TEAM CODE – 06A

AMITY INTERANTIONAL MOOT COURT COMPETITION,

2018

BEFORE THE HONOURABLE INTERNATIONAL COURT

OF JUSTICE

SPECIAL AGREEMENT NO. …/2018

(FILED UNDER THE ARTICLE 40(1) OF THE STATUTE OF

THE INTERNATIONAL COURT OF JUSTICE)

IN THE MAATTER BETWEEN

STATE OF ANTOLIA
(APPLICANT)
VERSUS
STATE OF VARYS
(RESPONDENT)

MEMORANDUM ON BEHALF OF THE APPLICANT

 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ................................................................................................................. 2

INDEX OF AUTHORITIES................................................................................................................... 3
STATEMENT OF JURISDICTION ....................................................................................................... 4
QUESTIONS RAISED ........................................................................................................................... 5
STATEMENT OF FACTS ..................................................................................................................... 6
SUMMARY OF PLEADINGS............................................................................................................... 8
PLEADINGS ........................................................................................................................................ 10
1. WHETHER THE NOTIFICATION DATED JUNE 6, 2018 ISSUED BY VARYSIAN
GOVERNMENT IS IN VIOLATION OF INTERNATIONAL LAW? ........................................... 10
1.1. Whether acts of Varysian Government are in Violation of Human Rights? ..................... 12
1.2. Whether acts of Varysian Government are in Violation of Customary International Law?
15
2. WHETHER THE ORUKAINS, IF ANY, WHO ENTERED VARYS FROM ANTOLIA ARE
REFUGEE UNDER INTERNATIONAL LAW? ............................................................................. 19
2.1. Whether the Immigrants, who entered in Varys, are refugees? ........................................ 20
2.2. Whether the State of Varys is liable to follow Principle of Non-Refoulement? ................ 25
2.3. Whether the principal of non-Refoulement is considered as a norm of customary
international law? ......................................................................................................................... 28
3. WHETHER THE ANTOLIA IS LIABLE TO ACCEPT THE ORUKAINS BEING
DEPORTED BY VARYS? ............................................................................................................... 33
3.1. Whether the State of Varys is liable to accept the newly born children? .......................... 34
PRAYER ........................................................................................................................................... 39

1
AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT

LIST OF ABBREVIATIONS
Abbreviations Expansion
And
&
Par
¶¶
April
Apr.
Article
Art.
December
Dec.
Edition
Ed.
Honorable
Hon‟ble
International Court of Justice
ICJ
International Organization
IO
June
Jun.
November
Nov.
Page
Pg.
Proposition
Prop
Supreme Court Cases
SCC
September
Sep.
United Kingdom
U.K.
United Nations
U.N.
United States of America
U.S.

2
AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT

INDEX OF AUTHORITIES

3
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT

STATEMENT OF JURISDICTION

The State of Antolia (Applicant) and State of Varys (Respondent) hereby submitted the
present dispute to the International Court of Justice (herein after refer as I.C.J.) pursuant to
Article 40, paragraph 1 of the Court’s Statute, in accordance with the Compromise for
submission to the International Court of Justice of the differences concerning the Orukain
Refugees, signed in The Hague, The Netherland, on the thirty first day of July in the year two
thousand eighteen and Jointly notified to the Court on the same date. In accordance with
Article 36, paragraph 1 of the Statute, the Court has jurisdiction to decide all matters referred
to it for decision. Both parties shall accept the Court’s decision as final and binding and
execute it in good faith.

4
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT

QUESTIONS RAISED

I. Whether the notification issued by Varysian government on 6 TH June, 2018 is in

violation of international law?
II. Whether the Orukains, if any, who entered Varys from Antolia are refugees under
international law?
III. Whether the Antolia is liable to accept the Orukains being deported by Varys?

5
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT

STATEMENT OF FACTS

The State of Tahoma, the State of Antolia and the State of Varys share their international
borders with each other. Tahoma, a multi-religious nation, situated in the southeastern part of
the continent of Lassa and consist of a population of 5 million. Their principles were based
on austerity and non – acquisition.

As in the case the Orukains left the state of Tahoma was non based because the government
of Tahoma tried to make a move for the development of their state emphasize on the
evolution of the policy to make Tahoma a tourist encompassed state by which they can get a
hype and development in the structural growth of their nation but the move taken by the
government of the Tahoma got condemned by the Orukains as the Orukains philosophy is
based on some principles which won’t get them to the way of development and growth but
because of the sudden change they thought that their right got violated which was totally
baseless.

The next result of the condemning action of the government of Tahoma was that Orukains
demonstrated the peaceful protest in Tahoma and with the possible ways of showing their
denial on the action taken before.

The result of the peaceful protest turned into riots which occurred in Woka on February 5,
2018 and as a result several Orukains and non Orukains were injured. Subsequently, they got
charged on damaging the public property by the government along with the Phikam but later
on the man who got arrested on the side of the Phikam got released because of the ground of
insufficient evidence which thereafter is valid.

The State of Varys was not under the obligation to provide the requirements that alleged by
Orukains to be fulfilled because however the people of Varys were already in a situation in
which they couldn’t get themselves under the line. They are running out of resources and
directly says that the state is not under any compulsion help the refugees and the country is
unorganized to maintain the other people’s basic requirements.

The Times of Varys report which published on 24 April, 2018 exclaimed that the people who
alleged the state of being the part of Varys were the people who illegally came from Antolia
to Varys.
6
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
Later effect was that the government of Varys issued a notification on June 6, 2018 to detect
mark out all the illegal migrants and detect them accordingly within a month, with the
immediate action administration detected thousands of undocumented persons among which
98% reported as Orukains and only on the basis of their claims that they’ve been living in the
state from last decade and belong to various tribes (forest tribes) but only on the basis of the
claim they can’t be given the asylum.

A large number of the foreigners allegedly claimed that they were Tahomian refugees and
sought asylum from Varysian government and pleaded to be there as to their lives was in
Tahoma but government clarified that all of them were entered Varys from Antolia and they
will only deported back to Antolia and not to Tahoma because the refugee status proved to be
around at the Antolia as they came illegally from Antolia.

Against the notifications, on July 12, 2018, ambassador for the State of Antolia met minister
of external affairs for the State of Varys and conveyed her government wants to register its
protest against their governments decision and made it clear that Anatolian government is not
responsible toward any of these people as there isn’t any proof of them as they were
Anatolians or they entered through Antolian borders.

Prime Minister of Varys took aback to close the borders to immigrants and refugee as the first
responsibility at government was toward its own citizens and on the other hand intelligence
reports claimed that these people might have entered and suspicious of terrorist plots against
the Varysian governments and as that the threat to national security and relied upon another
report inserting rapid rise in crime rate in Varys from the year of Orukains interference.

Further, it was asserted by the State of Varys that the immigration in their state was the
outcome of religious persecution which is not recognized under International Law. All these
circumstances resulted in submission of Special Agreement on July 31st, 2018 in accordance
with the Art. 40(1) of the statute of the Hon’ble court.

7
AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT

SUMMARY OF PLEADINGS

8
AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT

9
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
PLEADINGS

1. WHETHER THE NOTIFICATION DATED JUNE 6, 2018 ISSUED BY

VARYSIAN GOVERNMENT IS IN VIOLATION OF INTERNATIONAL LAW?

It is humbly submitted before the Hon'ble Court that Both States parties are members of the
United Nations (herein after refer as UN) and parties to the Statute of the International Court
of Justice (herein after refer as ICJ) and both parties present in this court to settle
international disputes by peaceful means as they were unable to settle these differences by
direct negotiations (As stated in Preamble of Special Agreement1).

It is humbly requested to the Hon'ble Court that kindly pay heed towards the notification
issued by Varysian government for setting up tribunal to detect and deport illegal immigrants
in the country and within one month it was set up and thousands of undocumented
immigrates were detected and 98 percentage of undocumented persons were reported to be
‘Orukains’.

Kindly pay heed towards some important words that are, illegal immigrants and
undocumented immigrates. Illegal immigrant is dehumanizing2.these are law-abiding resident
who doesn't have immigration paperwork and Undocumented immigrants is someone who
resides in a country without proper documentation.

Orukains who were detected as undocumented are thousands in number and Antolia is a
developed country, it can’t be possible that all those belongs to one country and meanwhile it
ranks 151 in the Human Development Index3 (Herein after referred as HDI) and if a country
is ranked at that number then it is clear that the state is maintaining the needs and the
population of its own, whereas Varys is a rapidly developing as well as most populated nation
and also some of those Orukains claimed that they were citizens of Varys only, living there
from decades and never got any governmental identification cards as they were working in
unorganized sector.

