Agent Code:

______________________________________________________________________________

IN THE INTERNATIONAL COURT OF JUSTICE LA COUR INTERNATIONALE DE JUSTICE

THE PEACE PALACE, THE HAGUE THE NETHERLANDS 2012 General List No. __

______________________________________________________________________________ THE CASE CONCERNING THE SUBMERGENCE OF THE ISLAND OF JOLITT THE KINGDOM OF ABROFIBULA (APPLICANT) V. THE REPUBLIC OF RODRAVIA (RESPONDENT)

LE ROYAUME D'ABROFIBULA (DEMANDEUR) V. LA RPUBLIQUE DE RODRAVIA (DFENDEUR) ______________________________________________________________________________ ON SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICE JOINTLY NOTIFIED TO THE COURT ON 16 JULY 2012
TH

MEMORIAL FOR THE APPLICANT

MCA SELECTIONS FOR INTERNATIONAL MOOT COURT COMPETITIONS 2012-13

-TABLE OF CONTENTSTABLE OF CONTENTS

I N D E X O F A U T H O R I T I E S . i S T A T E M E N T O F J U R I S D I C T I O N .. x Q U E S T I O N S P R E S E N T E D xi S Y N O P S I S O F F A C T S ..xii S U M M A R Y O F A R G U M E N T S ,...xv PRELIMINARY OBJECTIONS AND PLEADINGS AND

A U T H O R I T I E S .1

I. THAT ABROFIBULA HAS THE STNADING TO PRESENT A CLAIM BEFORE THE INTERNATIONAL COURT OF JUSTICE AS A) THEY CAN BE CALLED AS STATE AS PER INTERNATIONAL LAW.. Abrofibula has a defined territory... There is permanent population in the kingdom of Abrofibula.. The government of Abrofibula is effective The Kingdom of Abrofibula is in capacity to enter into relations.. B) ALL NECESSARY PARTIES HAVE BEEN ADDED IN THE PRESENT DISPUTE..

II. THAT THERE HAS BEEN INVOLUNTARY REPATRIATION OF THE LITTLE JOLITANS WHICH IS VIOLATION OF INTERNATIONAL HUMAN RIGHTS INSTRUMENTS.

-MEMORIAL

ON BEHALF OF THE APPLICANT-

-TABLE OF CONTENTS-

a) Jolittans living in Rodravia are refugee under Refugee Convention and are protected from involuntary repatriation b) Involuntary Repatriation of Little Jolittians infringes the International Human Rights laws c) In Arguendo, that The Little Jolittans have a Right to Self Determination III. THAT THE DEPOLYMENT OF THE BHA REGIMENT AND CONSEQUENT USE OF FORCE IN LITTLE JOLITT AND VIMANSALA IS AN ACT OF AGGRESSION AND THE SAME CAN BE ATTRIBUTED TO RODRAVIA a) There is a treaty for construction of Artificial Island between Kingdom of Abrofibula and Republic of Rodravia b) Use of Force on the Territory of Vimansala c) Rodravia has exercised use of force on Little Jolitans

INDEX OF AUTHORITIES

CASES, ADVISORY OPINION, ARBITRAL AWARDS AND OTHER DECISIONS AA.Schooner Exchange v. M'Faddon, 11 US (7 Cranch) 116 (1812)..........................................26 A. Cassese, Self-Determination of Peoples, (Cambridge: Cambridge University Press, 1995)....11 Barcelona Traction, Light and Power Company Ltd (Belgium v Spain) (Judgment) (1970) ICJ Rep 3..............................................................................................................................................22

-MEMORIAL

ON BEHALF OF THE APPLICANT-

-TABLE OF CONTENTSCase concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Merits, 2003 ICJ 161..................................................................................................................................26 Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) , 19 December 2005 , I.C.J. Reports 2005.......................................................24 Case concerning Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports, 1994.................................................................................................................................24 Chevreau case,UNRIAA, vol. II (Sales No. 1949.V.1),................................................................29 Corfu Channel Case (Merits) (U.K. V. Alb.), 1949 I.C.J. 4...........................................................15 Deutsche Continental Gas- Gesellschaft v. Polish State, ILR, Vol. 5, p.11..................................12 East Timor (Portugal v Australia) (Judgment) [1995] ICJ Rep 90...............................................23 Estates of Ungar v. Palestinian Authority, 315 F. Supp. 2d 164, 177 (D.R.I. 2004).....................11 Fischbach & Friedericy Cases (Germ. v. Venez.), 10 R. Int'l Arb. Awards 369, 400 (1903)......15 Fisheries Jurisdiction Case (Second Phase) (United Kingdom v. Iceland), [1974] I.C.J. Rep. 3.22 Fisheries Jurisdiction Case (United Kingdom v. Iceland), I.C.J. Reports, 1973,.........................25 Island of Palmas Case (Netherlands v. United States of America), UNRIAA, Vol.2, 1928, p. 829 .......................................................................................................................................................11 Knox v. Palestine Liberation Organization, 306 F. Supp. 2d 424, 435 n.20 (S.D.N.Y. 2004).......11 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) ICJ Rep 136,..................................................................................................................................22 Military and Paramilitary Activities (Nicaragua v. U.S.A.), I.C.J. Reports, 1986,.......................22 Namibia (Legal Consequences for States of the Continued Presence of South Africa, etc.) Case, I.C.J. Reports, 1971.......................................................................................................................25

-MEMORIAL

ON BEHALF OF THE APPLICANT-

-TABLE OF CONTENTSNorth Sea Continental Shelf cases (Federal Republic of Germany v. Denmark, ICJ Rep, 1969; Federal Republic of Germany v. The Netherlands), 41 ILR 29....................................................12 Soering v. United Kingdom, [1989] 11 EHRR 439.......................................................................17 Western Sahara Case, ICJ Reports, 1975, pp.12,43-4; 59 ILR.....................................................14 TREATIES, STATUES, CONVENTIONS, RESOLUTIONS AND ANOTHER

INTERNATIONAL DOCUMENTS A/901o/Rev.L (1973),....................................................................................................................14 African (Banjul) Charter on Human and Peoples Rights, 21 I.L.M. 58 (1982............................20 Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180 .......................................................................................................................................................19 Convention on the Rights and Duties of States, Dec. 26, 1933, 49 Stat. 3097, T.S. No. 881, 165 L.N.T.S. 19.....................................................................................................................................11 Declaration on Principles erof International Law Concerning Friendly Relations and

Cooperation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625(XXV),...................................................................................................................................21 Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res. 1514(XV).......................................................................................................................................21 Definition of Aggression, United Nations General Assembly Resolution 3314 (XXIX);( hereinafter Res 3314......................................................................................................................27 Draft International Covenant on Human Rights and Measures of Implementation, GA Res. 421(V),...........................................................................................................................................21 G.A. Res. 2131, U.N. GAOR, 20th Sess., Supp. No. 14...............................................................20 G.A. Res. 3314 (XXIC).................................................................................................................15

