Applicant Team 56 (A)
Applicant Team 56 (A)
Applicant Team 56 (A)
TEAM: 56A
CASE CONCERNING
NEW BALANAR
(APPLICANT)
v.
STATE OF RAZZIL
(RESPONDENT)
SUBMISSION TO
(RICtHR)
APPLICANT
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TABLE OF CONTENTS
TABLE OF ABBREVIATIONS 3
INDEX OF AUTHORITIES 5
TABLE OF CASES 7
STATEMENT OF JURISDICTION 9
STATEMENT OF FACTS 10
ISSUED RAISED 12
SUMMARY OF ARGUMENTS 13
WRITTEN ARGUMENTS 15
ISSUE 1 15
A. THE NAI’XANS ARE ASYLUM SEEKERS IN RAZZIL. 15
B. THE NAXIAN FLEEING TO RAAZIL CAN NOT BE CONSIDERED AS
ILLEGALL IMMIGRATS. 17
C. RAZZIL HAS INTERNATIONAL OBLIGATIONS TO COMPLY WITH. 18
ISSUE 2 22
A. THE PRINCIPLE OF NON-REFOULMENT IS A PRINCIPLE OF
CUSTOMARY INTERNATIONAL LAW. 23
B. THE PRINCIPLE OF NONREFOULEMENT IS A PRINCIPLE OF JUS
COGENS UNDER INTERNATIONAL LAW 24
ISSUE 3 32
A. RAZZIL HAS VIOLATED ITS INTERNATIONAL OBLIGATIONS UNDER
THE 1951 CONVENTION 33
B. THAT THE STATE OF RAZZIL HAS VIOLATED ITS OBLIGATIONS
UNDER THE CONVENTION AGAINST TORTURE. 34
C. RAZZIL HAS INTERNATIONAL OBLIGATIONS TO COMPLY WITH. 35
ISSUE 4 36
PRAYER 43
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TABLE OF ABBREVIATIONS
Annex Annexure
Apr April
Art Article
Dec December
EU European Union
Feb February
i.e. Id est
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Id. Ibid
Intl International
IU Ishkafel Union
Jan January
Jul July
Para Paragraph
RC Refugee Convention
v. Versus
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INDEX OF AUTHORITIES
BOOKS
ARTICLES
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Rosemary Byrne and Andrew Shacknove, ‘The Safe Country Notion in European
Asylum Law’,
The End of Poverty: How We Can Make It Happen in Our Lifetime.
Sir Elihu Lauterpacht, Daniel Bethlehem, “The Scope and Content of the Principle of
NonRefoulement: Opinion”, Cambridge University Press
“Identifying States’ Responsibilities towards Refugees and Asylum Seekers”, Finnish
Yearbook of International Law, 20, (2009)
Vincent Chetail, ‘Crisis Without Borders: What Does International Law Say About
Border in the Context ofCOVID-19?’ (2020).
G. Goodwin-Gill, Article 31 of the 1951 Convention relating to the Status of Refugees:
Non-penalization, Detention, and Protection
WEB REFRENCES
https://blogs.icrc.org/law-and-policy/2018/03/30/principle-of-non-refoulement-migration-
context-5-key-points
https://www.unhcr.org/uk/uk-immigration-and-asylum-plans-some-questions-answered-
by-unhcr.html
https://www.unhcr.org/en-in/publications/brochures/3b779dfe2/protecting-refugees-
questions-answers.html
https://www.borgenmagazine.com/brazils-successful-refugee-policies/
https://www.growthinktank.org/en/how-effective-is-the-principle-of-non-refoulement-in-
europe-today/
https://www.hrw.org/report/2015/11/16/europes-refugee-crisis/agenda-action
https://righttoremain.org.uk/toolkit/detention/
https://ijrcenter.org/refugee-law/#:~:text=Article%201(A)
https://www.infomigrants.net/en/post/25622/the-dublin-regulation--your-questions-
answered
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https://www.unhcr.org/admin/hcspeeches/3ae68fbc20/preventing-future-genocide-
protecting-refugees-address-mrs-sadako-ogata.html
https://www.world-psi.org/en/we-all-have-responsibility-protect-refugees-respect-human-
rights-and-uphold-our-humanity
TABLE OF CASES
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Budina v Russia 32
Sufi and Elmi v UK 32
Salah Sheekh v the Netherlands 32
N v UK. 32
MSS v Belgium 33
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STATEMENT OF JURISDICTION
New Balanar, an eastern country exercised its erga omnes obligations to bring an action against
the State of Razzil before the Regional Ishkafel Court of Human Rights(“RICtHR”) on June 24,
2019. Both Razzil and New Balanar are parties to the Regional Ishkafel Convention on Human
Rights (“RICHR”).
ARTICLE 32 of European court of Human Right states that the jurisdiction of the Court shall
extend to all matters concerning the interpretation and application of the Convention and the
Protocols thereto which are referred to it as provided in Articles 33, 34, 46 and 47.1
1
European Court of Human Right, Art.32.
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STATEMENT OF FACTS
Iskafel Union, hereinafter referred to as IU, is a group of 18 countries divided in East and West.
The Republic of Alanor, hereinafter referred to as Alanor, is a one of the six eastern countries of
the IU.
Nai’xans in Alanor
The State of Alanor hosts various clans and sub-clans. Minerva and Kessaj are two
dominantinfluential clans. The other clans of Shai and Nai’x are in minority and do not hold
much political influence. Nai’xan are 1 million in population and represent only 2% seats. They
are referred as an ‘extrinsic clan’ and foreigners by their own countrymen. Mangix is a state in
Alanor. Nai’xans live in the Yunero Settlement in Juno, the capital of Mangix. It is ruled by
Kessajan Political Party (KPP), whereas the Central Government is ruled by the
theMinervanProple’s Party(MPP)
KPP was not very considerate toward the Nai’xans clan and never gave the benefits of the socio-
economic schemes launched by the center to them. Nai’xans clan had a leader who formed a
Nai’xans Peoples’ Liberation Movement, popularly known as ‘NPLM’. The organization was
later replaced by an extremist leader Zeke Thrall, who fiercely advocated for their rights. He did
not get any positive responses from the government. Their peaceful protests were also retaliated
with unproportionate violence. Thereafter the leader was arrested and imprisoned for eleven
years. After eleven years when he was released from prison, he rallied for freedom and asked for
an independent nation. The Government retaliated by committing mass atrocities on the Nai’xans
settlement in Yunero. Following the atrocities many people escaped the settlement and entered
into the neighboring countries.
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About 800 Nai’xans went to Britannia and Wadia. Most of the people did not carry any identity
cards. They were asked to present themselves before the respective Refugee Status
Determination Agency. Those who presented themselves before the authorities, were given the
asylum status.
