002

INTERNATIONAL COURT OF JUSTICE

2019

A Case Concerning the Evacuation of a Foreigner During an

Outbreak of a Malignant Influenza

THE GOVERNMENT OF ARMIS

(APPLICANT)

vs.

THE GOVERNMENT
OF RECHO
(RESPONDENT)

MEMORIAL FOR RESPONDENT

 TABLE OF CONTENTS

Index of Authorities ........................................................................................................................ ii

Statement of Jurisdiction ................................................................................................................ iii

Question Presented ......................................................................................................................... iv

Statement of Facts ........................................................................................................................... v

Summary of Pleadings .................................................................................................................. vii

Pleadings ......................................................................................................................................... 1

I. Recho Did Not Violate Any Treaties To Which Armis And Recho Are Parties In Relation

To The Spread Of The Malignant Influenza In Megoose ........................................................... 1

A. Recho Did Not Breach Any Treaties With Regard To Ms. Shunzette’s Employment

Contract ................................................................................................................................... 1

B. Recho Did Not Place Ms. Shunzette’s Life And Her Child’s Health At Prejudice ..... 3

C. Recho Did Not Place Any Restrictions On Ms. Shunzette And Her Child From Leaving

The Country ............................................................................................................................ 5

D. Recho Did Not Discriminate Ms. Sunzette And Her 5-Year Old Daughter ................. 6

II. Recho Did Not Violate Any International Customary Law In Relation To The Spread Of

The Malignant Influenza In Megoose ......................................................................................... 8

Conclusion And/Or Prayer For Relief ............................................................................................ 9

i
 INDEX OF AUTHORITIES

Statutes

Statute of the International Court of Justice .................................................................................. iii

Treatises

Business Performance and Family-Friendly Policies. Journal of General Management ................ 2

Convention on the Elimination of all Forms of Discrimination Against Women ...................... 2, 6

Convention on the Rights of the Child ....................................................................................... 4, 6

International Covenant on Civil and Political Rights ..................................................... 1, 2, 5, 6, 7

Termination of Employment Convention ................................................................................... 3, 5

Vienna Convention on the Law of Treaties .................................................................................... 1

Books

Public International Law by Joaquin G. Bernas ......................................................................... 3, 4

Other Authorities

United Nations Human Settlements Programme. Fact Sheet No. 25/Rev.1 ................................... 2

ii
 STATEMENT OF JURISDICTION

The Government of Armis (Applicant) filed the case against the Government of Recho

(Respondent) pursuant to Article 36 paragraph 2 of the Statute this Court. 1 Both countries are

parties to the treaties involved in the present dispute about the evacuation of a foreigner during an

outbreak of a malignant influenza. The Government of Armis and Recho agrees to settle the

controversy and all issues involved in accordance with Article 36 paragraph 1 of the Court’s

Statute. Hence, the case is submitted to this Court, pursuant to Article 40 paragraph 1 of the Court’s

Statute. Parties agree that the judgment of this Court shall be treated as final and binding and each

party shall execute it in good faith.

1
Statute of the International Court of Justice

iii
 QUESTION PRESENTED

The Government of Recho presents the following questions to the Court:

1. Whether the Government of Recho breached the treaties to which Armis and Recho are

parties.

2. Whether the Government of Recho breached international customary law.

iv
 STATEMENT OF FACTS

In March 2010, a malignant influenza was going around Mengoose which borders Recho.

As a response to the outbreak, the Government of Megoose ordered the inhabitants living within

the 30-kilometer radius from where the influenza was greatly affected not to move in and out of

the area.

This prompted The Government of Armis to order all the residents living in Recho to

evacuate the latter’s country at once. Recho however borders Megoose at a 50 kilometer distance

from the area where the influenza was the most serious.

Ms. Shunzette works in the National Research Institute of Recho since March 2009 under

a 3 year contract. The company is funded by the Government and is situated at a distance of 60

kilometers from the area where the malignant influenza in Megoose was described as the most

serious. She was the only female Armis researcher employed in the company and unlike the rest

of the researchers who are Armis citizens; she is the only employee who lives with her child, the

male Armis national researchers had to live apart from their family.