1
Special Agreement Submitted To The International Court Of Justice By The State Of Antolia And The State
Of Varys On The Differences Between Them Concerning The Orukain Refugees:
…Recalling that the Parties are Members of the United Nations and that the Charter of the United Nations
calls on Members to settle international disputes by peaceful means…
…Noting that the parties have been unable to settle these differences by direct negotiations…
2
According to Merrium Webster: dehumanize means to deprive of human qualities, personality, or spirit
3
The Human Development Index (HDI) is a statistical tool used to measure a country's overall achievement in
its social and economic dimensions. The social and economic dimensions of a country are based on the health of
people, their level of education attainment and their standard of living.
10
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
From above mentioned facts, it is clear that half of the Orukains who detected as illegal
immigrants are the resident of Varys and half fled from Tahoma due to threat to their life and
freedom as they themselves claimed that they were Tahomian refugees and it is the breach of
the duty of state of Varys that the state was not looking on the unorganised sector i.e. the
Orukains.

Importance of international law in daily life:

International law is not rules. It is a normative system.4That is to secure the role of law and
basic rights of peoples such as freedom, justice, and security; it requires a normative system
which consists of norms which interlink humanitarian, moral, political, and social purposes of
law.

International law impinges on the life of every citizen several times daily. A person cannot
post a letter, travel abroad, receive an inoculation, refuel a car, purchase groceries, or use a
telephone but for the fact that international law is smoothly working behind the scenes,
attending to and regulating the transactions relevant to these services. Health relies on
international standards and controls; international travel depends on a series of treaties and
international law principles; the carriage of a letter would be impossible without international
postal regulations; the normal stock of groceries regularly purchased almost surely contains a
fair proportion of materials imported across national borders; and telephone services depend
heavily on satellites and international telecommunication agreements.5

Hundreds of multilateral treaties subscribed to by most of the nations of the world regulate
such important functions as commerce, health, travel, aviation, shipping, outer space,
telecommunication, and currency. Every citizen’s life today is so heavily dependent on
international standards that life would be impossible without them and the international law
which makes them work. No longer is it true to say that any country, however powerful, can
regulate its own affairs. Life within nations relies on the smooth functioning of international
law.6

4
Rosalyn Higgins, Problems and Process: International Law and How We Use It 10 (Oxford: Clarendon Press,
1994, reprinted in 2003.)
5
6

11
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
If we all pay heed towards the preamble of ‘Charter of United Nations’7, it is stated in it that,
all members of United Nations decided that it is an obligation for each member state to
maintain international peace and security, to encourage international cooperation in the
spheres of social, economic and cultural developments, to develop friendly relations among
nations on principles of equal rights and self- determination, and to recognise the
fundamental rights of all people, there should be unity among them to maintain international
peace and security and also they should live together in peace with one another.

And if any one fails to accept these obligations or fails to fulfil these, then United Nations
may take actions against them as stated under Ch. VII of the charter 8. Same thing apply to
those nations also who are recognised as Third Nations or who are not members of United
Nations.9(Yugoslavia v... USA)

In the same way, Various Acts done by State of Varys are against the prescribed obligations
of a nation (acts against the international peace and security) and one of them is the
notification issued by them on 6th June, 2018 as that was in violation of international law,
international human rights law as well as customary laws.

1.1. Whether acts of Varysian Government are in Violation of Human Rights?

 Yes, acts of Varysian government are in violation of International human rights. Human
Rights mean rights relating to life, liberty, Equality and dignity of the individual
guaranteed by the constitutions or embodied in the International Covenants. And no state
has any rights to violate such rights of any one.
 Moreover, if look on the Universal Declaration of Human Rights which contain a
comprehensive listing of key civil, political, economic, social, and cultural rights to which
all human beings are entitled. It declares that human rights are universal which should be
enjoyed by all people, no matter who they are or where they live. It includes civil and

7
WE THE PEOPLES OF THE UNITED NATIONS DETERMINE…
….to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the
equal rights of men and women and of nations large and small, and
….to establish conditions under which justice and respect for the obligations arising from treaties and
other sources of international law can be maintained, …
AND FOR THESE ENDS
….to practice tolerance and live together in peace with one another as good neighbors, and,
…to unite our strength to maintain international peace and security …
8
See Charter of United Nations, Chapter VII (ACTION WITH RESPECT TO THREATS TO THE PLACE,
BREACHES OF THE PEACE, AND ACTS OF AGGRESSION).
9
H.O. Agarwal, INTERNATIONAL LAW AND HUMAN RIGHTS 340, (21ST ed. Central Law Publications,
2017)
12
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
political rights, like the right to life, liberty, free speech and privacy.10 It also includes
economic, social and cultural rights, like the right to social security, health and
education.11
 Further, the Universal Declaration has given rise to a range of other international
agreements which are legally binding on the countries that ratify them. These include the
International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights. Former, refers to those rights which are related to
other protection of right to life and personal liberty. And these rights are essential for a
person to live a dignified life. Such rights include Right to life, liberty and security of
persons, Also, freedom from torture and inhuman and degrading treatment.12Latter, rights
are related to the guarantee of minimum necessities of the life to human beings and in the
absence of these rights the existence of human beings is likely to be endangered. These
rights include right to adequate food, clothing, housing and right to physical and mental
health.13
 Due to the notification issued by the Varysian Government the basic rights of Orukains,
immigrants got violated (as they were unable to access basic rights to life, food and

10
See Universal Declaration of Human Rights,
Art. 1 (All human beings are born free and equal in dignity and rights…...);
Art. 3 (Everyone has the right to life, liberty and security of person.);
Art. 5 (No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.);
Art. 6 (Everyone has the right to recognition everywhere as a person before the law);
Art. 7 (All are equal before the law and are entitled without any discrimination to equal protection of
the law…);
Art.14 (Everyone has the right to seek and to enjoy in other countries asylum from persecution.)
11
https://www.humanrights.gov.au/publications/what-universal-declaration-human-rights
12
See International Covenant on Economic, Social and Cultural Rights,
Art. 11 (1. The States Parties to the present Covenant recognize the right of everyone to an adequate
standard of living for himself and his family, including adequate food, clothing and housing,
and to the continuous improvement of living conditions. The States Parties will take
appropriate steps to ensure the realization of this right, recognizing to this effect the essential
importance of international cooperation based on free consent.
2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to
be free from hunger, shall take, individually and through…);
Art. 12 (1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment
of the highest attainable standard of physical and mental health….)
13
See International Covenant on Civil and Political Rights, PART III, and
Art. 6 (1. Every human being has the inherent right to life. This right shall be protected by law. No one
shall be arbitrarily deprived of his life….);
Art. 7 (No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment…);
Article 16 (Everyone shall have the right to recognition everywhere as a person before the law.);
Art. 26 (All persons are equal before the law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to
all persons equal and effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or social origin, property,
birth or other status.)
13
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
shelter) and also were constantly harassed by the local government authorities and were
left stateless which result in the violations of rights of human being as prescribed under
the above mentioned conventions and agreements.

Human Right under the United Nations Charter

 The charter is dedicated to the achievement and observance of human rights and
fundamental freedoms. Unless we can attain these objectives for all men and women
everywhere without regard to race, language or religion one cannot have permanent
peace and security in the world.14
 At the San Francisco Conference it was determined all the members that the promotion
and respect for human rights are the important and conspicuous integrated part of the
United Charter. The result of which was that the charter contained a number of provisions
for promotion and respect for human right and fundamental freedoms in the Preamble15
and in Arts. 116, 13(1) (b)17, 5518, 5619, 62(2)20, 6821 and 76(c)22.

14
President Truman at the closing address to San Francisco Conference
15
Charter of United Nations, Preamble;
(WE THE PEOPLES OF THE UNITED NATIONS DETERMINED to reaffirm faith in fundamental
human rights, in the dignity and worth of the human person, in the equal rights of men and women and
of nations large and small…’)
16
Charter of United Nations, Para.3 of Art. 1;
(To achieve international co-operation in solving international problems of an economic, social,
cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to race, sex, language, or religion ;)
17
Charter of United Nations, Art. 13(1) (b);
(Promoting international co-operation in the economic, social, cultural, educational, and health fields,
and assisting in the realization of human rights and fundamental freedoms for all without distinction as
to race, sex, language, or religion.)
18
Charter of United Nations, Art. 55;
(With a view to the creation of conditions of stability and well-being which are necessary for peaceful
and friendly relations among nations based on respect for the principle of equal rights and self-
determination of peoples, the United Nations shall promote:
(a) higher standards of living, full employment, and conditions of economic and social progress and
development ;
(b) solutions of international economic, social, health, and related problems; and international cultural
and educational cooperation; and
(c) Universal respect for, and observance of, human rights and fundamental freedoms for all without
distinction as to race, sex, language, or religion.)
19
Charter of United Nations, Art. 56;
(All Members pledge themselves to take joint and separate action in co-operation with the Organization
for the achievement of the purposes set forth in Art. 55.)
20
Charter of United Nations, Art. 62(2);
(It may make recommendations for the purpose of promoting respect for, and observance of, human
rights and fundamental freedoms for all.
21
Charter of United Nations, Art. 68;
(The Economic and Social Council shall set up commissions in economic and social fields and for the
promotion of human rights, and such other commissions as may be required for the performance of its
functions.)
14
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
 In additions to these provisions, the Charter has referred rapidly the concept of
‘fundamental human rights’, ‘the dignity and worth of the human person’, ‘equal rights’,
‘justice’, ‘social progress’ and fundamental freedoms. The Charter devoted three Chapters
to the self determination of peoples.
 In Oyama v, California23, Court had declared the binding nature and direct enforceability
of the Charter provisions. Therefore, it can be concluded that above mentioned provisions
are binding to all the members of the United Nations and need to follow and apply all the
provisions.
 In the same way, State of Varys also being a member of United States bounded over all
the above mentioned provisions and is liable in failing to fulfill these provisions, which
resulted in violations of International Human Rights Law
 Since notification dated, June 6, 2018 issued by State of Varys was not peaceful and thus
responsible for such grave violation of international law for violating the basic rights and
violating the principle of peaceful policies of international law. The basic rights which
were given by the international and some regional organization are consider as
obligations which were designed on the basis of morality and conscience and the
principle of natural justice whereas in the state of Varys the government isn’t giving any
basic requirement that should be fulfilled and obeyed by every secular state due to which
the Immigrants24 are facing violations of their rights in the first place.