Thereafter many Nai’xan went to Razzil including those who went to Britannia and Wadia.
Razzil was always a welcoming country towards asylum seekers. But in the recent past the
asylum seekers were facing discrimination from the people of Razzil. A sense of resentment
prevailed among Razzilians against the Easterners or the asylum seekers. Razzil faced a terror
attack. The responsibility of the attack was claimed by another country. The Government of
Razzil also linked it to the Nai’xans. There were several reports of torture in the detention center
of Razzil. In 2019, Klobe virus spread in Razzil, consequently Razzil shut its borders.
Government of Razzil also passed a Illegal Immgration Control Bill,2019 wherein they changed
the laws regarding asylum. This closure of borders and overhaul its asylum system resulted in
deplorable conditions of the asylum seekers.
New Balanar, an eastern country exercised its erga omnes obligations to bring an action against
Razzil before the Regional Ishkafel Court of Human Rights (“RICtHR”) on June 24, 2019. Both
Razzil and New Balanar are parties to RICHR. Razzil is a signatory to the 1951 Refugee
Convention and its 1967 Protocol. It is also a party to all major instruments of international
human rights law. The RICtHR has formed the following issues for consideration for the hearing
on July 17, 2019.
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ISSUED RAISED
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SUMMARY OF ARGUMENTS
ISSUE 1
Razzil is obligated to protect the Nai'xan community. Detention of Nai’xians by Razzil further
violates the principle of international law. Razzil being a signatory to the Convention Relating to
the Status of Refugees of 1951, has to extend the protection to refugees by giving them asylum
and this sets an obligation to comply under international law. Thereby, Razzil has violated
principles of International Law.
ISSUE 2
Whether Razzil’s closure of borders in light of a public health crisis violates the principle
of non-refoulment?
Razzil’s closure of borders in light of a public health crisis violates the principle of non-
refoulment.Razzil’s closure of borders in light of a public health crisis violates the principle of
non-refoulment where Razzil has been bound by the principle of Customary International Law,
even non-refoulement also attains a status of jus cogens norms in International Law, principle of
non-refoulment, it has an erga omnes character. The Applicant also submits that Razil has
violated its obligations under the) 1951 Refugee Convention; ICCPR; Convention Against
Torture
ISSUE 3
Whether the Illegal Immigration Control Bill, 2019 introduced by Razzil contravenes
Article 31 of the Refugee Convention and Razzil’s other obligations under international
law?
By introducing the Illegal Immigration Control Bill, Razzil has violated its obligations under
Art.31 of the 1951 Refugee Convention and other relevant international laws. Art. 31 aims at
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prohibiting Contracting Parties from putting restrictions on the movement of refugees unless
necessary, and Razzil on the contrary put a blanket ban on the movement of the refugees.
Nai’xian faced a well-founded fear of persecution in Alanor and Nai’xians came directly to the
territory of Razzil from Alnaor, and also presented themselves before the authorities of Razzil in
a reasonable time, therefore qualified for not being penalized. Thus, Razzil by detaing and not
granting them protection to them, has violated Art. 31.
ISSUE 4
Whether the countries apart from Razzil in the Ishkafel Union have a duty to share the
responsibility to offer protection to the asylum-seekers and address the refugee crisis?
That the countries apart from Razzil in the Ishkafel Union have a duty to share the responsibility
to offer protection to the asylum-seekers and address the refugee crisis. Even though being a
non-signatory to the treaty, they must comply with human right principles and extending
protection to Nai’xans. They do not have any option other than to flee as their living conditions
in Alanor are not suitable and Britania and Wadia being neighbouring countries to Razzila and
Alanor and being signatory to international conventions have aduty to share the responsibility to
offer protection to the asylum seekers.
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WRITTEN ARGUMENTS
ISSUE 1
The Applicant submits that Razzil is obligated to protect the Naxian community and detention of
Nai’xians by Razil further violates the principle of international law.
2
Moot Compromis 9
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faced by the Nai'xans. Even after the international community asked the Government
of Alanor, to take steps in the favor of the Nai’xians, the government did not take any
step in favour Nai’xans community. 3
3. That even thereafter government formed by Minerva Party which won the election in
Alanor and had earlier promised to protect Nai'xans did not provide adequate
measures which should have been given to them. Zeke Thrall as their Supreme
Leader, took the step to initiate talks with Mangix Governor Ren Heimdall however
no conclusion was reached, and later a peaceful protest was initiated by NPLM which
later turned violent 570 protesters were injured, and at least 237 died as a result of
baton-charging and the stampede that followed.4
4. That the Police started patrolling and arresting people who are involved in the protest
i.e., Nai'xans community people were prosecuted for sedition and disrupting the peace
and order of the state, and sentenced to 11 years of rigorous imprisonment in Juno
State Prison to escape this hardship Nai'xans committee people fled from Alanor to
seek asylum in the neighboring country of Wadia and Britannia as they shared border
with Alanor however not being a signatory to 1951 Refugee Convention they had no
obligation over this refugee. Later when Zeke was released from prison on January 8,
2019, and attacked the government office and police station the result which
government shut down the internet so that NPLM terrorists cannot communicate
within themselves. 5
5. Then military committed mass atrocities against the Nai’xans arresting 4000 men’s
committed torture in detention and around 1000’s were killed. Nai’xans men were
brutally beaten by the majority groups, and women and children were raped in front
of their families. Their properties were also damaged or looted. Anyone who
attempted by resisting was beaten severally. 6
6. That the State authorities did not take cognizance of these actions and as result, 800
people of the Nai'xans committee fled About 600 of them entered Britannia, and 200
3
Moot Compromis 10
4
Moot Compromis 16
5
Moot Compromis 22
6
Moot Compromis 24
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entered Wadia. They carried very few belongings with them – anything necessary that
they could quickly find inside their houses. Most of them did not carry any identity
cards and had very little food, water, and clothes. 7 The essential component or right
which should rest with every person is to live peacefully without any kind disturbance
in his or her country. 8 For one week, they did not produce themselves before any
government authority in these countries.
7. Since Razzil is a part of the 1951 Refugee Convention and 1967 Protocol welcoming
refugees and as per article 1(A)(2) of the 1951 Convention 9. The counsel states that
believing in the core principle of non-refoulment, which asserts that a refugee should
not be returned to a country where they face serious threats to their life or freedom.
This is accepted as a principle of customary international law. Thus, Nai'xans seeking
asylum protection in Razzil are valid.
7
Moot Compromis 25
8
M.T. Kamminga, Inter-State Accountability for Violations of Human Rights, Philadelphia 1992, pp. 133-134.
9
Refugee Convention, Art. 1(A)(2).