Prior to the completion of her 3-year contract, Ms. Shunzette – who was one of the 30

percent Armis nationals who followed the instruction of the Armis Government – decided to return

to Armis together with her child at the time of the outbreak of the malignant influenza. Her

departure however was without any notice to her employer.

When Armis lifted its order on June 2010, Ms. Shunzette flew back to Recho to continue

her employment to the company. During this time, she could be considered absent without any

official leave for four months spanning March to June 2010. Upon her return, she discovered that

v
she has been dismissed as a punishment. As a consequence of her dismissal, her rental lodge in the

company’s campus has been cancelled. Dismissal as a punishment – embodied in their

employment contract – disqualifies her for reemployment.

Ms. Sunzette, had no choice but to leave Recho and return to Armis. She filed a suit against

the Government of Recho, and demanded the revocation of her dismissal. The case was heard by

the district court of Recho which had jurisdiction over the matter and decided in favor of the

government. The court accepted the government’s contention that her dismissal was the

consequence of Ms. Shunzette’s action of failing to ask permission from her employer regarding

her absence at work.

The district court’s decision lead Ms. Shunzette to sought the assistance of the Government

of Armis regarding its right of diplomatic protection. The Government of Armis, requested and

sought for the revocation of Ms. Sunzette’s dismissal to which the Government of Recho declined.

No negotiations were made between the two countries so both agreed to present the dispute

to the International Court of Justice.

The defendant over this case, the Government of Recho, prays that the Internation Cour of

justice declare:

The Government of Recho breached no treaties to which Armis and Recho are parties or

any international customary law in relation to the spread of the malignant influenza in

Megoose in March 2010.

The applicant, Governement of Armis, prays that the International Court Justice decides

otherwise.

vi
 SUMMARY OF PLEADINGS

I.

The treaties that the Government of Recho entered into have not been breached when a

malignant influenza spread in a neighboring countries’ territory. Recho did not violate any right

to which the Ms. Shunzette and her child is entitled such as protection to health and welfare. It

could not be said that Recho was safe from the malignant influenza, considering the fact that it

was only 50 kilometers away from the most affected area. Recho was able to conduct safety

precautions to protect its own nationals, including Ms. Shunzette who was regarded as an alien

yet considered as national under the doctrine of national treatment, from such epidemic in

Mengoose. It cannot also be said that Recho violated Ms. Shunzette’s rights to security in her

employment. Her termination from work was not due to Recho’s discrimination of her work but

because of her employer’s initiative to remove employees who had been absent for a long period

of time without notice.

II.

End text

vii
 PLEADINGS

I. Recho did not violate any treaties to which Armis and Recho are parties in relation to

the spread of the malignant influenza in Megoose

A material breach of a treaty consists in the violation of a provision essential to the

accomplishment of the object or purpose of the treaty. 2 There is no showing that the Government

of Recho has violated any treaties to which Armis and Recho are parties.

A. The Government of Recho did not breach any treaties with regard to Ms.

Shunzette’s employment contract

Ms. Shunzette left for Armis, under the instructions of its government, prior to the lapse

of her 3-year contract. As an employee, she had the obligation to seek the permission of her

employers to be absent from her responsibilities.

After returning to Armis, absent any notice to her employer, Ms. Shunzette was deemed

to have been absent without leave for four months. As a consequence thereof, she was dismissed

from work.

There was however no prosecution and imprisonment on the basis of her breach of the

employment contract.3 Her punishment on the other hand was in accordance with the stipulations

of their employment contract freely entered into by Ms. Shunzette. Pursuant to her freedom to

contract, she bounded herself to the stipulations of the said employment contract under the doctrine

2
Vienna Convention on the Law of Treaties, Article 60 ¶3
3
International Covenant on Civil and Political Rights, Article 11 [hereinafter ICCPR]

1
of Freedom to Contract. 4 There is no precedent that would allow an order of the government to

nullify the stipulations of an employment contract freely entered into by the employee and the

employer. It therefore does not follow that when the Government of Armis ordered Ms. Shunzette

to return, she is allowed to set aside her duties as an employee. An argument for her right to work

under safe conditions5 cannot stand as there is no imminent danger to Ms. Shunzette even if she

continued working in the National Research Institute of Recho. This is due to the fact that the

Institute is 60-kilometers away from the area where the influenza is most serious.