1.2. Whether acts of Varysian Government are in Violation of Customary International

Law?

 Customary International Law is a part of common law which refers to international

obligations arising from established state practice, as opposed to obligations arising from
formal written international treaties. The judicial committee of the Privy Council, in
Harprasad v. Shivdayal25 observed that ‘custom is a rule which has obtained the force of
law in a particular family or region due to long usage.’ customs are clear and continuous

22
Charter of United Nations, Art. 76(c);
(to ensure equal treatment in social, economic, and commercial matters for all Members of the United
Nations and their nationals, and also equal treatment for the latter in the administration of justice,
without prejudice to the attainment of the foregoing objectives and subject to the provisions of Article
80.)
23
(1948) 332 U.S. 633; A.D. 16 (1949), No. 49
24
According to Black’s Law Dictionary Edition 8th-- A person who arrives in a country to settle there
permanently, a person who immigrants.
25
(1876) IA 259
15
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
habit of doing certain actions which has grown up under the aegis of the conviction that
these actions are, according to International Law, obligatory or right.
 So, State of Varys also have some custom which they are practicing from ages and which
include respects of human rights and also respect to all religions.
 Under Chapter II, Art. 3826 of the Statute of the International Court of Justice,
international customs and general practices of nations shall be one of the court's sources
of customary international law is one of the sources of international law.
 According to Art.38 (1) (b)27 of the ICJ Statute, customary international law is one of the
sources of international law. Customary international law can be established by showing
1. State Practice And
2. Opinio Juris.
 State Practice must be accompanied by a belief that the practice is obligatory rather than
merely convenient or habitual. In customary international law, ‘Opinio juris’ is the second
element (along with state practice) necessary to establish a legally binding custom.
Opinio juris denotes a subjective obligation, a sense on behalf of a state that it is bound to
the law in question.28Whether the practice of a state is due to a belief that it is legally
obliged to do a particular act is difficult to prove objectively. Therefore, opinion juris is
an unsettled and debated notion in international law.
 In the Nicaragua v. United States of America Court29, as the North Sea Continental
Shelf Case30, considered both the subjective element (Opinio juris) and the objective

26
See Statute of the International Court of Justice, Art. 38,
(1. The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply;
(a) international conventions, whether general or particular, establishing rules expressly recognized
by the contesting states ;
(b) international custom, as evidence of general practice accepted as law;
(c) the general principles of law recognized by civilized nations ;
(d) Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of
law. )
27
See Statute of the International Court of Justice, Art. 38,
(1. The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply;
(a) international conventions, whether general or particular, establishing rules expressly
recognized by the contesting states ;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognized by civilized nations ;
(d) Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of
law. )
28
See ICJ Statute, Art. 38(1) (b) (the custom to be applied must be "accepted as law").
29
1986 I.C.J. 14
16
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
element (State practice) as essential pre-requisites to the formation and elucidation of a
customary norm. On State practice, the jurisprudence of the Nicaragua case contained
several important clarifications in respect of inconsistent State practice. The Court held
that for a customary rule to come into force, it is not necessary to have complete
consistency in State practice in respect of the rule. And Inconsistent State practice does
not affect the formation or existence of a customary principle so long as the inconsistency
is justified as a breach of the rule. This attempt at justifying a violation would only make
the rule’s customary law nature stronger.
 On Opinio juris, The Nicaragua case jurisprudence elaborated on how to deduct Opinio
juris from acts of State. The Court held that the following reflected Opinio juris the
attitude of States towards certain General Assembly resolutions, Statements by State
representatives and Obligations undertaken by States in international forums. The
International Law Commission’s findings that a concept amounts to a customary law
principle.
 Moreover, In the Lotus case31, the permanent court of International Justice observed that
opinion juris is an essential element in the formation of customary law. This was
reiterated in the North Sea Continental Shelf Case32and has been accepted ever since.
 In Tamistry case33, it was held that custom is jus non scriptum34and it is evolved by the
people in respect of a place where it followed. When people find any act to be beneficial
and agreeable to their nature and disposition, they start practicing it from time to time and
when it is continued for immemorial time, it obtains force of law. The doctrine of
customary international law in R v. Jones35, where the issue focused upon whether the
customary international law rule prohibiting aggression had automatically entered into
English criminal law.
 Also, in the Colombia v Peru36the International Court of justice relying on art.3837 of its
statute, formulated the requirement of customs in International law as follow: ‘the party

30
(FEDERAL REPUBLIC OF GERMANY / DENMARK; FEDERAL REPIJBLIC OF GERMANY /
NETHERLANDS)
31
S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7)
32
Federal Republic of Germany v Denmark and v Netherlands, [1969] ICJ Rep 3
33
(1608) 80 ER 516
34
The unwritten law
35
2001 SLT 507,512
36
[1950] ICJ Rep 266 at 276-78
37
See Statute of the International Court of Justice, Art. 38,
(1. The Court, whose function is to decide in accordance with international law such disputes as
are submitted to it, shall apply;
17
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
which relies on a custom……must prove that the rule invoked……is in accordance with
the constant and uniform usage practiced by the states in question..’.38
 In United Kingdom v. Ireland39Court used the expression ‘generally accepted’ which
may mean that a general customary rule is required to be accepted generally by the States.
 Customs also include principle of equity which is a body of legal doctrines and rules
developed to enlarge, supplement, or override a narrow rigid system of law. Where the
strict application of common law results in injustice or inappropriate remedy, courts adopt
‘Principle of Equity’ to mitigate the rigor of the legislated laws and Acts and to protect
the personal liberty and fundamental rights of individuals or groups.
 In Nicaragua v. United States of America Court40 held that even if principles of
customary international law were subsequently codified into treaties, they continue to
exist side by side. For parties to treaties, both customary and treaty law applies. If, for
some reason, the treaty ceases to apply between treaty parties, the identical customary law
provision continues to apply between them. The argument that customary international
law exists alongside treaty law was brought by Norway and Denmark in the North Sea
Continental Shelf Cases41.
 In The Republic of Nicaragua v. The United States of America42, The Court discussed
situations where customary international law and treaty law provisions were not identical.
For example, the Court stated that concepts such as necessity and proportionality, or the
definition of what constitutes an armed attack, are not found under Art. 51, or the UN
Charter, but in customary law. The Court concluded that (1) this proves that customary
international law continues to exist alongside treaty law and that (2) areas governed by
the two sources of law do not (always) overlap and the rules do not (always) have the
same content.
 ‘Principle of Equity’ can be said to be characterized by the following distinct features. All
are treated equally, there is no favouritism or preferential treatment to anyone, similarly,

(a) international conventions, whether general or particular, establishing rules expressly

recognized by the contesting states;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognized by civilized nations;
(d) Subject to the provisions of Art. 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of
law. )
38
I.C.J. Reports (1950)
39
ICJ Report 1974, p. 119-120
40
1986 I.C.J. 14
41
(FEDERAL REPUBLIC OF GERMANY / DENMARK; FEDERAL REPIJBLIC OF GERMANY /
NETHERLANDS)
42
I.C.J. 14 1986
18
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
there is no subjectivity, bias, prejudice or discrimination, one must realize that in order to
achieve what one wants, he/she must invest necessary resources and put in necessary
efforts.
 Therefore, the another and aforementioned contentions laid down by some customary
provisions of law that all the things based on human conscious and principle of equity
which was lacking in the part of Varysian government, resulted into the violation of
grounded requirement. Since it was said that the basic requirements remain unfulfilled in
the first place that directly contradicts the provisions of customary law.

