COPYRIGHT*:

Mooting Society
Faculty of Law
Sultan Zainal Abidin University
MALAYSIA

*Some rights are reserved by the respective

moot competition’s organizers such as ILSA
and Red Cross Society.
BRIEF HISTORY OF UNISZA MOOTING TEAM

From the humble beginning in 2008, under the supervision of Faculty’s lecturer, Mr.
Nazli, a team consisted of 4 Mooters and Researchers participated in the Red Cross
International Humanitarian Law Moot Court Competition at University of Malaya. Truth be
told, the pioneer team first attempt was not something they wish to remember, clinching the last
position in the rankings for both Applicant and Respondent sides.

They did not give up. From 2009 until 2010, a few teams were sent by the Faculty to the
Philip C. Jessup International Law Moot Court Competition (2009) organized by University
of Malaya, and then, in the Philip C. Jessup International Law Moot Court Competition (2010)
organized by National University of Malaysia. The teams did not win, however the rankings had
been tremendously improved. This was achieved albeit the team has no coach.

After three years of constant struggle in mooting, a “coach-less” team was sent to
Mumbai, INDIA to participate in the 2011 version of D.M. Harish Memorial Government
Law College International Moot Court Competition. Out of almost 30 teams across the world
which participated in the competition, they finished in the top-20 for oral submission and top-10
for written submission. Among formidable opponents joining the contest including the teams
from New York University and Melbourne University.

In the same year, again, a “coach-less” team was sent to Tokyo, JAPAN to participate in
the Asia Cup International Law Moot Court Competition (2011). Sponsored by Japan
Ministry of Foreign Affairs (in the forms of return flight tickets and hotel accommodation), they
flew to Japanese capital city, finishing 4th (out of 10 teams) for oral submission and 2nd (out of 10
teams) for written submission. The team received the Outstanding Achievement Memorial
Award, outshining top Asia law schools and regional mooting powerhouses such as those from
Singapore, Hong Kong and the Philippines.
"Two roads diverged in the woods...
... and I took the road less travelled"
And It Hurt, Man!!!
Really Bad!
ROCKS! THORNS! GLASS!

- Kid President
 SPECIAL MENTION:

Top-10 Memorial Overall

(Out of 30 Teams Worldwide)
 TEAM CODE: “Y”

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE, THE HAGUE

THE CASE CONCERNING CONFLICTING ORDERS OF THE

COURTS OF BOLITA AND GARUNDI

REPUBLIC OF BOLITA
(APPLICANT)

V.

REPUBLIC OF GARUNDI
(RESPONDENT)

MEMORIAL FOR THE APPLICANT

D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL

MOOT COURT COMPETITION, 2011
 TABLE OF CONTENTS

INDEX OF AUTHORITIES………………………………………………………….….....[iii]
STATEMENT OF JURISDICTION…………………………………………………..…..[xiii]
STATEMENT OF FACTS……………………………………………………………...…[xiv]
QUESTIONS PRESENTED………………………………………….………...………...[xvii]
SUMMARY OF ARGUMENTS……………………………………………………..….[xviii]
ARGUMENTS………………………………………………………………………………[1]
I. THE CUSTODY OF ROBERT AND EMILY BELONG TO JOHN
A. Bolita court has jurisdiction over surrogacy contract, John, Janet and
Robert……………………………………………………………………….…...[1]
i. Lex Fori……………..…………………………………………………...[1]
ii. Lex Domicilii………..…………………………………………….……..[2]
iii. Lex Propria…………..………………………………………………….[3]
iv. Forum Non-Convenience………………………………………………..[4]
v. Lex Patriae…………………….………………………………………...[5]
B. Contractual requirements under surrogacy contract have been
fulfilled…………………………………………………………………………..[5]
C. Citizenship of Robert and Emily is Bolita………………………………………[6]
i. Lex patraie……………………………………………………………....[6]
ii. Citizenship law in Bolita………………………………….……………..[6]
D. The domicile of Robert is Bolita………………………………………………...[7]
i. Robert‘s domicile of origin is Bolita…………..………………………...[7]
ii. Robert‘s domicile of dependency is Bolita……………………..….…….[8]
E. Alternatively, rights of the Robert and Emily are the priority
considerations……………………………………………………………….…...[8]
i. Best interest of child must be based on the nuclear family………..….…[8]
ii. Robert has right to know biological parents………………….……….…[9]
iii. Robert is entitled to a safe, stable and nurturing family and home
life………………………………………………………………………..[9]
iv. Robert is entitled to a healthy development of emotional, mental, physical
and social wellbeing………...…………………………………………...[9]
F. Orders of Bolita court can be enforced in Garundi……….……………..……...[10]

i
II. JANET AND JANE CAN BE LEGALLY EXTRADITED TO BOLITA FOR
TRIAL……………………………………………………………………………….……...[11]
A. Economic Union Treaty 1978 constitutes an extradition treaty……………......[11]
i. There is an implied extradition agreement……………………………..[11]
ii. ‗Comity‘ is a rule under international law……………………..……….[12]
B. Requirements under criminal procedures have been fulfilled……………….…[12]
i. A prima facie case has been established by Bolitian authorities….……[12]
a. Janet has stolen the genetic material belonged to John and
Jane…………………………………………………………………[12]
1. The genetic material constitutes property……………………....[12]
2. The unborn does not have right to life………………………….[13]
b. Jane has kidnapped Emily from John………………………………[14]
ii. The requirement of double criminality has been waived…………….…[14]
C. The extradition is consistent with the purposes of United Nation..……….……[14]
D. The extradition is consistent with international treaties………………………..[15]
i. Garundi has international obligations to extradite under ICCPR………[16]
a. Bolita is obliged to protect and ensure the rights of its citizen…………[16]
b. There is no real risk of potential violation under ICCPR………………[17]
c. The Bolita court is competent for the trial of Janet and Jane…………..[17]
d. John has right to a family life…………………………………………..[18]
e. Janet‘s right to privacy and protection of honour and reputation is not
absolute………………………………………………………………....[18]
ii. Garundi has international obligations to extradite under ICESCR……..[19]
E. The principle of aut dedere aut judicare is applicable………...……………….[19]
F. Arguendo, Bolita‘s claim on behalf of John is timely…………………….....…[20]
PRAYER OF RELIEF…………………………………...…………………………………[21]

ii
 INDEX OF AUTHORITIES

TREATIES AND CONVENTIONS

African Charter on Human Rights and Peoples‘ Rights, OAU Doc. CAB/LEG/67/3 rev. 5;
1520 UNTS 217; 21 ILM 58 (1982)………………………………………………………..[13]
Charter of the United Nations, June 26, 1945, 59 Stat. 1031, T.S. 993, 3 Bevans 1153…..[15]
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……………………………………………………………………………………. [1]
Convention of Rights of Child, GA res. 44/25, annex, 44 UN GAOR Supp. (No. 49) at 167,
U.N. Doc. A/44/49 (1989); 1577 UNTS 3; 28 ILM 1456 (1989)……………..….[18][7][8][9]
Convention on the Elimination of All Forms of Discrimination against Women, GA res.
34/180, 34 UN GAOR Supp. (No. 46) at 193, UN Doc. A/34/46; 1249 UNTS 13; 19 ILM 33
(1980)……………………………………………………………………………………… [13]
Convention on the Law Applicable to Contractual Obligations (the Rome Convention), Rome
on June 19, 1980……………………………………………………………………………..[3]
First Protocol on the Interpretation of the Rome Convention by the European Court (the
Brussels Protocol), Brussels on December 19, 1988………………………………………...[3]

International Convention on the Elimination of All Forms of Racial Discrimination, 660

UNTS 195; G.A. res. 2106 (XX), Annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc.
A/6014 (1966)… …………………………………………………………………………...[13]
International Covenant on Civil and Political Rights, 16 Dec. 1966, 999 U.N.T.S. 171
..……………………………………………………………………………………...…[13][20]
Protocol to the (European) Convention for the Protection of Human Rights and Fundamental
Freedoms Nov. 4, 1950, 213 U.N.T.S. 222……………………………………..... [13][19][20]
the Convention on the Accession of the Hellenic Republic to the Rome Convention (the
Luxembourg Convention), April 10, 1984………………………………………...………. [3]
The Declaration on Principles of International Law Concerning Friendly Relations and
Cooperation, GA Res. 2625, Annex, UN GAOR, 25th Sess., Supp. No. 28, UN Doc A/5217
(1970) 121……………………………………………………………………………….... [15]
UNHCR, 'UNHCR Guidelines on Reunification of Refugee Families', July 1983………. [18]
Universal Declaration of Human Rights, G.A. Res. 217(III), art.10, U.N. Doc.A/810, at 71
(1948) ………………………………………….…………………………………………...[18]
Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71
(1948)……………………………………………………………………………………….[13]
Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, 8 I.L.M………….... [11][15]

iii
Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, 8 I.L.M. 679…………... [13]

UNITED NATIONS RESOLUTIONS AND OTHER DOCUMENTS

American Convention on Human Rights, 18 July 1978, 1144 U.N.T.S. 123………….….. [19]
Children and Armed Conflict, SC Res. 1539, UN SCOR, 4948th Mtg., UN Doc. S/RES/1539
(2004) ………………………………………………………………………….…………...[19]
Convention for the Protection of Human Rights and Fundamental Freedoms, 18 May 1954,
213 U.N.T.S. 222………………………………………………………………….….. [19][20]
Convention of 1 February 1971 on the Recognition and Enforcement of Foreign Judgments in
Civil and Commercial Matters…………………………………………………………….. [10]
General Comment 20/44: Torture or to cruel, inhuman or degrading treatment or punishment
(art. 7), 3 April 1993………………………………………………………………………. [17]
General Comment No. 16: The right to respect of privacy, family, home and correspondence,
and protection of honour and reputation (Art. 17): 08/04/88……………………………... [18]
General Comment No. 31: The Nature of the General Legal Obligation Imposed on States
Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13………………...…….. [16]
Model Treaty on Extradition, GA Res. 45/116, annex, 45 U.N. GAOR Supp. No. 49A U.N.
Doc. A/45/49 (1990)………………………………………………………………………. [18]
Report of the Special Committee on Peacekeeping Operations and its Working Group, U.N.
GAOR, 59th Sess., Supp. No. 19, UN Doc A/59/19/Rev.1 (2005)……………………….. [19]
U.N. Econ. & Soc. Council [ECOSOC], Report on Promotion and Protection of Human
Rights, U.N. Doc. E/CN.4/2005/103 (Feb. 7, 2005)………………………………...……. [16]
UN Security Council Resolution 1325, UN SCOR, 4213th Mtg., UN Doc. S/RES/1325
(2000)...................................................................................................................................[19]
UN Security Council Resolution 1674, S/RES/1674 (2006)……………………………….[19]
UNHCR EXCOM, 'Protection of Asylum Seekers in Situations of Large-scale Influx',
Conclusion. No. 22 (XXXII), 1981……………………………………………………….. [17]
UNHCR EXCOM, 'Refugee Women and International Protection', Conclusion No. 39
(XXXVI), 1985……………………………………………………………...…………….. [17]
UNHCR, 'Agenda for Protection', UN doc. A/AC.96/965/Add.1, 26 June 2002…………. [17]