10
Illegal immigrant, https://dictionary.cambridge.org/dictionary/english/illegal-immigrant
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1951 Refugee Convention and a welcoming place for Refugee, it cannot deny its
obligation to accept the people fleeing from Alanor in need. Additionally, Razzil
cannot continue with the cessation of the refugee status of the Nai'xans as they are
still under the fear of persecution is, therefore, a compelling reason for not going
ahead with the cessation of the said status.
11
See e.g., V. Moreno-Lax, Beyond Saadi v UK: The “Necessity” Requirement for Administrative Detention of
Asylum Seekers in the EU, Reflexive Governance in the Pub. Interest, Working Paper No. REFGOV-FR-31, 2010,
available at:http://sites.uclouvain.be/cpdr-refgov/publications/Working%20Papers/ Fundamental%20Rights%20-
%20FR_(23.07.2010_14h07)_WP-FR-31.pdf (last visited 24 Jan. 2016); H. O’Nions, “No Right to Liberty: The
Detention of Asylum Seekers for Administrative Convenience”,
European Journal of Migration and Law, 10, 2008, 149
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longer be permissible under Article 5(1)(f) ECHR. This would mean the States would
have to make an attempt to make out rational justification for any detention under the
same conditions as the detention of insiders, namely coercive detention under Article
5(1)(b). As per this provision, it allows the States for detaining any person regarding
non-compliance with the lawful order given by the court where they have to fulfill the
obligation as mentioned in law but this will be subject to strict conditions. 12 Here it
becomes important to understand the situation of Nai'xans had to flee instead of
hoping to get a safe protected environment however the due to decreasing jobs for
Razzilians in the service sector and the increasing presence of "Easterners" in the
public sphere, Razzilians slowly started becoming hostile towards the Easterners
which led to their ghettoization.13
15. That the counsel submits that the Razzil started deviating from the obligation towards
the refugee and shifted their obligation towards Britannia and Wadia since according
to the WIAR, the first country of asylum must process these applications.14
16. That the rights which are given to the refugee in norms which are given by the League
of Nations High Commissioner for Refugees, the 1933 Refugee Convention, the 1948
Universal Declaration of Human Rights and, 15 and the natural law will combine to
formulate the fundamental rights that each person is guaranteed as virtue of born as
human and these rights afford the protection to that refugee who claims that under this
Convention the refugee is given protection to be treated with equal and fair treatment
in the host country which in this case is for Razzil and refugee seeking protection will
get protection under the international law.
17. Public international law plays a major role in influencing the current refugee law
because it aims for having a normative world order.16 International refugee law
considers the aspect where it welcomes any decision made on the basis of morality
that deals with the interaction of political realities, and that might be explained why
12
See further Costello, “Immigration Detention: The Grounds Beneath Our Feet”, 156–157.
13
Moot Compromis 30
14
Moot Compromis
15
James C Hathaway, The Rights of Refugees under International Law (CUP 2005) 94
16
Hedley Bull, The Anarchical Society: A Study of Order in World Politics (Palgrave Macmillan 1977).
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the discipline and the practice of refugee law are facing such a serious issue regarding
survival.
18. That the existing refugee law clarifies that the natural law plays a major role
considering the aspect of morality in shaping up the refugee law and giving it a
universal recognition and those seeking asylum can base their argument on such
premises. This relationship exists persist because of natural law which throughs light
on three fundamental aspect which are- universality, human purposes, and goods are
discoverable by reason, and moral principles are objective and discernible by reason -
all of this focus to highlight the importance of individual liberty and expanding
human rights.17 Thus the basic fundamental remains intact and cannot be retreated all
of which links to natural law, and because of these rights deriving from one's
existence as a person.18
19. That the European Convention can be called a 'living instrument' which provides the
power to the ECtHR in expanding the definition of torture to cover such things as 'ill-
treatment'.19 The interpretation of the definition of ill-treatment is a much wider
construction of the notion of torture, especially when contrasted with views held by
States, which do not share the Court's will to make an inference as to what can
amount to torture or vice versa.
20. That the Court in Selmouni v. France held that while exploring the issues which
pertain to torture and mistreatment in such cases they can be classified as "inhuman
and degrading treatment" in comparison to "torture". There is a great sense of
responsibility for the protection of humans and fundamental to be looked at the
democratic societies.20
17
Kent Greenawalt, 'How Persuasive Is Natural Law Theory (1999) 75(5) Notre Dame Law Review
1647, 1658; Rene Ristelhueber, 'The International Refugee Organization' (1951) 29 International
Conciliation 167, 167.
18
Jack Donnelly, 'The Relative Universality of Human Right' (2007) 29(2) Human Rights Quarterly
281,282.
19
Chahal v. The United Kingdom (n 23) para 80; Case of Vilvarajah and Others v. The United Kingdom
App nos 13163/87; 13164/87; 13165/87; 13447/87; 13448/87 (ECtHR, 30 October 1991) paras 107-108.
20
Selmouni v. France (n 138) para 101
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21. That interspersed with the ECtHR's commitment in ensuring there is full e protection
that is given to refugees from torture and its impact which is created21 is its role in
developing the principle where there is a threat of torture which is persistent and
specifically the duties of State Parties obligation towards the individual, which in the
eye of court deems absolute.22 These duties are viewed as absolute as even if the
individual is accused of or has been engaged in hostile, and possibly anti-State
activities they cannot be sent back if torture is a possibility.
22. That the time of Klobe Virus and persistent situation of Nai’xans in Alanor is not
suitable to send them back to their place and any decision taken in haste will turn out
to be futile and dangerous to the life of the people and thus in the interest of good
conscience any harsh measure should not be taken against Nai'xans.
23. That the Geneva Convention of 1951 on the Status of Refugees sets forth an extensive
framework of legal rules which create duties for States Parties having received
refugees or being faced with demands for admission. If any individual is not directly
expelled but is subject to constant pressure and harassment which affect other rights
under the Covenant or customary law there is eventually no other option left to leave
the country of residence to be able to lead a life in human dignity, the conclusion is
that the right under Article 12 of the Covenant – or the corresponding right under
general international law – has been violated and positive steps should be taken in
direction by the Razzil community to protect the life when the Nai’xans who have
arrived in their country for protection.
24. Lastly, the European Convention or the Convention for the Protection of Human
Rights and Fundamental Freedom under Article 1, which emphasizes the Obligation
to respect Human Rights, Article 2, protecting the life which also includes acting as a
guardian protecting the life of refugee coming to Razzil from Alanor, Article 3 which
aims at prohibiting the torture, Article 5 which aims at granting life and liberty are the
parameters which have violated as part of the principle of international law.
21
Othman (Abu Qatada) v. The United Kingdom (n 137); N. v. Finland (n 23) para 158.
22
Chahal v. The United Kingdom (n 23) para 74. See also Salah Sheekh v. The Netherlands (n 20).
