Respondent Memorial 2011

TEAM CODE: E
IN THE
INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE, THE HAGUE, THE NETHERLANDS
YEAR 2011 THE CASE CONCERNING CONFLICTING ORDERS OF THE COURTS OF BOLITA AND GARUNDI
THE REPUBLIC OF BOLITA (APPLICANT) V. THE REPUBLIC OF GARUNDI (RESPONDENT)
ON SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICE

WRITTEN SUBMISSION FOR THE RESPONDENT STATE - REPUBLIC OF GARUNDI-
D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION 2011
TABLE OF CONTENTS
MEMORIAL FOR THE RESPONDENT STATE
TABLE OF CONTENTS INDEX OF AUTHORITIES................................................................................................I STATEMENT OF JURISDICTION...................................................................................XI STATEMENT OF FACTS..................................................................................................XII QUESTIONS PRESENTED..............................................................................................XIV SUMMARY OF ARGUMENTS........................................................................................XV BODY OF ARGUMENTS 1 THE RESPONDENT STATES COURTS HAVE JURISDICTION AND THE RESPONDENT STATES LAW IS THE APPLICABLE LAW TO DETERMINE ROBERTS CUSTODY ISSUE.......................................................................................2 1.1
STATES HAVE JURISDICTION WITHIN THEIR TERRITORY AND APPLY THEIR LAWS TO THEIR RESIDENTS.........................................................................................................................3
1.2 1.3 1.3.1
THE ECONOMIC UNION TREATY IS NOT APPLICABLE TO THE CUSTODY DISPUTES...............5
IN THE ALTERNATIVE THE RESPONDENT STATE HAS NOT VIOLATED THE E U TREATY.........5
THE E U TREATY DOES NOT PROVIDE FOR RECOGNITION AND ENFORCEMENT OF EACH OTHERS COURT ORDERS SANS JURISDICTION..................................................................... 6
1.3.2
RESPECT AND COMITY FOR EACH OTHERS LAWS DOES NOT IMPLY COMPLETE ADOPTION APPLICANT STATES LAWS.................................................................................................. 7
THE RESPONDENT STATES COURTS HAVE JURISDICTION AND THE RESPONDENT STATES LAW IS THE APPLICABLE LAW TO DETERMINE EMILYS CUSTODY ISSUE.........................................................................................12
TABLE OF CONTENTS
2.1
THE RESPONDENT STATE BEING THE STATE OF EMILYS NATIONALITY AND DOMICILE HAS JURISDICTION FOR HER CUSTODY ISSUE...........................................................................12
2.2
IN THE ALTERNATIVE, THE STATE IN WHICH THE CHILD IS HABITUALLY RESIDENT IS BEST SUITED TO DETERMINE MATTERS PERTINENT TO THE CHILD S CUSTODY..........................14
2.2.1 2.2.2
EMILYS HABITUAL RESIDENCE IS THE RESPONDENT STATE............................................. 15
THE APPLICANT STATE CANNOT CLAIM JURISDICTION ON THE BASIS OF
WRONGFUL
REMOVAL OR RETENTION......................................................................................... .....16
2.2.3 2.3
ARGUEDO, EMILY HAS NOT BEEN WRONGFULLY REMOVED OR RETAINED.......................17 IT IS IN EMILYS BEST INTERESTS THAT THE RESPONDENT STATE EXERCISE JURISDICTION AND HER APPLICABLE LAW..............................................................................................17
2.4 3
THE ECONOMIC UNION TREATY IS NOT APPLICABLE TO CUSTODY DISPUTES....................18
THE RESPONDENT STATE HAS NO INTERNATIONAL OBLIGATION TO EXTRADITE JANE AND JANET................................................................................18
3.1
THERE IS NO INTERNATIONAL OBLIGATION TO EXTRADITE IN ABSENCE OF EXPRESS TREATY TO THAT EFFECT.................................................................................................19
3.2
THE ECONOMIC UNION TREATY IS NOT APPLICABLE TO CRIMINAL PROCEEDINGS............20
PRAYERS...........................................................................................................................XVII
INDEX OF AUTHORITIES
UN DOCUMENTS AND RESOLUTIONS Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States, UNGA, 1970, 65 AJ (1971), 243 Statute of the ICJ (1945) T.S. No. 993, 59 Stat. 1055 United Nations Charter, as amended June 26, 1945, 892 U.N.T.S. 119 JUDICIAL DECISIONS A.Z. v. B.Z., (Mass. 2000) 725 N.E.2d 1051 American Dredging Co. v. Miller, (1994) 510 U.S. 443, 449 n. 2. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Ser and Montenegro), [2007] I.C.J. Rep. 160 ff Association of Lawyers for Peace and Four Other Organizations v. State of the Netherlands, Nr C02/217HR; LJN: AN8071; NJ 2004/329. Balfour v. Balfour, (1919) 2 KB 571 Barcelona Traction, Light & Power Co. (Belg. v. Spain), [1970] I.C.J. Rep. 3 Barned's Banking Co. v. Reynolds (1875), 36 U.C.Q.B. 256 (C.A.) Bell v Kennedy [1868] L.R. 1 Sc. & Div.307, 310,319 Belsito v. Clark (1994), 67 Ohio Misc. 2d 54, 644 N.E.2d 760 Boissevain v. Wiel, [1949] 1 K.B. 482, 490 (C.A.) Breard v. Greene, (1998) 140 L.Ed. 2d 529 Brown v. Gadson, 654 S.E.2d 179 (Ga. Ct. App. 2007) Canada (Attorney General) v. Schulze (1901), [FN9 S.L.T. 4] Canada Malting Co. v. Paterson Steamships, Ltd. (1932) 285 U.S. 413, 422 Case Concerning The Application Of The Convention Of 1902 Governing The Guardianship Of Infants (Netherlands v. Sweden) , [1958] I.C.J. Rep. 55 Case Concerning Arrest Warrant Of 11 April 2000 (D.R.C.v. Bel) [2002] I.C.J. Rep. 3 Case Concerning the Northern Cameroons (Cam v. UK), [1963] I.C.J. Rep. Case Concerning the Payment of Various Serbian Loans Issued in France, (1929) P.C.I.J., Ser. A, no. 20 Cavers (1972) 21 Am ULR 475. Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), [2008] I.C.J. Rep. Coast Lines Ltd. v. Hudig & Veder Chartering NV, [1972] 1 ALL ER 451 Colt Industries, Inc v. Sarlie, ILR 42 108 Committee of US Citizens Living in Nicaragua v. Reagan case (1988) 859 F.2d 929 8 1 8 14 19 18, 20 3 7 9 2 5 12 10 7 9 6, 9, 17 5 8 8, 9 9 7 8 3 14 1 Page No. 1
I
Competence of the General Assembly for the Admission of a State to the United Nations, [1950] I.C.J. Rep. 4. Continental Shelf Case (Libya v Malta), [1985] ICJ Rep 13 Cooper Distributing Co., Inc. v. Amana Refrigeration, Inc. , (3d Cir. 1995) 63 F.3d 262 Cruse v. Chittum [1974] 2 ALL ER 940 (Family Division). Decker (Lowd) v. Decker, (2001) Oh. 2279 Deva Prasad Reddy v. Kamini Reddy, AIR 2002 KAR 356 Doe v. Attorney Gen., (Mich. Ct. App. 1992) 487 N.W.2d 484 at 486, 487 E. Mohd. Kassim and Co. v. Seeni Pakir-bin Ahmed AIR 1927 Md. 265. Etler v. Kertesz, (1960) 26 D.L.R. (2D.) 209, 222 Falls v. Downie, p 871 F. Supp. 100 (D. Mass. 1994) Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) Ferguson v. McKiernan, (Pa. Super. 2004) 855 A.2d 121, 2004 Pa. Super. 289 Fisheries Jurisdiction (Spain v. Canada), [1999] I.C.J. Rep. Gauthier v. Routh (1843), 6 U.C.Q.B. (O.S.) 602 (C.A.) Gilbert v. Gulf Oil Co, 330 U.S. Golden Acres Ltd. v. Queensland Estates Pty. Ltd., [1969] St. Robert. Qd.378. Grant v. Grant, 1931 S.C. 238. Greece v. United Kingdom [1952] I.C.J. Rep. Greenshields Inc. v. Johnston (1981) 119 D.L.R. (3 ) 714. Heslop v. Heslop, (1958) 12 D.L.R. (2d) 591 Hilton v. Guyot, (1895) 159 U.S. 113 Holden v. Holden, [1968] V.R. 334 I.R.C. v Duchess of Portland [1982] Ch.314. I.R.C. v Lysaght [1928] A.C.234 In re Adoption of Baby Boy S., 22 Kan. App. 2d 119, 126, 912 P.2d 761, rev. denied 260 Kan. 993, cert. denied 519 U.S. 870, 117 S. Ct. 185, 136 L. Ed. 2d 123 (1996) In re Baby M, (N.J. 1988) 537 A.2d 1227 In re Interest of R.C., (Colo. 1989) 775 P.2d 27 In re J.D.M.C., 2007 SD 97 (S.D. 2007) In re Marriage of Moschetta, 25 Cal. App. 4th 1218, 30 Cal. Rptr. 2d 893 In re Zalewski's Estate, 292 N.Y. 332, 55 N.E.2d 184, 157 A.L.R. 87 (1944). In the Estate of Fuld (no 3) [1968] P.675, 685. In the Interest of K.M.H., (2007) 169 P.3d at 1032. International Woollen Mills v. Standard Wool (U.K.) Ltd. (2001) 5 SCC 265
rd
15 4 2 6, 7 5 9 5 8 16 14 7 3 5 8 9 12 3 9 2, 13 6, 17, 20 2 12 12 1
7, 9 7 12, 13 7 3 12 1 5
II
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, [1950] I.C.J. Island of Palmas case (US/Netherlands), (1928) 2 RIAA J.F. v. D.B., (Pa. Ct. Comm. Pl. 2004) 66 Pa. D. & C. 4th 1 J.v. C. [1970] A.C. 668 Jaipur Development Authority v. Daulat Mal Jain (1997) 1 SCC 35 Jhordan C. v. Mary K., (1986) 179 Cal. App. 3d 386, 224 Cal. Rptr. 530 Johnson v. Calvert, (Cal. 1993) 851 P.2d 776 Kasikili/Sedudu Island (Botswana/Namibia), [1999] I.C.J. Rep. Kays Leasing Corp. Pty. Ltd. v. Fletcher, (1964) 116 C.L.R. 124 Koons v. Koons 615 N.Y.S.2d 563 (Sup. Ct. 1994). La Socit du Gaz de Paris v. Socit Anonyme de Navigation Les Armateurs Franais, [1925] 23 Lloyd's List. Rep. 209, 213 (Sess.) LaGrand (Germany v. United States of America), [2001] I.C.J. Rep. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), [2002] I.C.J. Rep. Levene v. I.R.C. [1928] A.C. 217 Lindsay v. Miller, [1949] V.L.R. 13, 15. Lithgow and Others v. the United Kingdom, ECHR, Series A, No. 102 Lotus case, (1927) PCIJ, Series A No. 10 at 18; 4 AD M v M (Abduction: England and Scotland), [1997] 2 FLR 263 at 274 (per Millet LJ) Mackender v. Feldia A.G., [1967] 2 Q.B. 590,598 (C.A.). Maharanee of Baroda v. Wildenstein [1972] 2 All ER 689 Malaysia Int'l Shipping Corp. v. Sinochem Int'l Co. Ltd., (3d Cir.2006) 436 F.3d 349. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), [1995] I.C.J. Rep. Matalon v Matalon [1952] McKee v. McKee, [1951] A.C. 352 (P.C.) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), [1986] I.C.J. Rep. Miller v Teale [1954] 92 C.L.R. 406 Mohan Lal v. Prem Sukh, AIR 1956 Nag 273 Moran v Moran, [1997], SLT 541. Moshen v. Moshen 715 F. Supp. 1063 (D. Wyo. 1989) Nessa v Chief Adjudication Officer (1998) 2 All ER 728 at 737, CA Oil Platforms (Islamic Republic of Iran v. United States of America), [2003] I.C.J. Rep.
3 1 7, 9 2 9 7 7, 10 3 9 15 8
3 4
12 8 4 1 15 7 2, 13 8 3
12 2, 13, 16 3, 19
12 5 15 15 14 3, 19
III
People of Saipan ex rel. Guerrero v. United States Department of Interior (1974) 502 F.2d 90 Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253 (1981) Questions of Interpretation and Application of 1971 Montreal Convention Arising from Aerial Incident at Lockerbie (Lib. v. U.K.), [1992] I.C.J. Rep. 3 R.R. v. M.H., (Mass. 1998) 689 N.E.2d 790 Rainford, Boston and Graham v. Newell-Roberts, ILR 30, 106 Ralli Bros v. Compania Naviera Sota y Aznar, [1920] 2 K.B. 287 (C.A.). Ramsay v. Liverpool Royal Infirmary [1930] A.C. 588. Ratan Chand Hirachand v. Aksar Nawaz Jung, (1991) 3 SCC 67 Re A (Abduction: Habitual Residence), [1998] 1 FLR 497 Re B (Abduction: Children's Objections), [1998] 1 FLR 667 at 671 Re B (Minors) (Abduction), (No.2) [1993] 1 FLR 993 Re B.s Settlement [1940] Ch. 54 Re C (Minors), [1978] 2 ALL ER 230 (Court of Appeal). Re E (D) (an infact), [1967] Ch 761 (Court of Appeal) Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 at 556-557, CA Re Flynn (No. 1) [1968] 1 W.L.R.103, 113-115. Re G (A Minor) (Enforcement of Access Abroad), [1993] Fam 216, CA Re J (A Minor) (Abduction: Custody Rights), (1990) 2 AC 562 Re James (1908) 98 L.T. 438 Re Johnson [1903] 1 Ch 821. Re L (Minors), [1974] 1 ALL ER 913 (Court of Appeal) Re L.L.A., (1981) 25 R.F.L. (2D) 208 Re M (Minors) (Residence Order: Jurisdiction), [1993] 1 FLR 495 Re Masterson, [1948] 2 D.L.R. 696 Re O' Keefe [1940] Ch 124, (1940) 1 All ER 216 Re P (GE), (an infant) [1965] Ch. 568 (C.A.) Re S (A Minor) (Custody; Habitual Residence) ( 1998) AC 750, HL Re TA (infants), (1972) 116 Sol JO 78. Re Walker and Walker, (1970) 14 D.L.R. (3d) 342 Re Willoughby, (1885) 30 Ch.D. 324 (C.A.) Robertson v Roberston, [1998] SLT 468 Rousillon v. Rousillon, (1880) 14 Ch. D. 351, 369 Royal Exchange Assurance v. Compania Naviera Santi, SA ILR 33, 173
8 18
1, 7, 9, 10 1 8 11, 12 9 15 15 15 2 17 10, 16 15, 16 12 15 14 11 14 10, 16 2 15 2, 13 14 2, 13 14 16 2 2, 13 15, 16 9 1
IV