INTERNATIONAL CASES AND ARBITRAL DECISIONS

Advisory Opinion No.11, Polish Postal Service in Danzig, 1925 P.C.I.J. (ser.B), No.11... [13]
Aerial incident of July 27 1955 Case (Preliminary Objections), ICJ Reports 1959 127…...[18]
Ambatielos case (Greece v. UK) (1956), XII R.I.A.A. 83………………………………....[20]
Belgium v. Spain, 1970 ICJ 3, 301……………………………………………………….. [16]

iv
Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v.
United States of America), [1986] I.C.J. Rep. 14…………………………………………. [15]
Chorzow Factory (Indemnity) Case [Germany v. Poland], 1927 PCIJ Series A, No. 9.….. [12]
Chorzow Factory Case (Merits) (Germany v. Poland), (1928) P.C.I.J. (Ser. A) No.17…... [11]
Communication No. 52/1979, Lopez Burgos v Uruguay, CCPR/C/OP/1 at 88 (1984)…... [16]
Competence of the General Assembly for Admission of a State to the United Nations, 1950
I.C.J. 4, 8 (3 Mar.)…………………………..…………………………………………….. [13]
Conditions of Admission of a State to Membership in the United Nations (Charter, Art. 4),
1948 I.C.J. 57, at 63 (28 Mai)……………………………………………………………... [13]
Cremieux v. France, 256-B Eur. Ct. H.R. (ser. A) (1993)……………………………….... [19]
Evans v United Kingdom, App. No. 6339/05, 2006 ECHR 200………………………….. [14]
Gauthier v Canada, UN Doc CCPR/C/65/D/633/95 (1999)………………………….…… [19]
HRC Länsman (Ilmari) et al. v. Finland, Communication No. 511/1992, Views of 26 October
1994 ………………………………………………………………...……………………...[13]
Interhandel case (Switzerland v. USA), [1959] I.C.J. Rep. 6…………………………….. [20]
Jawara v. The Gambia (Admissibility), (2000 ACHPR, Comm. Nos. 147/95 and 149/96.. [20]
Jesus Manuel Naranjo Cardena et al. v. Venezuela, Case 667/01, Report No. 70/04, Inter-Am.
C.H.R., OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 569 (2004)…………………………….…... [13]
Johnston v. Ireland, European Court of Human Rights, Series A, No. 112 (1986)…….…. [20]
Judge v Canada, HRC, Com. No. 829/1998 [2003] UN Doc CCPR/C/78/D/829/1998…... [17]
Kindler v Canada, UN Doc.CCPR/C/48/D/470/1991 (1993)……………………………... [17]
Länsman (Jouni E.) v. Finland, Communication No. 671/1995, Views of 30 October
1996………………………………………………………………………………………...[13]
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, 2004 I.C.J. 136, 179 (9 July)…………………………………………. [16]
Lighthouses Case (France v. Greece), 1934 P.C.I.J. (ser.A/B), No.62, 4………………… [13]
Ominayak (Lubicon Lake Band) v. Canada , Communication No. 167/1984, Views of 26
March 1990……………………………………………………………………….……….. [13]
Open Door and Dublin Well Woman v. Ireland, European Court of Human Rights, Series A,
No. 246 (1992)………………………………………………………………..…………… [20]
Panevezys Railway Case (Estonia v. Lithuania) (1939), P.C.I.J. (Ser. A/B) No. 76…....... [20]
Paton v. UK, App. No. 8416/79, 1980, 19D and R 244…………………………………... [14]
Riley v. The Commonwealth of Australia, (1985), 159 CLR 1………………………....... [14]

v
Sawhoyamaxa Indigenous Community of the Enxet People v. Paraguay, Case 0322/2001,
Report No. 12/03, Inter-Am. C.H.R., OEA/Ser.L/V/II.118 Doc. 70 rev. 2 at 378 (2003)... [13]
Soering v. United Kingdom (1989), 161 E.C.H.R. (Ser. A), 98 I.L.R. 270………………. [18]
Sporrong and Lönnroth v. Sweden, ECrHR, Application Nos. 7151/75 and 7152/75
(Judgment of 23 September 1982)…………………………………………..…………….. [13]
The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001,
Inter-Am. Ct. H.R., (Ser. C) No. 79 (2001)……………………………………………….. [13]
Union Inter Africaine des Droits de l‘Homme et. al v. Angola, African Commission on
Human and Peoples‘ Rights, Communication No.159/96, Annual Activity Report 1997-1998,
Annex II………………………………………………………………………………….…[13]
Vo v. France, App. No. 53924/00 ECHR, 2004…………………………………………... [14]

MUNICIPAL CASES AND LAWS

Adams v Adams [1971] P 188 at 216…………………………………………….………….[8]
Ballard v. Shea, 121 I11. App. 135……………………………………………….…….....…[5]
Bishop v. Averill, 17 Wash. 209, 49 P. 237, 50 P. 1024…………………………………….[5]
Breuning v Breuning [2002] EWHC 236 (Fam), [2002] 1 FLR 888, 902…………………..[8]
Carmona v White (1980) 25 SASR 525……………………………………………………..[7]
Collins v. Loisel, 259 U.S. 309, 42 S. Ct. 469, 66L. Ed. 956 [1922]………………………[14]
Cremer v. Miller, 56 Minn. 52, 57 N. W. 318……………………………………………….[5]
Cyganik v Agulian [2006] EWCA Civ 129 at [58] (per Longmore LJ), [2006] I FCR 406...[3]
D‘ Etchegoyen v D‘Etchegoyen (1888) 13 PD 132…………………………………………[8]
Denilauler SNC v Couchet Freres [1980] ECR……………………………………………...[9]
Devrajan v District Judge Ballagh [1993] 3 IR 381, Supreme Court of Ireland….………[4][5]
Europe SA v Johann & Backes OHG [2002] 1 Lloyd‘s Rep 465…………….…………..[4][5]
Forbes v Forbes (1854) Kay 341 at 353……………………………………………………..[7]
Forsikringsaktieselskapet Vasta v Butcher [1989] AC 852, HL and CA 2 All ER 488
(Hobhouse J) …………………………………………………………..…………………….[6]
Gateway Electronics Corporation v. Land Bank of the Philippines, G.R. Nos. 155217 &
156393, July 30, 2003, 407 SCRA 454…………………………………………………..….[6]

Gerling v Italian Treasury [1983] ECR 2503……………………………………….…….[4][5]

Geyer v Aguilar (1798) 7; Piggott, Foreign judgment, Part I, p 10 et seq…………………[10]
Gray v Farmosa [1963] P 259 at 267……………………………………………….………..[8]

vi
Hamlyn v Talisker Distillery [1984] AC202……………………………………………..….[6]
Hartley (2006) 319 Hague Recueil, Ch IV. Sch 8 to the Civil Jurisdiction and Judgments Act
1982, as substituted by Civil Jurisdiction and Judgment Order, SI 2001/3929, Sch 2 (III),
Para. 7……………………………………………………………………………………..…[1]
Hilton v. Guyot, 159 U.S. 113, 163–64 (1895)……………………………………….....[12][4]
HRH Maharanee Seethaderi Gaekwar of Baroda v Wildenstein [1972] 2 QB 283, CA….…[1]

IRC V Duchess of Portland [1982] Ch 314 at 319-320…………………………….………..[8]

Iselin v. La Coste, 147 F.2d 791, 795 (5th Cir. 1945)……………………………………….[5]
Kahler v MidlandBank [1950] AC 24……………………………………………………….[6]
Kronhofer v Maier [2004] ECR I-6009………………………………………………......[4][5]
Libyan Arab Foreign Bank v Bankers Trust Co [1988] 1 LR 259…………………………..[6]
Lindley v. Fay, 119 Cal. 239, 51 P. 333……………………………………………………..[5]
Mills v. Hays, 71 Pa. Super. Ct. 523………………………………………………………....[5]
New Mexico ex rel. Ortiz v. Reed, 524 U.S. 151, 118 S. Ct. 1860, 141 L. Ed. 2d 131
(1998)…………………………………………………………………………………….…[14]
New Zealand Extradition Act 1999, Public Act 1999 No 55, Date of assent 20 May
1999………………………………………………………………………………………...[12]
People v. Property Listed in Exhibit One (1991) 227 Cal.App.3d 1, 277 Cal.Rptr. 672....[1][2]
Perrin v Perrin 1994 SC 45………………………………………………….……………….[6]
Pershadsingh v Pershadsingh (1988) 40 DLR (4th) 68……………………………………….[6]
Pilinska v Pilinska [1955] 1 All ER 631…………………………………………………….[6]
Power v. Kane, 5 Wis. 265…………………………………………………………………..[5]
Prazic v Prazic [2006] EWCA Civ 497, [2006] 2 FLR 1128………………………………..[6]
Puttick v A-G[ 1980] Fam 1 at 17…………………………………………………………...[8]
Quebec (Attorney General) v. Charest REJB 2004-81652 (C.A.)………………………….[1]
R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58………………………….[15]
R.M.S. Titanic, Inc. v. Wrecked & Abandoned Vessel Believed to be the R.M.S. Titanic, 323
F.Supp.2d 724, 744-45 (E.D.Va.2004)…………………………………………………...[1][2]
Rabel, I,109: Kahn-Freund (1974) III Hague Recueil 139,334-335,391-492……………….[2]
Re Annesley [1926] Ch 692 at 705……………………………………………………….….[8]
Re Martin [1900] P 211 AT 227……………………………………………………….…….[8]

vii
Re Wright‘s Trust (1856) 2 K & J 595………………………………………………………[7]
Reichard v. Wallach, 91 N. Y. S. 347………………………………………………….…….[5]
Ruhrgas AG v. Marathon Oil Co. et al., 526 U.S. 574 (1999)………………………………[4]
Russian Republic v. Cibrario, 235 N. Y.255…………………………………….……...[12][4]
Schibsby v Westenholz (1870) LR 6 QB 155 at 159……………………………………….[10]
Société Asbestos Ltée v. Charles Lacroix and Régie des rentes du Québec and Compagnie
d‘Assurance Tender Life J.E. 2004-1808 (C.A.)………………………………………….…[1]
Somportex, Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir.
1971)…………………………………………………………………………………….[12][4]
Spiro (1956) 5 ICLQ 196 et seq……………………………………………………………..[8]
Starr Printing Co. v. Air Jamaica, 45 F.Supp.2d. 625 (1999 U.S. Dist.)……………….……[3]
Sun Printing & Publishing Association v. Edwards, 194 U.S. 377 (1904)………………….[2]
The Extradition Act 2003 (c.41), Act of the Parliament of the United Kingdom, 1 January
2004………………………………………………………………………………………...[12]
Tyler v Judges of the Court of Registration (1900) 175 Mass 71…………………………...[1]
Udny v Udny (1869) LR 1 Sc & Div 44 at 457……………………………………….……..[7]
United States of America v. $124,700 in U.S. Currency, 05-3295 (8th Cir. 2006)……...[1][2]
United States v. 11 1/4 Dozen Packages of Articles Labeled in Part Mrs. Moffat‘s Shoo-Fly
Powders for Drunkenness, 40 F. Supp. 208 (W D.N.Y. 1941)……………………..…….[1][2]
United States v. 422 Casks of Wine, 26 U.S. 1 Pet. 547 547 (1828)………………….….[1][2]
United States v. One Ford Coupe Automobile, 272 U.S. 321 (1926)……………….……[1][2]
United States v. Rauscher, 119 U.S. 407, 7 S. Ct. 234, 30 L. Ed. 425 (1886)……………..[14]
UNITED STATES, Plff. in Err., v. FORTY BARRELS and Twenty Kegs of Coca Cola, the
Coca Cola Company of Atlanta, Georgia, Complainant. No. 562……………...………...[1][2]
Urquhart v Butterfield (1887) 37 Ch D 357…………………………………………………[7]
Venezuela Extradition Procedures, Section VII of the Organic Code of Criminal Procedure
(COPP)
……………………………………………………………………………………………...[12]
West v. Stoeckel, 6 Ohio Dec. (Rep.), 1082 10 Am. L. R. 309……………………………..[5]

TREATISES AND OTHER BOOKS

"Comity in Modern Private International Law" in James Fawcett, ed., Reform and
Development of Private International Law: Essays in Honour of Sir Peter North (Oxford,
Oxford University Press, 2002)…………………………………………………………[12][4]

viii
AGillies, Peter S., Forum Non Conveniens in the Context of International Commercial
Arbitration, Macquarie Law Working Paper No. 2008-6, (March 1, 2008)…………….…..[4]
Albert A. Ehrenzweig, Private International Law volume Three 15 (1977)………………...[6]
Alwyn V. Freeman, The International Responsibility of State for Denial of Justice (London:
Longmans, Green and Co. Ltd., 1938)……………………………………………………..[20]
Alysa Levene, Samantha Williams and Thomas Nutt, eds., Illegitimacy in Britain, 1700-
1920, Palgrave and Macmillan, 2005…………………………………………………..…....[2]
American Convention; Exceptions to the Exhaustion of Domestic Remedies in Cases of
Iridigency, Advisory Opinion of the Inter-American Court of Human Rights, 1990, 12 HRLJ,
1991………………………………………………………………………………………...[20]
B Cheng, General Principles of Law: As Applied by International Courts and Tribunals
(Cambridge, Grotius Publications Limited 1987) 141……………………………...……...[11]
Bassiouni, Cherif M. (1974) International Extradition and World Public Order. Dobbs Ferry,
NY: A.W.Sijthoff-Leyden, Oceania Publications………………………………………….[11]
Beale, Conflict of Laws 1077 (1935)………………………………………………………..[6]