2. WHETHER THE ORUKAINS, IF ANY, WHO ENTERED VARYS FROM

ANTOLIA ARE REFUGEE UNDER INTERNATIONAL LAW?
Before moving ahead, it is to be notable by the Honorable Court that Orukains belongs to
Orukai, an ancient fire worshipping religion, whose central tenets are Austerity and Non-
Acquisition and simplicity. They launched a peaceful movement to stop the unusual activities
of Tahomian Government and their protest was peaceful until Pralah, the atheist group,
claimed that they were against state’s interest and due to which riot started.

However, Orukains were not Part of riot but then also many Orukains were arrested on
charges of inciting violence, assault and murder, while some of them were given death
sentence without being heard or defended and due to increasing of such crime and when they
feel threat to their life they all fled Antolia but there was lack of employment, opportunities,
and resource scarcity. Therefore, they leave Antolia and at last, they fled Varys where they
feel safe and claim to be citizen of Varys from the government.

Immigrants belongs to Tahoma or Varys not Antolia

As mention above, due to threat to their life, many Orukains fled to Varys from Antolia but
they all were originally resident of Tahoma. Moreover, it is mention in the facts that about
98% immigrants founded undocumented but it is to note by the Honorable Court that State of
Varys is a multi-religious nation and majority of population in Varys is Orukains and Phikam.

19
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
Therefore, it clear that Orukains who fled Varys belongs to Tahoma (Persecution) and Varys
(resident) not Antolia. Since, it is not possible that all 98% Orukains belongs to one country.

2.1. Whether the Immigrants, who entered in Varys, are refugees?

 Refugees are among the most vulnerable people in the world. The 1951 refugee
convention and its 1967 protocol help protect them. They clarify the right of refugees and
obligations of the 148 states that are party to one or both of these instruments. And also it
was appealed by UN High Commissioner for refugees, Ausonio Guterres, to all non-
signatory state to accede to it and pledge the full support of them to help the refugee in
getting the their basic rights.

 The word “refugee” in common parlance denotes a person who has been forced to leave
his country in order to escape natural disaster, war or persecution. They are considered to
be people running for their lives. The United Nations 1951 Convention Relating to the
Status of Refugees characterises refugee as a person who, “owing to a well-founded fear
of being persecuted for reasons of race, religion, nationality, membership of a particular
social group or political opinion, is outside the country of his nationality and is unable or,
owing to such fear, is unwilling to avail himself of the protection of that country. Since
time immemorial, India has been welcoming the refugee communities. Independent India
has invariably been home to a huge number of refugees ranging from those belonging to
neighboring countries like Sri Lanka, Nepal,
 Refugees as defined in 1951 Convention43, is someone who;

 Has a well-founded fear of being persecuted44 because of his or her: Race; Religion;
Nationality; Membership of a particular social group; or Political opinion.
 Persecution is ordinarily a threat to an individual's life or freedom. Under certain
circumstances, discrimination or deprivation of basic rights can constitute persecution.
Also, Persecution can be based on prosecution and criminal punishment by a
government, if such punishment is unusually harsh and imposed for the requisite
reasons.45

43
Art. 1 of THE 1951 CONVENTION relating to the Status of Refugees read as
…owing to well-founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside the country of his nationality
and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or
who, not having a nationality and being outside the country of his former habitual residence as a
result of such events, is unable or, owing to such fear, is unwilling to return to it…
44
R v. Secretary of State for the Home Department, Ex parte Sivakumaran and Cojoined Appeals (UN High
Commissioners for Refugees Inverting) [1988]AC 958, 16 December 1987 (UK House of Lords)
45
Rights of Aliens and refugees David
20
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
 That is if a person who fled to another state due to threat to his life and shown a well-
founded fear is need to be protected by the other state government no matters whether
the state signed 1951 convention46 or the further Protocols. As contended by petitioner
in the case Mohammad Salimullah v. Union of India47that Since Rohingyan Muslims
who were determined refugees as well as undocumented immigrates were protected by
Indian even though they were not signed to any treaties related to refugees that is 1951
Convention and 1967 Protocol. In the same way, state of Varys is also liable to provide
them their basic rights whether they are signatory or non-signatory to 1951 convention.
 In Chan v Minister for Immigration and Ethnic Affairs48The expression “well-
founded fear” is not a precise one; in particular, it invites debate as to the extent to
which the fear depends upon objective facts and the extent to which it reflects the
subjective state of the person concerned. And, within the framework of the Convention,
there is a question whether the status of refugee turns upon the facts existing when a
person seeks recognition or whether it may derive from some earlier point in time. As
Orukains were recognized in State of Varys because at some point of time they use to
live there.

 Is outside his or her country of origin or habitual residence;

 Orukains due to fear of being sentence to death without giving any chance to defend by
government fled to Varys (under a well-founded fear of being persecuted).For keeping
themselves safe and secure they leave their own country. So they are refugees under
definitions of refugee under 1951 Convention.
 Moreover, they all claim citizenship of Varys and demanded asylum from Varys which
was refused by the Varysian Government and by doing this they violated their duty
which they were binding of. As Art. 33 of 1951 Convention49states that even States that
are not party to 1951 Convention must respect the principle of non-refoulement50

 Is unable or unwilling to avail him- or herself of the protection of that country, or to

return there, because of fear of persecution;
 Orukains fled to Varys due to fear of persecution as stated in facts that there was threat
to their life in Tahoma so to protect themselves from the government unreasonable
punishment they all fled to Varys. They can be refer as refugees under 1951 convention

46
Art. 33
47
48
(1989) 169 CLR 379
49
50
Refugee’s right to be protected from forced return.
21
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
as there was well founded fear and they left their country of origin and is unable or
unwilling to return there because of a serious threat to their life or freedom.
 In Korablina v. Immigration and Naturalization Service’s51it was held by the Court
that persecution may be found by cumulative, specific instances of violence and
harassment toward an individual and his or her family members.
 Moreover, New Zealand Refugee Status Appeals Authority52held that Core norms of
international human rights law are relied on to define forms of serious harm within the
scope of persecution.
 In Minister for Immigration and Multicultural Affairs v Haji Ibrahim 53High Court Of
Australia held that As a matter of ordinary usage, the notion of "persecution" includes
sustained discriminatory conduct or a pattern of discriminatory conduct against
individuals or a group of individuals (Orukains) who, as a matter of fact, are unable to
protect themselves by resort to law or by other means. That being so, conduct of that
kind, if it is engaged in for a Convention reason, is, in my view, persecution for the
purposes of the Convention. And that is so whether or not the conduct occurs in the
course of a civil war, during general civil unrest or, as here, in a situation in which it
may not be possible to identify any particular person or group of persons responsible for
the conduct said to constitute persecution.
 Canada (Attorney general) v. Ward54 clarified and interpreted a definition of
convention refugee. It was held by the Court that ‘persecution’ includes situations
where the state is not in strictness an accomplice to the persecution but is simply unable
to protect its citizen. The dichotomy between ‘unable’ and ‘unwilling’ has become
somewhat blurred. The inquiry as to whether a claimant meets the ‘convention refugee’
definition must focus on whether there is a ‘well-founded fear’, which the claimant
must first establish, and all that follows must be ‘by reason of’ that fear.
 Moreover, LA FOREST J. state that, “Convention refugee" means any person who, by
reason of a well-founded fear of persecution for reasons of race, religion, nationality,
membership in particular social group or political opinion,(a) is outside the country of
his nationality and is unable or, by reason of such fear, is unwilling to avail himself of
the protection of that country, or(b) not having a country of nationality, is outside the

51
No.- 97-70361, 158 F 3d, 23 October 1998 (US Court of Appeals for the 9 th circuit)
52
Refugee Appeal No. 71427/99, 16 August 2000
53
[2000] HCA, 55, 26 October 2000, S157/1999
54
1993 22 SCR 689
22
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
country of his former habitual residence and is unable or, by reason of such fear, is
unwilling to return to that country.
 Fear of persecution and lack of protection are themselves interrelated elements. The
persecuted clearly do not enjoy the protection of their country of origin, while evidence
of the lack of protection on either the internal or external level may create a
presumption as to the likelihood of persecution and to the well-founded fear.
 Islam v. Secretary of the state for the home department Immigration appeal tribunal
55
defining case on refugee definition and gender persecution. It was held that "For the
purposes of the present Convention, the term 'refugee' shall apply to any person who: . .
. owing to well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is outside the
country of his nationality and is unable or, owing to such fear, is unwilling to avail
himself of the protection of that country; . . ." 56
 In order to qualify as a refugee the asylum seeker (assumed to be an Orukains) had
proven: That they have a well-founded fear of persecution. That the persecution would
be for reasons of race, religion, nationality, membership of a particular social group, or
political opinion. That they are outside the country of her nationality. That they are
unable, or owing to fear, unwilling to avail herself of the protection of that country.

Moreover, if refugee definition of Organization of African unity, 1969 Convention Governing

The Specific Aspects Of Refugee Problems In Africa57also added in the refugee definition of
1951 so it will be clear that refugee is any person compelled to leave his or her country owing
to events seriously disturbing public order in either part or the whole of his or her country of
origin or nationality.