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25. That considering the above stated condition the detention of asylum-seekers by
Razzil violate principles of international law.
ISSUE 2
II. Whether Razzil’s closure of borders in light of a public health crisis violates the
principle of non-refoulment?
26. That the applicant submits that Razzil’s closure of borders in light of a public health
crisis violates the principle of non-refoulment. The issue is explained in 3 folds (A).
Principle of Customary International Law (B). Non-refoulement also attains a status
of jus cogens norms in International Law(C). In light of this status of the principle of
non-refoulment, it has an erga omnes character.
27. That the Razzil is having an era omes obligation by following the principle of non-
refoulment towards the Nai'xans and by not giving shelter to Nai'xans the former has
violated the principle of non-refoulment which precludes the states from returning
individuals to countries where they might face persecution, which in this case is
Alanor.23 This principle has been demarcated under Art. 33 of the 1951 Refugee
Convention and the 1967 Protocol relating to the Status of Refugees.
28. That the counsel submits that ICJ went ahead in explaining the erga omnes effect in
Barcelona Traction Case where it is said that there lies obligations of a State towards
the international community as a whole which are 'the concern of all States and for
whose protection all States have a 'legal interest' must be of paramount concern. 24
Erga Omnes obligations have further been elaborated in the Institute of International
Law Resolution on Obligations and Rights erga omnes in International Law under
23
Rosemary Byrne and Andrew Shacknove, ‘The Safe Country Notion in European Asylum Law’, 9 Harv. Hum.
Rights J.187 (1996)
24
Barcelona Traction, Light and Power Company Limited (New Application: 1962) (Belgium v. Spain), Judgment,
1970 I.C.J.
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Art. 1(a) as general principles of international law which a state owes at large to the
international community. 25
25
Institute of International Law, Resolution on Obligations and Rights erga omnes in International Law, IDI
A resolution I/2005, (2005) 71(2) Ann IDI 286.
26
Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. the United States of
America), 1986 I.C.J. Rep. 14, 109.
27
Moot Compromis 9.
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most of these reports, which did not garner much of the public attention. Civil society
groups lobbied with the government for the release of the asylum-seekers to process
their applications, but the government did not respond to any of these requests. 28
33. That is customary principle there lies a character of non-derogation from its
obligation. The presence of the principle of non-refoulment has been affirmed this
status as recognized by the United Nations General Assembly and affirmed by the
European Court of Human Rights. Even then also there lies an erga omnes obligation
which is contemplated under Art. 1(b) of the International Law Commission
Resolution on Obligations and Rights erga omnes in International Law, which
recognized that state parties to a treaty owe an obligation to all other states parties
who have signed the treaty case recognized by the Razzil by signing the 1951
Convention, this obligation becomes a responsibility which can be enforced through
Art. 48 of the ARISWA. 29
28
Moot Compromis 39.
29
Art. 48 of the ARISWA, 2001.
30
Peremptory norms of general international law (jus cogens), Chapter V
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The Applicant submits that Razil has violated its obligations under the) 1951 Refugee
Convention; ICCPR; Convention Against Torture.
37. Razzil measure of the cessation of refugee status of Naxian violates the 1951 Refugee
Convention. Once a person has been recognized as a refugee under Art. 1(A)(2) of the
1951 Refugee Convention, his status can only be altered for the reasons set out under
Art. 1(C)31. Art. 1(C)(5) of the 1951 Refugee Convention allows cessation of the
refugee status only if the circumstances in which the status was granted have ceased
to exist and as a result, thereof the person can avail of the protection of his home state
but here neither of the measures was carried out from the end of the Razzil
government.
38. The revocation of the refugee status under Art. 1(C)(5) can be said to be only justified
if there have occurred fundamental changes in the country removing the basis of the
fear of being persecuted. The change might be durable, and mere transitory changes
not entailing a major change in circumstances will not justify revocation. When there
31
Refugee Convention, 1951, Art. 1(A)(2)
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is danger lies ahead of Klobe Virus spreading globally then leaving them stranded in
the situation of danger will add to their suffering as the Nai'xans will be left with no
measure as they not even return to their own country. 32
39. Naxian is subjected to persecution by the government of Razzil and its armed forces
stationed. 33 A threat to the life or freedom of an individual is sufficient to establish a
'well-founded fear of persecution' warranting protection against refoulement under
Art. 33 of the 1951 Refugee Convention. 34 Arbitrary arrests and detention solely on
the ground of a person's ethnicity threaten an individual's 'freedom' under Art. 33 and
amounts to persecution within Art. 1(A)2.
40. That as per Art. 3 of the UN CAT which aims at prohibiting Contracting Parties to
refoule a person where there are substantial grounds for believing that he or she shall
be subjected to torture which in the present case is the situation of Nai’xans. 35 As per
Art. 3(2) the Court is also required to assess the key factor in the general situation of
the country of origin along with any existence of flagrant or mass human rights
violations. A member of a group that is systematically exposed to the practice of
torture is not required to establish special distinguishing circumstances or any
persona/ individual risk.
41. Torture is an intentional act by which severe physical or mental suffering is inflicted
upon an individual or a group.36 Indefinite detention without a charge/trial and
appropriate legal safeguard can constitute a practice contrary to Arts. 2 and 3 of the
CAT.37 Sexual violence against women, particularly rape, constitutes torture as it
inflicts severe physical as well as mental pain. 38
32
Moot Compromis. 39.
33
Moot Compromis 38.
34
Refugee Convention, 1951, Art. 33
35
United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment
art. 3, Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter “Torture Convention”.
36
Torture Convention, supra note, art. 1.
37
CAT, Consideration of Reports Submitted by States Parties under Article 19 of the Convention, at — 22,
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CAT/C/USA/CO/2 (2006); CAT, Concluding observations on the combined third to fifth periodic reports of the
United States of America, CAT/C/USA/CO/3-5 (2014).
38
Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading
Treatment or punishment, at — 53, A/HRC/13/39/Add.5 (2010).
39
Stauder v City of Ulm (C-29/69) 196 ECR 419, para 7.
40
See for example Nold v Commission (C-4/73) 1974 ECR 491, para 13
41
Vienna Convention on the Law of Treaties, opened for signature on 23 May 1969, 1155 UNTS 331
(Entered into force 27 January 1980) art 27 VCLT.
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happened in the Razzil the responsibility has been taken by Rexxar from the eastern
community and the success of the Nai'xans citizen in the Razzil cannot be justified for
which Nai'xans were asked to leave Razzil when they needed protection.
46. That the principle of non- refoulement is made prohibitory under UN CAT art 3 and
which should be read along with the prohibition of torture and cruel, inhuman, or
degrading treatment or punishment as mentioned under ICCPR art 7 and ECHR art 3.