Black, Henry Campbell (1910), (2 ed.). West Publishing Co……………………………….[1]

Cheatham, Goodrich, Griswold and Reese, Cases and Materials on Conflict of Laws 493 (3d.,
ed. 1951)…………………………………………………………………………..…………[6]

Cheshire, North & Fawcett: Private International Law, 14th Edition, James Fawcett, Janeen
Carruthers and Peter North…………………………………………………………………..[5]
Choice of Law and Conflicts of Laws by A V Levontin (1976)…………………………….[5]
Civil Jurisdiction Rules of the EU and their Impact on Third States by Thalia Kruger
(2008)…………………………………………………………………………………….…[10]
Civil Jurisdictions and Judgments by T C Hartley
(1984)……………………………………………………………………………………... [10]
Collins, Lawrence (2000), Dicey and Morris on the Conflicts of Laws (13th ed.). London:
Sweet & Maxwell………..………………………………………………………………..[1][2]

Conflict of Laws in Private International Laws, James M.Carruthers………………………[3]

Conflict of Laws in Private International Laws, James M.Carruthers, Choice of Laws: A legal
analysis, Fawcett and Torrensman, pp 164-167……………………………………………..[4]
D. McGoldrick, The Human Rights Committee, (Oxford, 1991)……………... ………….[13]
Dicey, Conflict of Laws 579, Rule 136 (6th ed. 1949)……………………………….….......[3]
Dicey, Conflict of Laws 637, Exception to Rule 141 (6th ed. 1949)………………………..[3]

ix
Francisco Martin, Et Al., International Human Rights Law & Practice: Cases, Treaties, And
Materials 647–53 (1997)…………………………………………………………………...[19]
G.J. Wiarda, in Antonio Cassese, International Law in a Divided World, Clarendon Press,
Oxford, 1992………………………………………………………………...……………...[16]
Goodrich, Conflict of Laws 321 (3d ed., 1949)………………………………………….…..[6]

Henry Wheaton, Elements Of International Law § 79 (Richard Henry Dana, Jr. ed., 8th ed.
1866) …………………………………..………………………………………….…….[12][4]
Ian Brownlie, Principles Of Public International Law 31 (3d ed. 1979)…………..…[2][20][4]
International Commercial Disputes by, Jonathan Hill, 3rd edn (2005), The New Private
International Law of Contract of the European Community by, Peter Kaye (1993)……...…[5]
James Atkin, Baron Atkin, in M. Akehurst, Modern Introduction to International Law, Harper
Collins, London…………………………………………………………………………….[16]
Jan Paulsson, Denial of Justice in International Law (Cambridge: Cambridge University
Press, 2005) ………………………………………………………………………………...[20]
Joseph Story, Commentaries On The Conflict Of Laws § 33 (1834)……………….…..[12][4]
Law of the European Judgments Convention, Vols one-five by Peter Kaye (1999)…….…[10]
Logical and Legal Bases of the Conflict of Laws, pp 194 et seq……………………………[1]
Lord McNair, International Law Opinions, vol. II (Cambridge: Cambridge University Press,
1956) ………………………………………………..……………………………………...[20]
Lorenzen, Selected Articles on the Conflict of Laws 261 (1947)………………....………...[6]

M.J. Bossuyt, Guide to the ‗Travaux Preparatoires‘ of the International Covenant on Civil
and Political Rights, (Dordrecht, 1987)………………………………………………..…...[13]
Paul Lagarde, 'Public Policy', International Encyclopedia of Comparative Law (1994), vol.
III, Chap. II, p. 57…………………………………………………………………………[4][6]
Pierre Mayer, Droit international prive, 6e ed, Paris, Montchrestien 1998, p. 22………..[4][6]
Pieter Kooijmans, Internationaal publiekrecht in vogelvlucht, Wolters-Noordhoff, Groningen,
1994 ……………………………………………………………...………………………...[16]
Rancis Wharton, A Treatise On The Conflict Of Laws 5 (2d ed. 1881)…………..……[12][4]
Report of the Inter-American Commission of Human Rights 1993, Washington, 1994…..[20]
Restatement, Conflict of Laws, Section 332 (1934)………………………………………....[3]
Restatement, Conflict of Laws, Section 360(1) (1934)……………………………………...[3]
Rrue Montenegro, Carlos Alberto. Le forum non conveniens à l'assaut des compétences
exorbitantes : l'expérience panaméenne, Université Paris II, 2006, p. 85…………………...[4]

x
Samuel C. Ramer, "The Traditional and the Modern in the Writings of Ivan Pnin," Slavic
Review, vol. 34, no. 3 (Sept. 1975), pp. 539-59………………………………………..……[2]
Shearer, I.A. (1971) Extradition in International Law. Manchester, UK: Manchester
University Press, Oceania Publications………………………………………………..…...[14]
Studies in Law: An Anthology of Essays in Municipal and International Law, Patna Law
College Golden Jubilee Commemoration Volume, V.V Deshpande, Bombay: Asia Publishing
House, 1961, pp. 524………………………………………………………………..……….[3]

Taxation of Foreign Domiciliaries 8th ed 2009, James Kessler QC (for UK law)………….[2]

The Conflicts of Laws by, David McCLean and Kisch Beevers, 6th edn (2005)……………[5]
The Development of International Law by the International Court, Hersch Lauterpacht (ed),
Cambridge University Press, 1982………………………………………....………………[14]
The Enforcement of Judgments in Europe by Wendy Kennett (2000), pp. 324…………...[10]
Understanding conflict of laws, Revised Third Edition, William M Richman and William
L.Reynolds, Lexis Nexis, 2002……………………………………………………….…..[1][3]

White, Philip L. (2006), "Globalization and the Mythology of the Nation State," In
A.G.Hopkins, ed. Global History: Interactions Between the Universal and the Local Palgrave
Macmillan…………………………………………………………………………………....[6]

JOURNAL ARTICLES
Aric K. Short, Is the Alien Tort Statute Sacrosanct? Retaining Forum Non Conveniens in
Human Rights Litigation, 33 N.Y.U. J. INT‘L L. & POL. 1001, 1019 & n.83 (2001)…….[4]
Arthur A. Alexander, Foreign Judgments— Enforcements Of— Under The Comity Of
Nations, 17 Geo. L. J. 221 1928-19292…………………………………………………[12][4]
Comity, 12 Va. L. Rev. 353 1925-19262, 359……………………………………….….[12][4]
Dugard, Reconciling Extradition with Human Rights, 92 A.J.I.L. 187 (1998)………….…[18]
Gibney, Tomasevski and Vedsted-Hansen, Transnational State Responsibility for Violations
of Human Rights 12 HARV. HUM. RTS. J. 267 277 (1999)……………………………....[16]
Glenn J. Sedam Jr., A Proposal to Make Lex Domicilii the Required Choice of Law Under
Article 28 of the Warsaw Convention, 9 Wm. & Mary L. Rev. 1118 (1968)……………….[3]
Hans Smit, International Res Judicata and Collateral Estoppel, 9 UCLA L. REV. 44, 53
(1962)………………………………………………………………………………….……..[4]
Herlitz. (1994) The meaning of the term "prima facie" 55 La.L.Rev. 391……….…….…..[12]
Konstadinides, Theodore, Citizenship within the Scope Ratione Materiae of Community
Law: The Current Approach of the Court of Justice (December 29, 2008), European Current
Law XI-XV, Vol. 4, 2009…………………………...……………………………………….[1]
L. Collins, Foreign Relations and the Judiciary (2002), 51 I.C.L.Q. 485…………….....[12][4]

xi
Letter from Elihu Root, Secretary of State, to Victor H. Metcalf, Secretary of Commerce and
Labor (Mar. 16, 1906), in 288 Domestic Letters Of The Department Of State, cited in 4
Green H. Hackworth, Digest Of International Law 460 (1942)………………………...[12][4]
M. P. Thompson (1983), Domicile of Dependence: The Last Remnant of a Relic?.
International and Comparative Law Quarterly, 32, pp 237-240………………………….….[3]
M. Plachta, Contemporary Problems of Extradition: Human Rights, Grounds for Refusal and
the Principle Aut Dedere Aut Judicare, UNAFEI Resource Material Series (2001)…….....[12]
Paul Mitchell and John Phillips, The Contractual Nexus: Is Reliance Essential?, Oxford J
Legal Studies (SPRING) 22(1): 115-134…………………………………………..………..[1]
R.F Oppong, ―Canadian Courts Enforce Foreign Non-Money Judgments‖, (2007) Volume 70
No. 4 Modern Law Review, pp 670-679………………………………..………………….[10]
Strossen, Recent U.S and International Judicial Protection of Individual Rights: A
Comparative Legal Process Analysis and Proposed Synthesis, Hastings Law Journal, 41
Hastings LJ 805…………………………………………………………………………….[16]
The American Journal of International Law, Vol. 29, Supplement: Research in International
Law
(1935)……………………………………………………….………………………………[11]
Von Mehren and Trautman, ―Recognition of Foreign Adjudications: A Survey and Suggested
Approach‖ (1968) 81 Harvard Law Review 1601 at p 1603……………………….………[10]
William Schabas, International Law and Abolition of the Death Penalty (1998) 55 Wash. &
Lee L. Rev. 797 at 382………………………………….…………………………………..[17]
Y.C. Choong, ―Contra Bonos Mores: Religious Tenets and National Philosophy as the
Yardstick for Determining Policy‖, (2007) Volume 9(1) Australian Journal of Asian Law, pp
176-185………………………………………………………………………………...…...[10]

xii
 STATEMENT OF JURISDICTION

The Compromis

The Republic of Bolita (―the Applicant‖) and the Republic of Garundi (―the Respondent‖)

have agreed to submit this dispute to the International Court of Justice (―the Court‖) pursuant

to article 40(1) of the Statute of the International Court of Justice and in accordance with the

Compromis (together with any Clarifications that may follow) notified to the Court on

February 10, 2010. Pursuant to article 36(1) of the Statute, the Court has jurisdiction to

decide all matters referred to it for decision. Pursuant to Article 4 of the Compromis, both

parties shall accept any judgment of the Court as final and binding and shall execute it in its

entirety and in good faith. [Compromis, Page 4]

The Economic Union Treaty

In 1978, pursuant to an economic union treaty, the two countries agreed that disputes between

the two nations would be referred to the International Court of Justice for their resolution

based on the Statute of the International Court. The term ―dispute‖ was defined at length and

included ―decisions of the courts of each country where enforcement of one country’s court

order would result in the violation of a court order of the other country‖. [Comps, Para. 1]

The Diplomatic Communiqué

Both parties recognized that the matters before the court may traditionally be within the rights

of nations to determine and are the subject matter of domestic and private international law

but believe that the conflicts require a resolution by the International Court of Justice on the

various legal and jurisdictional issues that arise from the facts of this case. [Comps, Para. 12]

xiii
 STATEMENT OF FACTS

Economic Union Treaty

In 1978, the countries agreed to form an economic union with a common currency and

monetary policy, respect and comity for each other‘s laws, free commerce and trade, easy

travel for citizen between the two nations, and recognition and enforcement of orders of each

other‘s courts.

