A4

4th Prof. N.R Madhav Menon SAARC LAW Mooting

Competition Intra-Murals

IN THE INTERNATIONAL COURT OF JUSTICE

LA COURINTERNATIONALE DE JUSTICE

..

AT THE PEACE PALACE

THE HAGUE, NETHERLANDS

CASE CONCERNING THE RIGHTS OF REFUGEES ,THEOXENBERG CRISIS AND OTHER

MATTERS

REPUBLIC OF ARDENIA V. REPUBLIC OF EDEN

Written Submission on Behalf of the Applicant

 TABLE OF CONTENTS

Contents
BODY OF ARGUMENTS .................................................................................................................................. 1
1. The Jurisdiction of the Court in matters of the refugees and violation of international law and
obligation . .................................................................................................................................................... 1
I. Violation of the Customary International Law .............................................................................. 1
II. Violation of Convention ................................................................................................................ 2
III. Failure to comply with its obligations ....................................................................................... 2
2. The people displaced by the Mega Hydro Electricity Project (hereafter referred as MHEP)are
climate refugees and are not illegal migrants. The Republic of Eden ought to protect their basic rights
and dignity . .............................................................................................................................................. 3
I. The people affected by the construction of MHEP are climate refugees..................................... 3
II. The deportation process initiated by the Republic of Eden should be stopped and it should
continue protecting the human dignity and basic rights. ..................................................................... 4
III. Republic of Eden has violated the principles of non-refoulement. .......................................... 5
3. The Crisis of Oxenberg is an unlawful act of Republic of Eden and by such act it has violated
International Law. ..................................................................................................................................... 6
I. The water crisis of Oxenberg is an act of Republic of Eden. ......................................................... 6
II. Violation of International Law ...................................................................................................... 6
4. The nationalisation of Ardenia Corporation Power Ltd. by the Republic of Ardeniais appropriate. 7
I. The act of nationalisation of Ardenia Power Corporation Ltd. by the Republic of Ardenia is a
valid act. ................................................................................................................................................ 7
PRAYER OF RELIEF ......................................................................................................................................... 9

0
 BODY OF ARGUMENTS

1. The Jurisdiction of the Court in matters of the refugees and violation of international law
and obligation .
Pursuant to the party of the the Statute of ICJ , the Republic of Ardenia in accordance to

article 36 of the ICJ Statute submits to this court the dispute between Republic of

Ardenia and Republic of Eden. The Republic of Eden has been opposing the jurisdiction

of ICJ 1 and the admissibility of the case.

I. Violation of the Customary International Law

The Republic of Eden has been deficient in managing the refugees who have been issued

certificates by the UNHCR. They are mandate refugees 2 .Further by deporting Mrs Irwin

and other refugees , it has caused the threats of expulsion and refoulment and thus

violates UDHRs principle of inadmissibility of discrimination and disrespects the

refugee protection regime under international law. What if not the serious violation of

human rights , is this?. The rules of international protection of human rights are a part of

customary international law and the violation of which is a jurisdiction of this court.

The principle of non refoulement is an important part of customary international law. It is

amplified by human rights convention of I.C.C.P.R of 1966 , to which both the countries

a party . It prohibits returning someone to their country where they may be tortured.

1
Part V, Para 55 , Moot Proposition
2
Persons who are recognized as refugees by UNHCR acting under the authority of its Statute and relevant UN
General Assembly resolutions. Mandate status is especially significant in States that are not parties to the 1951
Convention or its 1967 Protocol. (UNHCR)

1
 Therefore the Republic of Eden has legal obligations arising out of the scope of rules of

international law operating on a purely conventional basis.3

II. Violation of Convention

The Republic of Eden has failed to embody the principle of equality and by the

deportation process initiated has tried to put Mrs Irwin and life of other refugees in a

position of threat which is a well- founded fear. Any actions of a state that puts the life of

a women in threat and danger is against CEDAW's principle. The Republic of Eden,

inspite of an appeal by UNHCR, by its executive decision took all measures to deport

them and thus when tried to negotiate amicably failed. So in pursuant to Article 29(1) 4 of

the CEDAW convention, the Republic of Ardenia submits the disputes to this court.

