinion and expression and the enjoyment
of other Covenant rights. It constitutes one of the cornerstones of a
democratic society.20

DNC’s statement was centered specifically on Baspian religion and its

leaders: ‘Baspian religion is a cult of barbarians. If they have any gods, they
are gods of evil.’ It does not include any other religion or tradition and is
thus, insufficient to justify the imposition of penalties. Hence, as the High
Courts ruled, it is within the bounds of the right to freedom of expression.

Newspaper cartoons are normally creative and exaggerated.

Cartoonists often use symbolism in their work and are open to public
interpretation. It is, therefore, unrealistic to limit their creativity when it does
not constitute any of the limitations set forth under Article 19 of the ICCPR.
The published cartoon by DNC qualifies as a mere creative portrayal of
actual news.

Article 19 of the ICCPR allows leeway to creative expression

provided it is within the bounds of the restrictions. As in the case at bar,
compared to the Ragnar and other’s performance, the DNC’s form of art did
not constitute so grave a wrong appropriate of a crime.

18
 PRAYER

Wherefore, premises considered, it is respectfully prayed for in this

honorable court that the case against the Republic of Baspia be dismissed on
the following grounds:
1. That this honorable Court has no jurisdiction to hear the case, for
reasons above mentioned;
2. Domestic remedies have not been exhausted and this constitutes as a
bar in its admissibility to the Corona Human Rights Court for not
following the rules on admissibility.
3. The decision of the Baspian Government to deport all illegal Andrian
immigrants is not inconsistent with their international obligation as
stated in the exception under Article 32 of the UNHCR Convention
and Protocol Relating to the Status of Refugees.
4. The charge against Ragnar Lodbrock is consistent with the obligations
set forth in The International Convention on the Elimination of all
Forms of Racial Discrimination.
5. The arrest of Lodbrock is proper and the limitation of civil liberties is
allowed by the ICCPR under the permissible restrictions stated.

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