Citizenship

Under the laws of Bolita, a child born in Bolita is a citizen of Bolita. Children born to

Bolitian citizens outside of Bolita are citizens of Bolita. Children born outside of the country,

where only one parent is Bolitian, are not entitled to citizenship unless their Bolitian parent is

resident in Bolita at the time of delivery. Under the laws of Garundi, a child born in Garundi

is a citizen of Garundi if its mother is a citizen of Garundi. Children born outside of Garundi

to Garundian citizens are citizens of Garundi.

Surrogacy Contract

In 2003, John and Jane decided to harvest Jane‘s eggs and John‘s sperm for assisted

reproduction purposes. Since Jane could not bear children any more, they decided to freeze

Jane‘s eggs and John‘s sperm till such time as they identified a woman who would be willing

to act as a surrogate. The courts in Bolita had provided specific performance of surrogacy

contracts in the past specifically in cases where the surrogate mother was carrying a baby to

term on behalf of a known father and mother, which had resulted in an entire ecosystem of

service providers to support couples and surrogate mothers.

Pregnancy

In 2006, Janet Rathna (Jane‘s sister) flew into Bolita and agreed to be the surrogate mother

for their child. She went through the process of in-vitro fertilization and became pregnant. As

xiv
per their surrogacy contract, the plan was for Janet to deliver the child in Bolita – for the

child to clearly be a citizen of Bolita. During the final trimester in 2006, Janet decided to fly

back to Garundi for a few days for family reasons, and during this trip developed

complications, and was advised bed rest for six weeks. Janet finally went into labour and

delivered a baby boy – Robert.

“Evil Sister”

Immediately on the birth of Robert, Jane and Emily decided to travel to Garundi, expecting to

be able to take Robert to Bolita. However, soon after Robert was born, a local newspaper

carried the story of Jane, John, Janet and Robert, and it created quite the stir in Garundi. Janet

came under tremendous local political and religious pressure not to hand over her child to

Jane, with Jane being portrayed as the ―evil sister‖.

Specific Performance

Over the next few days, it was clear that Janet had changed her mind and was not going to

hand over Robert to Jane. She filed with the Registrar of Births, naming the child as Robert

Rathna, with herself as the mother of the child and declared the father of the child to be

―unknown‖. As John blamed Jane for not handling the situation with her sister firmly and for

having supported her to stay in Garundi when she developed complications. As the days

turned into weeks, John decided to seek specific performance of the surrogacy contract with

Janet in the courts of Bolita.

Objections

Janet, filed objections between the courts in Garundi stating that since she had given birth to

the child, Garundian law recognized her as the mother of the child and she should, therefore,

not be compelled to travel to Bolita. Janet also filed objections before the courts in Bolita,

stating that they had no jurisdiction over the child as the biological and gestational mother of

xv
the child were Garundian, that Robert was not a Bolitian citizen, that the best interests of the

child was the only determining factor in deciding the matter.

John also filed a claim before the courts in Bolita requesting that Jane be compelled to hand

over custody of Emily to him, as Emily was a Bolitian citizen, and under Bolitian law, the

father was the natural guardian of the child. Jane entered objections before the Bolitian courts

arguing that the best interests of Emily required that Emily remain with her and with her

sibling, Robert.

Extradition proceedings

John‘s lawyers decided to initiate criminal proceedings against Jane and Janet in the Bolitian

courts. Their hope was to use extradition proceedings as a means to force Jane and Janet to

come to Bolita. He accused Janet of stealing genetic material that belonged to him and Jane.

Jane, on the other hand, was accused of kidnapping a citizen of Bolita. The Bolitian

authorities, on John‘s insistence, were considering requesting Garundi to hand over Jane and

Janet to face trial under the economic union treaty.

Submission to ICJ

Taking into consideration the entirety of the situation and the public mood in both countries

on this matter, the Governments of Bolita and Garundi decided to refer the different

jurisdictional, as well as the preliminary legal matters based on the facts set out in this

Compromis (in relation to the custody of Emily and Robert and with respect to the criminal

proceedings) to the ICJ and to abide by its orders on the manner in which these disputes

should be resolved and which courts would have jurisdiction.

xvi
 QUESTIONS PRESENTED

The Republic of Bolita respectfully asks this Court:

I.

WHETHER the Custody of Robert Belongs to John

WHETHER the Custody of Emily Belongs to John

II.

WHETHER Janet Can be Legally Extradited to Bolita for Trial

WHETHER Jane Can be Legally Extradited to Bolita for Trial

xvii
 SUMMARY OF ARGUMENTS

DECLARATION I - THE CUSTODY OF ROBERT AND EMILY BELONG TO JOHN

Bolita court has jurisdiction over surrogacy contract, John, Janet and Robert. Under the

principle of lex fori, Bolita is deemed to apply its local law to address the issue of domicile,

nationality and residence of parties to the surrogacy contract. Under lex domicilii, the action

was brought by John who is domiciled in Bolita and the subject matter of the case which is

Robert is also to be deemed as Bolitian based on the rules of domicile of origin. Under lex

propria, the surrogacy contract is concluded in Bolita and all parties to the contract did

explicitly express and intended to be governing by the Bolitian law.Under forum non-

convenience, Bolita court is the most competent forum as compared to the Garundi court

because Garundi does not have an established principle of law to govern the surrogacy

contract. Under lex patriae, Emily was born is Bolita and had been registered as the Bolitian

citizen upon birth. The contractual requirements under surrogacy contract have been fulfilled.

All parties have capacity to conclude the surrogacy contract made in Bolita since the

surrogacy contract is permitted and valid in Bolita. The consent given by Janet at the material

time was bona fide as she did aware on the conditions and stipulations of the surrogacy

contract. The citizenship of Robert and Emily is Bolita and the domicile of Robert is Bolita.

Robert is a legitimate child because Bolitian law recognized the surrogacy contract. Thus, his

domicile of origin must follow the father. Alternatively, rights of the Robert and Emily are

the priority considerations: (1) the best interest of child must be based on the nuclear family;

(2) Robert has right to know biological parents; (3) Robert is entitled to a safe, stable and

nurturing family and home life and; (4) Robert is entitled to a healthy development of

emotional, mental, physical and social wellbeing. The orders of Bolita court can be enforced

in Garundi as the 1978 Economic Treaty provides for respect and comity for each other‘s

laws as well as respect to each other‘s laws.

xviii
DECLARATION II - JANET AND JANE CAN BE EXTRADITED TO BOLITA FOR

TRIAL

There is an implied extradition agreement in the 1978 Treaty. It provides that both States

must respect and comity for each other‘s laws and recognized and enforced orders of each

other‘s courts. This agreement impliedly provides for right to extradition. Comity is a rule of

public international law which is defined as mutual respect and courtesy which one country

owes to the others. The genetic material is capable of being possessed, is movable, is

intangible and is object of value. Janet has violated the law of Bolita by breaching the

surrogacy contract and stealing genetic material that belonged to Bolita‘s citizen contrary to

the agreement. Article 6(1) of ICCPR provides for right to life, but it does not extend to the

unborn. The issue of registration of birth will never exist at all if she gives birth to Robert in

Bolita at the very first place as the surrogacy contract required. States may waive requirement

for double criminality as agreed between them. The 1978 Treaty has impliedly provided for

this. Besides, this requirement is a mere procedural formalities and court in Garundi which

hear the extradition request is entitled to set it aside so as to focus on the merits. The

Preamble succinctly explains that the United Nations wants all members to practice tolerance

and live together in peace with one another as good neighbours. Article 2(2) provides that all

States member shall fulfill in good faith all of the obligations. This Court has held that the

ICCPR ‗is applicable in respect of acts done by a State in the exercise of its jurisdiction

outside its own territory.‘ There is a duty for States to prosecute under its national laws the

human rights violations. Garundi has ratified the UN Charter and the ICCPR which clearly

provide that human rights must be respected. The rule of exhaustion of domestic remedies is

not absolute. Thus, where the local remedies are non-existent or are not capable of dealing

with the issues at hands as international law requires, a resort to international measures will

not be stopped.

xix
 ARGUMENTS

I. THE CUSTODY OF ROBERT AND EMILY BELONG TO JOHN

A. Bolita court has jurisdiction over surrogacy contract, John, Janet and Robert

Jurisdiction concerns on the power of courts to adjudicate in personam1, in rem2,

ratione materiae3 and jurisdiction ratione loci.4 Courts act in personam is against the person.5

When a court has jurisdiction over a person, it can exercise the power over that particular

person and adjust his legal relations with others.6 Bolita court may exercise jurisdiction over

Janet and Jane and they may be made present in the court of Bolita regardless of her domicile

of origin and nationality as the courts act in personam7 and Bolita court has closest nexus8 as

the surrogacy contract is consummated there.9

i. Lex Fori

Lex fori refers to the law of the jurisdiction in which a legal action is brought. 10 Lex

fori is applied to protect the interests of vulnerable parties as courts may look for a provision

in the law of the choice of law States that permits the court to use the lex fori.11 Lex fori

1
Black, Henry Campbell (1910), (2 ed.). West Publishing Co. p. 606.
2
People v. Property Listed in Exhibit One (1991) 227 Cal.App.3d 1, 277 Cal.Rptr. 672; R.M.S. Titanic, Inc. v.
Wrecked & Abandoned Vessel Believed to be the R.M.S. Titanic, 323 F.Supp.2d 724, 744-45 (E.D.Va.2004);
United States of America v. $124,700 in U.S. Currency, 05-3295 (8th Cir. 2006); United States v. 11 1/4 Dozen
Packages of Articles Labeled in Part Mrs. Moffat‘s Shoo-Fly Powders for Drunkenness, 40 F. Supp. 208 (W
D.N.Y. 1941); United States v. One Ford Coupe Automobile, 272 U.S. 321 (1926); United States v. 422 Casks
of Wine, 26 U.S. 1 Pet. 547 547 (1828); UNITED STATES, Plff. in Err., v. FORTY BARRELS and Twenty
Kegs of Coca Cola, the Coca Cola Company of Atlanta, Georgia, Complainant. No. 562.
3
Konstadinides, Theodore, Citizenship within the Scope Ratione Materiae of Community Law: The Current
Approach of the Court of Justice (December 29, 2008), European Current Law XI-XV, Vol. 4, 2009; Quebec
(Attorney General) v. Charest REJB 2004-81652 (C.A.); Société Asbestos Ltée v. Charles Lacroix and Régie
des rentes du Québec and Compagnie d‘Assurance Tender Life J.E. 2004-1808 (C.A.).
4
Hartley (2006) 319 Hague Recueil, Ch IV. Sch 8 to the Civil Jurisdiction and Judgments Act 1982, as
substituted by Civil Jurisdiction and Judgment Order, SI 2001/3929, Sch 2 (III), Para. 7.
5
Tyler v Judges of the Court of Registration (1900) 175 Mass 71.
6
Understanding conflict of laws, Revised Third Edition, William M Richman and William L.Reynolds, Lexis
Nexis, 2002, pg. 1-5.
7
HRH Maharanee Seethaderi Gaekwar of Baroda v Wildenstein [1972] 2 QB 283, CA.
8
Paul Mitchell and John Phillips, The Contractual Nexus: Is Reliance Essential?, Oxford J Legal Studies
(SPRING) 22(1): 115-134.
9
Compromis, Para 5, Line 3-5.
10
Collins, Lawrence (2000), Dicey and Morris on the Conflicts of Laws (13th ed.). London: Sweet & Maxwell.
p. 157.
11
Collins, Lawrence (2000), Dicey and Morris on the Conflicts of Laws (13th ed.). London: Sweet & Maxwell.
p. 157.