If an employee can freely leave her work without prior notice to the company, the

company’s productivity and business interests will be adversely affected.6

In addition, it is only proper that her rental lodge in the campus be cancelled as a result of

her dismissal.7 At the time of the cancellation, she was no longer an employee of the company.

Her benefits as an employee which includes shelter is automatically revoked along with the

revocation of her employment. Furthermore not all evictions are prohibited under international

law, provided it is in accordance with the law and in conformity with the provisions of international

human rights treaties. 8 DAGDAGAN PA?

4
Freedom to Contract. USLegal Legal definition.
5
Convention on the Elimination of all Forms of Discrimination Against Women, Article 11, ¶f
[hereinafter CEDAW]
6
Business Performance and Family-Friendly Policies. Journal of General Management. June 1,
1999
7
ICCPR, Article 17 ¶1
8
United Nations Human Settlements Programme. Fact Sheet No. 25/Rev.1. Forced Evictions

2
 She can no longer enjoy the benefit of the staying in the company’s campus. It is the

responsibility of the employer to make sure that its employees are protected from harm thus the

obligation of the company to protect its employees does not extend to a non-employee like Ms.

Shunzette.

Furthermore, she was not prevented by the Government of Recho from appealing her

termination to a competent court. It is provided that “[a] worker who considers that his employment

has been unjustifiably terminated shall be entitled to appeal against that termination to an impartial

body…”9 Such right to due process was afforded to Ms. Shunzette when her case was heard by a

competent court of Recho.

B. The Government of Recho did not place Ms. Shunzette’s life and her child’s

health at prejudice

States protect aliens within their jurisdiction in the expectation that their own nationals will

be properly treated when residing or sojourning abroad. 10 Under the doctrine of “national

treatment” or “equality of treatment.”11, aliens are treated in the same manner as nationals of the

state where they reside. This means that aliens enjoy the same benefits as local nationals. The

Government of Recho therefore has the responsibility protect their inhabitants – both national and

alien alike – from any disease such as malignant influenza as this case is about. However, adducing

that there exists no public health issue that would adversely affect its citizens, as well as foreigners

9
Termination of Employment Convention, Article 8
10
Public International Law by Joaquin G. Bernas, p. 223
11
Public International Law by Joaquin G. Bernas, p. 225

3
residing in their country, The Government of Recho cannot be said to have prejudice the health of

Ms. Shunzette and her child.

The restriction imposed by The government of Megoose is only at 30-kilometer radius

from where the spread of influenza was serious. However, it can be gleamed from the facts of the

case that – although it borders Megoose – Recho was 50 kilometers away from the aforementioned

area seriously affected by the spread of influenza. The government of Recho can logically infer

that the country will not be adversely affected from the spread of influenza. Furthermore, the

Research Institute of Recho which Ms. Shunzette worked as a researcher is situated at a distance

of 60 kilometers from the aforementioned area. Assuming that there exists a public health issue,

arbitrary declaration of a state that a public health issue occurred, without any factual basis, is not

binding to other states, thus, Recho could still not be held liable.

There is also no showing of any violations to the Conventions of the Rights of the Child.

Under the convention, The Government of Recho should ensure that Ms. Shunzette’s child is

protected and cared for, taking into account the rights of her parent. 12 In line with this, the State –

in respecting the right of Ms. Shunzette to take her daughter back to Armis on the reason of public

health and safety – allowed the mother and daughter to leave the country. This does not mean

however that the Government affirms the existence of the public health issue which was the reason

for the departure of Ms. Shunzette. It only means that the country respects the right of the parent,

12
Convention on the Rights of the Child, Article 3

4
Ms. Shunzette, in accordance with the convention. It is also a well-entrenched principle that States

protect aliens – this would include children – within their jurisdiction.13

Compared to Armis, Recho borders Megoose which means that Recho has the higher

possibility of being affected from the disease. The government did not see any warning that the

country will be affected from it. The issuance of the Megoose’s instruction regarding the

inhabitants in the area where the influenza was at most serious satisfies Recho that its country as

well as its inhabitants will not be harmed.