In addition, The Refugee Act of 198058 defines the term "refugee." Under the Act, a refugee
is a person who is outside of his or her country of nationality (or last habitual residence for a

55
Ex parte shah, R v (1999)2 AC 69
56
Plaintiff M70/2011 v. Minister for Immigration and Citizenship; and Plaintiff M106 of 2011 v. Minister for
Immigration and Citizenship [2011] HCA 32
57
Art. 1 (2) of Organization of African unity, 1969 Convention Governing The Specific Aspects Of Refugee
Problems In Africa reads as
‘The term "refugee" shall also apply to every person who, owing to external aggression, occupation,
foreign domination or events seriously disturbing public order in either part or the whole of his
country of origin or nationality, is compelled to leave his place of habitual residence in order to seek
refuge in another place outside his country of origin or nationality.’
58
The Act is built upon the Immigration and Nationality Act Amendments of 1965. Its primary goal is to create
a systematic, uniform, and unbiased procedure of refugee resettlement. As a result, it repeals discrimination on
the basis of national origins and opens doors to refugees from all parts of the world that have played important
roles in contributing to America’s multiculturalism.
23
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
stateless person), who has been persecuted in the past, or who has a well-founded fear of
future persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion.59

So, from the above mentioned definition of refugee it is clear that Orukains who fled to State
of Varys are refugees under the scope of international law as well under the purview of 1951
Convention. As they all have a well-founded fear of being persecuted because of their
nationality and political opinion, and also they all are outside their country of origin and
unable or unwilling to return to their own country because of fear of persecution.

States are responsible for protecting the fundamental human rights of their citizens. When
they are unable or unwilling to do so – often for political reasons or based on discrimination –
individuals may suffer such serious violations of their human rights that they have to leave
their homes, their families and their communities to find sanctuary in another country. Since,
by definition, refugees are not protected by their own governments, the international
community steps in to ensure they are safe and protected.60

Therefore, Some Orukains who entered Varys (from Tahoma) are refugee under international
law and it is the duty of Varys to protect those refugee whether they are signatory or not
(1951 Convention) and if they refuse to grant protections and what they are claiming then the
state is violating the principle of non-refoulement.61According to this principle, a refugee
should not be returned to a country where he or she faces serious threats to his or her life or
freedom. 62

The 1951 Convention and 1967 Protocol were designed to assure refugees the widest possible
enjoyment of their rights. The 1969 OAU Convention63 confirms that the 1951 Convention64
is “the basic and universal instrument relating to the status of refugees”. It adopts the refugee
definition found in the 1951 Convention, but also expands it to include any person compelled
to leave his or her country because of “external aggression, occupation, foreign domination or

59
60
61
Art. 33 {prohibition of expulsion or return (“Refoulement”)} of the 1951 Convention relating to the status of
refugees (1) reads as
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the
frontiers of territories where his life or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political opinion.
62
Hirsi Jamaa and Others v. ItalyApplication no. 27765/09
63
1969 OAU Convention governing the Specific Aspects of Refugee Problems in Africa
64
1951 Convention relating to the status of refugees
24
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
events seriously disturbing public order in either part or the whole of his [or her] country of
origin or nationality”.65

This means that persons fleeing civil disturbances, widespread violence and war are entitled
to refugee status in States that are parties to the African Convention, even if they do not have
a well-founded fear of persecution for one of the reasons set out in the 1951 Convention. Of
course, many people may be refugees under the terms of both Conventions.

The OAU Convention makes other important points. It affirms that “the grant of asylum to
refugees is a peaceful and humanitarian act” that is not to be considered as an “unfriendly
act” by any Member State of the OAU (now the African Union), and it requires States parties
to take appropriate measure to lighten the burden of a State granting asylum “in a spirit of
African solidarity and international cooperation”.

In the same way, State of Varys should also grant asylum to those who are claiming for it and
should protect them and their basic rights.

2.2. Whether the State of Varys is liable to follow Principle of Non-Refoulement?

 The non-Refoulement principle is often referred to as the ‘cornerstone’ or
‘centrepiece’ of the international refugee protection regime.
 The words ‘in any manner whatsoever66’ mean that the principle of non-
Refoulement applies to any conduct by the State that would place a refugee at risk of
being returned, whether directly or indirectly, to his or her country of origin. This
would include refusal of entry at the border as well as removal from within the
territory. The principle of non-Refoulement applies wherever the State exercises its
authority, including beyond its borders, for example when intercepting ships on the
high seas.

65
Art. 1 (2) of Organization of African unity, 1969 Convention Governing The Specific Aspects Of Refugee
Problems In Africa reads as
‘The term "refugee" shall also apply to every person who, owing to external aggression, occupation,
foreign domination or events seriously disturbing public order in either part or the whole of his
country of origin or nationality, is compelled to leave his place of habitual residence in order to seek
refuge in another place outside his country of origin or nationality.’
66
Art. 33 {prohibition of expulsion or return (“Refoulement”)} of the 1951 Convention relating to the status of
refugees (1) reads as
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the
frontiers of territories where his life or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political opinion.
25
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
 All refugees are entitled to protection from Refoulement – including those who have
not been formally recognized as such. This means that asylum seekers whose status
has not yet been determined by the authorities are protected from forced return.
 The protection against Refoulement under Article 33(1) applies to any person who is
a refugee under the terms of the 1951 Convention, that is, anyone who meets the
requirements of the refugee definition contained in Article 1A(2) of the 1951
Convention (the “inclusion” criteria)67 and does not come within the scope of one of
its exclusion provisions.68
 Given that a person is a refugee within the meaning of the 1951 Convention as soon
as he or she fulfills the criteria contained in the refugee definition, refugee status
determination is declaratory in nature: a person does not become a refugee because
of recognition, but is recognized because he or she is a refugee. 69 It follows that the
principle of non-Refoulement applies not only to recognized refugees, but also
toShort of a right to be granted asylum, the guarantee that no refugee will be sent
back to a place where he or she will be persecuted constitutes the strongest
commitment that the international community of states has been willing to make to
those who are no longer able to avail themselves of the protection of their own
government.
 At the same time the non-Refoulement obligation serves as the entry point for all
subsequent rights that may be claimed under the 1951 Refugee Convention. Without
this, little else matters.70
 Various interpreters have argued that the wording and meaning of this article are
unambiguous.71Nonetheless, intense debate continues to rage over its exact

67
Under this provision, which is also incorporated into Article 1 of the 1967 Protocol,
the term “refugee” shall apply to any person who “owing to a well-founded fear of being persecuted
for reasons of race, religion, nationality, membership of a particular social group or political opinion,
is outside the country of his [or her] nationality and is unable or, owing to such fear, unwilling to avail
him [or her]self of the protection of that country; or who, not having a nationality and being outside
the country of his [or her] habitual residence is unable or, owing to such fear, unwilling to return to
it”.
68
Exclusion from international refugee protection means denial of refugee status to persons who come within
the scope of Article 1A(2) of the 1951 Convention, but who are not eligible for protection under the Convention
because - they are receiving protection or assistance from a UN agency other than UNHCR (first paragraph of
Article 1D of the 1951 Convention); or because - they are not in need of international protection because they
have been recognized by the authorities of another country in which they have taken residence as having the
rights and obligations attached to the possession of its nationality (Article 1E of the 1951 Convention); or
because - they are deemed undeserving of international protection on the grounds that there are serious reasons
for considering that they have committed certain serious crimes or heinous acts (Article 1F of the 1951
Convention).
69
70
Access to Asylum
26
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
application and scope. This is particularly true with regard to its geographical reach
and the extent to which states are bound by this fundamental obligation with regard
to refugees encountered extraterritorially. Most restrictively, the non-Refoulement
principle has been interpreted as applying solely within the territory of an acting
state.
 The non-Refoulement principle as enshrined in Article 33 of the Refugee
Convention72 states that a refugee should not be returned to a country where he or
she faces serious threats to his or her life or freedom. 73
 In the case of Hirsi Jamaa and Others v. Italy74, The principle of non-Refoulement,
as interpreted by the ECHR, essentially means that States must refrain from
returning a person (directly or indirectly) to a place where he or she could face a real
risk of being subjected to torture or to inhuman or degrading treatment. Furthermore,
States may not send refugees back to territories where their life or freedom would be
threatened for reasons of race, religion, nationality, membership of a particular
social group or political opinion.
 As in the scenario concerned with situation of Orukains the extreme negative
condition of not providing shelter which is equal as degrading or inhuman treatment
and breakage of Refoulement principles though it is clear with the case of Libya that
any act which implies as inhuman or degrading treatment will be condemned by
such organizations.
 Moreover, it was observed by Court in M.S.S. v. Belgium and Greece,75 that the
principle of “non-Refoulement” was that a cardinal protection principle enshrined in
the Convention, to which no reservations are permitted. In many ways, the principle
is the logical complement to the right to seek asylum recognized in the Universal
Declaration of Human Rights. It has come to be considered a rule of customary
international law binding on all States. In addition, international human rights law
has established non-Refoulement as a fundamental component of the absolute