1
determines the domicile, nationality or habitual residence of parties and to establish an in

rem12 set of rights and capacities. Bolita is deemed to apply its local law to address the issue

of domicile, nationality and residence of parties to the surrogacy contract. 13 In the absence of

a complete and comprehensive legal system in Garundi, it will deprive the execution of

justice and rights of parties to be tried accordingly.

ii. Lex Domicilii

Lex domicilii is essential to determine the status and capacity of parties to the dispute

as it would be inconvenient if the person's legal status and capacities changed every time they

changed jurisdiction.14 The action was brought by John who is domiciled in Bolita15 and the

subject matter of the case which is Robert is also to be deemed as Bolitian based on the rules

of domicile of origin that had laid down the principles that whenever the child is legitimate16

then the domicile of origin of the father prevails and the child shall follow his father‘s

domicile of origin.17 With regard to the domicile of Janet, even it had been proven that her

domicile of origin is Garundi, but the Court must be concerned on the definition of

jurisdiction itself which focus on the power of courts to adjudicate with respect to a person or

thing as action act in personam.18

iii. Lex Propria

12
People v. Property Listed in Exhibit One (1991) 227 Cal.App.3d 1, 277 Cal.Rptr. 672; R.M.S. Titanic, Inc. v.
Wrecked & Abandoned Vessel Believed to be the R.M.S. Titanic, 323 F.Supp.2d 724, 744-45 (E.D.Va.2004);
United States of America v. $124,700 in U.S. Currency, 05-3295 (8th Cir. 2006); United States v. 11 1/4 Dozen
Packages of Articles Labeled in Part Mrs. Moffat‘s Shoo-Fly Powders for Drunkenness, 40 F. Supp. 208 (W
D.N.Y. 1941); United States v. One Ford Coupe Automobile, 272 U.S. 321 (1926); United States v. 422 Casks
of Wine, 26 U.S. 1 Pet. 547 547 (1828); UNITED STATES, Plff. in Err., v. FORTY BARRELS and Twenty
Kegs of Coca Cola, the Coca Cola Company of Atlanta, Georgia, Complainant. No. 562.
13
Article 15(1), 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.
14
Rabel, I,109: Kahn-Freund (1974) III Hague Recueil 139,334-335,391-492. Logical and Legal Bases of the
Conflict of Laws, pp 194 et seq; Taxation of Foreign Domiciliaries 8th ed 2009, James Kessler QC (for UK
law).
15
Compromis, Para. 7, Line 7.
16
Samuel C. Ramer, "The Traditional and the Modern in the Writings of Ivan Pnin," Slavic Review, vol. 34, no.
3 (Sept. 1975), pp. 539-59; Alysa Levene, Samantha Williams and Thomas Nutt, eds., Illegitimacy in Britain,
1700-1920, Palgrave and Macmillan, 2005.
17
Sun Printing & Publishing Association v. Edwards, 194 U.S. 377 (1904).
18
Understanding conflict of laws, Revised Third Edition, William M Richman and William L.Reynolds, Lexis
Nexis, 2002, pg. 1-5.

2
 Lex propria or proper law19 will apply the most significant laws that are deemed to

have the closest and most real connection to the dispute thus entitled the forum state to have

the best claim.20 Proper law is the primary system of law which governs most aspects of the

factual situation giving rise to the dispute.21 The surrogacy contract is concluded in Bolita

and all parties to the contract did explicitly express and intended to be governing by the

Bolitian law.22 Moreover, the Bolita court has the relevant nexus with the case based on the

principle of Lex loci contractus23 and lex domicilii.24 Bolitian law is the proper law to decide

on the custody of Emily as Emily was born in Bolita25 and John also is the citizen of Bolita

with Jane having the domicile of dependency in Bolita.26 Thus, such circumstances connect

all parties with the Bolitian law.

iv. Forum Non-Convenience

The discretionary power to allow service of claim form out of the jurisdiction is

exercised on the basis of non-convenience.27 This is a rule which determines a court to gain

an advantage in the proceeding.28 The underlying principles of this rule must be based on the

19
Convention on the Law Applicable to Contractual Obligations (the Rome Convention), Rome on June 19,
1980; the Convention on the Accession of the Hellenic Republic to the Rome Convention (the Luxembourg
Convention), April 10, 1984; First Protocol on the Interpretation of the Rome Convention by the European
Court (the Brussels Protocol), Brussels on December 19, 1988.
20
Dicey, Conflict of Laws 579, Rule 136 (6th ed. 1949); Restatement, Conflict of Laws, Section 332 (1934);
Dicey, Conflict of Laws 637, Exception to Rule 141 (6th ed. 1949); Restatement, Conflict of Laws, Section
360(1) (1934).
21
Conflict of Laws in Private International Laws, James M.Carruthers. Cyganik v Agulian [2006] EWCA Civ
129 at [58] (per Longmore LJ), [2006] I FCR 406.
22
Compromis, Para. 5, Line 3.
23
Starr Printing Co. v. Air Jamaica, 45 F.Supp.2d. 625 (1999 U.S. Dist.).
24
Glenn J. Sedam Jr., A Proposal to Make Lex Domicilii the Required Choice of Law Under Article 28 of the
Warsaw Convention, 9 Wm. & Mary L. Rev. 1118 (1968); Studies in Law: An Anthology of Essays in
Municipal and International Law, Patna Law College Golden Jubilee Commemoration Volume, V.V
Deshpande, Bombay: Asia Publishing House, 1961, pp. 524.
25
Compromis, Para. 4, Line 3.
26
M. P. Thompson (1983), Domicile of Dependence: The Last Remnant of a Relic?. International and
Comparative Law Quarterly, 32, pp 237-240.
27
Rrue Montenegro, Carlos Alberto. Le forum non conveniens à l'assaut des compétences exorbitantes :
l'expérience panaméenne, Université Paris II, 2006, p. 85; AGillies, Peter S., Forum Non Conveniens in the
Context of International Commercial Arbitration, Macquarie Law Working Paper No. 2008-6, (March 1, 2008);
Aric K. Short, Is the Alien Tort Statute Sacrosanct? Retaining Forum Non Conveniens in Human Rights
Litigation, 33 N.Y.U. J. INT‘L L. & POL. 1001, 1019 & n.83 (2001).
28
Conflict of Laws in Private International Laws, James M.Carruthers, Choice of Laws: A legal analysis,
Fawcett and Torrensman, pp 164-167; Kronhofer v Maier [2004] ECR I-6009; Devrajan v District Judge

3
respect given to foreign courts on reciprocal respect or comity. 29 Bolita court is the most

competent forum as compared to the Garundi court because Garundi does not have an

established principle of law to govern the surrogacy contract, and with regard to its public

policy that had obviously prohibit the surrogacy contract.30 On the other hand, Bolita is

proven to have an established legal system governing surrogacy contract and is competent to

settle the dispute.31 Therefore, this principle shall be considered by the Garundi court to give

the jurisdiction to Bolita as Garundi court had been factually proven of its incompetency to

settle the dispute.32 Garundi cannot have the jurisdiction as Jane and Emily is the nationals of

Bolita based on the fact that Emily was born in Bolita and will follow of her father‘s domicile

of origin33 and as she had been registered as Bolitian citizen upon birth.34 Furthermore, Jane

having her domicile of dependency in Bolita by way of marriage.

v. Lex Patriae

Ballagh [1993] 3 IR 381, Supreme Court of Ireland; Europe SA v Johann & Backes OHG [2002] 1 Lloyd‘s Rep
465; Gerling v Italian Treasury [1983] ECR 2503.
29
Letter from Elihu Root, Secretary of State, to Victor H. Metcalf, Secretary of Commerce and Labor (Mar. 16,
1906), in 288 Domestic Letters Of The Department Of State, cited in 4 Green H. Hackworth, Digest Of
International Law 460 (1942); Ian Brownlie, Principles Of Public International Law 31 (3d ed. 1979); Joseph
Story, Commentaries On The Conflict Of Laws § 33 (1834). Arthur A. Alexander, Foreign Judgments—
Enforcements Of— Under The Comity Of Nations, 17 Geo. L. J. 221 1928-19292; Somportex, Ltd. v.
Philadelphia Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir. 1971); Rancis Wharton, A Treatise On The
Conflict Of Laws 5 (2d ed. 1881); Hilton v. Guyot, 159 U.S. 113, 163–64 (1895); Hans Smit, International Res
Judicata and Collateral Estoppel, 9 UCLA L. REV. 44, 53 (1962); Henry Wheaton, Elements Of International
Law § 79 (Richard Henry Dana, Jr. ed., 8th ed. 1866); Russian Republic v. Cibrario, 235 N. Y. 255, quoted in
Comity, 12 Va. L. Rev. 353 1925-19262, 359; L. Collins, Foreign Relations and the Judiciary (2002), 51
I.C.L.Q. 485, p. 504; "Comity in Modern Private International Law" in James Fawcett, ed., Reform and
Development of Private International Law: Essays in Honour of Sir Peter North (Oxford, Oxford University
Press, 2002).
30
Pierre Mayer, Droit international prive, 6e ed, Paris, Montchrestien 1998, p. 22; Paul Lagarde, 'Public Policy',
International Encyclopedia of Comparative Law (1994), vol. III, Chap. II, p. 57.
31
Compromis, Para. 4, Line 11.
32
Ruhrgas AG v. Marathon Oil Co. et al., 526 U.S. 574 (1999); Iselin v. La Coste, 147 F.2d 791, 795 (5th Cir.
1945).
33
Kronhofer v Maier [2004] ECR I-6009; Devrajan v District Judge Ballagh [1993] 3 IR 381; Supreme Court of
Ireland; Europe SA v Johann & Backes OHG [2002] 1 Lloyd‘s Rep 465; Gerling v Italian Treasury [1983] ECR
2503.
34
Compromis, Para. 4, Line 3.

4
 Lex patriae is a law of nationality which is used to determine the status and capacity

of parties to the case.35 Firstly, it shall be noted that nationality and domicile is a different

concept as nationality represents person‘s political status by which such person owes

allegiance to some particular country whereas domicile indicates one‘s civil status and

provides one of his personal rights and obligations.36 Moreover, nationality apart from

naturalization is depending on the place of birth or on parentage while domicile is constituted

by way of residence in a particular country with the intention of residing there permanently. 37

Emily was born is Bolita38 and had been registered as the Bolitian citizen upon birth. Thus,

Emily is subject to the jurisdiction of Bolita.

B. Contractual requirements under surrogacy contract have been fulfilled

All parties to the contract namely do have capacity to conclude the surrogacy contract

made in Bolita since the surrogacy contract is permitted and valid in Bolita at the time it was

consummated.39 The consent given by Janet at the material time was bona fide as she did

aware on the conditions and stipulations of the surrogacy contract.40 Therefore, there was no

malicious intention or ill-will elements involved in the consummation of the surrogacy

contract.41 In regard to the Garundian public policy that inhibit the surrogacy contract, the

fact is vague and ambiguous on the prohibition of surrogacy in the Garundi legal system

since there was no an established laws or provisions governing that matter.42 The public

35
International Commercial Disputes by, Jonathan Hill, 3 rd edn (2005), The New Private International Law of
Contract of the European Community by, Peter Kaye (1993) pp 347.
36
Cheshire, North & Fawcett: Private International Law, 14th Edition, James Fawcett, Janeen Carruthers and
Peter North.
37
The Conflicts of Laws by, David McCLean and Kisch Beevers, 6 th edn (2005); Choice of Law and Conflicts
of Laws by A V Levontin (1976) pp 142.
38
Compromis, Para. 4, Line 3.
39
Lindley v. Fay, 119 Cal. 239, 51 P. 333; Ballard v. Shea, 121 I11. App. 135; Cremer v. Miller, 56 Minn. 52,
57 N. W. 318; West v. Stoeckel, 6 Ohio Dec. (Rep.), 1082; 10 Am. L. R. 309; Reichard v. Wallach, 91 N. Y. S.
347; Bishop v. Averill, 17 Wash. 209, 49 P. 237, 50 P. 1024; Power v. Kane, 5 Wis. 265; Mills v. Hays, 71 Pa.
Super. Ct. 523.
40
Compromis, Para. 5, Line 1-5.
41
Gateway Electronics Corporation v. Land Bank of the Philippines, G.R. Nos. 155217 & 156393, July 30,
2003, 407 SCRA 454.
42
Pierre Mayer, Droit international prive, 6e ed, Paris, Montchrestien 1998, p. 22; Paul Lagarde, 'Public Policy',
International Encyclopedia of Comparative Law (1994), vol. III, Chap. II, p. 57.