-MEMORIAL

ON BEHALF OF THE APPLICANT-

-TABLE OF CONTENTSGA Res. ES-6/2; G.A.O.R, 6th Emerg. Sp.Sess., Supp. 1, p. 2 (1980) Respect for Sovereignty, Territorial Integrity and Political Independence of every State is a fundamental principle of Charter...........................................................................................................................................28 GA Resolution 2131(XX); 1965 Declaration on Inadmissibility of Intervention in the Domestic Affairs of the States.......................................................................................................................28 GA Resolution 2625(XXV); 1970 Declaration on Principles in International Law, UN DOC. A/AC.125/SR.114 (1970)..............................................................................................................26 General Assembly Resolution 3314, Definition of Aggression, GAOR 29th Session, UN Doc. A/RES/3314 (1974).......................................................................................................................24 Human Rights Committee, views on communication No. 560/1993, A v. Australia, 4 April 1995 (A/52/40 (vol. II.............................................................................................................................29 International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 12, 1969, 660 U.N.T.S.........................................................................................................................19 International Covenant on Civil and Political Rights, 999 UNTS 14668 (1976).........................18 International Covenant on Economic, Social and Cultural Rights, [1966] 993 UNTS................20 International organization for Migration, 2004, ISSN 1813-2278...............................................17 Montevideo Convention on the Rights and Duties of States, 165 LNTS 19 (1933........................28 Organization of American States, American Convention on Human Rights, "Pact of San Jose", Costa Rica, 22 November 1969.....................................................................................................17 Proposal Concerning The State Responsible And Joint And Several Responsibility, U.N. Doc. A/Ac.Los/C.2/L.36, 10 June 1968.................................................................................................15 Report of the Human Rights Committee, UN GAOR, 46th Sess., Supp. No. 40...........................20

-MEMORIAL

ON BEHALF OF THE APPLICANT-

-TABLE OF CONTENTSStatute of the Office of the United Nations High Commissioner for Refugees, G.A. Res. 428(V), .......................................................................................................................................................20 The 1967 Protocol relating to the Status of Refugees, 606 U.N.T.S.............................................20 Treaty of Westphalia (1648...........................................................................................................28 U.N. Doc. A/33/1o (1978);............................................................................................................15 U.N. Doc.A/6220...........................................................................................................................20 U.N. Document E/AC.32/2............................................................................................................20 UN General Assembly, Charter of Economic Rights and Duties of States: resolution / adopted by the General Assembly., 17 December 1984, A/RES/39/163.....................................................26 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189.....................................................................................................18 UNHCR, Note on Non-Refoulement (EC/SCP/2), 1977................................................................20 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI..........................21 Universal Declaration of Human Rights, G.A. Res. 217, U.N. GAOR, 3d Sess., U.N. Doc. A/217(III) (1948............................................................................................................................19 Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810......................17 ARTICLES, JOURNALS, ESSAYS AND OTHER MISCELLANEOUS AUTHORITIES "The meaning of 'persecution' in United States asylum law." International Journal of Refugee Law Vol. 3, No. 1, 1991.................................................................................................................18 Human Rights Committee, Concluding Observations/Comments on Canada, U.N. Doc. CCPR/C/CAN/CO/5......................................................................................................................20 Jorri Duursma, Fragmentation and the International Relations of Micro-States, Cambridge, Melbourne, New York: Cambridge University. Press, 1996.........................................................13

-MEMORIAL

ON BEHALF OF THE APPLICANT-

-TABLE OF CONTENTSJustin Reid Weiner & Diane Morrison, Legal Implications of Safe Passage Reconciling a Viable Palestinian State with Israel's Security Requirements, 22 CONN. J. INT'L L. 233, 245 (2007) .......................................................................................................................................................13 Re Duchy of Sealand Administrative Court of Cologne, 3 May 1978, International Law Reports, Vol. 80, 1989..................................................................................................................................12 Report Of The International Law Commission On The Work Of Its Thirtieth Session. 8 May-28 July 1978........................................................................................................................................15 Report of The International Law Commission on The Work Of Its Thirty-First Session. 14 May-3 August 1979, U.N. Doc. A/34/1o (1979).......................................................................................14 Report Of The International Law Commission On The Work Of Its Twenty-Fifth Session. 7 May13 July 1973...................................................................................................................................14 Restatement (Third) of Foreign Relations Law (1987).................................................................11 The Refugee Convention, 1951: The Travaux Prparatoires Analysed with a Commentary by Dr. Paul Weis, Cambridge University Press, Cambridge (1995),.......................................................20

Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180, U.N. GAOR 3rd Comm., 34th Sess., Supp. No. 46, at 193, U.N. Doc. A/34/830 (1979). .19 Convention on the Prevention and Punishment of the Crime of Genocide, Jan. 12, 1951, 78 U.N.T.S. 277..................................................................................................................................19 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625(XXV), GAOR, 25th Sess., Supp.No. 28, at 121, U.N. Doc.A/8082 (1970)..................................21, 22, 27

-MEMORIAL

ON BEHALF OF THE APPLICANT-

-TABLE OF CONTENTSDeclaration on the Granting of Independence to Colonial Countries and Peoples, GA Res. 1514(XV), UN GAOR, 15th Sess., Supp. No. 16, UN Doc. A/4684 (1960) 66.............................21 Draft International Covenant on Human Rights and Measures of Implementation, GA Res. 421(V), UN GAOR, 5th Sess., Supp. No. 20, UN Doc. A/1775 (1950) 42, 43........................21 G.A. Res. 1803, U.N. GAOR, 17th Sess., 1194th plenary meeting., Supp. No. 17, at 15, U.N. Doc. A/5217...........................................................................................................................................27 G.A. Res. 2131, U.N. GAOR, 20th Sess., Supp. No. 14, at 12, U.N. Doc.A/6220 (1965)...........20 GA Res. 2131, 20 UN GAOR Supp. (No. 14) at 11, UN Doc. A/6014 (1965).............................27 International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 12, 1969, 660 U.N.T.S. 195.................................................................................................................19 International Covenant on Civil and Political Rights (1966) 999 UNTS 171........................20, 21 Montevideo Convention on the Rights and Duties of States, 165 LNTS 19 (1933)......................28 Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73(e) of the Charter, GA Res. 1541(XV), UN GAOR, 15th Sess., Supp. No. 16, UN Doc. A/4684 (1960) 29.....................................................22 Question Relating to Angola, SC Res. 163, UN SCOR, 16th Sess., Supp. April-June, UN Doc. S/4835 (1961), p. 7........................................................................................................................21 Report of the Human Rights Committee, UN GAOR, 46th Sess., Supp. No. 40, 652, UN Doc. A/46/40 (1991)...............................................................................................................................20 Treaty of Westphalia (1648)..........................................................................................................28 U.N. Commission on Human Rights, Res. 1994/75, 9 March 1994; 5, U.N. Commission on Human Rights, Res. 1995/89, 8 March 1995.................................................................................17 U.N. Commission on Human Rights, Res. 1995/77, 8 March 1995..............................................17

-MEMORIAL

ON BEHALF OF THE APPLICANT-

-TABLE OF CONTENTSUniversal Declaration of Human Rights, G.A. Res. 217, U.N. GAOR, 3d Sess., U.N. Doc. A/217(III) (1948)...........................................................................................................................19

Barcelona Traction, Light and Power Company Ltd (Belgium v Spain) (Judgment) (1970) ICJ Rep 3, 32........................................................................................................................................22 Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), [1970] I.C.J. Rep. 3, 304 (Separate Opinion of Judge Ammoun).....................................22 Corfu Channel (United Kingdom v. Albania) (Merits) (1949) ICJ Rep 4, p 34............................27 East Timor (Portugal v Australia) (Judgment) [1995] ICJ Rep 90, 102 (hereinafter East Timor) .......................................................................................................................................................23 Fisheries Jurisdiction Case (Second Phase) (United Kingdom v. Iceland), [1974] I.C.J. Rep. 3, 162 (Dissenting Opinion of Judge Petren).....................................................................................22 Fisheries Jurisdiction Case (United Kingdom v. Iceland), I.C.J. Reports, 1973, pp. 3, 18..........25 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) ICJ Rep 136, 199...........................................................................................................................22 Military and Paramilitary Activities (Nicaragua v. U.S.A.), I.C.J. Reports, 1986, pp. 392, 418..25 Namibia (Legal Consequences for States of the Continued Presence of South Africa, etc.) Case, I.C.J. Reports, 1971, pp. 16, at 47.................................................................................................25 Nuclear Tests Cases, I.C.J. Reports, 1974, pp. 253, 268...............................................................25 S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (Ser.A) No. 10, 107..........................................................27 The Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276, Advisory Opinion, [1971] I.C.J. Rep. 16, 31.....................................................................................................................................22