Ruf v. Walter, [1990] 6 W.W.R. 661 (Sask. Q.B.) Scheffer v. Scheffer, [1967] N.Z.L.R. 466, 468 Seymour v. Stotski (1992), 82 Ohio App. 3d 87, 93, 611 N.E.2d 454 Sheehy v. Professional Life-Assurance Co. (1857), [FN2 C.B. (N.S.) 210 Sing v Singh [1998] SLT 1084. Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) , [2002] I.C.J. Stone v Stone [1958] 1 W.L.R. 1287. Suez, Sociedad General de Aguas de Barcelona S.A., Vivendi Universal S.A., AWG Group v Argentine Republic, ICSID Case No. ARB/03/19 Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180, 102 S. Ct. 2374, 28 Fair Empl. Prac. Cas. (BNA) 1753, 29 Empl. Prac. Dec. (CCH) P 32782 (1982). Tag v. Rogers (1959) 267 F.2d 664, 666 Territorial Dispute (Libyan Arab Jamahiriya/Chad), [1994] I.C.J. Rep. The Assunzione, [1954] P. 150, 164 (C.A.). The Hollandia, [1983] 1 A.C. 565,576. Totok v Torok [1973] 3 All ER 101, (1973) 1 WLR 1066. Trilochan v. Dayanidhi, AIR 1961 Ori 158 U.S. v. American Sugar Refining Co., 202 U.S. 563, 26 S. Ct. 717, 50 L. Ed. 1149 (1906) Udny v Udny [1869] L.R. 1 Sc. & Div 441,450 Valentine v. U.S. ex rel. Neidecker, 299 U.S. 5, 17, 57 S. Ct. 100 (1936) Vellachi Achi v. Ramnathan, AIR 1973 Mad 141 Vincent v. Buchan (1889) 16 R. 637 Vishwanatha v. Abdul Wazid, AIR 1963 SC 1 Vita Food products Inc. v. Unus Shipping Co. Ltd. , [1939] 1 ALL ER 513 White v Tennant [1888] 31 W.Va. 790, 8 S.E. 596 Willar v Willar [1954] S.C.144. Winans v Att. Gen. [1904] A.C.287 Young Loan Arbitration (Belg. v. FRG) , [1980] 59 ILR 495 BOOKS, DIGESTS AND TREATISES Bassiouni, Reflections on International Extradition in Festschrift Fur Otto Triffterer, K.Schmoller, ed. (1996) Cheshire, Fifoot and Furmston, Law of Contract, 11th ed., (1986) Cook, Logical and Legal Basis of Conflict of Laws, (1942) D. P. OConnell, International Law, 2d. ed. (London: 1970) vol. 1
5 2 7, 10 5 15, 16 3 12 4
8 3 6 7 13 5 3
12 3 13 12 5 9 12 12 12 4
18
9 7, 8 1
V
D.W. Greig, Intertemporality and the Law of Treaties, (London: 2001) David McClean, ed., Morris: The Conflict of Laws, 4th ed. (London: 1993) de Winter (1969) III Hague Recueil 357, 419-454 Falconbridge, Selected Essays on the Conflict of Laws, 2d. ed. (1954) Geoffrey Freestone, Cooperation Against Terrorism, in Terrorism and International Law, R. Higgins et. al. eds. (1997) Ian Brownlie, Principles of Public International Law, 6th ed. (Oxford: Oxford University Press, 2003) Ivan Anthony Shearer, Extradition in International Law, (1971) J. H. C. Morris and P. M. North, eds., Cases and Materials on Private International Law, (London: Butterworths, 1984) Joseph Story, Commentaries on the Conflict of Laws, 2d ed. (1841) Lawrence Collins, gen ed., Dicey and Morris on the Conflict of Laws, 11th ed. (London: Stevens & Limited, 1987) Lorenzen , Selected Articles on the Conflict of Laws, (1947) M. S. Rajan, United Nations and Domestic Jurisdiction, 2d. ed, (London: 1961) Malcolm N. Shaw, International Law, 6 ed. (Cambridge: 2008) Nguyen Quoc Dinh, P. Daillier and A. Pellet, Droit International Public, 7 ed. (2002) P. Kooijmans, The Doctrine of the Legal Equality of States, (Leiden: 1964) P.M. North and J.J. Fawcett eds. Cheshire and Norths Private International Law, 13th ed. (LexisNexis Butterworths: New Delhi, 1999) P.M. North, Private International Law of Matrimonial Causes in the British Isles and the Republic of Ireland (1977) R. Y. Jennings and A. D. Watts, eds., Oppenheims International Law 9th ed. (London: 1992) vol. 1 Rabel, Conflict of Laws: A Comparative Study, 2d. ed. (1958-64) vol 2 Robert B. von Mehren & Michael E. Patterson, Recognition and Enforcement of Foreign Judgments in the United States (1972) Wolff, Private International Law, 2d. ed. (1950) TREATIES AND OFFICIAL DOCUMENTS Convention Relative to the Protection of Civilian Persons in Time of War, (Aug. 12, 1949) 75 U.N.T.S. 287 Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, [1996] O.J. L 48/3 EC, Convention of 1998 on Jurisdiction and the Recognition and Enforcement of
th th
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6 5, 6, 7
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VI
Judgments in the Matrimonial Matters ( Brussels II), [1998] OJ C221/2 EC, Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, [2003] O.J. L 338, p. 1. European Convention on Extradition, Council of Europe, (Dec. 13, 1957) 359 U.N.T.S. 278 G.A. Res. 39/46, 39; U.N. GAOR, 39th Sess., Supp. No. 51 at 197, U.N. Doc. A/39/51 (1985) Hague Conference on Private International Law, Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Hague XXVIII Inter-American Convention on Extradition, (Feb. 25, 1981) 20 I.L.M. 724 Model Treaty on Extradition, (1990) art.4(a), G.A.Res. 45/116, U.N. GAOR, 45th Sess., U.N. Dec., A/RES/45/116 Organization of American States, Inter-American Convention on the International Return of Children, 15 July 1989, OAS, Treaty Series, No. 70 Treaty Concerning Extradition (Belg.-Lux.-Neth.), (Jun. 27, 1962) Vienna Convention on the Law of Treaties (May 23, 1969) U.N. Doc. A./CONF. 39/27 (1971), reprinted in 63 AM. J. INT'L L. 875, 876 (1969) ARTICLES AND JOURNALS Rebus Revisited: Changed Circumstances in Treaty Law (2005) 43 Colum. J. Transnat'l L. 459 Developments in the Law: Medical Technology and the Law, (1990) 103 Harv.L.Rev.1519, 1550 Surrogate Gestator: A New and Honorable Profession (1993), 76 Marquette L.Rev. 675 Antonio Cassese, The International Community's Legal Response to Terrorism (1989) 38 Int'l & Comp. L. Q. 593. Avi Katz, Surrogate Motherhood and the Baby-Selling Laws (1986) 20 COLUM.J.L. & SOC. Probs. 1, 23. Best Swart, Refusal of Extradition (1992) Netherlands Yearbook Int'l L. 23, 214 Dawn Wenk, Belsito v. Clark: Ohio's Battle with Motherhood (1996) 28 U. Tol. L. Rev. 247 Dolgin, Just a Gene: Judicial Assumptions About Parenthood (1993) 40 UCLA L.Rev. 637, 659. Ernest G. Lorenzen, Huber's De Conflictu Legum, (1918) 13 Ill. L. Rev. 375 Ernest G. Lorenzen, Story's Commentaries on the Conflict of Laws One Hundred 6 6 7 18 10 6 19 10 10 4 19 2, 3, 17, 19 16 19 19 15 19 19 14
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Years After (1934) 48 Harv. L. Rev. 15 Gerald Fitzmaurice, Reservations to Multilateral Treaties, (1953) 2 ICLQ 1 Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice (Cambridge: Grotius, 1986) Goodwin, Determination of Legal Parentage in Egg Donation, Embryo Transplantation, and Gestational Surrogacy Arrangements (1992) 26 Fam.L.Q. 275 Hersch Lauterpacht, De lInterprtation des Traits: Rapport et Projet de Rsolutions, (1950) 43 Annuaire de lInstitut de Droit International J. Brown, Diplomatic Immunity: State Practice under the Vienna Convention on Diplomatic Relations (1988) 37 ICLQ James B. Jacobs, Major Minor Progress Under The Third Pillar: EU Institution Building In The Sharing Of Criminal Record Information (2008) 8 Chi.-Kent J. Int'l & Comp. L. 111 Jenks, The Prospects of International Adjudication (1964) Joel R. Paul, Comity in International Law (1991) 32 Harv. Int'l L.J. 1 Joseph T. Latronica, American Jurisprudence Treaties 2d. ed. 74 Am. Jur. Krimmel, Can Surrogate Parenting Be Stopped? An Inspection of the Constitutional and Pragmatic Aspects of Outlawing Surrogate Mother Arrangements (1992) 27 Val.U.L.Rev. 1 Luke J. Umstetter , Enforcing Foreign Judgments: In Search Of A Treaty To Locate Assets Abroad (2007) 3 S.C. J. Int'l. L. & Bus. 85 Macklin, Artificial Means of Reproduction and Our Understanding of the Family, 21 Hastings Center Rep. 5, 10. Mary Becker, Four Feminist Theoretical Approaches and the Double Bind of Surrogacy (1994) 69 Chi.-Kent. L. Rev. 303, 308. N. Jansen Calamita, Rethinking Comity: Towards A Coherent Treatment of International Parallel Proceedings, (2006) 27 U. Pa. J. Int'l Econ. L. 601 Peter Pfund, The Hague Conference Celebrates Its 100th Anniversary (1993) 28 Tex. Int'l L.J. 531 Radin, Market-Inalienability (1987) 100 Harv.L.Rev.1849, 1924 Richard D. Kearney and Robert E. Dalton, The Treaty on Treaties (1970) 64 Am. J. Intl Law 495 at 516. Sonia Bychkov Green, Interstate Intercourse: How Modern Assisted Reproductive Technologies Challenge the Traditional Realm of Conflicts of Law (2009) 24 Wis. J.L. Gender & Soc'y 25. Stein, Rendition of Terrorists: Extradition versus Deportation (1989) Isr'l Yearbook 18 1 9, 10 2 14 6, 17 10 10 5 15 20 3 9 20 18 3 10 3 3
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Int'l L. 79, 282 Vieira, L'Evolution Recente de l'Extradition dans le Continent Americain (1984 -II) 185 Rd.C. 236. William Hannay, International Terrorism and the Political Offence Exception to Extradition (1979) 18 Colum. J. Transnat'l L. 383. Willis Reese, The Hague Conference on Private International Law: Some Observations (1985) 19 Int'l Law 881 Wise, The Obligation to Extradite or Prosecute (1993) 27 Isr. L. Rev. 282 MISCELLANEOUS Adoption Act 1976 (U.K.), 1976, c. 36 Ariz. Rev. Stat. Ann. 25-218(A) (West 1991) Child Abduction and Custody Act 1985 (U.K.), 1985 c. 60 Child Support Act 1991 (U.K.), 1991 c. 48 Civil Jurisdiction and Judgments Act 1982 (U.K.), 1982, c. 27. Committee on Foreign and Comparative Law, Association of the Bar of the City of New York, Survey on Foreign Recognition of U.S. Money Judgments 5 (2001). Contracts (Applicable Law) Act 1990 (U.K), 1990 c. 36 Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) Council Framework Decision on Taking Account of Convictions in the Member States of the European Union in the Course of New Criminal Proceedings (2 July 2007) COM(2005/0018 (CNS) D.C. Code Ann. 16-402(a) (1997) Domicile Act 1992, No. 3 of 1992, South Africa Domicile and Habitual Residence Act, SM 1983, C.C.S.M. c. D96, Manitoba Domicile and Matrimonial Proceedings Act 1973 (U.K), 1973 c.45 Family Law Act 1986 (U.K.), 1986 c. 55 Ind. Code Ann. 31-20-1-1, 31-20-1-2 (Michie 1997) Indian Contract Act, 1872 Interpol, General Secretariat, Rapport sur la valeur juridique des notices rouges, ICPOInterpol, General Assembly, 66th Session, New Delhi, 15-21 October 1997, AGN/66/RAP/8, No. 8 Red Notices, as amended pursuant to resolution No. AGN/66/RES/7 Maurice Mendelson, The Subjective Elements in Customary International Law (1995) 76 BYIL 179. Mich. Stat. Ann. 25.312(3) 10 15 9 12 13 14 14 9 7 20 20 14 20 14 9 14 14 2, 13 5 18 14 18 18, 19
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Mich. Comp. Laws Ann. 722.855 (West 1993) N.D. Cent. Code 14-18-05 (1991) N.Y. Dom. Rel. Law 122 (McKinney Supp. 1997) Neb. Rev. Stat. 25-21,200 (1995) Restatement Third, Foreign Relations Law of the United States 325(1). Rome Statute of the International Criminal Court, (1998) 37 I.L.M. 999 Secretary-General's Report on Aspects of Establishing An International Tribunal for the Prosecutions of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, (1993) 32 I.L.M. 1159 Security Counsel Resolution Establishing the International Tribunal for Rwanda , (1994) 33 I.L.M. 1598 The Indian Penal Code, 1860 Uniform Status of Children of Assisted Conception Act, Alternative B, 5, 9B U.L.A. 208 (Master ed. Supp. 1997) Utah Code Ann. 76-7-204 (1995) Wash. Rev. Code 26.26.230, 26.26.240 (1996) Wills Act 1963 (U.K.),1963, c. 44
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STATEMENT OF JURISDICTION
STATEMENT OF JURISDICTION The Applicant, the Republic of Bolita, on one side, and the Respondent, the Republic of Garundi on the other, have submitted by Special Agreement their differences, pursuant to Article 40, paragraph 1, of the Statute of the International Court of Justice. Therefore, both parties have accepted the jurisdiction of the ICJ pursuant to Article 36(1) of the Statute of the Court.
XI
STATEMENT OF FACTS