The principle can be seen in any other regional instruments as well, 42 and can be
expressed in various non-binding international instruments.
47. That the words said by Allain, where the non-refoulment has attained the status of jus
cogens.43As the principle of non-refoulement is forming a notion of customary
international law, and where theStates are obliged to do, as discussed by Allain why
they do it so the rationale is that if they do it because they think that the principle has
gained the status of jus cogens, which means that they have accepted as the
principle.44 The 1984 Cartagena Declaration on Refugeesstates that principle of non-
refoulement has attained the status of jus cogens. 45 The document is not binding, nor
are UNHCR's conclusions, but they illustrate how the states view the principle of
non-refoulment.
48. That the case concerning the Dublin Regulation tried by the ECtHR was T.I. v the
United Kingdom46 where the case concerning the Sri Lankan national who were
claiming asylum in the UK and it was later seen that the UK authorities found out that
Sri Lankan national had already claimed asylum in Germany and thus the UK made a
request that Germany is responsible for examining his asylum application. Then the
case was later referred to ECtHR where the applicant complained that their transfer to
the Germany would violate article 2, 3, 8, and 13 of the ECHR and he should not be
42
OAU Convention Governing the Specific Aspects of Refugee Problems in Africa opened for signature
10 September 1969, 1000 UNTS 46 (entered into force 20 June 1974) art II(3) and American Convention
on Human Rights, opened for signature 22 November 1969, 1969 OAS 36 (entered into force 18 July
1978) art 22(8)
43
Allain, above n 47.
44
ibid
45
Cartagena Declaration on Refugees, adopted by Colloquium on the International Protection of
Refugees in Central America, Mexico, and Panama (22 November 1984), III (5).
46
T.I. v United Kingdom (Application no 43844/98, ECtHR, 7 March 2000) 15
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transferred to Germany. The grounds were that he had a negative decision from
Germany and that they were not going to reconsider his case, and when deported to
Sri Lanka had met with risk as it was also contrary to art 3 of the ECHR.
49. That in the case of the ECtHR came in contact with the Dublin system was K.R.S. v
the United Kingdom47 where an Iranian national who was claiming his asylum in the
UK after he stopped his journey in Greece as he requested the UK, authorities then
Greece accepted responsibility for the examination of the asylum application. After
exhausting all the domestic remedies, the applicant turned to the ECtHR and where he
claimed that his transfer to Greece would further violate his rights classified under art
3 and 13 of the ECHR as there exist the possibility of risk as per the principle of
refoulement because of Greece substandard asylum system.
50. That the right where one has to leave any country, including one’s own, country is
connected to the right to seek asylum since it means having a right to flee from
persecution. 48This right is not absolute and does not entail a right to enter another
country. In the Roma Rights case, the House of Lords found that strict visa
requirements are not a violation of the right, and therefore the pre-frontier control was
not illegal either.49 It can be argued that such restrictions, applied already in the
country of origin, interfere with the right to leave. A country not allowing its nationals
to leave to claim asylum in another state is breaching this provision.
51. That in the Roma Right case the situation of Nai'xans their presence has formed a part
of customary international law by allowing the refugee who flees from Alanor in their
country and they would not be requiring any kind of special document verification to
enter the border of Razzil. In the case of Golder v UK, the ECtHR concluded that the
right to a fair trial in art 6 of the ECHR has an implied right to access to court, since
without that the right would be ineffective, and thus effective protection can be
granted concerning the situation of Nai'xans citizens. 50
47
K.R.S. v United Kingdom (Application no 32733/08, ECtHR, 2 December 2008)
48
Den Heijer, above n 110, 143
49
R (European Roma Rights Centre) v Immigration Officer at Prague Airport 2004 UKHL 55 Roma
Rights case.
50
Golder v United Kingdom (Application no 4451/10, ECtHR, 21 February 1975) paras. 35-36
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52. That in the case of Powell,51 the ECtHR held that it cannot be excluded that the acts
and omissions of state authorities in the field of health care policy may in certain
circumstances engage their responsibility. After analyzing it can be understood that
the right to life is important both for individuals and society and it must not be
ignored when there is a pandemic-like situation.52
53. That in the case of Soering v the United Kingdom53, the court concluded that under
Article 3 of the European Convention on Human Rights (ECHR) which aims at
prohibiting the extradition, expulsion, and deportation of individuals will not grant
any exception. Thus, the above applies also applies in the situation where Nai'xans
should be granted proper protection in the Razzil in time of emergency.
54. In Chahal v United Kingdom54 and D v the United Kingdom55 derogation from the
principle of non-refoulment even when there exists situation like public emergency it
becomes necessary that the principle of non- refoulement is considered as absolute
and unqualified. When there is a situation where any alien is to be excluded from the
Convention as mentioned under Article 1F,14 he is entitled to protection against
refoulement under Article 3 of CAT as mentioned in Paez v Sweden Committee
Against Torture, No. 39/ 1996 or the customary international law.
55. In the case dealt by the ECtHR held in Ireland v UK, there exists a "minimum level
of severity" threshold for Article 3 ECHR, and considering all aspects the court held
that treatment that has been inflicted should be evaluated relatively and after
determining all the facts andcircumstances of the case concerned.56In the case of
Jabari v Turkeyheld the meaning criteria to assess the applicant's claim must be
worked uponby considering the current circumstance. 57
51
Powell v UK (2000) 30 EHRR CD 152.
52
UNHRC, ‘General Comment No 36: Right to Life’ (2019) CCPR/C/GC/36.
53
Soering v United Kingdom (1989) 11 EHRR 439
54
Chahal v United Kingdom (1996) 23 EHRR 413
55
D v United Kingdom (1997) 24 EHRR 423
56
ECtHR, Court (Plenary), Ireland v UK, Merits, 18.01.1978, Application no. 5310/71, paragraph 162. Weissbrodt
and Hdrtreiter, "The Principle of Non-refoulement,"30.
57
ECtHR, Fourth Section, Jabari v. Turkey, 11.10.2000, Application no. 40035/98, paragraph 40. See, for example,
Cruz Varas and Others v Sweden, where the ECtHR rejected the applicant's claim based on the "improvements in
the political situation" in Chile. ECtHR, Court (Plenary), Cruz Varas v Sweden, paragraph 80. Weissbrodt and
Hortreiter, "The Principle of Non-refoulement," 34f.