-MEMORIAL

ON BEHALF OF THE APPLICANT-

-TABLE OF CONTENTSUNGA GAOR Draft Articles on the Law of Treaties, Report of the International Law Commission, 18th Session (1966) II ILC Yearbook, pp. 247-9 & 261..........................................27 Western Sahara, Advisory Opinion, [1975] I.C.J. Rep. 12, 31-33................................................22 BOOKS A.H. Robertson, Human Rights In The World, 174-84 (1972) Belatchew Asrat, Prohibition of Force under the U.N. Charter (1991), at 148-49 Blackstones International Law Documents, 208 (Malcolm D. Evans ed., 3d ed. 1991) Cassese, International Law in a Divided World (1st edn. Clarendon Press, Oxford 1988), p.215 Gray, International Law and the Use of Force (2nd edn. Oxford University Press, Oxford 2000), pp.191-5 Ian Brownlie, International Law and the Use of Force by States (1963) Ian Brownlie, Principles Of Public International Law 298 (2003 J.F. OConnor, Good Faith in International Law, Aldershot (1991) Lassa Oppenheim, International Law: A Treatise, Vol. II, Disputes, War and Neutrality, Sixth edition, revised, Hersch Lauterpacht (ed.), Longmans, Green and Co., London/New York/Toronto, 1944, p. 416, 214 Marc J. Bossuyt, Guide To The Travaux Preparatoires Of The International Covenant On Civil And Political Rights 53 (1987) Phillip C. Jessup, A Modern Law of Nations (1st edn. The Macmillan Company, New York 1948), pp.16970 Thomas Buergenthal, To Respect and to Ensure: State Obligations and Permissible Derogations, in The International Bill Of Rights: The Covenant On Civil And Political Rights 72, 74 (Louis Henkin ed., 1981)

-MEMORIAL

ON BEHALF OF THE APPLICANT-

-TABLE OF CONTENTSVilliger, Commentary on the 1969 Vienna Convention on the Law of Treaties (2009) 445

-MEMORIAL

ON BEHALF OF THE APPLICANT-

-TABLE OF CONTENTSSTATEMENT OF JURISDICTION The Kingdom of Abrofibula, Applicant, and the Republic of Rodravia, Respondent, have submitted their differences concerning the submergence of the island of Jolitt by Special Agreement dated 16 July 2012, to the International Court of Justice in accordance with Article 40(1) of the Statute of the International Court of Justice. In accordance with Article 36 of the State of the International Court of Justice, each party will accept the judgment of this Court as final and binding and shall execute it in its entirety and in good faith.

-MEMORIAL

ON BEHALF OF THE APPLICANT-

-INDEX OF AUTHORITIES-

Page xiv of xv QUESTIONS PRESENTED

THE APPLICANT, THE KINGDOM OF ABROFIBULA PUTS FORTH TO THE INTERNATIONAL COURT OF JUSTICE, THE
FOLLOWING QUERIES:

WHETHER THE KINGDOM OF ABROFIBULA HAS THE REQUISITE STANDING TO BRING FORTH A CLAIM BEFORE THE INTERNATIONAL COURT OF JUSTICE AS (A) IT CAN BE STILL CALLED A STATE IN INTERNATIONAL LAW AND (B) ALL NECESSARY PARTIES HAVE BEEN ADDED IN THE RESENT DISPUTE? WHETHER THE INVOLUNTARY REPATRIATION OF JOLITANS IS A VIOLATION OF INTERNATIONAL HUMAN RIGHTS INSTRUMENTS, AND RODRAVIA CANNOT INDULGE IN THE SAME? WHETHER THE DEPLOYMENT OF THE BHA REGIMENT AND CONSEQUENT USE OF FORCE IN LITTLE JOLITT AND VIMANSALA IS AN ACT OF AGGRESSION AND THE SAME CAN BE ATTRIBUTED TO RODRAVIA?

-MEMORIAL

ON BEHALF OF THE APPLICANT-

-STATEMENT OF JURISDICTION-

Page xv of xv SYNOPSIS OF FACTS

Abrofibula is a sparsely populated island state located in the Rodravian sea just off the coast of Durban continent covering 166 km2 with 45,000 inhabitants. It consists of 14 remote and low lying coral atolls, each made up of islets and three single islands- Jolitt, Ashida and Nakiti. Jolitt is the capital island accounting for roughly 50% of the population of the state with 21,300 inhabitants and is a major source of tourist revenue for the economy of the state. Jolitans are ethnically different from Ashida and Nakiti, who are original natives of the island. Jolitt is the lowest lying island in the state and hence has been plagued by seasonal rains and floods and is most susceptible region for submersion thereby the Queen Vimansala III shifted her base to Ashida. The Republic of Rodravia is a developed state located in the Catabet peninsula in Durban divided into northern and southern province. The Catabet peninsula comprises of states of Rodravia and Catabet. The capital state of Rodravia, Abbeyville is located in the southern province, with population of about 55,000. Abbeyville is also on the border of Rodravia and Catabets capital Black vale. The diplomatic ties between Catabet and Rodravia were more than cordial. The common language of the region where Jolitt, Abbeyville and Black vale are near to each other is Catebitan, which makes Jolittnas different from the rest of Abrofibulans. In Oct, 2001, Jolit was plagued by recurrent unseasonal rainfall and tidal waves due to a small earthquake and had a threat of submerging. The Rodravian President, Adam Vitch offered refugee on Rodravian soil as the closest way of evacuation and even the other atolls of Abrofibula were too small to offer any help. Around 19,000 people reached Abbeyville. Meanwhile Jolit had engulfed into the sea and island was completely uninhabited. The tribal chieftain Altair declared himself the new king of Abrofibula, meanwhile around 18,000 Jolitans had been reluctantly accepted into Abbeyville. Ghettos were organized where the displaced Jolitans resided and had declined into poverty. The Vitch government provided them free food and health check-ups every month. A system of diplomatic notes started between Abrofibula and Rodravia where on Sept 21, 2002, Rodravain president enquired when Abrofibula will repatriate the Jolittans, to which the king

-MEMORIAL

ON BEHALF OF THE APPLICANT-

-STATEMENT OF JURISDICTION-

Page xvi of xv

replied that the kingdom is unable to accept the Jolitans due to loss of territory but requested Rodravia to initiate the construction of an artificial island, 40 km north if Ashida and 128 km south west of Abbeyville, and would readily repay the debt over a period of 25 years from the date of initiation of construction, payable annually. As soon as the island is completed, the kingdom would relocate the displaced Jolitans and requested Rodravia to grant protection to these people as displaced persons under the refugee Convention. Rodravia agreed to construct the island but would extend temporary refugee to Jolittans till the construction of the island is completed and is reluctant to treat the same as displaced persons under refugee convention. the island was named Vimansala, after the former queen of Abrofibula. The construction started but Abrofibula defaulted repayment every year since 2003 but still the construction continued and was completed in Jan,2012. The payment defaults by Abrofibula were not received positively by many states, including Catabet, and hence declared that Abrofibula ceases to be a state under international law because of lost of most of its population and territory. In 2011 there was a threat of recession in Rodravia because of the European crisis coupled with the burden of providing for displaced Jolitans and increasing threat of complete default by Abrofibula. The government was powerless to control the revolts in the Northern province and was publicly vilified for their lack of economic management hence in November 2012 a new government headed by Gwen Bolinski as president was elected to office. President Bolinski deployed army to quell the rebellions in the Northern province and sent diplomatic notes to King Altair demanding full re-payment of the loan with interest and penalty, for construction of Viamnsala island and to immediately repatriate the Jolittans.beacuse there was no reply to the said note, President Bolinski issued a diplomatic statement that Vimansala island is a part of territory of Rodravia and the Jolittans in Abbeyville are not protected under Refugee convention and will be repatriated with immediate effect. The Jolittans in Abbeyville had developed into a small Jolittian colony called Little Jolitt and when such declaration was made public, most of them were unwillingly to be shifted out of