STATEMENT OF FACTS The Republic of Bolita and the Republic of Garundi: Bolita and Garundi formed an economic union in 1978 with a common currency and monetary policy, respect and comity for each others laws, free commerce and trade, easy travel and recognition and enforcement of orders of each others courts. The economic union helped the two countries to develop their economies, but created a unique set of challenges on the social and religious fronts. International law is recognized by the Constitutions of both nations. Citizenship Rules of Bolita and Garundi: Under Bolitian Laws, a child is a citizen of Bolita if he is born in Bolita or he is born outside of Bolita but to Bolitian citizens. Children born outside of Bolita to couples where only one parent is Bolitian are not entitled to citizenship unless the Bolitian parent is resident in Bolita at the time of delivery. Garundian Laws state that a child born in Garundi is a citizen of Garundi if its mother is a citizen of Garundi. Children born outside of Garundi are citizens of Garundi if their parents are Garundian citizens. The Surrogacy Arrangement: Jane Rathna, a Garundian citizen decided to travel to Bolita in 1992 and work there. While working there she married John Botisa in 1998 and in 2000 they had a daughter named Emily Rathna Botisa. Complications led Jane to undergo a hysterectomy rendering her unfit to bear any more children. In 2003, John and Jane froze their sperm and eggs, hoping to have future children by means of in vitro fertilization. In 2006, Janet Rathna (Janes sister - a Garundian citizen) agreed to carry the baby to term. Janet was to deliver the child in Bolita for the child to clearly be a citizen of Bolita, but, in her final trimester, Janet decided to fly back to Garundi due to family reasons. Soon after, she developed complications, went into labour and delivered a baby boy Robert, in Garundi. Jane and Emily immediately travelled to Garundi to bring Robert back to Bolita.
XII
STATEMENT OF FACTS
The Disagreement: The concept of was surrogacy was unknown in Garundi. Janet came under tremendous local political and religious pressure not to hand over the child to Jane. John flew into Garundi to take Emily back to Bolita but Jane insisted that Emily remain in Garundi until the matter was resolved. John protested, but flew back without Emily. Meanwhile, Janet changed her mind and decided not to hand over Robert to Jane. Janet then filed with the Registrar of Births in Garundi as the mother of the child, naming the child Robert Rathna and declaring the father to be unknown. Legal Proceedings initiated in the Courts of Bolita and Garundi: Pursuant to Johns suit for specific performance Bolitian court pronounced an ex parte interim order declaring itself to have jurisdiction as per the surrogacy contract and ordering Janet to appear before the court within 30 days with Robert for the matter to be resolved. John also initiated legal proceedings before the courts in Garundi for an order to compel Janet to appear before the courts in Bolita. Janet filed objections between the courts in Garundi stating that as per Garundian laws, the child was a citizen of Garundi, Janet was his mother and so neither she nor Robert should be compelled to travel to Bolita. Janet also filed objections before the courts in Bolita, stating they had no jurisdiction over a Robert- a Garundian child. John filed a claim before the courts in Bolita requesting that Jane be compelled to hand over custody of Emily to him. Jane objected to the jurisdiction of the Bolitian courts. She also argued that the best interests of Emily required that she remain with her and Robert. Jane also filed for custody of Emily with the Garundian courts. Criminal Proceedings: Johns lawyers in a tactical move initiated criminal proceedings against Jane and Janet in the Bolitian courts. John accused Janet of stealing genetic material and Jane of kidnapping a citizen of Bolita. The Bolitian courts issued arrest warrants to ensure attendance and appearance of Jane and Janet. Bolitian authorities were considering requesting Garundi to hand them over under the economic union treaty. XIII
QUESTIONS PRESENTED
QUESTIONS PRESENTED
1.
WHETHER THE RESPONDENT STATES COURTS HAVE JURISDICTION AND WHETHER THE RESPONDENT STATES LAW IS THE APPLICABLE LAW TO DETERMINE ROBERTS CUSTODY ISSUE?
2.
WHETHER THE RESPONDENT STATES COURTS HAVE JURISDICTION AND WHETHER THE RESPONDENT STATES LAW IS THE APPLICABLE LAW TO DETERMINE EMILYS CUSTODY ISSUE?
3.
WHETHER
THE
RESPONDENT
STATE
HAS
AN
INTERNATIONAL
OBLIGATION TO EXTRADITE JANE AND JANET?
XIV
SUMMARY OF ARGUMENTS
SUMMARY OF ARGUMENTS 1 THE RESPONDENT STATES COURTS HAVE JURISDICTION AND THE RESPONDENT STATES LAW IS THE APPLICABLE LAW TO DETERMINE ROBERTS CUSTODY ISSUE 1.1
STATES HAVE JURISDICTION WITHIN THEIR TERRITORY AND APPLY THEIR LAWS TO THEIR RESIDENTS
1.2 1.3 1.3.1
THE ECONOMIC UNION TREATY IS NOT APPLICABLE TO THE CUSTODY DISPUTES
IN THE ALTERNATIVE THE RESPONDENT STATE HAS NOT VIOLATED THE E U TREATY
THE E U TREATY DOES NOT PROVIDE FOR RECOGNITION AND ENFORCEMENT OF EACH OTHERS COURT ORDERS SANS JURISDICTION
1.3.2
RESPECT AND COMITY FOR EACH OTHERS LAWS DOES NOT IMPLY COMPLETE ADOPTION APPLICANT STATES LAWS
THE RESPONDENT STATES COURTS HAVE JURISDICTION AND THE RESPONDENT STATES LAW IS THE APPLICABLE LAW TO DETERMINE EMILYS CUSTODY ISSUE
2.1
THE RESPONDENT STATE BEING THE STATE OF EMILYS NATIONALITY AND DOMICILE HAS JURISDICTION FOR HER CUSTODY ISSUE
2.2
IN THE ALTERNATIVE, THE STATE IN WHICH THE CHILD IS HABITUALLY RESIDENT IS BEST SUITED TO DETERMINE MATTERS PERTINENT TO THE CHILDS CUSTODY
XV
SUMMARY OF ARGUMENTS
2.2.1 2.2.2
EMILYS HABITUAL RESIDENCE IS THE RESPONDENT STATE
THE APPLICANT STATE CANNOT CLAIM JURISDICTION ON THE BASIS OF REMOVAL OR RETENTION
WRONGFUL
2.2.3 2.3
ARGUEDO, EMILY HAS NOT BEEN WRONGFULLY REMOVED OR RETAINED IT IS IN EMILYS BEST INTERESTS THAT THE RESPONDENT STATE EXERCISE JURISDICTION AND HER APPLICABLE LAW
2.4 3
THE ECONOMIC UNION TREATY IS NOT APPLICABLE TO CUSTODY DISPUTES
THE RESPONDENT STATE HAS NO INTERNATIONAL OBLIGATION TO EXTRADITE JANE AND JANET
3.1
THERE IS NO INTERNATIONAL OBLIGATION TO EXTRADITE IN ABSENCE OF EXPRESS TREATY TO THAT EFFECT
3.2
THE ECONOMIC UNION TREATY IS NOT APPLICABLE TO CRIMINAL PROCEEDINGS
XVI
BODY OF ARGUMENTS
BODY OF ARGUMENTS
THE RESPONDENT STATES COURTS HAVE JURISDICTION AND THE RESPONDENT STATES LAW IS THE APPLICABLE LAW TO DETERMINE ROBERTS CUSTODY ISSUE
It is humbly submitted that the Respondent States law will govern Roberts custody dispute overriding any private choice of law arrangement.1 Robert was born in the Respondent State and his mother is a citizen and resident of the Respondent State.2 Place of conception of child carries little weight in choice of law determination. 3 Instead the local law of the state which has the most significant relationship to the child and the parent is considered. 4 1.1 STATES HAVE JURISDICTION WITHIN THEIR TERRITORY AND APPLY THEIR LAWS TO THEIR RESIDENTS The principle corollaries of sovereignty5 and equality of states are jurisdiction, prima facie exclusive, over its territory and the population living there and a right of non-intervention against other states in the area of its exclusive jurisdiction. 6 The territorial principle provides
R.R. v. M.H., (Mass. 1998) 689 N.E.2d 790 at 793; Sonia Bychkov Green, Interstate Intercourse: How Modern Assisted Reproductive Technologies Challenge the Traditional Realm of Conflicts of Law (2009) 24 Wis. J.L. Gender & Soc'y 25. 2 Compromis 5. 3 In re Adoption of Baby Boy S., 22 Kan. App. 2d 119, 126, 912 P.2d 761, rev. denied 260 Kan. 993, cert. denied 519 U.S. 870, 117 S. Ct. 185, 136 L. Ed. 2d 123 (1996). 4 Compromis 4, 5; In the Interest of K.M.H., (2007) 169 P.3d at 1032. 5 Lotus case, (1927) PCIJ, Series A No. 10 at 18; 4 AD, p. 153; Island of Palmas case (US/Netherlands), (1928) 2 RIAA at 829, 838. 6 United Nations Charter, Art 2 (7); Declaration on Principles of International Law Concerning Friendly Relations and cooperation Among States, UNGA, 1970, 65 AJ (1971), 243; D. P. OConnell, International Law, 2d. ed. (London: 1970) vol. 1 at 3224; P. Kooijmans, The Doctrine of the Legal Equality of States, (Leiden: 1964); R. Y. Jennings and A. D. Watts, eds., Oppenheims International Law 9th ed. (London: 1992) vol. 1 at 339; M. S. Rajan, United Nations and Domestic Jurisdiction, 2d. ed, (London: 1961) Nguyen Quoc Dinh, P. Daillier and A. Pellet, Droit International Public, 7th ed. (Paris: 2002) at 428.
1
BODY OF ARGUMENTS
jurisdiction based on concepts of allegiance or domicile. 7 Mere presence within a state grants jurisdiction to that state.8 A court has inherent jurisdiction derived from the principle of parens patriae to make a custody order in respect of minors who are present within its jurisdiction overriding even orders of courts of his domicile. 9 Ordinary residence is another criterion for jurisdiction. 10 Habitual residence means a regular physical presence which must endure for some time. It means something more than ordinary residence.11 If the court has jurisdiction it will apply lex fori.12 In case of concurrent claims on behalf of persons having dual nationality the claim of the State with genuine link prevails. 13 In the instant case Robert has been resident in the Respondent State since his birth. He is not only a citizen of the Respondent State but is also habitually resident and domiciled there. His closest connection is with the Respondent State. It is the only environ he is acquainted with. Consequently, it is humbly submitted that the Respondent State has jurisdiction over Roberts custody dispute. 1.2 THE ECONOMIC UNION TREATY IS NOT APPLICABLE
It is humbly submitted that the Economic Union treaty is not applicable to the present child custody issue. A treaty must be interpreted in good faith14, in accordance with the ordinary
Rainford, Boston and Graham v. Newell-Roberts, ILR 30, 106; Royal Exchange Assurance v. Compania Naviera Santi, SA ILR 33, 173; Colt Industries, Inc v. Sarlie, ILR 42 108; Malcolm N. Shaw, International Law, 6th ed. (Cambridge: Cambridge University Press, 2008) at 647. 8 Re P (GE) (an infant), [1965] 3 ALL ER 977 (Court of Appeal); Heslop v. Heslop, (1958) 12 D.L.R. (2d) 591; Re Masterson, [1948] 2 D.L.R. 696; Maharanee of Baroda v. Wildenstein [1972] 2 All ER 689; See also the Civil Jurisdiction and Judgments Act 1982. 9 Re Willoughby, (1885) 30 Ch.D. 324 (C.A.); Re D., [1943] Ch. 305; McKee v. McKee, [1951] A.C. 352 (P.C.); J.v. C. [1970] A.C. 668; Re P (GE), (an infant) [1965] Ch. 568 (C.A.); Re B.s Settlement [1940] Ch. 54. 10 Re P (GE), (an infant) [1965] Ch. 568 (C.A.); Scheffer v. Scheffer, [1967] N.Z.L.R. 466, 468; Re Walker and Walker, (1970) 14 D.L.R. (3d) 342; Re L.L.A., (1981) 25 R.F.L. (2D) 208; Holden v. Holden, [1968] V.R. 334. 11 Cruse v. Chittum {1974] 2 ALL ER 940 (Family Division). 12 Re B.s Settlement [1940] Ch. 54; McKee v. McKee, [1951] A.C. 352 (P.C.); J.v. C. [1970] A.C. 668. 13 Barcelona Traction, Light & Power Co. (Belg. v. Spain), [1970] I.C.J. Rep. 3 at 98. 14 Vienna Convention on the Law of Treaties (May 23, 1969) U.N. Doc. A./CONF. 39/27 (1971), reprinted in 63 AM. J. INT'L L. 875, 876 (1969) Art 26 [Vienna Conv.]; Richard D. Kearney and Robert E. Dalton, The Treaty on Treaties (1970) 64 Am. J. Intl Law 495 at 516.
2
BODY OF ARGUMENTS
meaning to be given to the terms of the treaty in their context and in light of their object and purpose.15 It should be implemented in keeping with its object and purpose, 16 in accordance with the intentions17 and expectations of the signatories. 18 The term the context envisages that a provision that requires interpretation be illuminated by recalling what type of a treaty this is.19 The principle of effectiveness20 cannot be used to attribute to the provisions a meaning which would be contrary to their letter and spirit. 21 The object and purpose is the effective implementation of friendship in the specific fields provided for in the Treaty, not friendship in a vague general sense. 22 Again, where substantial rights are at stake, the court will be wary to fill-in an omission. 23 At times ambiguity may be hidden in the plainest and simplest of words even in their ordinary and natural meaning. 24 The inquiry in all such cases is as to what was intended in the treaty by the contracting powers. 25 The words must be construed ejusdem generis.26 General