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56. In the case of Vilvarajah and Others v UK the ECtHRheld that, while human rights
violations on a massive scale in the respective country can be the key factor in
determining the idea of a real risk, they might not be conclusive for granting
protection under Article 3 ECHR.58 Accordingly, the real risk assessment should be
based on general and personal circumstances. 59
57. That it becomes the duty of neighbouring States like Razzil in protecting the public
not only from any kind of human rights violations committed which is committed by
other States, which in the present case is done by Alanor. The ECtHR has recognized
this duty in the case concerning Osman v. the United Kingdom.60Where the plaintiff
had argued that the British police violated the right to life of a family member and on
failing to take adequate measures to stop a deranged man from killing the family
member despite clear warnings regarding the threat.61
58. The United Kingdom denied it owed such a broad duty to protect against actions
committed by members of society, arguing instead it could only be held liable where
the police "assumed responsibility" for the safety of the individual. 62
59. The Court went ahead in rejecting the contention raised by the British authority that
holding the right to life shall include all the positive steps which a State should take as
there is a duty towards safeguarding the lives of those within its jurisdiction. The
court stated a real and immediate risk to the life of an identified individual or
63
individuals from the criminal acts of a third party." The Court remarked that the
operational measures required went beyond merely creating a criminal justice
apparatus to deal with threats, instead sometimes requiring action to mitigate the
threat.64
58
Vilvarajah and Others v UK, paragraph 9-66, 111. Weissbrodt and Hdrtreiter, "The Principle of Non-
refoulement," 35.
59
Chahal v UK, paragraph 96. Vilvarajah and Others v UK, paragraph 108.
60
1998-VIII Eur. Ct. H.R. 3124.
61
ibid
62
Id. at 3156-57. This is the rule adopted by the U.S. Supreme Court in DeShaney. See DeShaney v. Winnebago
Cnty. Dep't of Soc. Servs., 489 U.S. 189, 195 (1989).
63
Osman, 1998-VIII Eur. Ct. H.R. at 3159-60. The Court found that the right had not been violated because the
petitioners failed to demonstrate that the police knew or should have known of the threat the killer posed to the
family. Id. at 3162.
64
ibid
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60. That in the case of Edwards v. the United Kingdom,65 where it was held that holding
the U.K. responsible as it has failed to take adequate measures should have taken to
protect the life of a prisoner who is in its custody from the threat posed by another
prisoner. Similarly in the case of Budina v Russia, where the ECtHR held that not
only state action but also inaction can lead to state responsibility. 66 Holding this
principle in the light of economic refugees who do not want to be refouled to
conditions of extreme poverty since, in most cases, extreme poverty is rather related
to the inaction than to the action of a state.67
61. Thus after considering all the precedent and application of customary international
law it can be rightly be said that Razzil’s closure of borders in light of a public health
crisis violates the principle of nonrefoulement and steps need should be taken to live
of Nai'xans
ISSUE 3
Whether the Illegal Immigration Control Bill, 2019 introduced by Razzil contravenes
Article 31 of the Refugee Convention and Razzil’s other obligations under international
law
The Applicant submits that by introducing the Illegal Immigration Control Bill,Razzil has
violated its obligations under the 1951 Refugee Convention and other relevant international laws.
The arguments are submitted in three folds.
65
Edwards v. the United Kingdom, 2002-II Eur. Ct. H.R. 137
66
ECtHR, First Section, Budina v Russia, Decision on Admissibility, 18.06.2009, Application no. 45603/05. MSS v
Belgium and Greece, paragraph 253. Clayton, Asylum Seekers in Europe: M.S.S. v Belgium and Greece, p.767.
67
The inaction of the state manifests itself, for instance, in a lacking social security system, insufficient poverty
relief programs, an unsatisfactory fight against corruption, a poor political responsibility, and many other structural
flaws. Sachs, Jeffrey (2005), The End of Poverty: How We Can Make It Happen in Our Lifetime. London:
PenguinBooks, 226f.
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the applicant submits that the Illegal Immigration Control Bill, 2019 passed by the State
of Razzil violates Art.31 of the 1951 Refugee Convention. It talks about Non-
penalization, Detention, and Protection68 of refugees. Razzil being a signatory to the
1951 Convention has passed the bill contravening the provisions of the Convention.
62. That the Art. 31(1)69 applies on the Contracting States to the convention and puts an
obligation on them that they shall not impose penalties on those refugees who came
directly from a territory where their life and freedom were threatened under Art.1 of
the Convention, and those that the State thinks that those who entered or are present
illegally. The State is under no obligation if the refugees do not present themselves
before the authorities without delay and have a good cause to enter and be present
illegally.
63. That the Art. 31(2)70applies on the Contracting States to the convention and puts an
obligation on them that they shall not restrict the movement of refugees, barring the
movement of restrictions other than those that are necessary, until the status of such
refugees in the country is regularized or they obtain admission in any other country.
64. That considering both the clauses of Article 31, Razzil, being a signatory has an
obligation, not to impose penalties and detain and to provide protection to the
refugees. Therefore the 1951 Convention is concerned with establishingthe rights and
responsibilities of refugees. The travaux préparatoires71are for determining the
‘ordinary meaning’ mentioned under Article 31(1) of the 1951 Convention, which
applies to refugees who have entered or are present without any kind express
authorization, whether they have come directly from their country of origin, or from
any other territory in which their life or freedom was threatened, provided there
should be able to show case a good cause for such entry or presence.
68
See https://www.unhcr.org/419c783f4.pdf
69
1951 Refugee Convention, Article 31(1)
70
1951 Refugee Convention, Article 31(2)
71
See G. Goodwin-Gill, Article 31 of the 1951 Convention relating to the Status of Refugees: Non-penalization,
Detention, and Protection (Oxford: Oxford University Press, 2001, 2nd ed.), 11
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65. That the Nai’xans had come directly from their country of origin. As Razzil is a
landlocked country and does not share borders with the country of Alanor, Nai’xians
stayed in Britania and Wadia only for a reasonable amount of time and did not apply
for asylum there, so this would amount to coming directly. Also, they had a ‘good
cause’ for such entry or persecution as there was a genuine fear of persecution in their
home country, Alanor.
66. That the act of Razzil detaining the refugees and putting them in a detention house in
Moria, is in clear violation of Art. 31(2) as this nowhere comes under the necessary
restrictions that can be put on the movement of refugees. Rather it is a complete bar
on the movement of the refugees.
67. That in toto, Razzil has acted in contravention to Article 31 of the Refugee
Convention. Art. 31 prohibits Contracting Parties from putting a restriction on the
movement of refugees unless necessary, and Razzil on the contrary put a blanket ban
on the movement of the refugees. As established, Nai’xian faced a well-founded fear
of persecution in Alanor and Nai’xians came directly to the territory of Razzil from
Alnaor, and also presented themselves before the authorities of Razzil in a reasonable
time, therefore qualified for not being penalized. Thus, Razzil by detaing and not
granting them protection to them, has violated Art. 31. Accordingly, Razzil has
violated the Refugee Convention.
72
Convention against Torture, Art. 3(2)
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establish special distinguishing circumstances or any other personal risk that can be
posed to him/her.