III. Failure to comply with its obligations

The Republic of Eden fails to comply between the requirements of international law and

matters of the fact. ICJ has used such expressions as “incompatibility with the

obligations” of a State5, acts “contrary to” or “inconsistent with” a given rule6, and

“failure to comply with its treaty obligations”.7 And therefore in violation of international

3
Seen with the views of Thailand : The view of Thailand was explained by that country's Ambassador to Australia
in the following terms. Thailand was not a signatory to the UN Convention on Refugees and was not therefore
"bound by legal obligations to accept or give temporary refuge to any refugee". Nevertheless, out of "a deep sense of
moral obligation", Thailand had over the preceding four years or more provided shelter for nearly 170,000 "so called
'refugees' under UNHCR and another 7,798 'boat people'Later in the same address, the Ambassador observed that
such an "enormous number of illegal immigrants and displaced persons has caused severe political, socio-economic
problems and a great threat to the security of Thailand".45 In other words, despite the fact that Thailand was
denying that any of the conventional rules was applicable, that State was still attempting to avoid using the
appellation "refugee" in case to do so would involve Thailand in legal obligations arising outside the scope of the
rules of international law operating on a purely conventional basis.

4
Any dispute between two or more States Parties concerning the interpretation or application of the present
Convention which is not settled by negotiation shall by the request of any one of those parties may refer the dispute
to the International Court of Justice by request in conformity with the Statute of the Court.
5
United States Diplomatic and Consular Staff in Tehran , p. 29, para. 56.
6
Military and Paramilitary Activities in and against Nicaragua p. 64, para.115, and p. 98, para. 186, respectively
7
Gabčíkovo-NagymarosProject , p. 46, para. 57.

2
 law and convention Republic of Ardenia firmly believes that this court has the

jurisdiction.

Thus ,Article 38 of the Statute of the International Court envisages the Court's

jurisdiction extending to disputes arising from treaties i.e violation of CEDAW and the

ICJs expression inGabčíkovo-Nagymaros Project and on the basis of customary

international law and treaties which when violated are a matter of jurisdiction of ICJ, the

agent for the Republic of Ardenia submits to this court that this court has plenty grounds

for jurisdiction.

2. The people displaced by the Mega Hydro Electricity Project (hereafter referred as
MHEP)are climate refugees and are not illegal migrants. The Republic of Eden
ought to protect their basic rights and dignity .

I. The people affected by the construction of MHEP are climate refugees.

Refugee is used to describe a person who is forced to flee his or her home for any

reason for which the individual is not responsible, be it persecution , public disorder

, civil war, famine , earthquake or environmental degredation.8

Pursuant to the environmental degradation caused by the construction of MHEP dam

about 20000 people are internally displaced and about 10000 of the Mao community

have been rehabilated in the Republic of Eden and have been issued refugee

certificates by UNHCR.

El-Hinnawi defined environmental refugees9 as "people who have been forced to

leave their traditional habitat, temporarily or permanently, because of a marked

environmental disruption (natural and/or triggered by people) that jeopardized their

existence and/or seriously affected the quality of their life". In this regards the agent

8
AstriSuhrke, Global Refugee Movements And Strategies of response .
9
United Nations Environment Programme , 1985 report

3
 for the Republic of Ardenia submits before this court that those displaced people are

refugees not illegal migrants.

Some regional forums like the Economic Union of the Organization of Eastern

Caribbean States and the Caribbean Single Market and Economy or the Economic

Community of West African States , the OAU Convention have addressed this issue

and now it is time for the international community to address the issue of Climate

Refugees and what better platform than the ICJ.

II. The deportation process initiated by the Republic of Eden should be stopped and
it should continue protecting the human dignity and basic rights.
The Republic of Eden, has taken all measures to deport and relocate all the displaced /

refugee including Mrs Irwin. By such acts, it puts the life, liberty , and security of the

refugees like Mrs Irwin in danger which would be a violation of the principles of UDHR

Article 310, CEDAW , ICCPR, ICESCR.

The Republic of Eden had granted 10 years stay free visa irrespective of their nationality

but has started the deportation process before it11 which is an unlawful act.

Republic of Eden therefore should stop the deportation process and protect the life liberty

and security of the refugees.

It is “well established that, when a State has committed an internationally wrongful act,

its international responsibility is likely to be involved whatever the nature of the

obligation it has failed to respect.

10
Everyone has right to life, liberty and security of a person.
11
Moot Proposition , Para 7 , Para 13 and Para 20 read concurrently

4
 III. Republic of Eden has violated the principles of non-refoulement.
The principle of non-refoulement is an important part of customary International law and

has it scope outside of the rules of international law operating on a purely conventional

basis . It is amplified by ICCPR, which prohibits returning someone to a country where

they may be subjected to torture. The International Covenant on Civil and Political Rights

(ICCPR) includes an implicit right to non-refoulement when ‘there is a real risk that [an

individual’s] rights under the Covenant will be violated in another jurisdiction’.12

The example of the Hong Kong jurisprudence sheds light on the potential role of

international human rights law in addressing refugee rights – the right to non-refoulement

in particular - in a jurisdiction not bound by the Refugee Convention or Protocol .