15
Vienna Conv. Art 31; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), [2007] I.C.J. Rep. 160 ff.; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), [2002] I.C.J. Rep. at 625, 6456; Kasikili/Sedudu Island (Botswana/Namibia), [1999] I.C.J. Rep. at 1045; Territorial Dispute (Libyan Arab Jamahiriya/Chad), [1994] I.C.J. Rep. at 6, 212; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), [1995] I.C.J. Rep. at 6, 18; See also R. Y. Jennings and A. D. Watts, eds., Oppenheims International Law 9th ed. (London: 1992) vol. 1 at 1271. 16 LaGrand (Germany v. United States of America), [2001] I.C.J. Rep. 102; Gerald Fitzmaurice, Reservations to Multilateral Treaties, (1953) 2 ICLQ 1 at 78, 1314; Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice (Cambridge: Grotius, 1986) at 2079; Restatement Third, Foreign Relations Law of the United States 325(1). 17 Ambatielos (Greece v. United Kingdom), [1952] I.C.J. Rep. at 28; Hersch Lauterpacht, De lInterprtation des Traits: Rapport et Projet de Rsolutions, (1950) 43 Annuaire de lInstitut de Droit International at 366. 18 Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180, 102 S. Ct. 2374, 28 Fair Empl. Prac. Cas. (BNA) 1753, 29 Empl. Prac. Dec. (CCH) P 32782 (1982). 19 Oil Platforms (Islamic Republic of Iran v. United States of America), (Separate Opinion of Judge Higgins) [2003] I.C.J. Rep. at 225, 237. 20 Fisheries Jurisdiction (Spain v. Canada), [1999] I.C.J. Rep. at 432, 455. 21 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, [1950] I.C.J. Rep. at 221, 22630. 22 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), [1986] I.C.J. Rep. at 137 273. 23 Valentine v. U.S. ex rel. Neidecker, 299 U.S. 5, 17, 57 S. Ct. 100 (1936) (extradition treaty with France did not permit the President discretionary authority to surrender U.S. citizens). 24 U.S. v. American Sugar Refining Co., 202 U.S. 563, 26 S. Ct. 717, 50 L. Ed. 1149 (1906); In re Zalewski's Estate, 292 N.Y. 332, 55 N.E.2d 184, 157 A.L.R. 87 (1944). 25 Joseph T. Latronica, American Jurisprudence Treaties 2d. ed. 74 Am. Jur. 24.
3
BODY OF ARGUMENTS
words near a specific list are not to be construed to their widest extent, but are to be held as applying only to things of the same kind as those specifically listed. 27 It is humbly submitted that read in its context the Treaty refers to disputes relating to purely economic matters. 1.2.1 SURROGACY
CONTRACTS WERE NOT ENVISAGED BY EITHER OF THE PARTIES WHILE
ENTERING INTO THE E U TREATY
A treaty should be interpreted by reference to the circumstances prevailing when the treaty was concluded.28 The doctrine of rebus sic stantibus relieves states of obligations that are unforeseeable results of a treaty.29 It must be recognized that even the clear provisions of a treaty must not be given effect, or must receive appropriate interpretation, when, as a result of modifications in international life, their application would lead to manifest injustice or to results contrary to the aims of the institution. 30 The concept of surrogacy is unknown in the Respondent State. Further, the E U treaty was entered into in the year 1978 when the concept of surrogacy was was almost unknown worldwide. The Respondent State and arguably the Applicant State entered into the E U treaty without intent of its extending to surrogacy contracts. 1.3 IN THE ALTERNATIVE THE RESPONDENT STATE HAS NOT VIOLATED THE E U TREATY
26
Case Concerning the Northern Cameroons (Cameroon v. United Kingdom), [1963] I.C.J. Rep. 15 at 91; Ian Brownlie, Principles of Public International Law, 6th ed. (Oxford: Oxford University Press, 2003) at 604. 27 Cooper Distributing Co., Inc. v. Amana Refrigeration, Inc. , (3d Cir. 1995) 63 F.3d 262. 28 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), [2002] I.C.J. Rep. at 303, 346; Young Loan Arbitration (Belg. v. FRG), [1980] 59 ILR 495 at 544 5 Lithgow and Others v. the United Kingdom, European Court of Human Rights, Series A, No. 102, 117; D.W. Greig, Intertemporality and the Law of Treaties, (London: 2001). 29 Suez, Sociedad General de Aguas de Barcelona S.A., Vivendi Universal S.A., AWG Group v Argentine Republic, ICSID Case No. ARB/03/19; Rebus Revisited: Changed Circumstances in Treaty Law (2005) 43 Colum. J. Transnat'l L. 459. 30 Competence of the General Assembly for the Admission of a State to the United Nations , [1950] I.C.J. Rep. 4.
4
BODY OF ARGUMENTS
1.3.1 THE E U TREATY DOES NOT PROVIDE FOR RECOGNITION AND ENFORCEMENT OF EACH
OTHERS COURT ORDERS SANS JURISDICTION
A foreign judgment is recognized when a court concludes that a certain matter has already been legitimately decided, whereas the judgment is enforced when a party is accorded the relief to which the judgment entitles him. 31 To be recognized and enforceable the right must have been created by the law of a law district which had judicial jurisdiction in the international sense. 32 It is essential that the foreign court should have had jurisdiction, not in the sense of the foreign law, but in the sense of the respondent states rules of the conflict of laws. 33 Generally, the domestic laws of a recognizing country require proper notice, proper jurisdiction, final and binding judgment, and no violation of public policy. 34 Action will not lie upon an interlocutory order by a foreign court.35 An ex parte decree passed by foreign Court is executable only if it is given on merits of the case. 36 It is humbly submitted that the Respondent State is willing to recognise and enforce orders of the courts of the Applicant State provided these orders were not passed without jurisdiction.
31
Robert B. von Mehren & Michael E. Patterson, Recognition and Enforcement of Foreign Judgments in the United States (1972) at 16. 32 Deva Prasad Reddy v. Kamini Reddy , AIR 2002 KAR 356; Vishwanatha v. Abdul Wazid, AIR 1963 SC 1; Mohan Lal v. Prem Sukh, AIR 1956 Nag 273. 33 Lawrence Collins, gen ed., Dicey and Morris on the Conflict of Laws, 11th ed. (London: Stevens & Limited, 1987) at 421; see also Committee on Foreign and Comparative Law, Association of the Bar of the City of New York, Survey on Foreign Recognition of U.S. Money Judgments 5 (2001). 34 Luke J. Umstetter , Enforcing Foreign Judgments: In Search Of A Treaty To Locate Assets Abroad (2007) 3 S.C. J. Int'l. L. & Bus. 85. 35 Gauthier v. Routh (1843), 6 U.C.Q.B. (O.S.) 602 (C.A.); Sheehy v. Professional Life-Assurance Co. (1857), [FN2 C.B. (N.S.) 210]; affirmed [FN3 C.B. (N.S.) 597] (Ex. Ch.); see also Barned's Banking Co. v. Reynolds (1875), 36 U.C.Q.B. 256 (C.A.); Canada (Attorney General) v. Schulze (1901), [FN9 S.L.T. 4] (costs awarded by judgment in Canada on revenue case not recoverable in Scotland); Ruf v. Walter, [1990] 6 W.W.R. 661 (Sask. Q.B.) (costs enforceable if appearing in final judgment where all rights of parties determined). 36 International Woollen Mills v. Standard Wool (U.K.) Ltd. (2001) 5 SCC 265, AIR 2001 SC 2134; Trilochan v. Dayanidhi, AIR 1961 Ori 158; R.E. Mohd. Kassim and Co. v. Seeni Pakir-bin Ahmed AIR 1927 Md. 265.
5
BODY OF ARGUMENTS
1.3.2 RESPECT
AND COMITY FOR EACH OTHERS LAWS DOES NOT IMPLY COMPLETE
ADOPTION APPLICANT STATES LAWS
Comity is a discretionary act of accommodation by which a sovereign recognizes within its territory the laws of a foreign sovereign, as long as that recognition does not cause prejudice to the power or rights of such government or of their subject s.37 A sovereign does not recognize foreign law within its territory because of any binding international obligation. 38 Indeed, to have framed the concept would have been to restrict the sovereign's rights in a way precisely in conflict with the premise of exclusive sovereign territorial power. 39 It is humbly submitted that the E U Treaty governs only conflicts of law in respect of economic matters. It does not imply that the Respondent State adopt all of the Applicant States laws and apply them even within her domestic sphere. Only when the Respondent State finds the Applicant States law to be the applicable law for a particular dispute, then the E U treaty enables the Respondent State to apply such law to such dispute. 1.3.2.1 Refusal to enforce the surrogacy agreement does not amount to a violation of the E U treaty If both parties to an agreement had not intended that their agreement should be enforceable by virtue of some legal system, it would not be a contract.40 Common intention is not inferred easily. 41 Law requires much more than a meeting of the minds when it comes to the
37
Hilton v. Guyot, (1895) 159 U.S. 113 at 202; Brown v. Gadson, 654 S.E.2d 179 (Ga. Ct. App. 2007); Ernest G. Lorenzen, Huber's De Conflictu Legum, (1918) 13 Ill. L. Rev. 375 at 401; N. Jansen Calamita, Rethinking Comity: Towards A Coherent Treatment of International Parallel Proceedings, (2006) 27 U. Pa. J. Int'l Econ. L. 601 at 611. 38 Ernest G. Lorenzen, Story's Commentaries on the Conflict of Laws One Hundred Years After (1934) 48 Harv. L. Rev. 15; Joel R. Paul, Comity in International Law, (1991) 32 Harv. Int'l L.J. 1. 39 Joseph Story, Commentaries on the Conflict of Laws, 2d ed. (1841) 23. 40 Comprimis 5; AIR 1959 SC 1362, (1960) 1 SCR 493; Decker (Lowd) v. Decker, (2001) Oh. 2279; Dicey, at 1162. 41 The Assunzione, [1954] P. 150, 164 (C.A.).
6
BODY OF ARGUMENTS
disposition of a child.42 Further, for an agreement to be a contract its object must be lawful. 43 Even if a surrogacy agreement constitutes a valid contract, based on legal, equitable and moral principles, it is not enforceable, because a parent cannot bargain away his/her child. 44 Children are not property and their delivery cannot be ordered as a contract remedy on the same terms that a court would, for example, order a breaching party to deliver a truckload of nuts and bolts.45 Thus, an agreement in which a woman agrees to become a surrogate or to relinquish her rights and duties as parent of a child thereafter conceived through assisted conception is unconscionable46 and void.47 Furthermore, rigid application of lex loci contractus leads to incongruities.48 Intention of the parties is only one of the factors to be taken into consideration. 49 The choice of foreign jurisdiction and law is not effective in the Respondent State if there was no consensus ad idem i.e. agreement as to choice of law, as per Respondent States laws. 50 It is considered dangerous51 to rely too much on the argument of ut res magis valeat quam pereat which presumes that parties to a contract did not intend to be governed by a law by
42
Decker (Lowd) v. Decker, (2001) Oh. 2279; Seymour v. Stotski (1992), 82 Ohio App. 3d 87, 93, 611 N.E.2d 454; A.Z. v. B.Z., (Mass. 2000) 725 N.E.2d 1051. 43 Indian Contract Act, 1872 sec 10. 44 Jhordan C. v. Mary K., (1986) 179 Cal. App. 3d 386, 224 Cal. Rptr. 530 ; In re Interest of R.C., (Colo. 1989) 775 P.2d 27; Ferguson v. McKiernan, (Pa. Super. 2004) 855 A.2d 121, 2004 Pa. Super. 289, P6-P8. 45 Johnson v. Calvert, (Cal. 1993) 851 P.2d 776 Id. at 797 (Kennard, J., dissenting); Dolgin, Just a Gene: Judicial Assumptions About Parenthood (1993) 40 UCLA L.Rev. 637, 659. 46 J.F. v. D.B., (Pa. Ct. Comm. Pl. 2004) 66 Pa. D. & C. 4th 1, 10-32. 47 R.R. v. M.H., (Mass. 1998) 689 N.E.2d 790; Uniform Status of Children of Assisted Conception Act, Alternative B, 5, 9B U.L.A. 208 (Master ed. Supp. 1997); In re Baby M, (N.J. 1988) 537 A.2d 1227; In re Marriage of Moschetta, 25 Cal. App. 4th 1218, 30 Cal. Rptr. 2d 893. 48 Cook, Logical and Legal Basis of Conflict of Laws, (1942) Chap. 14 at 380-88; Falconbridge, Selected Essays on the Conflict of Laws, 2d. ed. (1954) at 376-77; Wolff, Private International Law, 2d. ed. (1950) 413; Lorenzen , Selected Articles on the Conflict of Laws, (1947) at 287-88; Rabel, Conflict of Laws: A Comparative Study, 2d. ed. (1958-64) vol 2 at 462. 49 Case Concerning the Payment of Various Serbian Loans Issued in France , (1929) P.C.I.J., Ser. A, no. 20; Boissevain v. Wiel, [1949] 1 K.B. 482, 490 (C.A.); The Hollandia, [1983] 1 A.C. 565,576. 50 Mackender v. Feldia A.G., [1967] 2 Q.B. 590,598 (C.A.). 51 Lawrence Collins, gen ed., Dicey and Morris on the Conflict of Laws, 11th ed. (London: Stevens & Limited, 1987) vol. 2 at 1186.