-MEMORIAL

ON BEHALF OF THE APPLICANT-

-STATEMENT OF JURISDICTION-

Page xvii of xv

Rodravia as they recognize it as their home now, the local renegade group UMNIK led by Gabriel Bonasch declared that they will ensure that Jolitans are not harmed. Fort Hodge was a facility of the Catabetian army which was provided to aid the Rodravian national army in 1923 and ever since then, it has remained in Rodravia with three active regiments from Catabet cumulatively known as BHA.traditionally, the facility recognized President Bolinski as the supreme commander and the present commander of BHA was General Humphrey Grant of Catabetian National Army. BHA was the only active military force around Abbeyville and was placed on red alert after UMNIKs comments. On March 14, 2012 , King Altair declared that they recognize Vimansala as a part of the Kingdom Of Abrofibula and Ashida have started colonizing the territory and they can pay the debt only when the tourism industry flourishes in the Vimansala island and that they are in no economic position to take back Jolitans. Because of lack of military support in the southern provinces, President Bolinski requested her counterpart, Prime Minister Josef Valecko of the Republic of Catabet for usage of two regiments of BHA. After prompt acceptance of such offer, President Bolinski requested General Grant to commence immediate repatriation of the Jolitans and to reclaim the lost territory in Vimansala.On march 16, 2012, one regiment of BHA approached Little Jolit but UMNIK had organized surprise ambush on the soldiers leading to brief victories but later surrendered to the regiment and meanwhile in Vimansala, the regiment airlifted Abrofibulans back to Ashida. enraged by such show of force, King Altair issued a diplomatic note to Rodravia stating that airlifting of Abrofibulans from Abrofibulan territory is a violation of political and territorial sovereignty of Abrofibula and involuntary repatriation of Jolittans is violating their Right to self determination and protection under refugee conventions President Bolinski issued that the Jolittands have no right to self determination and reclamation of Vimansala island is nota use of force but self defense and in any case the BHA is not under the direct control of Republic of Rodravia. On June 14, 2012, diplomats from both the countries tried to negotiate a settlement on the whole issue but failed. -MEMORIAL
ON BEHALF OF THE APPLICANT-

-QUESTIONS PRESENTED-

Page xviii of xv SUMMARY OF ARGUMENTS

The State of Abrofibula continues to exist as a state as it establishes all the requisite essentials of the statehood. Even after the submergence of Jolit Island, Abrofibula has permanent population residing in the defined territories of Ashida and Nakiti under the governance of King Altair and in its capability to enter into international relations, Abrofibula has made a treaty with Rodravia for the construction of an artificial island to relocate the jolit refugees. The displaced people of Jolit are refugees under the refugee convention and are protected from refoulment under customary international law and they now recognize Rodravia as their home and are unwilling to return back to Abrofibula, hence the Rodravian government in deploying BHA army and by using force to involuntary repatriate the Jolitans has violated International Human Rights instruments. Vimansala is a territorial area of Abrofibula and the intervention and airlifting of Abrofibulans carried out by the BHA army was and continues to be, a violation of International Law at all times and it is not excused by any self defence. It must be ceased immediately. This intervention is a violation of sovereignty and consequently an unlawful use of force. Also Rodravias claim of Self-Defense is not available in this case and since there has been no express or implied authority of the Security Council, the intervention would be treated as unlawful.

-MEMORIAL

ON BEHALF OF THE APPLICANT-

-SYNOPSIS OF FACTS-

Page 1 of xv

PRELIMINARY OBJECTIONS AND PLEADINGS I.

THAT ABROFIBULA HAS THE REQUISITE STANDING TO BRING FORTH A CLAIM BEFORE THE INTERNATIONAL

COURT OF JUSTICE AS

(A)

IT CAN BE STILL CALLED A STATE IN INTERNATIONAL LAW

State, under the International law, is a territorially defined sovereign institution of authority which possesses full international legal personality1. The Montevideo Convention on Rights and Duties of States2 reflects customary international law3, especially on the criteria for determining the recognition of a State. The four essential qualifications that a State must possess: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.4 The Kingdom of Abrofibula is a recognized Island State of the Continent of Dubar and it is humbly contented that its Statehood shall continue to exist. Further, it establishes all the requisite essentials of Statehood. Abrofibula has defined territory
1

Island of Palmas Case (Netherlands v. United States of America), UNRIAA, Vol.2, 1928, p. 829 Convention on the Rights and Duties of States, Dec. 26, 1933, 49 Stat. 3097, T.S. No. 881, 165 L.N.T.S. 19 (hereinafter 1933 Montevideo Convention) entered into force, 26 December 1934 Restatement (Third) of Foreign Relations Law (1987) [hereinafter Third Restatement of Foreign Relations Law] ( 201 indicates that [u]nder international law, a state is an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities of which the enumeration of these elements is well-established in international law; it is nearly identical to that in Article 1 of the Montevideo Convention ) Sixteen North and South American countries are parties to the 1933 Montevideo Convention, including the United States, though with reservations. The four criteria in Article 1 of the Convention are still applied by U.S. courts. Estates of Ungar v. Palestinian Authority, 315 F. Supp. 2d 164, 177 (D.R.I. 2004); Knox v. Palestine Liberation Organization, 306 F. Supp. 2d 424, 435 n.20 (S.D.N.Y. 2004); -MEMORIAL
ON BEHALF OF THE APPLICANT-

-SYNOPSIS OF FACTS-

Page 2 of xv

The territory5 of a State is that defined portion of the globe which is subjected to the sovereignty of a state, which may be very small, as in case of the Vatican City, Nauru6, Kiribati Island7 or Vanuatu Island8. The territorial size of a State is not what matters, as it must consist of certain coherent territory effectively governed.9 The Kingdom of Abrofibula is a recognized State comprising of a defined territory (The Small Kingdom14 coral atolls3 single islands)10. The submergence of the Island of Jolit within the Kingdom does not affect its recognition as a State, mainly because for the recognition of statehood, there must exists a defined territory which need not necessarily be defined or have agreed external boundaries.11 Thereby the fact that a particular part of the territory is submerged has no affect on its existence as a State.12 Thus, for a State to exists, it is enough that its territory has sufficient consistency, even though the boundaries have not yet been accurately delimited or is still in dispute.13 Moreover, the fact that only a part of the Kingdom has been submerged does not affect its existence as a State because it still as land to establish its territorial presence. (Island of Ashida and Nakriti)

Abrofibula has permanent population

In re Duchy of Sealand Administrative Court of Cologne, 3 May 1978, International Law Reports, Vol. 80, 1989, 684-685 6 <http://www.britannica.com/EBchecked/topic/406671/Nauru> 7 <http://www.britannica.com/EBchecked/topic/319111/Kiribati> 8 M.N Shaw, Territory in International Law, NYIL, Vol.13, 1982, p.61 9 J. Crawford, The Creation of States in International Law (2nd ed., Oxford: OUP, 2006) 31, 3745 10 Compromis, 1 11 North Sea Continental Shelf cases (Federal Republic of Germany v. Denmark, ICJ Rep, 1969; Federal Republic of Germany v. The Netherlands), 41 ILR 29] 12 Supra n 6,7 and 9 13 Deutsche Continental Gas- Gesellschaft v. Polish State, ILR, Vol. 5, p.11, at pp. 14-15; United Nations Security Council Official Records, 383rd mtg, 2nd Dec 1948, p.41 -MEMORIAL
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The criterion of permanent population14, establishes that the territory must be inhabited and should have population residing in it.15 Population as compris[ing] all individuals who, in principle, inhabit the territory in a permanent way again offers the two criteria intertwined.
16