71
Immigration and Naturalization Service v. Haitian Center Council, US Supreme Court, 113 S.Ct. 2549, 509
US 155, 21 June 1993
72
Art. 33 {prohibition of expulsion or return (“Refoulement”)} of the 1951 Convention relating to the status of
refugees (1) reads as
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the
frontiers of territories where his life or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political opinion.
73
Hirsi Jamaa and Others v. Italy Application no. 27765/09
74
Application no. 27765/09 Council of Europe: European Court of Human Rights, 23 February 2012
75
Application no. 30696/09, Council of Europe: European Court of Human Rights, 21 January 2011
27
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
prohibition of torture and cruel, inhuman or degrading treatment or punishment. The
duty not to refouler is also recognized as applying to refugees irrespective of their
formal recognition, thus obviously including asylum-seekers whose status has not
yet been determined. It encompasses any measure attributable to a State which could
have the effect of returning an asylum seeker or refugee to the frontiers of territories
where his or her life or freedom would be threatened, or where he or she would risk
persecution. This includes rejection at the frontier, interception and indirect
Refoulement, whether of an individual seeking asylum or in situations of mass
influx.
 Within the framework of the 1951 Convention/1967 Protocol, the principle of non-
Refoulement constitutes an essential and non-derogable component of international
refugee protection.

2.3. Whether the principal of non-Refoulement is considered as a norm of customary

international law?
 In the case of Nicaragua v. United States of America76, Court held that “In order to
deduce the existence of customary rules, the Court deems it sufficient that the conduct
of States should, in general, be consistent with such rules, and that instances of State
conduct inconsistent with a given rule should generally have been treated as breaches
of that rule, not as indications of the recognition of a new rule. If a State acts in a way
prima facie incompatible with a recognized rule, but defends its conduct by appealing
to exceptions or justifications contained within the rule itself, then whether or not the
State's conduct is in fact justifiable on that basis, the significance of that attitude is to
confirm rather than to weaken the rule.”
 Enunciating the example of the Indian judiciary, which is often regarded as the
‘protector of the rights of people', various judgments have been pronounced by the
High Courts and the Supreme Court to enforce the liberty of the refugees. By virtue of
Article 14 and Article 21 of the Constitution of India, 1950 77, which applies to
citizens and non-citizens, courts have tried to liberalise the rights of equality and right
to life and personal liberty, respectively. As in case of Ktaer Abbas Habib Al Qutaifi
v. Union of India& Ors.78, non-Refoulement was recognized under Article 21 by the
Gujarat High Court, in which two refugees who were basically from Iraq revoked the

76
1986 I.C.J. 14(I.C.J. Reports 1986 page 88 paragraph 186)
77
Louis De Raeds v Union of India, (1991 (3) SCC 554
78
1999 Cri.L.J. 919.
28
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
principle of non-Refoulement. The factual matrix suggests that the applicants
persecuted from Iraq and they were forced to leave their country of origin if they do
not join military operations there. The Gujarat High Court elaborately dealt with the
Indian constitutional provisions along with international instruments to emphasize on
their right of non-Refoulement. The High Court relied on the Art. 33 of the
Convention on Status of Refugees195179, Art. 3 of the Universal Declaration of the
Human Rights80 and Art. 3 on the Convention against Torture to bring out the notion
that forceful return, expulsion and torture to persons are clearly prohibited in the
international jurisprudence. While delivering the judgment, the court emphasized on
the protection and dignified life of the refugees relying upon the Indian Constitution.
Since, these refugees did not pose the treat to the security of the India and they had
the proof of the fear of persecution, the court established the principle of non-
Refoulement.
 This concept has put into practical application in various cases by the Indian judiciary.
Further, in case of Khudiram Chakma v. State of Arunachal Pradesh81, the Hon'ble
apex court emphasized upon the Art. 14 of the UDHR, 1948. The court said that every
person who is seeking asylum in a state cannot be sent back to the state from where he
has come if there is the risk of persecution is embedded.
 Broadly speaking the Indian judiciary has played vital role in promoting the interests
of the refugees. Henceforth, in case of an unreported judgment named, Dr. Malvika
Karlekar v. Union of India82, the apex court by belaying the Refoulement of the
83
Andaman Island Burmese refugees asked for their status verification. 29 It reflects
that those who want to seek the protection in another country cannot be sent back to
their country of origin if the status determination of such persons is pending in the
present country. The same proposition was held by the Madras High Court in the case
of P.Nedumaran v. Union of India,84 where the court asked the Srilankan refugees to
stay in India till their status determination by the UNHCR.

79
80
81
1994 Supp (1) SCC 615.
82
Criminal Writ Petition No. 583 of 1992 dated 25.09.1992
83
Zonthansangpuli v. State of Manipur (Civil Rule No. 1981 of 1989 and No. 515 of 1990): In this case, the
High Court of Guwahati contemplated the commiserative approach for the protection of rights of refugees.
84
1993 (2) ALT 291.
29
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
 In National Human Rights Commission v. State of Arunachal Pradesh & Anr, 85 the
apex court again emphasized on protection of rights of the refugees in India to
preserve the constitutional culture. The court held that the rule of law is the
predominant segment in the Indian context. The constitutional sway in a country like
India reflects the right to equality and thus, ensures right to dignified life to citizens as
well as non-citizens. The court in this case directed not to refoule the Chakma
refugees who were the nationals of the Bangladesh on the basis of principle of non-
Refoulement.
 Reestablishing the position of non-Refoulement, the Bombay High Court in case of
Syed Ata Mohammadi v. Union of India86pointed out that the Iranian refugees cannot
be ostracized to the Iran where they have fear of persecution.
 These cases clearly illustrate that due to democratic budding of the refugees ‘human
rights, dynamic approach has been adopted by the Indian judiciary in declaring the
'non-Refoulement' under Article 21 of the Indian Constitution taking into
consideration the international instruments.
 The principle also appears in varying forms in a number of later instruments:
a) Art. III87 of Bangkok Principles on Status and Treatment of Refugees, 1966(adopted
by the Asian African Legal Consultative Committee) provides that, No one seeking
asylum in accordance with these Principles should, except for overriding reasons of
national security or safeguarding the populations, be subjected to measures such as
rejection at the frontier, return or expulsion which would result in compelling him to
return to or remain in a territory if there is a well-founded fear of persecution
endangering his life, physical integrity or liberty in that territory.

85
1996 AIR 1234, 1996 SCC (1) 742
86
Criminal Writ Petition no. 7504/1994 at Bombay High Court.
87
Art. III (Non-Refoulement) of Bangkok Principles on Status and Treatment of Refugees, 1966, read as:
1. No one seeking asylum in accordance with these Principles shall be subjected to measures such as
rejection at the frontier, return or expulsion which would result in his life or freedom being threatened
on account of his race, religion, nationality, ethnic origin, membership of a particular social group or
political opinion. The provision as outlined above may not however be claimed by a person when there
are reasonable grounds to believe the person’s presence is a danger to the national security or public
order of the country in which he is, or who, having been convicted by a final judgment of a particularly
serious crime, constitutes a danger to the community of that country.
2. In cases where a State decides to apply any of the above-mentioned measures to a person seeking
asylum, it should grant provisional asylum under such conditions as it may deem appropriate, to enable
the person thus endangered to seek asylum in another country.
30
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
88
b) Art. 3 of Declaration on Territorial Asylum, 1967(adopted unanimously by the
United Nations General Assembly (UNGA) as Resolution 2132 (XXII), 14 December
1967) provides that...
c) Art.II (3)89 of OAU Convention governing the specific aspects of refugee problems in
Africa, 1969. …
90
d) Art. 22(8) of American Convention on Human Rights, "Pact of San Jose", Costa
Rica, 1969 provides that, In no case may an alien be deported or returned to a country,
regardless of whether or not it is his country of origin, if in that country his right to
life or personal freedom is in danger of being violated because of his race, nationality,
religion, social status, or political opinions.
e) Sec. III91of Cartagena Declaration on refugees, 1984.92
f) Art. 393of Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 1984.
g) Art. 794 of International Covenant on Civil and Political Rights, 1966.
88
Art. 3 of Declaration on Territorial Asylum, 1967, read as :
1. No person referred to in article 1, paragraph 1, shall be subjected to measures such as rejection at the
frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory
return to any State where he may be subjected to persecution.
2. Exception may be made to the foregoing principle only for overriding reasons of national security or
in order to safeguard the population, as in the case of a mass influx of persons.
3. Should a State decide in any case that exception to the principle stated in paragraph I of this article
would be justified, it shall consider the possibility of granting to the persons concerned, under such
conditions as it may deem appropriate, an opportunity, whether by way of provisional asylum or
otherwise, of going to another State.
89
Art. II (3) of OAU Convention governing the specific aspects of refugee problems in Africa, 1969, read as:
No person shall be subjected by a Member State to measures such as rejection at the frontier, return or
expulsion, which would compel him to return to or remain in a territory where his life, physical integrity
or liberty would be threatened for the reasons set out in Article I, paragraphs 1 and 2 [concerning
persecution for reasons of race, religion, nationality, membership of a particular social group or political
opinion, or who is compelled to leave his country of origin or place of habitual residence in order to
seek refuge from external aggression, occupation, foreign domination or events seriously disturbing
public order].
90
Art. 22(8) of American Convention on Human Rights, "Pact of San Jose", Costa Rica, 1969, read as:
In no case may an alien be deported or returned to a country, regardless of whether or not it is his
country of origin, if in that country his right to life or personal freedom is in danger of being violated
because of his race, nationality, religion, social status, or political opinions.
91
Sec. III of Cartagena Declaration on refugees, 1984, read as:
…the importance and meaning of the principle of non-Refoulement (including the prohibition of
rejection at the frontier) as a corner-stone of the international protection of refugees. This principle is
imperative in regard to refugees and in the present state of international law should be acknowledged
and observed as a rule of jus cogens…
92
UNHCR, Collection of International Instruments and Other Legal Texts Concerning Refugees and Displaced
Persons (UNHCR, Geneva, 1995), vol. II, pp. 206–11 (hereinafter ‘Cartagena Declaration’).
93
Art. 3 of Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984:
1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are
substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take
into account all relevant considerations including, where applicable, the existence in the State concerned
of a consistent pattern of gross, flagrant or mass violations of human rights.
31
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
95
h) Art. 3 of Convention for the Protection of Human Rights and Fundamental
Freedoms, 1950.
i) Non-Refoulement also finds expression in standard-setting conventions concerned
with extradition that is, Art. 3(2)96 of European Convention on Extradition, 1957. ‘if
the requested Party has substantial grounds for believing that a request for extradition
for an ordinary criminal offence has been made for the purpose of prosecuting or
punishing a person on account of his race, religion, nationality or political opinion, or
that that person’s position may be prejudiced for any of these reasons’.
j) Similarly, Article 4(5)97 of the 1981 Inter American Convention on Extradition
precludes extradition when ‘it can be inferred that persecution for reasons of race,
religion or nationality is involved, or that the position of the person sought may be
prejudiced for any of these reasons’.