69. Torture is an intentional act by which severe physical or mental suffering is inflicted
upon an individual or a group.73 Indefinite detention without a charge/trial and
appropriate legal safeguards can constitute a practice contrary to Arts. 2 and 3 of the
CAT.
70. That is the present case, Nai’xians were kept in detention in deplorable conditions in
the province of Moria. 74 In addition to this, arrests were made on the mere suspicion
of the linkage of the Easterners to the terrorists of Rexxar who claimed responsibility
for the terrorist attack in Razzil. 75
71. That the Razzilians instigated racial violence against the Easterners76. Several media
outlets were spreading hatred against the Nai’xians and alleged them to be thieves,
murderers, and rapists and asked them to go back to their country77. The Sate of
Razzil despite observing all the environment of hatred that was brewing up against
the Nai’xian community did not take any steps to counter it or placate their citizens.
Instead, a statement mentioned that they do not have any obligations under the
78
Western Ishkafel Asylum Regulation to process the asylum applications.
72. That on a cumulative consideration of the aforesaid facts, there were substantial
grounds to believe that there was a foreseeable and real risk that Nai’xians were and
will be subjected to torture. Therefore, Razzil has violated their nonrefoulement
obligation as embodied under Art. 379 of the CAT.
73. The Applicant submits that it is important to stress, on the fact that under the
international humanitarian law granting protection to the asylum seekers and
73
Convention against Torture Art. 1.
74
Moot Compromis 33
75
Moot Compromis 32
76
Moot Compromis 31
77
Moot Compromis 35
78
Moot Compromis 35
79
Convention against Torture, Art.3
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ISSUE 4
Whether the countries apart from Razzil in the Ishkafel Union have a duty to share the
responsibility to offer protection to the asylum-seekers and address the refugee crisis?
76. That the countries apart from Razzil in the Ishkafel Union have a duty to share the
responsibility to offer protection to the asylum-seekers and address the refugee crisis.
This is a basic principle of international law which supported by the Universal
Declaration of Human Rights guarantees which advocates for right to seek and enjoy
asylum.
80
Migration and International Human Rights Law - a Practitioner's guide, INTERNATIONAL COURT OF
JUSTICE,http://www.icj.org/wp-content/uploads/2014/10/Universal-MigrationHRlaw-PG-no-6-
PublicationsPractitionersGuide-2014-eng.pdf.
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77. That the Nai’xans have a duty to abide by the rules and regulation of country where
the asylum is sought i.e., Wadia and Britannia and similarly in the times of grave
adversity duty lies on these countries to protect the refugee as asylum is first sought in
this country when the Nai’xans refugee fled.
78. That it is the responsibility of every country to give the basic protection to the
refugees who are fleeing on January 10, 2019 about 800 Nai’xans escaped the Yunero
Settlement in the night, and made their way to the country’s western border, avoiding
several patrolling booths. Then it was January 17 and 18, 2019, where theBritannia
and Wadia Governments had to send envoys along with the military to Nai’xan camps
which were set where interrogation was made with these Nai’xans refugee from
Alanor.81
79. That the Nai’xans refugee were asked to appear before the Wadian Refugee Status
Determination Agency on January 26, and those refugee present in the Britannia were
asked to make the appear before the Britannia RSDA on January 28. It was in the
evening of January 18 where both the countries in lieu of helping sent 300 packets of
food items, about 400 water bottles, and 50 medical kits so the immediate needs of
the Nai’xans could be meet however the important fact to be noted escaped refugee
who flee were 800 and help was not sufficient enough to cater the needs of all. 82
80. That the primary responsibility of the asylum seeker and refugee seekers rest with the
host state and principle of burden sharing becomes utmost important as the
responsibility lies both on the government and international organization to maintain
this equilibrium. That in the preamble of 1951 refugees Convention has
acknowledged the right to grant the asylum places a heavy burden on the countries
and even cooperation of all countries is needed to meet the humanitarian law. The
two-fold concern is the financial support to the refugee and the physical resettlement
of the refugees.
81. That the burden sharing principles is to be seen in broader sense as the geographical
location is not fixed from refugee flee and here the equal burden lies on the Wadia
81
Moot Compromis 26
82
idib
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and Britannia to share the equal burden of the refugee fleeing in their nation because
their migration is affected by the adverse living condition which is present in the State
of Alanor.
82. That at the European Union level there is existence of the Dublin Procedure which
aims to determines the country which is made responsible for looking after the claims
in the entire EU level which shows there exist a solidarity among the EU nations to
grant asylum to the refugee fleeing from their nation.
83. The principle existing by non-refoulment is mentioned in Article 33(1)83 if the life is
threatened in the original country so the countries’ part to the Convention has positive
obligation to not expel the refugee as this is practice developed as part of the
customary international law but this principle is also extended to non-signatory of the
Convention as this sets a positive obligation where life and liberty of individual
should be given paramount importance.
84. That in the case of the Greek case,84 the European Commission of Human Rights has
discussed the concept of torture and inhumane treatment which can become reason of
causing severe suffering, mental or physical, injury to the person and same condition
is the outcome which have been seen by the Nai’xan in Alanor due to which they had
to flee and this action cannot be justified and as solidarity runs deep in the human
character it become the responsibility of Wadia and Britannia to protect the refugee.
85. That in the year 2011 a request was made from the former United Nations High
Commissioner for Refugees, General, Antonio Guterres, where he asked to the non-
signatory country of the 1951 Refugee Convention and its 1967 protocol to make a
step towards theratification and a positive step and cooperation from government will
be a step ahead in making live of refugee better.85
83
Refugee Convention, 1951, Art. 33(1)
84
Greek Case, Judgement of 18 November 1969, Yearbook of the European Convention on
Human Rights, No. 12, emphasis added
85
Antonio Guterres: Personal Appeal to non-signatory states to accede to the 1951 convention and the 1967 Protocol,
onthe opening pages of The Legal Framework for Protecting Refugees as it relates to 1951 Convention Relating to
the Statusof Refugees and its 1967 Protocol, UNHCR, Geneva Switzerland, September 2011
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86. That as per international law scholar James Hathaway and Colin Harvey two test exist
which are applicable to asylum seekers where as per the first test it requires the. 86The
asylum-seeking State has to establish that asylum seeker is threat to the sovereignty of
the nation and secondly if the person who has been convicted has committed any kind
of serious crime in asylum seeking State.87The other factor that need to be looked is
the Article 388 which aims at prohibiting refoulment hit with any exception.