The permanent population has been interpreted to connote a stable community of people who identify themselves with a specific territory.17 The mandate for Statehood is existence of permanent inhabitants in the territory irrespective of their movement in and outside the territorial limits.18 Hence, the Kingdom of Abrofibula ought to be considered as a State as it has permanent inhabitants with only a few evacuated due the sudden submergence of a part of the Kingdom. (Kingdom45,000 inhabitants...after the flooding, 19,000 Jollitiansevacuated to Abbeyvillerest to parts of Abrofibula)19. Furthermore, there is no specification as to the number of people required to substantiate this requirement as there exists various countries like Nauru20, Maldives21 and Tuvalu22 which have inhabitance only in a part of their territory. The Government of King Altair is effective

14

Permanent population is an aggregate of individuals of both sexes who live together as a community in spite of the fact that they may belong to different races or creeds, or be of different colour. F.L. Oppenheim, International Law, 1995, p.118 15 I. Brownlie, Principles of Public International Law (6th Ed., Oxford: OUP, 2003) 70-76 16 Jorri Duursma, Fragmentation and the International Relations of Micro-States, Cambridge, Melbourne, New York: Cambridge University. Press, 1996, p 117 17 Justin Reid Weiner & Diane Morrison, Legal Implications of Safe Passage Reconciling a Viable Palestinian State with Israel's Security Requirements, 22 CONN. J. INT'L L. 233, 245 (2007) 18 P. Malanczuk, Akehursts Modern Introduction to International Law (7th ed., London/New York: Routledge, 1998) 19 Compromis, 1 and 6 20 Supra n. 8 21 The people of Maldives live on only around 200 of the islands, while the rest are uninhabited, U.S. Department of State, Bureau of Public Affairs, Background Note: Maldives, http://www.state.gov/r/pa/ei/bgn/5476.htm (last accessed Sept. 30, 2009) 22 Supra n. 9 -MEMORIAL
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The foundation of an effective control is the requirement for statehood.23 The Applicant establishes a government that functions as a political body within the law of the land (Queen Vimashala III, Head of StateKing Atlairnew tribal chieftain)24and which exercises exclusive control over its sovereignty and people. The Kingdom of Abrofibula has the capacity to enter into relation The last qualification establishes the capacity to enter into relations with other states i.e. independency of the State to enter into any relations with other States25, which the applicant is capable of entering (Agreement between Abro and Rodra)26.

(B )

ALL NECESSARY PARTIES HAVE BEEN ADDED IN THE PRESENT DISPUTE

Every internationally wrongful act of a State entails the international responsibility of that State.27 Thus, state responsibility exists when: - "(a) Conduct consisting of an action or omission is attributable to the State under international law; and (b) That conduct constitutes a breach of an international obligation of the State.28 The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State under international law if the organ is acting in the exercise of elements of the governmental authority of the State at whose

M. N. Shaw, International Law, (6th edn., Cambridge: CUP, 2008) 199, 960 Compromis, 7 25 Western Sahara Case, ICJ Reports, 1975, pp.12,43-4; 59 ILR, pp. 30,60-1 26 Compromis, 10 27 Report of The International Law Commission on The Work Of Its Thirty-First Session. 14 May3 August 1979, U.N. Doc. A/34/1o (1979) 28 Report Of The International Law Commission On The Work Of Its Twenty-Fifth Session. 7 May-13 July 1973, U.N. Doc. A/901o/Rev.L (1973), Reprinted In [1973] 2 Y.B. Int'l L. Comm'n 161, 179, U.N. Doc. A/Cn.4/Ser.A/1973/Add.L (I.L.C. Draft Article-3). Second Report On State Responsibility, U.N. Doc. A/Cn.4/233 (1970)
23 24

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disposal it is placed.29 State practice and tribunal practices30 also puts a duty of due diligence on the latter state to prevent the breach of international obligations at the hands of such agents.31 That is, "an act or omission committed by the organ of one State in the performance of functions on behalf of another State, in whose interests it has been requested to act, must be considered at the international level as an act of that other State."32 Further, the Courts have held a State liable for the acts of another State party on the ground of granting the permission to use ones territory for conducting an unlawful activity 33. It may be noted that the ICJ has also confirmed the customary law nature of the principles of State responsibility codified in the ILC draft articles of State Responsibility.34 The act of deployment of forces (BHA Regiment) was under the disposal of the Republic of Rodravia from 1923 and the facility of Catabet recognizes President Bolnski of Rodravia as the Supreme Commander (Facility recognizedPresident BolenskiSupreme Commander)35. The main purpose of deployment of forces was to repatriate the Jolitans involuntarily and to reclaim Vimansala Island (dispatch regimentreclaim lost territoryVimanshala).36 Henceforth the Art. 6, Draft Articles on State Responsibility, Also See Report Of The International Law Commission On The Work Of Its Thirtieth Session. 8 May-28 July 1978, U.N. Doc. A/33/1o (1978); Art 91, International Committee of the Red Cross (ICRC) 30 Iran Hostages Case in Brownlie, Supra n 18, 31-33 (Iran Could Have Prevented Attack on U.S. Embassy); Kummerow, Otto Redler & Co., Fulda, Fischbach & Friedericy Cases (Germ. v. Venez.), 10 R. Int'l Arb. Awards 369, 400 (1903) 31 G.A. Res. 3314 (XXIC), Annex Art. 3(F)(1974), Reprinted In 15 United Nations Resolutions 392 32 Proposal Concerning The State Responsible And Joint And Several Responsibility, U.N. Doc. A/Ac.Los/C.2/L.36, 10 June 1968 (France); Proposal, U.N. Doc. A/Ac.Los/C.2/L.39; Treatment In Hungary Of Aircraft And Crew Of United States Of America (U.S. V. Hung.) 1954 I.C.J. 99, 101 33 Corfu Channel Case (Merits) (U.K. V. Alb.), 1949 I.C.J. 4 the court has imputed the liability on Albania in entirety even though Yugoslavia was working in concert with it in laying mines in Albanian waters Albania's breach was in knowingly allowing its territory to be used to harm other states. 34 Bosnia Genocide Case, Supra note 15, 266 (With Regard To Art 4,8, 31,36) 35 Compromis, 21 36 Id
29

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activities of the armed forces is attributable to Rodravia and not Catabet, which clearly shows that all the necessary parties have been added in the present dispute and the Honble ICJ in various cases has made the state with the organs of other state at disposal liable for the acts of the organ.37

37

Chevreau case, UNRIAA, vol. II (Sales No. 1949.V.1), p. 1113, at p. 1141 (1931) -MEMORIAL
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II THAT THERE HAS