7
BODY OF ARGUMENTS
which their agreement would be invalid and has thus been rejected.52 Parties by choice of law cannot give validity to an agreement that is illegal and void. 53 Whatever be the proper law, a contract the performance of which is illegal according to lex loci solutionis will not be enforced by its courts.54 The doctrine of forum non conveniens55 provides jurisdiction on considerations of convenience, fairness, and judicial economy. 56 In the instant case the the subject matter of the contract was Garundian and the whole transaction contemplated by the contract concerned activities of a Garundian national, Janet. 57 Consequentially, the Respondent State has jurisdiction over such transaction.
A. PUBLIC POLICY OF THE RESPONDENT STATE IS APPLICABLE WITHIN ITS TERRITORIAL
SOVEREIGNTY
The correct interpretation of a treaty on private international law must take into account the recognition of the principle of order public as applied locally. 58 The contracting States despite treaty obligations retain the right to enforce restrictions required by ordre public. 59 It must be understood as containing an implied reservation authorizing, on the ground of public policy, to overrule the application of the foreign law even if it is recognized as the proper
52 53
Etler v. Kertesz, (1960) 26 D.L.R. (2D.) 209, 222; Lindsay v. Miller, [1949] V.L.R. 13, 15. Cook, Logical and Legal Basis of Conflict of Laws, (1942) at 427; Falconbridge, Selected Essays on the Conflict of Laws, 2d. ed. (1954) at Chap. 16. 54 Ralli Bros v. Compania Naviera Sota y Aznar, [1920] 2 K.B. 287 (C.A.). 55 Gilbert v. Gulf Oil Co, 330 U.S. at 507; Canada Malting Co. v. Paterson Steamships, Ltd. (1932) 285 U.S. 413, 422; Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253 (1981); American Dredging Co. v. Miller, (1994) 510 U.S. 443, 449 n. 2. 56 La Socit du Gaz de Paris v. Socit Anonyme de Navigation Les Armateurs Franais , [1925] 23 Lloyd's List. Rep. 209, 213 (Sess.); Malaysia Int'l Shipping Corp. v. Sinochem Int'l Co. Ltd., (3d Cir.2006) 436 F.3d 349. 57 Coast Lines Ltd. v. Hudig & Veder Chartering NV, [1972] 2 QB 34, [1972] 1 ALL ER 451; J. H. C. Morris and P. M. North, eds., Cases and Materials on Private International Law, (London: Butterworths, 1984) at 67. 58 Case Concerning The Application Of The Convention Of 1902 Governing The Guardianship Of Infants (Netherlands v. Sweden), [1958] I.C.J. Rep. 55 at 91 (Separate Opinion Of Judge Sir Hersch Lauterpacht), 74-78 (Separate Opinion of Judge Badawi), 102-09 (Separate Opinion of Judge Moreno Quintana). 59 Case Concerning The Application Of The Convention Of 1902 Governing The Guardianship Of Infants (Netherlands v. Sweden), [1958] I.C.J. Rep. 55; see also Committee of United States Citizens Living in Nicaragua v. Reagan case (1988) 859 F.2d 929 at 939; Tag v. Rogers (1959) 267 F.2d 664, 666; US v. Yunis (No. 3) (1991) 724 F.2d 1086, 1091.
8
BODY OF ARGUMENTS
law.60 Moreover, national legislation is on full parity with a treaty, so that a later statute would render an earlier treaty null to the extent of any conflict. 61 The parties are at liberty to select the proper law of their contract, provided the choice is bona fide and legal and provided there is no reason for avoiding the choice on the ground of public policy. 62 Courts have on considerations of public policy and morality refused to enforce a contract. 63 It seems absurd to enforce a contract against public policy, simply because it happens to have been made somewhere else. 64 The state has a compelling interest in forbidding surrogacy agreements 65 to (1) prevent children from becoming commodities; (2) protect the best interests of the child, which are not preserved by surrogacy agreements; and (3) prevent the exploitation of women. 66 Overriding even a choice of law clause surrogacy agreements have been held as contrary to public policy and thus not enforceable.67 The conception of a child for relinquishment after birth poses
60
Case Concerning The Application Of The Convention Of 1902 Governing The Guardianship Of Infants (Netherlands v. Sweden), [1958] I.C.J. Rep. 55 at 72 (Declaration of Judge Spiropoulos). 61 Breard v. Greene, (1998) 140 L.Ed. 2d 529; People of Saipan ex rel. Guerrero v. United States Department of Interior (1974) 502 F.2d 90; Association of Lawyers for Peace and Four Other Organizations v. State of the Netherlands, Nr C02/217HR; LJN: AN8071; NJ 2004/329. 62 Vita Food products Inc. v. Unus Shipping Co. Ltd., [1939] AC 277, [1939] 1 ALL ER 513 (Privy Council); Kays Leasing Corp. Pty. Ltd. v. Fletcher, (1964) 116 C.L.R. 124; Golden Acres Ltd. v. Queensland Estates Pty. Ltd., [1969] St. Robert. Qd.378. 63 Case Concerning The Application Of The Convention Of 1902 Governing The Guardianship Of Infants (Netherlands v. Sweden), [1958] I.C.J. Rep. 55 (Separate Opinion Of Judge Sir Hersch Lauterpacht); Balfour v. Balfour, (1919) 2 KB 571; Ratan Chand Hirachand v. Aksar Nawaz Jung, (1991) 3 SCC 67; Jaipur Development Authority v. Daulat Mal Jain (1997) 1 SCC 35; The EEC Convention on the Law Applicable to Contractual Obligations, Art. 16; Cheshire, Fifoot and Furmston, Law of Contract, 11th ed., (1986) Chaps. 11 and 12. 64 Rousillon v. Rousillon, (1880) 14 Ch. D. 351, 369; Greenshields Inc. v. Johnston (1981) 119 D.L.R. (3rd) 714. 65 A significant minority of States have legislation addressing surrogacy agreements. Some simply deny enforcement of all such agreements. See Ariz. Rev. Stat. Ann. 25-218(A) (West 1991); D.C. Code Ann. 16402(a) (1997); Ind. Code Ann. 31-20-1-1, 31-20-1-2 (Michie 1997); Mich. Comp. Laws Ann. 722.855 (West 1993); N.Y. Dom. Rel. Law 122 (McKinney Supp. 1997), N.D. Cent. Code 14-18-05 (1991); Utah Code Ann. 76-7-204 (1995). Others expressly deny enforcement only if the surrogate is to be compensated. See Ky. Rev. Stat. Ann. 199.590(4) (Michie 1995); La. Rev. Stat. Ann. 9:2713 (West 1991); Neb. Rev. Stat. 25-21,200 (1995); Wash. Rev. Code 26.26.230, 26.26.240 (1996). 66 Doe v. Attorney Gen., (Mich. Ct. App. 1992) 487 N.W.2d 484 at 486, 487. 67 R.R. v. M.H., 689 N.E.2d 790 (Mass. 1998); Matter of Baby M., (1988) 109 N.J. 396, 537 A.2d 1227; Brown v. Gadson, (Ga. Ct. App. 2007) 288 Ga. App. 323, 323-325, 654 S.E.2d 179; J.F. v. D.B., (Pa. Ct. Comm. Pl. 2004) 66 Pa. D. & C. 4th 1, 10-32; Radin, Market-Inalienability (1987) 100 Harv.L.Rev.1849, 1924; Capron
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grave ethical problems. 68 As a matter of public policy the state will not enforce or encourage private agreements or contracts to give up parental rights. 69
B. BEST INTERESTS OF CHILD
The guiding principle of child custody is the best interests of the child. 70 No private agreement concerning custody can be conclusive as the determining factor is the best interests of the child. 71 A contract cannot determine the best interests of a child. 72 The welfare of the minor is the paramount consideration to which all others must yield, including the order of a foreign court of competent jurisdiction. 73 Gestational surrogacy is
dehumanizing74 and commodifies75 women and children.76 This will reinforce oppressive gender stereotypes and threaten the well-being of all children. 77 It is humbly submitted that as Robert has lived continuously in the Respondent State it is in his best interests that jurisdiction and applicable law be granted to the Respondent State.
& Radin, Choosing Family Law Over Contract Law as a Paradigm for Surrogate Motherhood , in Surrogate Motherhood, (1990) Gostin edit. 72 at 62, 63; Krimmel, Can Surrogate Parenting Be Stopped? An Inspection of the Constitutional and Pragmatic Aspects of Outlawing Surrogate M other Arrangements (1992) 27 Val.U.L.Rev. 1, 4-5. 68 Johnson v. Calvert, (Cal. 1993) 851 P.2d 776 at 793; Magisterium of the Catholic Church, Instruction on Respect for Human Life in Its Origin and on the Dignity of Procreation: Replies to Certain Questions of the Day 25 (Feb. 22, 1987), cited in Radin, Market-Inalienability (1987) 100 Harv.L.Rev.1849, fn. 271. 69 Belsito v. Clark (1994), 67 Ohio Misc. 2d 54, 644 N.E.2d 760 citing; Ingram, Surrogate Gestator: A New and Honorable Profession (1993), 76 Marquette L.Rev. 675; Seymour v. Stotski (1992), 82 Ohio App.3d 87, 611 N.E.2d 454; Dawn Wenk, Belsito v. Clark: Ohio's Battle with Motherhood (1996) 28 U. Tol. L. Rev. 247. 70 Mich. Comp. Laws 722.23; Mich. Stat. Ann. 25.312(3); Avi Katz, Surrogate Motherhood and the BabySelling Laws (1986) 20 COLUM.J.L. & SOC. Probs. 1, 23. 71 R.R. v. M.H., (Mass. 1998) 689 N.E.2d 790; Johnson v. Calvert, (Cal. 1993) 851 P.2d 776 Id. at 789, 799-800 (Kennard, J., dissenting). 72 Baby M, (N.J. 1988)537 A.2d 1227, 1240 at 1246. 73 McKee v. McKee, [1951] AC 352 (Privy Council); Re E (D) (an infact), [1967] Ch 761 (Court of Appeal); Re L (Minors), [1974] 1 ALL ER 913 (Court of Appeal). 74 Capron & Radin, Choosing Family Law Over Contract Law as a Paradigm for Surrogate Motherhood, in Surrogate Motherhood, (1990) Gostin edit. 72 at 62. 75 Macklin, Artificial Means of Reproduction and Our Understanding of the Family, 21 Hastings Center Rep. 5, 10. 76 Radin, Market-Inalienability (1987) 100 Harv.L.Rev.1849, 1930-1932; Goodwin, Determination of Legal Parentage in Egg Donation, Embryo Transplantation, and Gestational Surrogacy Arrangements (1992) 26 Fam.L.Q. 275, at p. 283. 77 Developments in the Law: Medical Technology and the Law, (1990) 103 Harv.L.Rev.1519, 1550; Mary Becker, Four Feminist Theoretical Approaches and the Double Bind of Surrogacy (1994) 69 Chi. -Kent. L. Rev. 303, 308.
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THE RESPONDENT STATES COURTS HAVE JURISDICTION AND THE RESPONDENT STATES LAW IS THE APPLICABLE LAW TO DETERMINE EMILYS CUSTODY ISSUE
It is humbly submitted that it is a general principle of International Law that either domicile or habitual residence be used to determine jurisdiction and applicable law .78 In the instant case Emilys domicile as well as habitual residence lies with the Respondent State. Consequently the Applicant State has jurisdiction and her law is the applicable law. 2.1 THE RESPONDENT STATE BEING THE STATE OF EMILYS NATIONALITY AND DOMICILE HAS JURISDICTION FOR HER CUSTODY ISSUE The citizenship laws of the Respondent State provide that, children born outside of Garundi to Garundian citizens are citizens of Garundi. 79 Words should be interpreted in their ordinary sense. 80 Moreover, the plural number includes the singular number. 81 Therefore, a child born outside of Garundi [Emily] to a Garundian citizen [Jane] is a citizen of Garundi. It is humbly submitted that Jane retained her domicile of origin in the Respondent State.82 It is more difficult to prove that a person has abandoned her domicile of origin than to prove she has abandoned her domicile of choice. 83 She continues to be domiciled there until she
78
P.M. North and J.J. Fawcett eds. Cheshire and Norths Private International Law, 13th ed. (LexisNexis Butterworths: New Delhi, 1999) at 134 & 162. 79 Compromis 3. 80 R. Y. Jennings and A. D. Watts, eds., Oppenheims International Law 9th ed. (London: 1992) vol. 1at 1271. 81 The Indian Penal Code, 1860 s. 9; 1 U.S.C.. 1. 82 Compromis 4. 83 Re James (1908) 98 L.T. 438; Ramsay v. Liverpool Royal Infirmary [1930] A.C. 588.