5
policy only arises due to the local political and religious pressure. 43 An act may be morally

condemned but it is not clear to say that such act is also legally wrong.44 The validity of

surrogacy contract in Bolita is permissible and enforceable45 thus the contract made is valid

and enforceable in Bolita.46

C. Citizenship of Robert and Emily is Bolita

i. Lex patraie

Under the lex patraie rule, both John and Robert are Bolitian due the right of

surrogacy contract.47 As the capacity of the contract is fulfilled, both parties are governed by

Bolitian law. With regard to Emily, she has the citizenship of Bolita as she was born in

Bolita.48 Therefore both children belong to John due to their nationality.49

ii. Citizenship law in Bolita

John is a genetic parent of Robert. Due to the law of Bolita, Robert can still be

considered as Bolitian citizen as one parent is Bolitian and resided in Bolita at the time of

delivery. Due to this John has taken measurable steps to prevent harm on the welfare of

Robert. As per their surrogacy contract, the plan was for Janet to deliver the child in Bolita –

for the child to clearly be a citizen of Bolita, as John in particular, was concerned on account

of the citizenship and guardianship laws of Garundi. As father was the natural guardian of the

child, Robert should be send back to John as he is intended legal parent and have the right of

custody over Robert. Emily is the child between John and Jane due to marriage. It clearly

43
Compromis, Para. 6, Line 4-5.
44
The Conflicts of Laws by, David McCLean and Kisch Beevers, 6 th edn (2005).
45
Beale, Conflict of Laws 1077 (1935); Goodrich, Conflict of Laws 321 (3d ed., 1949); Lorenzen, Selected
Articles on the Conflict of Laws 261 (1947); Cheatham, Goodrich, Griswold and Reese, Cases and Materials on
Conflict of Laws 493 (3d., ed. 1951).
46
Pershadsingh v Pershadsingh (1988) 40 DLR (4th) 68; Perrin v Perrin 1994 SC 45; Prazic v Prazic [2006]
EWCA Civ 497, [2006] 2 FLR 1128; Pilinska v Pilinska [1955] 1 All ER 631.
47
Albert A. Ehrenzweig, Private International Law volume Three 15 (1977); Hamlyn v Talisker
Distillery[1984] AC 202; Kahler v MidlandBank [1950] AC 24; Forsikringsaktieselskapet Vasta v Butcher
[1989] AC 852, HL and CA 2 All ER 488 (Hobhouse J); Libyan Arab Foreign Bank v Bankers Trust Co [1988]
1 LR 259.
48
Compromis, Para. 4, Line 2.
49
White, Philip L. (2006), "Globalization and the Mythology of the Nation State," In A.G.Hopkins, ed. Global
History: Interactions Between the Universal and the Local Palgrave Macmillan, pp. 257-284.

6
stated that Emily is the citizen of Bolita as she was born in Bolita. 50 Due to the registration of

Emily in the state of Bolita, she is protected under Bolitian law and deemed to be Bolitian

citizen. Due to this, John has taken measurable steps to prevent harm on the welfare of Emily

as he intended to call Emily back to Bolita to protect her from harm. 51 A father is the natural

guardian of the child and guardianship right lies on him.52 Therefore due to the law govern

by Bolita, Emily should be send back to John as he is the intended legal parents and have the

right of custody over Robert.

D. The domicile of Robert is Bolita

i. Robert‘s domicile of origin is Bolita

Domicile of origin is communicated by the operation of law to each person at birth53

and shall remain constant throughout life.54 If the child is legitimate, the domicile of his

father will prevail,55 and if the child is illegitimate,56 it will follow the mother‘s domicile.

But, if a child is born illegitimate but is later legitimated, his father‘s domicile will prevail

from the date of legitimation. Robert is a legitimate child because Bolitian law recognized the

surrogacy contract. Thus, his domicile of origin must follow the father.

ii. Robert‘s domicile of dependency is Bolita

Whereas, domicile of dependency is applicable to child and wife as both are

dependent upon the husband and father and will follow the husband/father‘s domicile of

origin.57 The rule applied immediately upon marriage and retained by the wife throughout

50
Compromis, Para. 4, Line 3.
51
Art 36, Convention of Rights of Child, GA res. 44/25, annex, 44 UN GAOR Supp. (No. 49) at 167, U.N. Doc.
A/44/49 (1989); 1577 UNTS 3; 28 ILM 1456 (1989).
52
Compromis, Para. 9, Line 9.
53
Forbes v Forbes (1854) Kay 341 at 353; Udny v Udny (1869) LR 1 Sc & Div 44 at 457.
54
Westlake, s 248; Dicey, Morris and Collins, Para. 6R-025.
55
Forbes v Forbes (1854) Kay 341 at 353; Udny v Udny (1869) LR 1 Sc & Div 44 at 457.
56
Udny v Udny, supra; Re Wright‘s Trust (1856) 2 K & J 595; Urquhart v Butterfield (1887) 37 Ch D 357;
Carmona v White (1980) 25 SASR 525.
57
D‘ Etchegoyen v D‘Etchegoyen (1888) 13 PD 132; Spiro (1956) 5 ICLQ 196 et seq; Breuning v Breuning
[2002] EWHC 236 (Fam), [2002] 1 FLR 888, 902.

7
the duration of marriage58 and is vastly practiced in majority of cases.59 John‘s domicile of

origin is Bolita thus Robert is deemed as Bolitian based on the rules of domicile of origin that

had laid down the principles that whenever the child is legitimate then the domicile of origin

of the father prevails and the child shall follow his/her father‘s domicile of origin.

E. Alternatively, rights of the Robert and Emily are the priority considerations

i. Best interest of child must be based on the nuclear family

Best interests of the child generally refers to the deliberation that courts undertake

when deciding the type of services, actions, and orders will best serve a child as well as

parties best suited to take care of a child. The best interests of children must be the primary

concern in making decisions that may affect them.60 Robert best interest to nucleus family is

to be together with his biological parents in Bolita. This convention is applicable to Robert

since he is still an infant.61 Robert is entitled to be raised in a complete nucleus family unit

consisting of a biological parents, John and Jane62 and sibling, Emily.63 As for Emily, she is

the citizen of Bolita upon birth thus he is entitled to be together with her traditional family in

Bolita as Jane is considered of having her domicile of dependency there upon marriage with

John. Thus, a family resident in a state shall be united together in Bolita, not in Garundi.64

ii. Robert has right to know biological parents

Robert being the biological child of John and Jane is entitled to know his biological

parents. Janet‘s act of registering Robert as a Garundian citizen and made his father as

unknown clearly intended to conceal Robert‘s biological parents from his knowledge, thus

58
Gray v Farmosa [1963] P 259 at 267; Adams v Adams [1971] P 188 at 216.
59
Re Martin [1900] P 211 AT 227; Re Annesley [1926] Ch 692 at 705; Puttick v A-G[ 1980] Fam 1 at 17; IRC
V Duchess of Portland [1982] Ch 314 at 319-320.
60
Article 3, Convention on the Rights of the Child, GA res. 44/25, annex, 44 UN GAOR Supp. (No. 49) at 167,
U.N. Doc. A/44/49 (1989); 1577 UNTS 3; 28 ILM 1456 (1989).
61
Article 14, Convention on the Rights of the Child, GA res. 44/25, annex, 44 UN GAOR Supp. (No. 49) at
167, U.N. Doc. A/44/49 (1989); 1577 UNTS 3; 28 ILM 1456 (1989).
62
Compromis, Para. 4, Line 7.
63
Gimenez-Exposito v Federal Republic of Germany; Denilauler SNC v Couchet Freres[1980] ECR.
64
Article 14, Convention on the Rights of the Child, GA res. 44/25, annex, 44 UN GAOR Supp. (No. 49) at
167, U.N. Doc. A/44/49 (1989); 1577 UNTS 3; 28 ILM 1456 (1989).

8
directly violates the rights vested to Robert. Every child is subject to the true identity of

themselves and their genetic parents.65

iii. Robert is entitled to a safe, stable and nurturing family and home life

Garundi is deemed to be unstable and improper environment for Robert, a surrogate

child. Garundi condemned the act of surrogacy and it created political and religious tensions

among the local community circles.66 In contrast, Bolita promised a stable and proper

environment of Robert well-being as surrogacy contract is recognized there. Moreover,

Robert‘s home life is in Bolita as both his biological parents reside there.

iv. Robert is entitled to a healthy development of emotional, mental, physical

and social wellbeing

The healthy and stable environment in Bolita will guarantee a holistic development of

Robert as his status being a surrogate child is recognized there and no tensions exist there as

compared to the environment in Garundi.67

F. Orders of Bolita court can be enforced in Garundi

The common law system had long permitted the enforcement of a foreign judgment

within certain defined limits since the objectives of private international law is the protection

of rights acquired under a foreign system of law.68 The practice adopted by English law for

example is that, it had permitted the successful suitor/claimant to bring an action in England

65
Art 17, Convention on the Rights of the Child, GA res. 44/25, annex, 44 UN GAOR Supp. (No. 49) at 167,
U.N. Doc. A/44/49 (1989); 1577 UNTS 3; 28 ILM 1456 (1989).
66
Compromis, Para. 6, Line 2-5.
67
Compromis, Para. 4, Line 11-18, Para. 6, Line 3-7.
68
The Enforcement of Judgments in Europe by Wendy Kennett (2000), pp. 324; Civil Jurisdiction Rules of the
EU and their Impact on Third States by Thalia Kruger (2008); Law of the European Judgments Convention,
Vols one-five by Peter Kaye (1999) pp 675; Civil Jurisdictions and Judgments by T C Hartley (1984) pp 423;
Convention of 1 February 1971 on the Recognition and Enforcement of Foreign Judgments in Civil and
Commercial Matters; Von Mehren and Trautman, ―Recognition of Foreign Adjudications: A Survey and
Suggested Approach‖ (1968) 81 Harvard Law Review 1601 at p 1603; Y.C. Choong, ―Contra Bonos Mores:
Religious Tenets and National Philosophy as the Yardstick for Determining Policy‖, (2007) Volume 9(1)
Australian Journal of Asian Law, pp 176-185; R.F Oppong, ―Canadian Courts Enforce Foreign Non-Money
Judgments‖, (2007) Volume 70 No. 4 Modern Law Review, pp 670-679.

9
on the foreign judgment based on the principles of comity.69 This doctrine laid down that

where a foreign court of competent jurisdiction has adjudicated an order or judgment to other,

such person is obliged to abide it as it had created legal obligation that may be enforced in

that particular country and is bound to be enforced there.70 In the 1978 Economic Treaty, the

countries agreed to form an economic union with a common currency and monetary policy,

respect and comity for each other‘s laws, free commerce and trade, easy travel for citizen

between the two nations, and recognition and enforcement of orders of each other‘s courts.

69
Geyer v Aguilar (1798) 7; Piggott, Foreign judgment, Part I, p 10 et seq.
70
Schibsby v Westenholz (1870) LR 6 QB 155 at 159; The Enforcement of Judgments in Europe by Wendy
Kennett (2000) pp 324, Civil Jurisdiction Rules of the EU and their Impact on Third States by Thalia Kruger
(2008), Law of the European Judgments Convention, Vols one-five by Peter Kaye (1999) pp 675, Civil
Jurisdictions and Judgments by T C Hartley (1984) pp 423.

10
II. JANET AND JANE CAN BE LEGALLY EXTRADITED TO BOLITA FOR TRIAL

A. Economic Union Treaty 1978 constitutes an extradition treaty

i. There is an implied extradition agreement

Extradition is defined as the formal surrender of a person by a State to another State

for prosecution or punishment,71 ‗by virtue of a treaty, reciprocity or comity as between the

respective states‘.72 Despite of an absence of independent extradition treaty, there is an

implied extradition agreement crystallized in the 1978 Treaty.

It provides that both States must respect and comity for each other‘s laws and

recognized and enforced orders of each other‘s courts.73 This agreement impliedly provides

for right to extradition.74 Janet has violated the law of Bolita by breaching the surrogacy

contract and she had stolen genetic material that belonged to Bolita‘s citizen.75 While Jane

had violated the law of Bolita by kidnapping a Bolita‘s citizen from her legal guardian.76

Janet and Jane must be extradited to Bolita to face trial.