BEEN INVOLUNTARY REPATRIATION OF THE LITTLE JOLITTAINS WHICH IS IN VIOLATION

OF INTERNATIONAL HUMAN RIGHTS INSTRUMENTS

Involuntary Repatriation38 is against the basic instruments of International Human Rights39 as it infringes the rights to life40 or affects the personal freedom which could be in danger of being persecuted because of race, nationality, religion etc.41 Every Individual has a right not to be exposed to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of extradition 42, expulsion43 or refoulment44.45 Further it has been accepted customarily that everyone has the right to leave any country (including his own) and no one can be arbitrarily prohibit expulsion of the any nationals.46 Various provisions International organization for Migration, 2004, ISSN 1813-2278 Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948) 40 1, U.N. Commission on Human Rights, Res. 1994/75, 9 March 1994; 5, U.N. Commission on Human Rights, Res. 1995/89, 8 March 1995; preamble and 16, U.N. Commission on Human Rights, Res. 1995/77, 8 March 1995. 41 Art. 22(8), Organization of American States, American Convention on Human Rights, "Pact of San Jose", Costa Rica, 22 November 1969: that no alien shall 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. 42 Soering v. United Kingdom, [1989] 11 EHRR 439 43 Art. 22(6), Organization of American States, American Convention on Human Rights, "Pact of San Jose", Costa Rica, 22 November 1969: An alien lawfully in the territory of a State party may be expelled only pursuant to a decision reached in accordance with law. 44 Art.3, UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85 provides: 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. 45 Art 7. International Covenant on Civil and Political Rights, 999 UNTS 14668 (1976) [hereinafter ICCPR] 46 Art. 12, 13, UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III); League of Arab States, Arab Charter on Human Rights, 15 September 1994; Art. 3, Art. 4, Council of Europe, European Convention for the Protection of Human Rights and
38 39

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regarding the treatment of the individuals irrespective of being Refugees or Asylum Seekers have been widely accepted by various conventions.47 Hence, the involuntary repatriation of the Little Jolittians by the Republic of Rodravia is against the International Law. a) Jolittans living in Rodravia are refugee under Refugee Convention and are protected from involuntary repatriation

Under International Law every individual has a right to leave the country of origin if there exists threat to right of livelihood or there is a well found fear due to a particular race, nationality, particular religion, social status etc.48 Those who migrate because of

serious environmental disruptions which is owing to well-founded fear of persecution49 that make their habitats unlivable temporarily or permanently. 50 The Little Jolittians have a fear of persecution as the Kingdom of Abrofibula clearly agrees to the non acceptance of Jolittians (Little Jolittiansdesire to stayRodraviaeconomically no position to receive back) 51 and begin with the colinatzion of Vimanshala with Ashidians (Abrofibuliansbegan colonization Ashidas & Nakitis)52. Further, every refugee must not be deported or returned to a country, regardless of whether or not it is his country of origin and every person has a right to become a refugee if in country of his

Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5; 47 Article 31, UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137,; 48 The Refugee Convention, 1951 49 Aleinikoff, T. Alexander. "The meaning of 'persecution' in United States asylum law." International Journal of Refugee Law Vol. 3, No. 1, 1991. pp. 5-29 50 Id 51 Compromis, 19 52 Compromis, 2 -MEMORIAL
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living, there exists a threat to his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions.53 Moreover, the Little Jollitains can be considered as a particular social group which is quite distinct from Abrofibulains as they are ethnically different from the people of Ashida and Nakriti (Jolittians ethnically different from Ashidas & Nakitis)54, have a distinct common language (linguistically & ethnically similar to Rodravia)55 and have been living in the Republic of Rodravia for the past 11 years (14th October, 2001within two daysPresident Vitch offered refuge to 19,000 Jolittians)56. The ethnically distinct group of Abkhazia, Aborginals (Australia), Acheh, Assyria, Batawa establishes that it has been customarily that a particular group of people on the accord of being different from the nationals of its territory can qualify to be a separate recognized social group due to the existence of Right of Self Determination57. b) Involuntary Repatriation of Little Jolittians infringes the International Human Rights

Art. 3, UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137; Art. 22(8) American Convention on Human Rights 54 Supra n.53 55 Compromis, 8 56 Compromis, 6 57 Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180, U.N. GAOR 3rd Comm., 34th Sess., Supp. No. 46, at 193, U.N. Doc. A/34/830 (1979); International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 12, 1969, 660 U.N.T.S. 195; Universal Declaration of Human Rights, G.A. Res. 217, U.N. GAOR, 3d Sess., U.N. Doc. A/217(III) (1948)
53

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58

Involuntary repatriation violates the customary principle of non refolument

as in the instant

case Jolitans have the threat to their life and freedom59 in Abrofibula and hence are protected under Refugee convention.60 Involuntary repatriation also violates contemporary human rights norm namely UDHR61, ICCPR62 and ICESCR63 which are incorporated on the idea that all people deserve equal protection of their human rights.64 c) Arguendo, that The Little Jolittans have a Right to Self Determination UNHCR, The Principle of Non-Refoulement as a Norm of Customary International Law, Response to the Questions posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93 (available at: http://www.unhcr.org/home/RSDLEGAL/437b6db64.html, last accessed on 30 October 2006); Report of the Human Rights Committee, UN GAOR, 46th Sess., Supp. No. 40, 652, UN Doc. A/46/40 (1991); UN Doc. CCPR/C/21/Rev.1/Add.6, at 4, (1994), 625, 636, 640; Conclusion No. 15 (XXX) Refugees without an Asylum Country (1979) paras. (b) and (c);Conclusion No. 22 (XXXII) Protection of Asylum-Seekers in Situations of Large-Scale Influx (1981), at II.A.2. 59 A/RES/51/75, 12 February 1997, para. 3; A/RES/52/132, 12 December 1997 ; Ad Hoc Committee on Statelessness and Related Problems, Status of Refugees and Stateless Persons Memorandum by the Secretary General, U.N. Document E/AC.32/2, 3 January 1950 60 Supra n 56; The 1967 Protocol relating to the Status of Refugees, 606 U.N.T.S. 267, entered into force 4 October 1967 [hereinafter 1967 Protocol]; Statute of the Office of the United Nations High Commissioner for Refugees, G.A. Res. 428(V), Annex, U.N. Doc. A/1775, para. 1 (1950) 61 UNHCR, Note on Non-Refoulement (EC/SCP/2), 1977, para. 4; P. Weis, The Refugee Convention, 1951: The Travaux Prparatoires Analysed with a Commentary by Dr. Paul Weis, Cambridge University Press, Cambridge (1995), at p. 341 62 The right to life is guaranteed under Art. 6 of the ICCPR and, for example, Art. 2 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 005, 213 U.N.T.S. 222, entered into force 3 September 1953 [hereinafter: ECHR]; Art. 4 ACHR; Article 4 of the African (Banjul) Charter on Human and Peoples Rights, 21 I.L.M. 58 (1982), entered into force 21 October 1986 63 International Covenant on Economic, Social and Cultural Rights, [1966] 993 UNTS; Human Rights Committee, General Comment No. 29 on States of Emergency (Art. 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001, para. 11; Human Rights Committee, Concluding Observations/Comments on Canada, U.N. Doc. CCPR/C/CAN/CO/5, 20 April 2006, para. 15; The absolute nature of the prohibition of refoulement to a risk of torture and other forms of illtreatment under Art. 3 of the ECHR has been affirmed by the European Court of Human Rights, for example, in Chahal v. United Kingdom, (1996) 23 EHRR 413 64 G.A. Res. 2131, U.N. GAOR, 20th Sess., Supp. No. 14, at 12, U.N. Doc.A/6220 (1965); Id., Declaration on Principles in International Law; Oppenheim, International Law (Jennings & Watts, eds., 1999) p. 334
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Self-determination is the right of peoples to freely determine their political status65 and includes the option to become an independent state or freely associate or integrate with an independent state.66 State practice and opinio juris since 1945 recognise a customary norm of self determination.67 This state practice and opinio juris is evidenced in the UN Charter,68 the Security Councils work relating to non-self-governing territories,69 and the General Assemblys recognition of self-determination as a fundamental human right. 70 The right is also incorporated in the International Covenant on Civil and Political Rights 71, to which both Abrofibula and Rodravia are party72 and the International Covenant on Economic, Social and Cultural Rights73 Further, this Court has recognized the customary nature of the right to self-determination. 74 The right is so well-established that many eminent publicists consider it to be a jus cogens norm.75 Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res. 1514(XV), UN GAOR, 15th Sess., Supp. No. 16, UN Doc. A/4684 (1960) 66 66 Declaration on Principles erof International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625(XXV), GAOR, 25th Sess., Supp.No. 28, at 121, U.N. Doc.A/8082 (1970) 67 J. Crawford, The Creation of States in International Law, 2nd ed. (Oxford: Clarendon Press, 2006) 108-121; S. Riga, The Evolution of the Right to Self-Determination, (Leiden: A.W.Sijthoff, 1973) 68 Arts. 1(2), 55, 73(b), 76(b), supra n. 13, United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI 69 Question Relating to Angola, SC Res. 163, UN SCOR, 16th Sess., Supp. April-June, UN Doc. S/4835 (1961), p. 7 70 Draft International Covenant on Human Rights and Measures of Implementation, GA Res. 421(V), UN GAOR, 5th Sess., Supp. No. 20, UN Doc. A/1775 (1950) 42, 43 71 Supra n. 47, ICCPR 72 Compromis, 27 73 Supra n. 48, ICCSR 74 The Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276, Advisory Opinion, [1971] I.C.J. Rep. 16, 31; Western Sahara, Advisory Opinion, [1975] I.C.J. Rep. 12, 31-33 75 I. Brownlie, Principles of Public International Law, 7th ed. (Oxford: Oxford University Press, 2008), pp. 511-512; Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), [1970] I.C.J. Rep. 3, 304 (Separate Opinion of Judge Ammoun)
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A number of General Assembly Resolutions76 on self-determination reflect binding customary norms, as they intend to declare law and were adopted by genuine consensus. 77 They clarify the scope and application of self-determination, as their widespread adoption is indicative of state practice and opinio juris.78 Hence the displaced Jolitans in Rodravia have the Right to Self determination and thereby they recognized Rodravia as their home and refused to leave their homes and go back to Abrofibula79. Thereby Rodravia has violated this human right by involuntarily repatriating the Jolitans and should cease the act. Little Jolittans capacity to enforce fundamental principles of IHL80, the right to life81 and the collective right to selfdetermination82 is governed exclusively by the Geneva Conventions (GCs) and the International Covenant on Civil and Political Rights (ICCPR). Hence, the Little Jollitains have a right to determine their existence. Moreover, this right is recognized as an extra-territorial concept.83