87. That the blanket ban on the entry is completely disregard of international human right
law which is not desirable as it fails in tackling the crisis the risk has to be calculated
on the various parameter and on counting the factor that even Razzil is denying to
take the responsibility of the refugee will lead these Nai’xan refugee stranded in the
middle of the path as they can neither go back to Alanor and neither are they getting
support in Razzil thus, Razzil even being non signatory to the treaty should extend the
protection to the refugee. The connection between the danger to the security of the
State must be seen that reasonable suspicion is based after analyzing all the evidence
and it is threating the nation here it must be understood that rule of law will not stop
at the border even when it is time of the pandemic and here the protecting the public
health should be of the utmost importance as it is part of the fundamental rights. 89
88. That the 1951 Refugee Convention recommends some sort of basic minimum
standard which primarily involves the aspect of non-discrimination, non-penalization
and non-foulement. On these parameters the refugee must be treated this convention
though not enforced on the non-signatory but it can be looked from the positive aspect
of protecting the notion of human right principle where the importance is given to the
rights of the refugees.
86
J.C. Hathaway & C.J. Harvey, Framing Refugee Protection in the New World Disorder 34 Cornell J. Int'l L. 290
(2001). See also, See, Duffy, supra note 46, at 375
87
Hathaway and Harvey also seem to allude to the exception of national security. See, Hathaway & Harvey, supra
note 52. See, Duffy, supra note 46, at 375
88
United Nations Declaration on Territorial Asylum, 1967, Art 3.
89
Vincent Chetail, ‘Crisis Without Borders: What Does International Law Say About Border in the Context
ofCOVID-19?’ (2020).
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89. The UNHCR also released a statement that "Nai’xans have been victims of historical
persecution and are fleeing from Alanor in large numbers. In times like these, nations
must come together to afford them the protection they deserve.” 90
90. That the, asylum-seekers shall be assessed in this regard, and until the decision on
their refugee status is made, they are not to be expelled from a country, this is an
integral part of the process of recognition of the Convention. Irregular entrance of
asylum-seekers to a country does not abolish the realization of the principle of non-
refoulment.
91. In other words, the principle is not limited only to those who are refugees; it is valid
for anyone who is under the threat of torture or death, in cases of forced repatriation
like deportation; so it is not a must for the person to be a refugee to be considered
within the scope of non-refoulment.
92. That under the principal of international law the 1951 Convention, explicitly refer to
the principle of non-refoulment. For example, Article 45(4) of the 1949 Geneva
Conventions on the Protection of Victims of War highlights that the protected persons
cannot be sent back to a country where they face the fear of persecution because of
their political or religious status. Article 3 of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment underlines that any
state shall not return or extradite a person to another country in which he/she is
believed to have the danger of being subjected to torture.
93. That the principle of non-refoulmenthas attained thejus cogensnorm, apart from the
aspect it constitutes a part of customary international law.91Jus Cogens norm cannot
be derogated by nay means and also the application of the pact sunt servanda which
means that the pact (agreement must be survived) however on the basis of
international humanitarian law and also respecting the principle of UN CAT, ICCPR
it become the ad hoc duty of the non-signatory nation like Wadia and Britannia to act
as the pillar supporting the refugee fleeing from Alanor.
90
Moot Compromis, para 41
91
Sir Elihu Lauterpacht, Daniel Bethlehem, “The Scope and Content of the Principle of NonRefoulement: Opinion”,
Cambridge University Press, (2003), p. 163.
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94. That in the instant case subject protection of human right isnon-derogable duty lying
in the hand of Britannia and Wadia who are not parties to the 1951 Refugee
Convention and its Additional Protocol, here the principle of duty sharing hold
account over where emphasis is made on both countries to provide sufficient means
of survival to the refugee of Nai’xans.
95. That the concept of “temporary protection” and “the safe third country principle” 92,
have been developing in the EU member states. Here the aspect of the Temporary
Protection concept was first applied by Australia, 93 however this concept was largely
expanded by giving the norm practiced in the EU under the “Temporary Protection
Directive”94and as per the safe third country in the EU's Asylum Procedures
Directive,95 in order to protect the Nai’xans.
96. That thenotion of 'temporary protection' can be considered as a necessary step in the
light of the asylum seeker as it does not constitute the wider protection but in present
context as there persist the global threat of the virus the immediate step can be taken
is to provide the remedy to the asylum seeker from Nai’xans. 96 There is no emphasis
on permanent settlement but working on the immediate plan which can suit the need
of the existing condition to meet the requirement of justified protection.
97. That there is no straight jacket formula which can determine the safe third country
and it has to be accessed on the basis of the immediate necessity thereby leading to
the fact that the "safe" is a completely subjective term and it is open to interpretation.
Here in the nearest country possible where the Nai’xans could flee was the western
country i.e., Razzil, Wadia and Britannia and thus responsibility lies on the non-
signatory nation of the Refugee Convention to provide protection to asylum seekers.
Even the temporary protection needs to be extended to the asylum seekers as the
immediate remedy.
92
The Council of the European Union, Directive 2005/85/EC, 1 December 2005, Article 27.
93
Catherine Phuong, “Identifying States’ Responsibilities towards Refugees and Asylum Seekers”, Finnish
Yearbook of International Law, 20, (2009), p. 4.
94
The Council of the European Union, Directive 2001/55/EC, 20 July 2001.
95
The Council of the European Union, Regulation 604/2013, OJ L. 180/31-180/59, 29 June 2013.
96
https://www.unhcr.org/publications/brochures/3b779dfe2/protecting-refugees-questions-answers.html
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98. That the State who are not the party might face the difficulties in accepting the
refugees but bridging the gap in the times of necessity needed to be assessed in the
light of humanitarian principle which can help the refugee. Even the UDHR under
Article 14 has mentioned the norm where every one has the right to seek the asylum
from persecution. 97
99. The western countries of the Ishkafel Union have an ongoing asylum burden-sharing
agreement called the Western Ishkafel Asylum Regulation (“WIAR”) to which Razzil
is also a party. 98In the present case, the states other than Razzil in the Ishkafel Union
have a duty to share the responsibility to offer protection to the asylum-seekers and
address the refugee crisis.
97
See Universal Declaration of Human Rights, GA Res. 217 A (III), 10 December 1948.
98
Moot Compromis, para 36
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PRAYER
In light of the foregoing arguments, the State ofNew Balanar respectfully prays to the Court to
adjudge and declare that:
2. That Razzil’s closure of borders in light of a public health crisis violates the principle of non-
refoulement
3. That the Illegal Immigration Control Bill, 2019 introduced by Razzil contravenesArticle 31 of
the Refugee Convention and Razzil’s other obligations under international law
4. That the countries apart from Razzil in the Ishkafel Union have a duty to share the
responsibility to offer protection to the asylum-seekers and address the refugee crisis.
The Hon'ble Court may pass any other relief or declaration it deems fit in the the interest of
justice, equity, and good conscience.
Respectfully Submitted
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