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acquires a domicile of choice elsewhere.84 The burden of proving a change of domicile is a very heavy one and rests on the claimant.85 In the alternative, Janes decision86 to continue to stay in Garundi with Emily shows her intention87 to reside in Garundi indefinitely. A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently or indefinitely. 88 It is sufficient to prove merely the absence of an intention to continue to reside. 89 The domicile of origin revives on abandonment of domicile of choice.90 Alternatively, Jane acquires a new domicile in Garundi. A new domicile is acquired when there is not only an intention of establishing a permanent or indefinite residence in some other country, but has also been carried out by actual residence there. 91 A person can acquire a domicile in a country if he has the necessary intention, after residence for even part of a day. 92 It is sufficient if he lives in a hotel93 or in the house of a friend 94 or even in a military camp95. A child may acquire a domicile of choice by the act of one of his parents. 96 Domicile of a child is at the place with which he is most closely connected.97 If the parents have different
84 85
Vincent v. Buchan (1889) 16 R. 637; Grant v. Grant, 1931 S.C. 238. Bell v Kennedy [1868] L.R. 1 Sc. & Div.307, 310,319; Winans v Att. Gen. [1904] A.C.287; Ramsay v Liverpool Royal infirmary [1930] A.C. 588; In the Estate of Fuld (no 3) [1968] P.675, 685. 86 Compromis 9. 87 Bell v Kennedy [1868] L.R. 1 Sc. & Div.307, 319. 88 Udny v Udny [1869] L.R. 1 Sc. & Div 441,450; I.R.C. v Duchess of Portland [1982] Ch.314. 89 Re Flynn (No. 1) [1968] 1 W.L.R.103, 113-115. 90 Udny v. Udny [1869] L.R. 1 Sc. & Div 441; Tee v Tee [1974] 1 WLR 213 at 215-216; Wade [1983] 32 ICLQ 1 at 12 et seq. 91 David McClean, ed., Morris: The Conflict of Laws, 4th ed. (London: Sweet & Maxwell, 1993) at 18. 92 White v Tennant [1888] 31 W.Va. 790, 8 S.E. 596; Miller v Teale [1954] 92 C.L.R. 406. (See the Law Commission's confirmation of the policy behind this rule: Law of Domicile, para 5.7). 93 Levene v. I.R.C. [1928] A.C. 217; I.R.C. v Lysaght [1928] A.C.234; Matalon v Matalon [1952] at 233. 94 Stone v Stone [1958] 1 W.L.R. 1287. 95 Willar v Willar [1954] S.C.144. 96 In re J.D.M.C., 2007 SD 97 (S.D. 2007); P.M. North and J.J.Fawcett eds. Cheshire and Norths Private International Law, 13th ed. (LexisNexis Butterworths: New Delhi, 1999) at 154. 97 Domicile Act 1992, No. 3 of 1992, South Africa, s 2(1).
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domiciles due to their separation or any other reason, a childs domici le will be that of the parent with whom he resides.98 Thus, Emily is domiciled in the Respondent State. Additionally, Courts have jurisdiction if either of the parties are citizens of that country or permanent or temporary residents of that country. 99 Moreover, mere presence within a state grants jurisdiction to that state.100 A court has inherent jurisdiction derived from the principle of parens patriae to make a custody order in respect of minors who are present within its jurisdiction.101 2.2 IN THE ALTERNATIVE, THE STATE IN WHICH THE CHILD IS HABITUALLY RESIDENT IS BEST SUITED TO DETERMINE MATTERS PERTINENT TO THE CHILDS CUSTODY A person's domicile depends to such an extent on proof of his intention, that only often it is impossible to identify it with certainty without recourse to the courts. 102 Nationality is objectionable103 as a criterion to determine the personal law.104 It may point to a country with which the person in question has lost all connection or has never been connected105 or the person may be stateless or may simultaneously be a citizen of two or more countries. 106 The
98
In re J.D.M.C., 2007 SD 97 (S.D. 2007); Domicile and Habitual Residence Act, SM 1983, C.C.S.M. c. D96, Manitoba, s 9(1)(a). 99 Vellachi Achi v. Ramnathan, AIR 1973 Mad 141. 100 Re P (GE) (an infant), [1965] 3 ALL ER 977 (Court of Appeal); Heslop v. Heslop, [1958] 12 D.L.R. (2d) 591; Re Masterson, [1948] 2 D.L.R. 696; Maharanee of Baroda v. Wildenstein [1972] 2 All ER 689; See also the Civil Jurisdiction and Judgments Act 1982 (U.K.), 1982, c. 27. 101 Re Willoughby, [1885] 30 Ch.D. 324 (C.A.); Re D., [1943] Ch. 305; McKee v. McKee, [1951] A.C. 352 (P.C.); J.v. C. [1970] A.C. 668; Re P (GE), (an infant) [1965] Ch. 568 (C.A.); Re B.s Settlement [1940] Ch. 54. 102 P.M. North, Private International Law of Matrimonial Causes in the British Isles and the Republic of Ireland (1977) at 10-15; P.M. North and J.J.Fawcett eds. Cheshire and Norths Private International Law, 13th ed. (LexisNexis Butterworths: New Delhi, 1999) at 161. 103 P.M. North and J.J.Fawcett eds. Cheshire and Norths Private International Law, 13th ed. (LexisNexis Butterworths: New Delhi, 1999) at 161. 104 P.M. North, Private International Law of Matrimonial Causes in the British Isles and the Republic of Ireland (1977) at 9-10; Law Com No 168 (1987), Scot law Com No 107 (1987) 3.10-3.11. 105 P.M. North and J.J.Fawcett eds. Cheshire and Norths Private International Law, 13th ed. (LexisNexis Butterworths: New Delhi, 1999) at 160. 106 Totok v Torok [1973] 3 All ER 101, (1973) 1 WLR 1066.
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application of the concept of nationality in such circumstances will lead to eccentric decisions. 107 Habitual residence of the child as a determinant of jurisdiction and applicable law as referred to in the Hague Conferences conventions has been influential in establishing customary norms.108 Purely domestic legislation has also adopted habitual residence as a major connecting factor in matrimonial jurisdiction. 109 2.2.1 EMILYS HABITUAL RESIDENCE IS THE RESPONDENT STATE Residence for an appreciable period of time sufficient for acclimatization, with a degree of settled purpose from the childs perspective 110 and a settled intention to reside on a long term basis are needed for acquisition of a new habitual residence. 111 Where a childs habitual residence cannot be established, the courts may exercise jurisdiction on the basis of the childs presence. 112 There is no need to show a person intended to stay there permanently or
107 108
Re O' Keefe [1940] Ch 124, (1940) 1 All ER 216; Re Johnson [1903] 1 Ch 821. Peter Pfund, The Hague Conference Celebrates Its 100th Anniversary (1993) 28 Tex. Int'l L.J. 531; Willis Reese, The Hague Conference on Private International Law: Some Observations (1985) 19 Int'l Law 881; Domicile and Matrimonial Proceedings Act 1973 (U.K), 1973 c.45, ss. 5,6; Family Law Act 1986 (U.K.), 1986 c. 55, Parts I and III; Child Support Act 1991 (U.K.), 1991 c. 48, s 44(1); EC, Convention of 1998 on Jurisdiction and the Recognition and Enforcement of Judgments in the Matrimonial Matters ( Brussels II), [1998] OJ C221/2; Nessa v Chief Adjudication Officer (1998) 2 All ER 728 at 737, CA (Comments of Thorpe LJ); de Winter (1969) III Hague Recueil 357, 419-454; Cavers (1972) 21 Am ULR 475. 109 Wills Act 1963 (U.K.),1963, c. 44; Adoption Act 1976 (U.K.), 1976, c. 36; Child Abduction and Custody Act 1985 (U.K.), 1985 c. 60; Family Law Act 1986 (U.K.), 1986 c. 55; Contracts (Applicable Law) Act 1990 (U.K), 1990 c. 36; EC, Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, [1996] O.J. L 48/3 (also makes extensive use of habitual residence); Domicile and Matrimonial Proceedings Act 1973 (U.K), 1973 c.45, ss 5,6; Family Law Act 1986 (U.K.), 1986 c. 55, Parts I and III; Child Support Act 1991 (U.K.), 1991 c. 48, s 44(1); EC, Convention of 1998 on Jurisdiction and the Recognition and Enforcement of Judgments in the Matrimonial Matters ( Brussels II), [1998] OJ C221/2, (uses habitual residence as an alternative connecting factor for jurisdiction), Nessa v Chief Adjudication Officer (1998) 2 All ER 728 at 737, CA (Comments of Thorpe LJ). 110 Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) 111 Re J (A Minor) (Abduction: Custody Rights), (1990) 2 AC 562; distinguised in Re S (A Minor) (Custody; Habitual Residence) ( 1998) AC 750, HL 112 EC, Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility , [2003] O.J. L 338, p. 1.
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indefinitely. 113 The settled intention can be for a limited period.114 The habitual residence of a child is not fixed but may change according to the circumstances of the parent. 115 A father can, consent to the child s being with the mother and lead to change of habitual residence.116 Moreover one parent may take no step to prevent the other parent from changing the child's home, which over a period, may amount to acquiescence. 117 If a child has been living with its mother even in defiance of a court order to return the child it would take the same habitual residence as the mother.118 2.2.2 THE APPLICANT STATE CANNOT CLAIM
REMOVAL OR RETENTION JURISDICTION ON THE BASIS OF
WRONGFUL
Hague conventions119 apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those states. 120 The Hague conventions do not apply unless both states are signatories. 121 Moreover, proof of custom in international law122 requires state practice and opinio juris sevi necessitates.123 The burden of proof rests on the
113
Re B (Minors) (Abduction), (No.2) [1993] 1 FLR 993; M v M (Abduction: England and Scotland), [1997] 2 FLR 263 at 274 (per Millet LJ) 114 M v M (Abduction: England and Scotland), [1997] 2 FLR 263 CA; Moran v Moran, [1997], SLT 541. 115 Re M (Minors) (Residence Order: Jurisdiction), [1993] 1 FLR 495 at 500, CA; Re A (Abduction: Habitual Residence), [1998] 1 FLR 497 at 503; Re G (A Minor) (Enforcement of Access Abroad), [1993] Fam 216, CA; Re B (Minors) (Abduction), (No 2) [1993] 1 FLR 993. 116 Re F (A Minor) (Child Abduction), [1992] 1 FLR, 548, CA. 117 Re F (A minor) (Child Abduction), [1992] 1 FLR 548 at 556-557, CA; See also Robertson v Roberston, [1998] SLT 468; Sing v Singh [1998] SLT 1084. 118 Re B (Abduction: Children's Objections), [1998] 1 FLR 667 at 671; Clive, [1997], Jur Rev 137 at 145. 119 Hague Conference on Private International Law, Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Hague XXVIII; EC, Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, [1996] O.J. L 48/3. 120 Hague Conference on Private International Law, Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Hague XXVIII, Art. 35. 121 Moshen v. Moshen 715 F. Supp. 1063 (D. Wyo. 1989); Koons v. Koons 615 N.Y.S.2d 563 (Sup. Ct. 1994). 122 Jenks, The Prospects of International Adjudication (1964) at 226. 123 Statute of the ICJ (1945), Art. 38(1)(b), T.S. No. 993, 59 Stat. 1055; Continental Shelf Case (Libya v Malta), [1985] ICJ Rep 13; Maurice Mendelson, The Subjective Elements in Customary International Law (1995) 76 BYIL 179.
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claimant.124 It is humbly submitted that in the instant case neither can be established with respect to wrongful removal or retention. 2.2.3 ARGUEDO,
EMILY HAS NOT BEEN WRONGFULLY REMOVED OR RETAINED
The State wherefrom the child has been wrongfully retained cannot claim jurisdiction when the other parent had consented to or subsequently acquiesced in the removal or retention.125 Consent must be inferred from Johns acquiescence and inaction. 126 One parent may take no step to prevent the other parent from changing the child's home, which over a period, may amount to acquiescence. 127 Moreover, a specific demand for Emilys return was never made. 128 It is humbly submitted that Emily has not been wrongful removed or retained. Consequentially, jurisdiction and applicable law to determine Emilys custody lies with the state of her habitual, ordinary and mere residence, Respondent State. 2.3 IT IS IN EMILYS BEST INTERESTS THAT THE RESPONDENT STATE EXERCISE JURISDICTION AND HER APPLICABLE LAW The welfare of the minor is the paramount consideration to which all others must yield, including the order of a foreign court of competent jurisdiction. 129 Notwithstanding the conduct of the kidnapper courts can exercise jurisdiction if it is in the best interests of the child.130 Best interests of children are that they remain where they are. 131 It is humbly