Supra n. 53, Friendly Relations Declaration, pp. 121, 124;GA Res. 1541(XV), UN GAOR, 15th Sess., Supp. No. 16, UN Doc. A/4684 (1960) 29 77 B. Sloan, General Assembly Resolutions Revisited, (1987) 58 B.Y.I.L. 39, 93; Fisheries Jurisdiction Case (Second Phase) (United Kingdom v. Iceland), [1974] I.C.J. Rep. 3, 162 (Dissenting Opinion of Judge Petren) 78 Military and Paramilitary Activities (Nicaragua v. U.S.A.), I.C.J. Reports, 1986, p. 101 79 Compromis, 10 80 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) ICJ Rep 136, 199 81 Barcelona Traction, Light and Power Company Ltd (Belgium v Spain) (Judgment) (1970) ICJ Rep 3, 32 82 East Timor (Portugal v Australia) (Judgment) [1995] ICJ Rep 90, 102 (hereinafter East Timor) 83 Marc J. Bossuyt, Guide To The Travaux Preparatoires Of The International Covenant On Civil And Political Rights 53 (1987);Contra Dietrich Schindler, Human Rights and Humanitarian Law, 31 Am. U.L. Rev. 935, 939 (1982)
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III. THAT THE DEPOLYMENT OF THE BHA REGIMENT AND CONSEQUENT USE OF FORCE IN LITTLE JOLITT AND VIMANSALA IS AN ACT OF AGGRESSION AND THE SAME CAN BE ATTRIBUTED TO RODRAVIA An act of aggression has been defined to be sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed in Art.3, or its substantial involvement therein.84 This includes invasion of a State by the armed forces of another State, with or without occupation of the territory. The ICJ has decided that the provision in Art. 3, para (g), of the definition reflects customary international law.85 In the instant case, Rodravia deployed army on the Jolitans living in Rodravia and also intervened in the territorial sovereignty of Abrofibula amounting to an act of aggression. a) There is a treaty for construction of Artificial Island between Kingdom of Abrofibula and Republic of Rodravia Treaties86 under International Law are international agreements between States whose validity is not affected on the ground of its form of existence. 87 There are no substantive requirements for

84

General Assembly Resolution 3314, Definition of Aggression, GAOR 29th Session, UN Doc. A/RES/3314 (1974) 85 Judge Koijmas, (Separate Opinion), Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) , 19 December 2005 , I.C.J. Reports 2005 28 86 Art. 2, Vienna Convention on the Law of Treaties (1969) 1155 UNTS 331 (hereinafter VCLT); an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. 87 Art 3, VCLT Supra n. 70 -MEMORIAL
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the formation of the treaty; an agreement may be recorded in an exchange of letters 88, minutes or conference and the only most essential requirement is the intention to create a legal relations.89 The Kingdom of Abrofibula and the Republic of Rodravia entered into a Treaty for the construction of the Artificial Island and to provide refuge to the displaced persons of Jolitt over regular exchange of diplomatic negotiations. (Initiate construction of Artificial Island...repay debt...25 yrs...extend refuge...displaced people of Jolitt)90 The treaty must be read in good faith The Vienna Convention on the Law of Treaties reflects customary international law91 especially the fact that treaties are binding upon the parties to them and must be performed in good faith. 92 It constitutes the basic framework on the law of treaties.93 The notion of pacta sunt servanda is part of customary international law.94 The treaty between the two States needs to be implemented as it came to existence and must be enacted in good faith; therefore on the interpretation of the treaty, the artificial island of Vimshala is a defined territory of Kingdom of Abrofibula. (Requests to initiateconstruction of artificial islanddebt repayable annuallynamed Vimshala)95 In accordance to the Treaty, it is

88

Case concerning Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports, 1994, 112 at 120-2 89 Aust, 35 ICLQ (1986), 787-812. On gentlemans agreements : E. Lauterpacht, Festschrift fir F.A Man 90 Compromis, 10 91 Namibia (Legal Consequences for States of the Continued Presence of South Africa, etc.) Case, I.C.J. Reports, 1971, pp. 16, at 47 92 Art. 26,VCLT, Supra n.73; Nuclear Tests Cases, I.C.J. Reports, 1974, pp. 253, 268; Military and Paramilitary Activities (Nicaragua v. U.S.A.), I.C.J. Reports, 1986, pp. 392, 418 J.F. OConnor, Good Faith in International Law, Aldershot (1991) 93 Fisheries Jurisdiction Case (United Kingdom v. Iceland), I.C.J. Reports, 1973, pp. 3, 18 94 Supra n. 3, Nuclear Weapons, 102; E. Zoller, La Bonne Foi en Droit International Public, Paris, 1977 95 Compromis, 9 -MEMORIAL
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clearly interpreted that the Republic of Rodravia constructed the artificial island for the Kingdom of Abrofibula who exercises absolute territorial sovereignty of Vimshala. (Republic of Rodaviawillingconstruct artificial islandrepayable with interest)96

b) Use of Force on the Territory of Vimansala The UN Charter97 lays down that all members shall settle their disputes by peaceful means and shall refrain from the threat or use of force98 against the territorial integrity of any state99, a rule firmly embodied in customary international law100. Every State has a duty to refrain from military, political, economic or any other form of coercion aimed against the political independence or territorial integrity of any State.101 The actual use of force, which results in the violation of the territorial sovereignty of another state, qualifies as an armed attack.102 As evident, an armed attack is a violation of Art. 2(4) of the Charter and is contrary to International Law. This principle has been reiterated in a number of cases by the ICJ.103