C. Recho did not place any restrictions on Ms. Shunzette and her child from leaving

the country

The government of Recho did not impose any restrictions that would adversely affect Ms.

Shunzette’s right to liberty of movement as there are no acts from the government which prevents

her from leaving the country. Ms. Shunzette and her child was not restrained from leaving Recho

during the outbreak.14

This right of liberty of movement, however, should not prejudice the rights and freedoms

of others – specifically her employer – as this is one of the exceptions expressly stated by the

treaty. 15 Breaching her employment contract gives her employer the right to punish her in

accordance to the stipulations of their contract. Her temporary absence from work without notice

for four months spanning from March 2010 to June 2010 gave her employer valid justifications

13
Public International Law by Joaquin G. Bernas, p. 223
14
ICCPR, Article 12 ¶1
15
ICCPR, Article 12 ¶3

5
for her dismissal. 16 It was shown that Ms. Shunzette was not imprisoned for breach of the

employment contact. Ms. Shunzette would have been prevented to leave the country had she been

imprisoned.

Recho in this case, did not violate any of the rights of Ms Shunzette with regards to her

rights in leaving the country. Moreso, there is even no reason for Ms. Shunzette to leave the country

because the distance of her workplace and residence in Recho is kilometers away from the infected

area.

Choosing to exercise her liberty of movement, Recho did not prevent Ms. Shunzette and

her daughter from leaving the country.

D. Recho did not discriminate Ms. Sunzette and her 5-year old daughter

There is no showing that the Government of Recho treated nationals differently from

foreigners – even women such as Ms. Shunzette17 – in their country. All inhabitants of the territory

were equally treated and there exists no preferential treatment for the citizens over the foreign

workers or vice versa. In compliance to their obligations to the convention,18 there is even no

showing of any acts from the Government of Recho that the daughter of Ms. Shunzette was

discriminated against. They were – both mother and daughter – subject to the same rights and

benefits enjoyed by the nationals of Recho at that time. Hence, there was no violation in the

obligations under ICCPR, CEDAW, and Convention on the Rights of the Child.

16
Termination of Employment Convention, Article 4
17
CEDAW, Article 2
18
Convention on the Rights of the Child, Article 2

6
 Furthermore, Ms. Shunzette was expected to report to work during March to June 2010 as

stipulated in her employment contract. It cannot be said that discrimination exists on her part

because she was not denied of due process.19

The only punishment that Ms. Shunzette suffered because of her departure was her

dismissal from work. It was stated in her employment contract that any employee dismissed for

punishment is not entitled to separation pay as well as to reemployment. It is the discretion of her

employer to whatever sanction will be given to her for breaching the contract which she freely

entered into. There was no violation of due process in this case since her case was heard by a

competent court of Recho.20

19
ICCPR, Article 26
20
ICCPR, Article 14

7
II. Recho did not violate any international customary law in relation to the spread of the

malignant influenza in Megoose

8
 CONCLUSION AND/OR PRAYER FOR RELIEF

The Government of Recho respectfully requests this Court to adjudge and declare:

I.

That no international treatises or customary laws were violated when the Government of

Recho’s courts ruled in favor of the dismissal of Ms. Shunzette in accordance with her

employment contract with her employer

II.

That the health and safety of Ms. Shunzette and her child were never prejudiced

III.

That no restrictions or limitations were imposed on Ms. Shunzette and her child’s right to

liberty of movement in accordance with international law

IV.

That there were no discrimination against Ms. Shunzette and her child when the

Government of Recho supported the dismissal of Ms. Shunzette as adjudged by Recho’s

national court

Respectfully Submitted,

Agents of the Government of the Recho