Garundi‘s refusal to extradite them will violate the 1978 Treaty and constitute

malice.77 States must fulfill its obligations bona fide.78 The treaty is binding and must be

performed based on the principles of pacta sunt servanda79 and allegans contraria non est

audiendus.80 Failure to do so will incur severe international responsibility.81

ii. ‗Comity‘ is a rule under international law

71
Draft Convention on Extradition, Part I, Article 1 - Use of Terms, The American Journal of International Law,
Vol. 29, Supplement: Research in International Law (1935), pp. 21-31.
72
Bassiouni, Cherif M. (1974) International Extradition and World Public Order. Dobbs Ferry, NY:
A.W.Sijthoff-Leyden, Oceania Publications, pg. 2.
73
Compromis, Para. 1, Line 5.
74
Bassiouni, Cherif M. (1974) International Extradition and World Public Order. Dobbs Ferry, NY:
A.W.Sijthoff-Leyden, Oceania Publications, pg. 311.
75
Compromis, Para. 7 and Para. 10.
76
Compromis, Para. 10.
77
Chorzow Factory Case (Merits) (Germany v. Poland), (1928) P.C.I.J. (Ser. A) No.17, at p.87.
78
Award (1937) 3 UNRIAA p. 1719, at p.1751.
79
Vienna Convention on the Law of Treaties, 1155 UNTS 331, art 26.
80
B Cheng, General Principles of Law: As Applied by International Courts and Tribunals (Cambridge, Grotius
Publications Limited 1987) 141.
81
Chorzow Factory (Indemnity) Case [Germany v. Poland], 1927 PCIJ Series A, No. 9, para. 21.

11
 Comity is a rule of public international law82 which is defined as mutual respect and

courtesy which one country owes to the others.83 It represents good faith in friendship, equity

and justice.84 It is the foundation of States‘ international cooperation.85

B. Requirements under criminal procedures have been fulfilled

i. A prima facie case has been established by Bolitian authorities

A prima facie case is evidence which would be sufficient to justify trial.86 In most

extradition procedures, this is a requirement and a duty for the requesting States to make a

prima facie case against the person requested to be extradited.87

a. Janet has stolen the genetic material belonged to John and Jane

1. The genetic material constitutes property

Property is defined as material things which can be possessed, as well as any right

which may be part of a person‘s patrimony which includes all movables and immovables,

corporeal and incorporeal elements and any other intangible object capable of having value.88

82
Letter from Elihu Root, Secretary of State, to Victor H. Metcalf, Secretary of Commerce and Labor (Mar. 16,
1906), in 288 Domestic Letters Of The Department Of State, cited in 4 Green H. Hackworth, Digest Of
International Law 460 (1942).
83
Ian Brownlie, Principles Of Public International Law 31 (3d ed. 1979); Joseph Story, Commentaries On The
Conflict Of Laws § 33 (1834). Arthur A. Alexander, Foreign Judgments— Enforcements Of— Under The
Comity Of Nations, 17 Geo. L. J. 221 1928-19292; Somportex, Ltd. v. Philadelphia Chewing Gum Corp., 453
F.2d 435, 440 (3d Cir. 1971); Rancis Wharton, A Treatise On The Conflict Of Laws 5 (2d ed. 1881); Hilton v.
Guyot, 159 U.S. 113, 163–64 (1895); Hans Smit, International Res Judicata and Collateral Estoppel, 9 UCLA L.
REV. 44, 53 (1962); Henry Wheaton, Elements Of International Law § 79 (Richard Henry Dana, Jr. ed., 8th ed.
1866).
84
Russian Republic v. Cibrario, 235 N. Y. 255, quoted in Comity, 12 Va. L. Rev. 353 1925-19262, 359.
85
L. Collins, Foreign Relations and the Judiciary (2002), 51 I.C.L.Q. 485, p. 504; "Comity in Modern Private
International Law" in James Fawcett, ed., Reform and Development of Private International Law: Essays in
Honour of Sir Peter North (Oxford, Oxford University Press, 2002).
86
Herlitz. (1994) The meaning of the term "prima facie" 55 La.L.Rev. 391.
87
M. Plachta, Contemporary Problems of Extradition: Human Rights, Grounds for Refusal and the Principle
Aut Dedere Aut Judicare, UNAFEI Resource Material Series (2001), p.72; New Zealand Extradition Act 1999,
Public Act 1999 No 55, Date of assent 20 May 1999, Sec. 74-88, Part 9 – 10; The Extradition Act 2003 (c.41),
Act of the Parliament of the United Kingdom, 1 January 2004, Sec. 71-74 'Arrest'; Venezuela Extradition
Procedures, Section VII of the Organic Code of Criminal Procedure (COPP), 'The Extradition Process', Art. 390
- 395.
88
The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001, Inter-Am. Ct.
H.R., (Ser. C) No. 79 (2001), para 144; Sawhoyamaxa Indigenous Community of the Enxet People v. Paraguay,
Case 0322/2001, Report No. 12/03, Inter-Am. C.H.R., OEA/Ser.L/V/II.118 Doc. 70 rev. 2 at 378 (2003).

12
 The genetic material is capable of being possessed, is movable, is intangible and is

object of value. Janet has violated the law of Bolita by breaching the surrogacy contract and

stealing genetic material that belonged to Bolita‘s citizen contrary to the agreement.89

2. The unborn does not have right to life

Article 6(1) of ICCPR provides for right to life, but it does not extend to the unborn

due to lack of consensus of state practice or opinio juris in deciding whether the unborn may

be protected by virtue of this Article.90 This Article is vague and unclear as to the real

meaning of ‗every human being‘.91 Interpretation of a treaty is according to their ordinary

meaning, and if the terms remain ambiguous, the travaux preparatoires may be referred to.92

In addition, significant judicial decisions derived from Article 2 of ECHR confirm

that the unborn cannot fall within the ambit of this Article.93 Janet cannot rely on this Article

to justify her failure in performing the surrogacy contract as agreed between her and John.

The issue of registration of birth as stated under Article 24(2) of ICCPR will never exist at all

if she gives birth to Robert in Bolita at the very first place as the surrogacy contract required.

b. Jane has kidnapped Emily from John

Jane has violated the law of Bolita by kidnapping a Bolita‘s citizen from her legal

guardian.94 Emily is a citizen of Bolita and under the Bolitian guardianship law, the father is

the legal guardian of the child. Thus, John has complete rights, duties and obligations as to

the Emily. Emily must be returned back to John. Under the Hague Convention, a child who

89
Compromis, Para. 7 and Para. 10.
90
M.J. Bossuyt, Guide to the ‗Travaux Preparatoires‘ of the International Covenant on Civil and Political
Rights, (Dordrecht, 1987), pp. 113-26; D. McGoldrick, The Human Rights Committee, (Oxford, 1991), p. 330.
91
Article 32(a) of Vienna Convention on the Law of Treaties.
92
Vienna Convention on the Law of Treaties, Articles 31 and 32; Lighthouses Case (France v. Greece), 1934
P.C.I.J. (ser.A/B), No.62, 4, 13; Advisory Opinion No.11, Polish Postal Service in Danzig, 1925 P.C.I.J. (ser.B),
No.11, at 6, 39; Conditions of Admission of a State to Membership in the United Nations (Charter, Art. 4), 1948
I.C.J. 57, at 63 (28 Mai); Competence of the General Assembly for Admission of a State to the United Nations,
1950 I.C.J. 4, 8 (3 Mar.).
93
Paton v. UK, App. No. 8416/79, 1980, 19D and R 244; Vo v. France, App. No. 53924/00 ECHR, 2004; Evans
v United Kingdom, App. No. 6339/05, 2006 ECHR 200.
94
Compromis, Para. 10.

13
has been abducted outside from his or her country must be returned back to his or her

habitual residence.95 Emily is a Bolitian citizen and her habitual residence is Bolita.96

ii. The requirement of double criminality has been waived

The rule of double criminality provides that extraditable offenses are defined in terms

of their punishability according to the laws of the two countries by a minimum standard of

severity.97 This rule ‗requires that an act shall not be extraditable unless it constitutes a

crime according to the laws of both the requesting and the requested States‘.98 States may

waive this requirement as agreed between them.99 The 1978 Treaty has impliedly provided

for this.100 Besides, this requirement is a mere procedural formalities and court in Garundi

which hear the extradition request is entitled to set it aside so as to focus on the merits.101

C. The extradition is consistent with the purposes of United Nations

The Preamble succinctly explains that the United Nations wants all members to

practice tolerance and live together in peace with one another as good neighbours. Article

2(2) provides that all States member shall fulfill in good faith all of the obligations.

Article 1(2) and Article 1(3) provide that the purposes of the United Nations are to

develop friendly relations among nations based on respect for the principle of equal rights

and to achieve international co-operation in solving international problems.102 The refusal

to extradite Janet and Jane is hostile to the good relationship of both States and it defeats

these purposes. This is also consistent with Article 55(c) which encouraged peaceful and

95
Hague Convention on the Civil Aspects of International Child Abduction 1980, Preamble.
96
Compromis, Para. 4, Line 4.
97
Shearer, I.A. (1971) Extradition in International Law. Manchester, UK: Manchester University Press, Oceania
Publications, pg. 134; Collins v. Loisel, 259 U.S. 309, 42 S. Ct. 469, 66L. Ed. 956 [1922]; United States v.
Rauscher, 119 U.S. 407, 7 S. Ct. 234, 30 L. Ed. 425 (1886).
98
Ibid. pg. 137.
99
Riley v. The Commonwealth of Australia, (1985), 159 CLR 1 at 12.
100
Compromis, Para. 1.
101
New Mexico ex rel. Ortiz v. Reed, 524 U.S. 151, 118 S. Ct. 1860, 141 L. Ed. 2d 131 (1998).
102
Article 1(3) of the United Nations Charter.

14
friendly relations between States by universal respect for, and observance of, human

rights.103

Article 2(7) states that domestic jurisdiction of any State shall not be intervened. The

Charter of the United Nations recognizes the sovereign equality of all states.104 This Court

has held that state sovereignty is ‗the fundamental principle… on which the whole of

international law rests.‘105 The Declaration on Principles of International Law Concerning

Friendly Relations and Cooperation clearly affirms that in accordance with the Charter, no

State has the right to intervene directly or indirectly in the affairs of any other State. 106

Garundi‘s refusal to extradite Janet and Jane can be construed as intervening in Bolita‘s

internal affairs and its domestic jurisdiction thus inconsistent with this Article.

Garundi cannot invoke ICCPR, ICESCR or any other international treaties to justify

its refusal as obligations under the Charter shall prevail in the event of a conflict.107 Besides,

the party to the treaty cannot invoke provisions of its municipal law as justification for a

failure to perform such treaty.108

D. The extradition is consistent with international treaties

Both States in this case are monism countries as they approved international law to be

one of the sources in interpreting local law and creating national legislations.109 Monism

States assume that the internal and international legal systems form a unity. 110 International

law need not to be translated into national law to be given effects. 111 The act of ratifying the

103
Article 55(c) and 56 of the United Nations Charter.
104
Article 2(1) of the Charter of the United Nations.
105
Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States
of America), [1986] I.C.J. Rep. 14 at para. 263.
106
GA Res. 2625, Annex, UN GAOR, 25th Sess., Supp. No. 28, UN Doc A/5217 (1970) 121.
107
UN Charter, Article 103; R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58, paras. 35 and 39.
108
The Vienna Convention on the Law of Treaties, art. 27; The Development of International Law by the
International Court, Hersch Lauterpacht (ed), Cambridge University Press, 1982, pg. 262.
109
Compromis, Para. 2 ―…as both their Constitutions recognize international law as one of the sources of law in
the interpretation of domestic laws.‖
110
Pieter Kooijmans, Internationaal publiekrecht in vogelvlucht, Wolters-Noordhoff, Groningen, 1994, p. 82.
111
James Atkin, Baron Atkin, in M. Akehurst, Modern Introduction to International Law, Harper Collins,
London, p. 45.