Compromis, 10 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI 98 All forms of pressure, including those of a political and economic character, which have the effect of threatening the territorial integrity or political independence of any State. GA Resolution 2625(XXV); 1970 Declaration on Principles in International Law, UN DOC. A/AC.125/SR.114 (1970) 99 Art.2(4), United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI,; Military and Paramilitary Activities (Nicar. v. U.S.), 1986 ICJ 14; Corfu Channel Case (UK v. Alb.), 1949 ICJ 4; The S.S. Lotus (Fr. v. Turk.), 1927 PCIJ (Ser. A) No. 10, 18-19; 100 Schmitt, Pre-emptive Strategies In International Law, 24 MJIL 513; Schooner Exchange v. M'Faddon, 11 US (7 Cranch) 116 (1812) 101 UN General Assembly, Charter of Economic Rights and Duties of States: resolution / adopted by the General Assembly., 17 December 1984, A/RES/39/163 102 Yoram Dinstein, War, Aggression and Self-Defence, 166 (3d ed. 2001); Amy E. Eckert & Manooher Mofidi, Doctrine or DoctrinaireThe First Strike Doctrine and Preemptive SelfDefence Under International Law, 12 TUL.J. INTL & COMP. L. 117, (2004), at 133-34 103 Case concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Merits, 2003 ICJ 161, p 176, para 27 and p 181, p 37
96 97

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The Rodravian government has violated the territorial sovereignty of Abrofibula by intervening in Vimansala Island and by forcefully airlifting the citizens of Abrofibula to Ashida. Therefore the act of airlifting of the Abrofigunian citizens in the territory of Abrofibula, is an act of aggression104 which lead to the use of military force and thereby an armed attack. 105 (Vimanshalaother regiment of BHArounded up Abrofibuliansairlifted them back)106 The intervention is unlawful use of force Art 2(4) of the UN Charter requires States to refrain from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.107 States are also prohibited from intervening directly or indirectly, for any reason whatever, in the internal or external affairs of any other State.108 This is a norm of customary international law109 and also is a norm jus cogens110. Rodravias intervention is a violation of territorial integrity111 as it amounts to forceful trespassing of land.112 No state has the right to intervene, directly or indirectly, for any reason whatsoever, in the

104

Definition of Aggression, United Nations General Assembly Resolution 3314 (XXIX);( hereinafter Res 3314) 105 Art 3(1), Id 106 Compromis, 22 107 Art.2(4), supra n. 4, UN Charter 108 Principle 3, Declaration on Principles of International Law, GA Res. 2131, 20 UN GAOR Supp. (No. 14) at 11, UN Doc. A/6014 (1965); Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 14, at 51, 107-108 109 Id, Nicaragua Merits, 190; Randelzhofer, Art 2 in Simma (ed.), The Charter of the United Nations, A Commentary (Vol I) (2nd ed. Oxford University Press, Oxford 2002), p.112 110 Id, Nicaragua Merits, 190; UNGA GAOR Draft Articles on the Law of Treaties, Report of the International Law Commission, 18th Session (1966) II ILC Yearbook, pp. 247-9 & 261 111 McDougal and Feliciano, The International Law of War (1st edn. Martinus Nijhoff, Dordrecht 1994), p.177; Corfu Channel (United Kingdom v. Albania) (Merits) (1949) ICJ Rep 4, p 34 112 Phillip C. Jessup, A Modern Law of Nations (1st Edn. The Macmillan Company, New York 1948), pp.16970; S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (Ser.A) No. 10, 107; G.A. Res. 1803, U.N. GAOR, 17th Sess., 1194th plenary meeting -MEMORIAL
ON BEHALF OF THE APPLICANT-

-SYNOPSIS OF FACTS-

Page 17 of xv

internal or external affairs of any other State.113 Any Armed Intervention and all other forms of Interference or attempted threats against the personality of the State or against its political, economic and cultural elements are condemned. Thus, the use of armed force to airlift the citizens from the territory of Abrofibula clearly qualifies as an armed intervention which grossly violates the fundamental principle of UN Charter.114 The essence of International relations lay in respect by independent States of each others territorial sovereignty which is protected under the United Nations Charter as well as customary international law.115

c) Rodravia has exercised use of force on Little Jolitans International Law provides for protection and welfare of all the Refugees.116 It is contented that the Little Jolittains are Refugees in the territory of Republic of Rodravia. 117 Further, any violation of the rights and safety of Refugees and asylum seekers are condemned.118 The Republic of Rodravia has employed unjustified use of force upon the Little Jolittians by deploying army for their involuntary repatriation (Regiment of BHAreached Little Jolittinvoluntary

GA Resolution 2131(XX); 1965 Declaration on Inadmissibility of Intervention in the Domestic Affairs of the States 114 GA Res. ES-6/2; G.A.O.R, 6th Emerg. Sp.Sess., Supp. 1, p. 2 (1980) Respect for Sovereignty, Territorial Integrity and Political Independence of every State is a fundamental principle of Charter. 115 Treaty of Westphalia (1648); Montevideo Convention on the Rights and Duties of States, 165 LNTS 19 (1933) 116 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137 117 Legal Issue no 2 118 Office of the United Nations High Commissioner for Refugees, Executive Committee conclusion No. 82 (XLVIII) on safeguarding asylum (17 October 1997)
113

-MEMORIAL

ON BEHALF OF THE APPLICANT-

-SYNOPSIS OF FACTSrepatriate)119.
120

Page 18 of xv

International Conventions dealing with the civil and political rights protect the

inherent right to life of an individual.121 The humble submission states that all the necessary parties need to be brought forth the International Court of Justice for deciding on all the issues discussed before. It has already been contented that all the necessary parties have been added in the present dispute and the Honble ICJ in various cases has made the state with the organs of other state at disposal liable for the acts of the organ.122 Thereby, the Republic of Rodravia is held liable all the activities undertaken by the armed forces leading to Use of Force which is an International wrong.

Compromis, 21-22 A/RES/39/140, 14 December 1984; Meeting no. 101 and A/RES/4l/l24, 4 December 1986, th 97 plenary meeting 121 Human Rights Committee, views on communication No. 560/1993, A v. Australia, 4 April 1995 (A/52/40 (vol. II)
119

120

122

Chevreau case,UNRIAA, vol. II (Sales No. 1949.V.1), p. 1113, at p. 1141 (1931) -MEMORIAL
ON BEHALF OF THE APPLICANT-

-SUMMARY OF ARGUMENTS-

Page 1 of xv

CONCLUSION/PRAYER FOR RELIEF APPLICANT, KINGDOM OF ABROFIBULA, IN LIGHT OF THE GIVEN FACTS AND SUBMITTED CONTENTIONS, ASKS, IF IT
MAY PLEASE THE

COURT, TO ADJUDGE AND DECLARE THAT:

I. ABROFIBULA HAS PROPER STANDING TO PRESENT A CLAIM BEFORE THE INTERNATIONAL COURT OF JUSTICE AS (A)
THEY CAN BE CALLED AS

STATE

AS PER INTERNATIONAL LAW AND

(B)

ALL NECESSARY PARTIES TO THIS

DISPUTE HAVE BEEN ADDED.

II. THE

INVOLUNTARY REPATRIATION OF LITTLE JOLITTANS IS A VIOLATION

INTERNATIONAL HUMAN RIGHTS

LAW AND RODRAVIA CANNOT INDULGE IN THE SAME. III. THE DEPOLOYMENT OF THE BHA REGIMENT AND CONSEQUENT USE OF FORCE IN LITTLE JOLIT AND VIMANSALA
IS AN ACT OF AGGRESSION AND THE SAME CAN BE ATTRIBUTED TO RODRAVIA..

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

AGENTS FOR THE APPLICANT

-MEMORIAL

ON BEHALF OF THE APPLICANT-