124 125
The Lotus case, (1927) PCIJ Ser. A no. 10 at 18. The Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, [1996] O.J. L 48/3; Organization of American States, Inter-American Convention on the International Return of Children , 15 July 1989, OAS, Treaty Series, No. 70, Art. 4. 126 Falls v. Downie, p 871 F. Supp. 100 (D. Mass. 1994) (A child was found to have settled with his mothers consent indefinitely in the U.S) 127 Re F (AMinor) (Child Abduction) [1992] 1 FLR 548 at 556-557, CA; See also Robertson v Roberston [1998] SLT 468; Sing v Singh [1998] SLT 1084. 128 Compromis 6, 7, 8, 9. 129 McKee v. McKee, [1951] AC 352 (Privy Council); Re E (D) (an infact), [1967] Ch 761 (Court of Appeal); Re L (Minors), [1974] 1 ALL ER 913 (Court of Appeal). 130 McKee v. McKee, [1951] AC 352 (Privy Council); Re E (D) (an infact), [1967] Ch 761 (Court of Appeal); Re TA (infants), (1972) 116 Sol JO 78.
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submitted that being the State of both Janes and Emilys habitual residence and presence, the Respondent State would be the most convenient, fair, amenable and inexpensive forum. 2.4 THE ECONOMIC UNION TREATY IS NOT APPLICABLE
A treaty should be implemented in keeping with its object and purpose and cannot be interpreted in violation of its text and purpose.132 Moreover, this matter does not fall within the purview of dispute133 as defined under the Economic Union treaty. No orders pertaining to the said custody dispute were passed by, either by the Applicant State or the Respondent State. Therefore, contradictory decisions, in violation of the court orders of the other state, never arose in the present case. Additionally, Comity is a discretionary act of accommodation by which a sovereign recognizes within its territory the laws of a foreign sovereign, as long as that recognition does not cause prejudice to the power or rights of such government or of their subjects.134 The Respondent State is therefore not required to take cognizance of the jurisdiction enforced by the Applicant State over Emilys custody dispute on grounds of international comity. 135
131 132
Re C (Minors), [1978] 2 ALL ER 230 (Court of Appeal). Vienna Conv. Arts 31 and 32; See Above 1.2. 133 Compromis 1 134 Hilton v. Guyot, (1895) 159 U.S. 113 at 202; Brown v. Gadson, 654 S.E.2d 179 (Ga. Ct. App. 2007); Ernest G. Lorenzen, Huber's De Conflictu Legum, (1918) 13 Ill. L. Rev. 375 at 401; N. Jansen Calamita, Rethinking Comity: Towards A Coherent Treatment of International Parallel Proceedings, (2006) 27 U. Pa. J. Int'l Econ. L. 601 at 611. 135 See Above 1.3.1. and 1.3.2.
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THE RESPONDENT STATE HAS NO INTERNATIONAL OBLIGATION TO EXTRADITE JANE AND JANET
3.1
THERE IS NO INTERNATIONAL OBLIGATION TO EXTRADITE IN ABSENCE OF EXPRESS TREATY TO THAT EFFECT
In the absence of a treaty obligation there exists no duty to extradite alleged criminals under international law. 136 In such cases, extradition usually is effected by non-binding consideration of reciprocity. 137 States can only act on the territory of other States if there is permission to this effect in international law.138 Furthermore, the only crimes that might cause the obligation to extradite under customary international law are international crimes, 139 such as genocide, crimes against humanity, war crimes and the crime of aggression. 140 These crimes, if wide-spread and systematic, are of concern to the international community as a whole.141 Jane and Janet have not committed any such international crime. Consequently, the Respondent State is under no obligation to extradite them.
136
Questions of Interpretation and Application of 1971 Montreal Convention Arising from Aerial Incident at Lockerbie (Lib. v. U.K.), [1992] I.C.J. Rep. 3, 24 ; A. Watts & R. Jennings, eds., Oppenheim's International Law (1992) at 950; Wise, The Obligation to Extradite or Prosecute (1993) 27 Isr. L. Rev. 282; Best Swart, Refusal of Extradition (1992) Netherlands Yearbook Int'l L. 23, 214; Stein, Rendition of Terrorists: Extradition versus Deportation (1989) Isr'l Yearbook Int'l L. 79, 282. 137 Bassiouni, Reflections on International Extradition in Festschrift Fur Otto Triffterer, K.Schmoller, ed. (1996) at 727; William Hannay, International Terrorism and the Political Offence Exception to Extradition (1979) 18 Colum. J. Transnat'l L. 383. 138 J. Brown, Diplomatic Immunity: State Practice under the Vienna Convention on Diplomatic Relations (1988) 37 ICLQ 49; Case Concerning The Arrest Warrant Of 11 April 2000 (Democratic Republic Of The Congo v. Belgium) [2002] I.C.J. Rep. 3 at 181. 139 Bassiouni, Reflections on International Extradition in Festschrift Fur Otto Triffterer, K.Schmoller, ed. (1996) at 729. 140 Rome Statute of the International Criminal Court, (1998) 37 I.L.M. 999, arts. 5, 6, 7, 8; Secretary-General's Report on Aspects of Establishing An International Tribunal for the Prosecutions of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia, (1993) 32 I.L.M. 1159, arts. 4, 5; Security Counsel Resolution Establishing the International Tribunal for Rwanda, (1994) 33 I.L.M. 1598, arts. 2, 3. 141 Rome Statute of the International Criminal Court , (1998) 37 I.L.M. 999 at prmbl.
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Additionally, under customary international law, States do not have to extradite their own nationals. 142 This is evidenced by the fact that many States have provided not to extradite their own citizens in their constitutions and national legislations 143 and by inclusion of a clause allowing to deny extradition of nationals in international legal instruments. 144 Finally, according to the principle aut dedere aut judicare, a State not extraditing an accused person has to submit the case to its competent authorities for the purpose of prosecution.145 It is humbly submitted that since nothing in the Compromis points to the Respondent States unwillingness to investigate or to prosecute, the Respondent State has the option to prosecute and is under no obligation to extradite. 3.2 THE ECONOMIC UNION TREATY IS NOT APPLICABLE TO CRIMINAL PROCEEDINGS It is humbly submitted that the Economic Union treaty is applicable to only economic matters and does not extend to criminal proceedings. Interpretation of a treaty cannot lead to conclusions at odds with its object and purpose. 146 It would be inconsistent not only with the wording of the Treaty, but also with its object, its purpose, its context, and the will of the
142
Geoffrey Freestone, Cooperation Against Terrorism , in Terrorism and International Law, R. Higgins et. al. eds. (1997) at 46; Vieira, L'Evolution Recente de l'Extradition dans le Continent Americain (1984 -II) 185 Rd.C. 236. 143 Ivan Anthony Shearer, Extradition in International Law, (1971) at 102; Vieira, L'Evolution Recente de l'Extradition dans le Continent Americain (1984-II) 185 Rd.C. 236, 238; A. Watts & R. Jennings, eds., Oppenheim's International Law (1992) at 955. 144 European Convention on Extradition, Council of Europe, (Dec. 13, 1957) 359 U.N.T.S. 278 at art.6/1(a); Treaty Concerning Extradition (Belg.-Lux.-Neth.), (Jun. 27, 1962) available at http://www.consilium.eu.int/ejn/; Treaty on Extradition (U.S.-Mex.), (Dec 11, 1861) available at http://www.yale.edu/lawweb/avalon/avalon.htm; Model Treaty on Extradition, (1990) art.4(a), G.A.Res. 45/116, U.N. GAOR, 45th Sess., U.N. Dec., A/RES/45/116; Inter-American Convention on Extradition, (Feb. 25, 1981) 20 I.L.M. 724, art. 7. 145 G.A. Res. 39/46, 39; U.N. GAOR, 39th Sess., Supp. No. 51 at 197, U.N. Doc. A/39/51 (1985); Convention Relative to the Protection of Civilian Persons in Time of War, (Aug. 12, 1949) 75 U.N.T.S. 287; Antonio Cassese, The International Community's Legal Response to Terrorism (1989) 38 Int'l & Comp. L. Q. 593. 146 Vienna Conv. Art. 31, 32; See Above 1.2.
19
BODY OF ARGUMENTS
parties. 147 Likewise, the provision of recognition and enforcement of orders of each others courts cannot be read to include enforcement of arrest warrants.148 There is always a need for a validation by the authorities of the State where the person mentioned in the warrant is found.149 Arrest warrants issued by courts of a country do not receive automatic implementation in third states.150 Member states of the European Union are not required to take into account a conviction from another member state if: a national conviction would have been possible for the same conduct or the sanction is unknown to the national legal system.151 Neither can comity or respect for each other laws be extended to impose a binding legal obligation on the Respondent State to adhere to all the laws of the Applicant State.152 Comity is restricted by international duty and convenience, and the rights of citizens or of other persons who are under the protection of the States laws. 153 It is humbly submitted that treaty obligations are reciprocal and if such interpretation is allowed then the Applicant State is under a legal obligation to adhere to all the domestic laws of the Respondent State. Consequentially, the Applicant State is bound by the Respondent States laws that do not provide for such extradition.
147
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), [2008] I.C.J. Rep. at 101; Oil Platforms (Islamic Republic of Iran v. United States of America), [1996] I.C.J. Rep. at 814 28; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), [1986] I.C.J. Rep. at 137 273. 148 See Above 1.3.1. 149 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic Of The Congo v. Belgium) [2002] I.C.J. Rep. 3 at 181. 150 Interpol, General Secretariat, Rapport sur la valeur juridique des notices rouges, ICPO-Interpol, General Assembly, 66th Session, New Delhi, 15-21 October 1997, AGN/66/RAP/8, No. 8 Red Notices, as amended pursuant to resolution No. AGN/66/RES/7; Case Concerning the Arrest Warrant Of 11 April 2000 (Democratic Republic of the Congo v. Belgium) [2002] I.C.J. Rep. 3 at 182 (Dissenting opinion of Judge Van Den Wyngaert). 151 Council Framework Decision on Taking Account of Convictions in the Member States of the European Union in the Course of New Criminal Proceedings (2 July 2007) COM(2005/0018 (CNS); Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) Art. 4; James B. Jacobs, Major Minor Progress Under The Third Pillar: EU Institution Building In The Sharing Of Criminal Record Information (2008) 8 Chi. -Kent J. Int'l & Comp. L. 111. 152 See Above 1.3.2. 153 Hilton v. Guyot, (1895) 159 U.S. 113, 164; Joel R. Paul, Comity in International Law (1991) 32 Harv. Int'l L.J. 1 at 8-9 (noting that Hilton is the most commonly cited statement of comity).
20
PRAYERS
PRAYERS In light of the questions presented, arguments advanced and authorities cited the agent for the Respondent State most humbly and respectfully prays before this Honble Court, that it may be pleased to adjudge and declare: I. The Respondent States courts have jurisdiction and the Respondent States law is the applicable law to determine Roberts custody issue II. The Respondent States courts have jurisdiction and the Respondent States law is the applicable law to determine Emilys custody issue III. The Respondent State is not under any international obligation to extradite Jane and Janet The Respondent State additionally prays that the Court may grant any provisional relief that it may deem fit. The Court may also make any such order as it may deem fit in terms of equity, justice and due conscience. And for this act of kindness the Respondent State shall as duty bound ever humbly pray. Respectfully submitted, ...... (Agents for the Respondent State)
XVII