Thus, there seems to be no doubt as to the reception of non-refoulement as a rule of

customary international law, drawing its inspiration from considerations of humanity and

the Republic of Eden ought to follow it.

So the Republic of Ardenia requests the court to address the displaced as Climate

refugees and the Republic of Eden therefore should stop the deportation process and

protect the life liberty and security of the refugees.

12
See Human Rights Committee, A.R.J. v. Australia, Communication No. 692/1996, UN doc.
CCPR/C/60/D/692/1996, 11 Aug. 1997, para. 6.8 and Human Rights Committee, General Comment No. 31, ‘The
Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, UN doc.
CCPR/C/21/Rev.1/Add.13, 26 May, 2004, para. 12

5
 3. The Crisis of Oxenberg is an unlawful act of Republic of Eden and by such act it has
violated International Law.

I. The water crisis of Oxenberg is an act of Republic of Eden.

The management of Ardenia Power Corporation Ltd. with territorial jurisdiction

under the control of Government of Eden was not releasing the amount of water for

the people of Ardenia which led to the Oxenberg water crisis.

Consequence to this action it has threatned the lives of almost 4 million people

residing in the city which is a breach of international humanitarian law. Further , it

has also halted the development of the industrial parks and MNCs which will have an

adverse effect in the Economy of Ardenia.

II. Violation of International Law

The Republic of Ardenia and Republic of Eden are parties to all Climate Change

negotiations , framework and conventions under the aegis of UN.

It has failed to comply with the Stockholm Declaration as well as Rio Declaration.

Principle 21 of Stockholm Declaration states '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 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.'13 This principle is widely accepted to be a part of customary

international law14 and the violation of such is a matter of the jurisdiction of ICJ.

13
Principle 21 The United Nations Conference on the Human Environment, having met at Stockholm from 5 to
16 June 1972
14
Sands 1995; Birnie and Boyle 1992; Fuggle and Rabie 1996

6
 ICJ's view is "contemporary environmental law applies a duty of environmental

assessment (including EIA and SIA) of international projects where they may

reasonably be considered to have a significant impact on environment"15. In this

regards if not an act of violation of obligations, then what is Republic of Eden's act

of not sharing the environment assessment report and therefore by such acts it has

breached environmental law.

4. The nationalisation of Ardenia Corporation Power Ltd. by the Republic of

Ardeniais appropriate.

I. The act of nationalisation of Ardenia Power Corporation Ltd. by the Republic of

Ardenia is a valid act.
Ardenia Power Corporation Ltd. is under the jurisdiction of laws of Ardenia but

controlled by the Republic of Eden16. The republic of Eden was not releasing the

amount of water which led to the Oxenberg Water crisis. It has threatned the lives of

millions of people and has halted the economic development of Ardenia.So the

Republic of Ardenia in consideration of its national interest has nationalised the

Ardenia Power Corporation Ltd.by bringing an ordinance17. It has been

internationally accepted that every state maintains complete right to exercise full

sovereignty over its resources .Nationalization as being a legitimate and

internationally recognized method ensures the sovereignty of the state upon such

15
Judge Weeramantry ,In Gabčíkovo-Nagymaros project ,Hungary V. Slovakia ,ICJ
16
Moot Proposition , Para 9
17
Moot Proposition, Para 45

7
 resources. Nationalization being related to the sovereignty of the State, is not the

subject to foreign jurisdiction.18

18
The Texaco/Libya Arbitration

8
 PRAYER OF RELIEF

In the light of facts presented, authorities cited and arguments advanced, the applicant,

the Republic of Ardenia, respectfully requests this Honorable Court to adjudge and

declare that:

i. The court has the jurisdiction in matters of climate refugees , the Oxenberg water crisis ..

ii. In violation of Customary International Law and the Conventions to which Republic of

Eden is a party , it has possessed threat to the life , liberty and security of refugees like

Mrs Irwin. It ought to protect the basic rights and dignity of the climate refugees.

iii. Republic of Eden has responsibility towards humanity in backdrop of the climate change.

iv. The nationalisation of Ardenia Power Corporation is legally valid.

Respectfully Submitted

– Agents on behalf of the applicant state.