94
Art. 7 of International Covenant on Civil and Political Rights, 1966, read as:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In
particular, no one shall be subjected without his free consent to medical or scientific experimentation.
95
Art. 3 of Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, read as:
No one shall be subjected to torture or to inhuman or degrading treatment or punishment
96
Art. 3(2) of European Convention on Extradition, 1957, reads as:
The same rule shall apply if the requested Party has substantial grounds for believing that a request for
extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing
a person on account of his race, religion, nationality or political opinion, or that that person's position
may be prejudiced for any of these reasons.
97
Article 4(5) of the Inter American Convention on Extradition, 1981, reads as,
When, from the circumstances of the case, it can be inferred that persecution for reasons of race,
religion or nationality is involved, or that the position of the person sought may be prejudiced for any of
these reasons.
32
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT

3. WHETHER THE ANTOLIA IS LIABLE TO ACCEPT THE ORUKAINS BEING

DEPORTED BY VARYS?
No, State of Antolia is not liable to accept the Orukains being deported by Varys as Half of
the Orukains belongs to Tahoma who due to fear of persecution fled to Varys. Once they
were in Antolia but they fled from there to Varys due to lack of employment, opportunity and
resources scarcity. This makes it clear that if Orukains, who declared as refugees under 1951
convention, deported to State of Antolia than there is no possible and good opportunity,
employment for them. They will not gain any advantage in State of Antolia.

As given in the facts, State of Antolia is an underdeveloped nation and ranks 151 in the HDI98
which means it categorized under Medium Human Development. HDI measures
achievements in three aspects of human development, that is, health, education and living
standards.99HDI were calculated using indicators like, Health - Life expectancy at birth100,

98
A composite index measuring average achievement in three basic dimensions of human development—a long
and healthy life, knowledge and a decent standard of living.
99
The global HDI, first presented in the 1990 Human Development Report (HDR), measures a country's success
in the following human development achievements for its citizens: a long and healthy life (using health data),
access to knowledge (using education data) and a decent standard of living (using income per capita).
100
Number of years a new born infant could expect to live if prevailing patterns of age-specific mortality rates at
the time of birth stay the same throughout the infant’s life.
33
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
Education - measured by adult literacy101, and the combined primary, secondary and tertiary
enrolment ratio102, Income - measured by GDP per capita103.

If a nation ranked 151 in the HDI it means that it has resources which is there for peoples
living in it who are employed and if some other peoples deported in State of Antolia then
those resources will be limited and citizen of that nation can’t access to those resources.

If we look then ‘according to the Human Development Report 2009 (published by UNDP),
the HDI for India is 0.612 (for 2007) which puts it at the 134th place among 182 countries.
India has maintained the same HDI and rank since the previous year, and it continues to be
categorized under Medium Human Development’.104and now the HDI for India is 0.640 (for
2018) and For Norway it is 0.953 which in comparison to Antolia is high.

It means that life expectancy at birth rate will be more in Norway (82.3) and India (68.8) but
less in Antolia (approx. 58.6) which means state is not liable to provide the basic requirement
because of unavailability and inadequacy of the basic and preeminent requirement that should
be there in the first place. And on the part of Antolia if the country is unable to fulfill the
expectation of their own people then it can be concluded that Antolia will be deficient in
handling the condition of Orukains.

3.1. Whether the State of Varys is liable to accept the newly born children?
 It is humbly requested to the Hon'ble Court that kindly pay heed towards the preamble
of UN Convention on the Rights of the Child, 1989 (Hereinafter referred as “CRC,
1989”)105 whichrecalls the basic principles of the United Nations and specific

101
Percentage of the population ages 15 and older that can, with understanding, both read and write a short
simple statement on everyday life.
102
Percentage of the population ages 25 and older that has reached (but not necessarily completed) a secondary
level of education.
103
Aggregate income of an economy generated by its production and its ownership of factors of production, less
the incomes paid for the use of factors of production owned by the rest of the world, converted to international
dollars using PPP rates, divided by midyear population.
104
Mahanadi Coal Fields Ltd. & Anr v. Mathias Oram & Ors on 19 July, 2010
105
The States Parties to the present Convention,
….Considering that, in accordance with the principles proclaimed in the Charter of the United Nations,
recognition of the inherent dignity and of the equal and inalienable rights of all members of the human
family is the foundation of freedom, justice and peace in the world,
Bearing in mind that the peoples of the United Nations have, in the Charter, reaffirmed their faith in
fundamental human rights and in the dignity and worth of the human person, and have determined to
promote social progress and better standards of life in larger freedom,
Recognizing that the United Nations has, in the Universal Declaration of Human Rights and in the
International Covenants on Human Rights, proclaimed and agreed that everyone is entitled to all the
rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth or other status,
34
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
provisions of certain relevant human rights treaties and proclamations. It reaffirms the
fact that children, because of their vulnerability, need special care and protection, and
it places special emphasis on the primary caring and protective responsibility of the
family. It also reaffirms the need for legal and other protections for the child before
and after birth, the importance of respect for the cultural values of the child’s commu-
nity and the vital role of international cooperation in securing children’s rights.
 Moreover, The UDHR Rights envisages that childhood is entitled to special care and
assistance.106A child is recognized as every human being under 18 years old, unless
national laws recognize an earlier age of majority.107And all children should be
afforded the necessary protection and assistance by any state.108

 As given in the facts that State of Varys is signatory to the UN Convention on Rights
of Child, 1989. That means, It is a duty of State to provide protection and basic rights
to newly born children. As given in the preamble of Vienna Convention on The Law
of Treaties, 1969109 which makes it clear that states parties to convention are binding
to all the principal and all the convention and have to perform them in good faith
(pacta sunt servanda110) and in peaceful manner.

Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that
childhood is entitled to special care and assistance, …
106
Art. 25(2) of Universal Declaration of Human Rights, 1948 read as,
…Motherhood and childhood are entitled to special care and assistance. All children, whether born in or
out of wedlock, shall enjoy the same social protection.
107
Art.1 of CRC, 1989 read as,
For the purposes of the present Convention, a child means every human being below the age of eighteen
years unless under the law applicable to the child, majority is attained earlier.
108
Para 5, Preamble of the UNCRC, 1989 read as:
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental
human rights, in the dignity and worth of the human person and in the equal rights of men and women
and have determined to promote social progress and better standards of life in larger freedom,
109
The States Parties to the present Convention
…Noting that the principles of free consent and of good faith and the pacta sunt servanda rule are
universally recognized,
Affirming that disputes concerning treaties, like other international disputes, should be settled by
peaceful means and in conformity with the principles of justice and international law,
Recalling the determination of the peoples of the United Nations to establish conditions under which
justice and respect for the obligations arising from treaties can be maintained,
Having in mind the principles of international law embodied in the Charter of the United Nations, such
as the principles of the equal rights and self-determination of peoples, of the sovereign equality and
independence of all States, of non-interference in the domestic affairs of States, of the prohibition of the
threat or use of force and of universal respect for, and observance of, human rights and fundamental
freedoms for all,
Believing that the codification and progressive development of the law of treaties achieved in the
present Convention will promote the purposes of the United Nations set forth in the Charter, namely, the
maintenance of international peace and security, the development of friendly relations and the
achievement of co-operation among nations…
110
Art. 26, Pacta sunt servanda, read as:
35
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
 Also, It has been emphatically stated in the Convention on the Rights of the Child
(CRC) that all human rights, including ESCR, must be protected, respected, and
fulfilled for all children within the jurisdiction of states party to the CRC.111 The CRC
Committee and other experts have asserted that the enjoyment of rights stipulated in
the CRC is not limited to children who are nationals of a state. These rights must be
available to all children, including asylum seeking, refugees, and migrant children,
irrespective of their nationality, immigration status, or statelessness.112
 The rights enshrined in the International Covenant on Economic and Social Rights
apply to everyone, including migrants, regardless of legal status and
documentation.113 Children in particular have become targets of deprivation due to
acts of the Varysian Government suppressing general rights incorporated in the
UNCRC, 1989. Any state party to the convention on the rights of child is required to
ensure an adequate standard of living, and health care regardless of their immigration
status.114
 State of Varys by refusing to grant newly birth children to grant citizenship and
leaving them stateless violates the Convention on Right to Child,1989 on which they
are signatory. State have no right to violate the rights of children’s enshrined in
convention for their protection and if they do so then they are violating their duty
enshrined in Charter of UN and Vienna Convention.
 Moreover, children’s should grant citizenship by jus soli.115In some countries, jus soli
system or birthright citizenship is followed. According to this principle, citizenship of
a person is determined by the place where a person was born. Jus soli is the most
common means to acquire citizenship of a nation.
 The children have inherent righ to life116 and a life should be full with certain
political, social and economic rights. It has increasingly been shown that most
countries have not considered a child’s perspective within their migration laws and
policies.117 This lack of consideration for children impacts their enjoyment of ESCR,

Every treaty in force is binding upon the parties to it and must be performed by them in good faith.
111 Art. 2 of UNCRC,1989.
112
CRC, General Comment No. 6 (2005), § 12; Touzenis-IOM (2008, § 17).
113
CESCR, General Comment No. 20 (2009), Non-discrimination in economic, social and cultural rights (art. 2,
para. 2, of the International Covenant on Economic, Social and Cultural Rights), E/C.12/GC/20, 2 July 2009, §
30.
114
CRC, General Comment No. 6 (2005), § 40-49.
115
116
Art. 6, UNCRc,1989.
117
UNICEF-UNLa, 2010; Special Rapporteur on the Human Rights of Migrants, 2009
36
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
which according to CRC should be ensured to every child in society, regardless of his
or her nationality and immigration status.118
 The CRC Committee has affirmed that states’ objectives and policies concerning
migration control should not deny children their human rights, even if they have
breached migration law or lack a particular document.119 The Office of the United
Nations High Commissioner for Refugees (UNHCR) estimates that there are
approximately 10 million stateless people, over a third of whom are children. Given
that a stateless child is born at least every 10 minutes, statelessness among children is
a growing problem.120
 Every person has been explicitly given the Right to Nationality under Art. 15(1) of the
UDHR, 1948.121The fundamental nature of the right to a nationality and the
prohibition of arbitrary deprivation of nationality (see ibid., para. 23) have been
reaffirmed by the General Assembly in its resolution 50/152 and the Human Rights
Council in its resolutions 7/10, 10/13, 13/2, 20/5 and 26/14.In particular, States have a
responsibility to prevent and reduce statelessness, in appropriate cooperation with the
international community, in accordance with Assembly resolution 61/137 and Council
resolution 26/14.
 According to Art. 7 of UNCRC, 1989, it is an obligation for the state parties to
register immediately every child after birth and grant him nationality according to the
prevailing circumstances in their nation harmonizing both domestic and international
law.122 Meanwhile the State of Varys being a state part of UNCRC, 1989, has refused
to grant the children citizenship and the nationality leaving them stateless. The new
amendment in the Citizenship Act, 1980 denying the children of the immigrants from
automatically getting nationality of the state which violates the aforesaid article of the
convention.
 The principle of the “best interests of the child”, enshrined in article 3 of the UNCRC,
1989 and recognized in many other international and regional human rights

118
CRC Committee, 2005, § 12
119
CRC Committee, 2005
120
UNHCR, I am here, I belong: the urgent need to end childhood statelessness, November 2015, p. 1.
121
Art. 15, UDHR, 1948- Everyone has the right to a nationality

122
Art. 7, UNCRC, 1989,(1) The child shall be registered immediately after birth and shall have the right from
birth to a name, the right o acquire a nationality and. as far as possible, the right to know and be cared for by his
or her parents.
(2). States Parties shall ensure the implementation of these rights in accordance with their national law and their
obligations under the relevant international instruments in this field, in particular where the child would
otherwise be stateless.
37
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
instruments, gives the child the right to have his or her best interests assessed,
preserved and taken into account as a primary consideration in all actions or decisions
that concern him or her, in both the public and the private spheres by the state
parties.123 This principle must be respected by States in legislative and administrative
acts in the area of nationality, including in the implementation of safeguards for the
avoidance of statelessness among children.
 Even where the law does not explicitly require the child or his or her parents to
provide specific forms of evidence establishing the child’s statelessness, the lack of
proper identification of cases of statelessness can be a major impediment to the
effective fulfillment of every child’s right to acquire a nationality. A child’s
nationality may either be deemed “unknown” or “pending clarification” by the State
concerned, or they are attributed a nationality that they do not in fact enjoy, so that the
safeguard guaranteeing a nationality to stateless children cannot be invoked.49
 They include the inability of children of undocumented migrants and of members of
indigenous peoples to obtain nationality in jus soli regimes.(jus soli has to be
included)

As defined under Article 1 of the CRC 1989, children who are asylum-seekers, refugees, are
internally displaced or returnees assisted and protected by UNHCR, or are stateless,
particularly addressing the situation of those at heightened risk, Recalling that the protection
of children is primarily the responsibility of States, whose full and effective cooperation,
action and political resolve are required to enable UNHCR to fulfill its mandated functions,
Recognizing the varied means and capacity of host countries; and reaffirming its call to the
international community, in cooperation with UNHCR and other international organizations,
to mobilize the financial and other resources necessary, including in support of host
communities, to ensure the provision of protection and material assistance and the
achievement of durable solutions, based on international solidarity, cooperation and burden
and responsibility sharing, as well as on the understanding that inadequate protection, or
inadequate, inappropriate or poorly distributed assistance, can increase the risks children face,
Adopts this observation which provides operational guidance for States, UNHCR and other
relevant agencies and partners, including through identifying components that may form part
of a comprehensive child protection system, with the aim of strengthening the protection of
children at risk;

123
Committee on the Rights of the Child, general comment No. 14 (2013).
38
 AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT
In Assenov v. Bulgaria124, the European Court of Human Rights ruled that it is more than
usually important for the authorities to display special diligence in ensuring that child
criminal suspects are brought to trial within a reasonable time. The prosecution in that case
detained Assenov on remand for 2 years, despite Bulgarian legislation providing that children
should be detained on remand only in exceptional cases.
In Bulacio v. Argentina125, The Inter-American Court has found violations of the rights of
the child where the State fails to provide due process, a fair trial and humane treatment to
arrested minors.

PRAYER

Wherefore in the light of the issue raised, arguments advanced and authorities cited, it is
humbly prayed that this Hon’ble Court may be pleased to adjudge and declare that:

1. The Notification dated June 6, 2018 issued by the Varysian government is in violation
of the international law and thus, unsustainable.

2. Alternatively, the Orukains, if any, who entered Varys from Antolia are refugees under
international law, irrespective of their nationality, and Varys ought to have granted
asylum to them.

3. Antolia is not liable to accept the Orukains being deported by Varys.

And passs any other order, direction, or relief that this Hon’ble Court may deem fit in the
interests of justice, equity and good conscience.

124
no. 90/1997/874/1086, Judgment of 28 October 1998; See also Selçuk v. Turkey, no. 21768/02, Judgment of
10 January 2006; Güveç v. Turkey, no. 70337/01, Judgment of 20 January 2009.
125
Judgment of Sept. 18, 2003, (Ser. C) No. 100 (2008); Gomez Paquiyauri Brothers v. Peru,Judgment of July
8, 2004, (Ser. C) No. 110 (2004).

39
AMITY INTERNATIONAL MOOT COURT COMPETITION, 2018
MEMORIAL ON BEHALF OF THE APPLICANT

All of which is humbly prayed,

A---
Counsels for the Applicant

40