Respondent Memorial 2011

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INTERNATIONAL COURT OF JUSTICE

THE REPUBLIC OF BOLITA (APPLICANT) V. THE REPUBLIC OF GARUNDI (RESPONDENT)

ON SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICE

MEMORIAL FOR THE RESPONDENT STATE

1.2 1.3 1.3.1

THE ECONOMIC UNION TREATY IS NOT APPLICABLE TO THE CUSTODY DISPUTES...............5

MEMORIAL FOR THE RESPONDENT STATE

EMILYS HABITUAL RESIDENCE IS THE RESPONDENT STATE............................................. 15

THE APPLICANT STATE CANNOT CLAIM JURISDICTION ON THE BASIS OF

REMOVAL OR RETENTION......................................................................................... .....16

THE ECONOMIC UNION TREATY IS NOT APPLICABLE TO CUSTODY DISPUTES....................18

THERE IS NO INTERNATIONAL OBLIGATION TO EXTRADITE IN ABSENCE OF EXPRESS TREATY TO THAT EFFECT.................................................................................................19

THE ECONOMIC UNION TREATY IS NOT APPLICABLE TO CRIMINAL PROCEEDINGS............20

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

1, 7, 9, 10 1 8 11, 12 9 15 15 15 2 17 10, 16 15, 16 12 15 14 11 14 10, 16 2 15 2, 13 14 2, 13 14 16 2 2, 13 15, 16 9 1

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

OBLIGATION TO EXTRADITE JANE AND JANET?

MEMORIAL FOR THE RESPONDENT STATE

1.2 1.3 1.3.1

THE ECONOMIC UNION TREATY IS NOT APPLICABLE TO THE CUSTODY DISPUTES

MEMORIAL FOR THE RESPONDENT STATE

EMILYS HABITUAL RESIDENCE IS THE RESPONDENT STATE

THE ECONOMIC UNION TREATY IS NOT APPLICABLE TO CUSTODY DISPUTES

THERE IS NO INTERNATIONAL OBLIGATION TO EXTRADITE IN ABSENCE OF EXPRESS TREATY TO THAT EFFECT

THE ECONOMIC UNION TREATY IS NOT APPLICABLE TO CRIMINAL PROCEEDINGS

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

ENTERING INTO THE E U TREATY

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

ADOPTION APPLICANT STATES LAWS

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

THERE IS NO INTERNATIONAL OBLIGATION TO EXTRADITE IN ABSENCE OF EXPRESS TREATY TO THAT EFFECT

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

MEMORIAL FOR THE RESPONDENT STATE

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