15
international law sources such as treaties and conventions immediately incorporates the law

into national legislation.112

i. Garundi has international obligations to extradite under ICCPR

This Court has held that the ICCPR ‗is applicable in respect of acts done by a State in

the exercise of its jurisdiction outside its own territory.‘113 This is consistent with the pro

homine principle which affords individuals the most favorable standard of protections

possible.114 The human rights values enshrined in this Covenant represent customary

international law.115

a. Bolita is obliged to protect and ensure the rights of its citizen

Article 2(1) provides that State parties are obliged to protect and ensure the rights of

all individuals within its territory and subject to its jurisdiction.116 It explicitly states that each

State Party to the present Covenant undertakes to respect and to ensure to all individuals

within its territory and subject to its jurisdiction the rights recognized in the present

Covenant. Garundi must extradite Janet and Jane to face trial in order to ensure that justice is

done upon its citizen. It is an obligation of Bolita to protect its citizens from any harm.

b. There is no real risk of potential violation under ICCPR

112
G.J. Wiarda, in Antonio Cassese, International Law in a Divided World, Clarendon Press, Oxford, 1992, p.
17.
113
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
2004 I.C.J. 136, 179 (9 July); Communication No. 52/1979, Lopez Burgos v Uruguay, CCPR/C/OP/1 at 88
(1984); General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the
Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13; Gibney, Tomasevski and Vedsted-Hansen, Transnational
State Responsibility for Violations of Human Rights 12 HARV. HUM. RTS. J. 267 277 (1999).
114
U.N. Econ. & Soc. Council [ECOSOC], Report on Promotion and Protection of Human Rights, U.N. Doc.
E/CN.4/2005/103 (Feb. 7, 2005).
115
Strossen, Recent U.S and International Judicial Protection of Individual Rights: A Comparative Legal
Process Analysis and Proposed Synthesis, Hastings Law Journal, 41 Hastings LJ 805; Belgium v. Spain, 1970
ICJ 3,301; William Schabas, International Law and Abolition of the Death Penalty (1998) 55 Wash. & Lee L.
Rev. 797 at 382.
116
UNHCR EXCOM, 'Protection of Asylum Seekers in Situations of Large-scale Influx', Conclusion. No. 22
(XXXII), 1981; UNHCR EXCOM, 'Refugee Women and International Protection', Conclusion No. 39
(XXXVI), 1985; UNHCR, 'Agenda for Protection', UN doc. A/AC.96/965/Add.1, 26 June 2002.

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 Under Article 7, as opined by the Human Rights Committee117, a state party cannot

extradite a person within its jurisdiction where it can be proven that there is a real risk that

that person‘s rights under this treaty will be violated in another State‘s jurisdiction.118

However, these views have not attained the status of customary law; it has not subsequently

been reflected by widespread, consistent or settled State practice.119 Such real risk as stated

under this Article does not exist upon Janet and Jane in order to be extradited to Bolita.

c. The Bolita court is competent for the trial of Janet and Jane

Article 14(1) states that everyone shall be entitled to a fair and public hearing by a

competent, independent and impartial tribunal established by law. Janet and Jane have

violated the law of Bolita and the violation has occurred within the jurisdiction of Bolita. It is

a customary international law that the State where the omission of the crime occurred shall

have jurisdiction for trial.120 States may also deny the request to extradite its citizen if it can

be proven that there will be an unfair trial.121 Request for extradition must be denied if a fair

trial cannot be guaranteed by the requesting State.122 However in this case, there is no

manifest failure on the part of Bolita to provide Janet and Jane for a fair trial. The Bolita

court is in fact competent for this purpose.123

d. John has right to a family life

Janet and Jane criminal acts detriment John‘s right to a family life. The right to a

family is fundamental to human rights. Various treaties and conventions on human rights

117
General Comment 20/44: Torture or to cruel, inhuman or degrading treatment or punishment (art. 7), 3 April
1993, para. 9.
118
Kindler v Canada, UN Doc.CCPR/C/48/D/470/1991 (1993), (Members Wennergren, Lallah, Pocar, Chanet,
Urbina, dissenting), para. 14.6.
119
Judge v Canada, HRC, Communication No. 829/1998 [2003] UN Doc CCPR/C/78/D/829/1998, para. 10.4.
120
Aerial incident of July 27 1955 Case (Preliminary Objections), ICJ Reports 1959 127.
121
Dugard, Reconciling Extradition with Human Rights, 92 A.J.I.L. 187 (1998); Universal Declaration of
Human Rights, G.A. Res. 217(III), art.10, U.N. Doc.A/810, at 71 (1948); ICCPR, art.14; Model Treaty on
Extradition, GA Res. 45/116, annex, 45 U.N. GAOR Supp. No. 49A U.N. Doc. A/45/49 (1990) at Article 3(f).
122
Soering v. United Kingdom (1989), 161 E.C.H.R. (Ser. A), 98 I.L.R. 270.
123
Compromis, Para. 4, Line 11.

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protection affirmed this notion.124 Article 17 explicitly provides that no one shall be subjected

to arbitrary or unlawful interference with his family.125 The same Article states that everyone

has the right to the protection of the law against such interference or attacks, 126 except as

provided by law.127 While Article 23(1) states that the family is the natural and fundamental

group unit of society and is entitled to protection by society and the State. Thus, Robert

must be returned back to John consistent with the rights granted under this Article.

e. Janet‘s right to privacy and protection of honour and reputation is not

absolute

The Committee commented that interference may occur if it envisaged by a law and is

reasonable in the particular circumstances128 and public authorities should be able to obtain

information relating to an individual‘s private life if the knowledge is essential in the interest

of society,129 such as on the ground of national security, public safety, or for the protection of

the rights and freedoms of others.130 Besides, Bolita must ensure Bolitian citizens‘ right to

freely receive information of all kinds.131 Janet cannot rely on these rights as a bar to her

extradition. Any court decision will not be done arbitrarily but in fact through legitimate

operation of law. It is essential in the interest of society for the public to know the truth.

ii. Garundi has international obligations to extradite under ICESCR

124
International Covenant on Civil and Political Rights, 16 Dec. 1966, 999 U.N.T.S. 171, Arts. 17, 23;
Convention on the Rights of the Child, 20 Nov. 1989, 1577 U.N.T.S. 3; European Convention for the Protection
of Human Rights and Fundamental Freedoms, 4 Nov. 1950, Art. 8; UNHCR, 'UNHCR Guidelines on
Reunification of Refugee Families', July 1983; Article 16 of UDHR; Article 4(3) of the Protocol II of the
Geneva Convention; Article 23 of the European Council Directive on the on minimum standards for the
qualification of third country nationals and stateless persons as refugees or as persons who otherwise need
international protection and the content of the protection granted.
125
Article 17(1), ICCPR.
126
Article 17(2), ICCPR.
127
General Comment No. 16: The right to respect of privacy, family, home and correspondence, and protection
of honour and reputation (Art. 17): 08/04/88.
128
UNHCR, General Comment No. 16: The right to respect of privacy, family, home and correspondence, and
protection of honour and reputation (Art. 17), ¶¶ 3–4 (1988).
129
Francisco Martin, Et Al., International Human Rights Law & Practice: Cases, Treaties, And Materials 647–
53 (1997) (citing Cremieux v. France, 256-B Eur. Ct. H.R. (ser. A) (1993)).
130
European Convention on the Protection of Human Rights and Fundamental Freedoms art. 8(2), Nov. 4, 1950,
213 U.N.T.S. 222.
131
ICCPR, art 19(2); Gauthier v Canada, UN Doc CCPR/C/65/D/633/95 (1999).

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 Article 10(1) provides that the widest possible protection and assistance should be

accorded to the family.132 In the same vein, Article 10(3) also states that children and young

persons should be protected from economic and social exploitation.133 John is the legal

guardian of Robert and he also the legal guardian of Emily, thus this Convention required this

family relationship to be protected in any event. Besides, there is reasonable possibility that

Robert might be exploited by Janet since she is not his biological mother, thus she lacks love

and affection upon him as compared to John.134

E. The principle of aut dedere aut judicare is applicable

There is a duty for States to prosecute under its national laws the human rights

violations. Garundi has ratified the UN Charter and the ICCPR which clearly provide that

human rights must be respected. Failure to prosecute human rights violations is contrary to

objectives and purposes of these treaties. Janet and Jane have violated many of the Articles

under ICCPR and thus Garundi must take all possible actions consistent with the spirit of this

Convention. As the 1978 Treaty provides for comity and respect to each other‘s laws,

Garundi has obligation to honour this treaty. Garundi has to prosecute Janet and Jane or

otherwise it must extradite them to Bolita to face trial under Bolitian laws.

F. Arguendo, Bolita‘s claim on behalf of John is timely

Under the rule of international law, the complainant must carry his case to the highest

available local court before being able to invoke the diplomatic protection of his country. 135

132
Article 10(1), ICESCR.
133
Article 10(3), ICESCR.
134
Report of the Special Committee on Peacekeeping Operations and its Working Group, U.N. GAOR, 59th
Sess., Supp. No. 19, UN Doc A/59/19/Rev.1 (2005), art. 3; Res. 1674, art. 30; Children and Armed Conflict, SC
Res. 1539, UN SCOR, 4948th Mtg., UN Doc. S/RES/1539 (2004), art. 10; SC Res. 1325, UN SCOR, 4213th
Mtg., UN Doc. S/RES/1325 (2000).
135
Lord McNair, International Law Opinions, vol. II (Cambridge: Cambridge University Press, 1956) at 312;
Ian Brownlie, Principles of Public International Law (Oxford: Oxford University Press, 2003) at 501; Jan
Paulsson, Denial of Justice in International Law (Cambridge: Cambridge University Press, 2005) at 100.

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Tribunal decisions136 and international instruments137 recognize this principle, which is based

on fundamental concepts of territorial sovereignty and equality.138 However, the rule of

exhaustion of domestic remedies is not absolute.139 Thus, where the local remedies are non-

existent or are not capable of dealing with the issues at hands as international law requires, a

resort to international measures will not be stopped.140

136
Panevezys-Saldutiskis Railway Case (Estonia v. Lithuania) (1939), P.C.I.J. (Ser. A/B) No. 76 at para. 18;
Ambatielos case (Greece v. UK) (1956), XII R.I.A.A. 83; Interhandel case (Switzerland v. USA), [1959] I.C.J.
Rep. 6 at 26-29.
137
International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, art. 41(c);
American Convention on Human Rights, 18 July 1978, 1144 U.N.T.S. 123, art. 46(1)(a); Convention for the
Protection of Human Rights and Fundamental Freedoms, 18 May 1954, 213 U.N.T.S. 222, art. 35(1).
138
Alwyn V. Freeman, The International Responsibility of State for Denial of Justice (London: Longmans,
Green and Co. Ltd., 1938) at 416-17.
139
Art. 46 & 47, American Convention; Exceptions to the Exhaustion of Domestic Remedies in Cases of
Iridigency, Advisory Opinion of the Inter-American Court of Human Rights, 1990, 12 HRLJ, 1991, p. 20, and
Report of the Inter-American Commission of Human Rights 1993, Washington, 1994, pp. 148, 185 and 266;
Jawara v. The Gambia (Admissibility), (2000 ACHPR, Comm. Nos. 147/95 and 149/96.
140
Ibid.; Johnston v. Ireland, European Court of Human Rights, Series A, No. 112 (1986); Open Door and
Dublin Well Woman v. Ireland, European Court of Human Rights, Series A, No. 246 (1992).

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 PRAYER FOR RELIEF

For the foregoing reasons, Republic of Bolita respectfully requests this Honorable Court to:

I. DECLARE that the Custody of Robert Belongs to John

DECLARE that the Custody of Emily Belongs to John

II. DECLARE that Janet Can be Legally Extradited to Bolita for Trial

DECLARE that Jane Can be Legally Extradited to Bolita for Trial

RESPECTFULLY SUBMITTED

-------------------------------------------

AGENTS FOR THE APPLICANT

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