JTXT9001099898 Nalsar Unhcr Public Intl Law Moot 02 2021 TM Rajnarayanverma004 Gmailcom 20220408 223015 1 21

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Page 1 Friday, April 08, 2022

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2nd NALSAR UNHCR Public International Moot, 2021

Best Team Memorial - Respondent
Case Concerning the Okuzan Refugees From Mayzan

At the Peace Palace
The Hague, The Netherlands
Federal States of Pemola … Applicant;
Versus
State of Boliria&Republic of Makonda … Respondents.
TABLE OF CONTENTS
TABLE OF ABBREVIATIONS 4
INDEX OF AUTHORITIES 6
STATEMENT OF JURISDICTION 10
STATEMENT OF FACTS 11
ISSUES RAISED 13
SUMMARY OF ARGUMENTS 14
ARGUMENTS ADVANCED 16
I. THAT BOLIRIA AND MAKONDA HAVE CONFORMED WITH ALL OBLIGATIONS 16
UNDER INTERNATIONAL LAW TO PROVIDE PROTECTION TO ALL THOSE OKUZAN
ASYLUM SEEKERS FROM MAYZAN WHO SEEK ITS PROTECTION.
A. Boliria and Makonda have allowed asylum seekers refuge. 16
B. Boliria and Makonda are within their discretionary rights to allow 16
refuge
II. THAT BOLIRIA AND MAKONDA HAVE NOT VIOLATED THEIR OBLIGATIONS 19
UNDER THE 1951 CONVENTION, 1967 PROTOCOL, ICCPR, CAT, UNCLOS AND
OTHER RELEVANT INTERNATIONAL LAWS.
A. Boliria and Makonda have not violated their obligations under 1951 19
Refugee Convention.
a. Boliria's measure of the cessation of refugee status of Okuzans is 19
not in violation of the 1951 Convention.
b. Makonda's measure of interdicting Okuzans in high seas is not in 20
violation of the 1951 Convention.
B. Boliria and Makonda have not violated their obligations under the 21
Convention Against Torture.
a. The violence against Okuzans by the majority Mayzans cannot be 21
considered as ‘torture’.
b. The razing of houses and burning of crops does not fall under the 22
definition of ‘torture’.
c. Arrest and detention of Okuzans do not fall under the definition of 22
‘torture’.
d. The isolated instances of torture do not satisfy the requirement of 22
Article 3 of the CAT.
C. Boliria and Makonda have not violated their obligations under the 23
International Covenant on Civil and Political Rights.
a. The arrest of Okuzans cannot be contemplated as harm under 23
Article 6 or 7.
b. There were no substantial grounds from believing that Okuzans 24
faced a real risk of irreparable harm on return.
D. Makonda has not violated its obligations under the UNCLOS. 24

III. THAT BOLIRIA AND MAKONDA DO NOT HAVE AN ERGA OMNES 25
OBLIGATION TO THE PRINCIPLE OF NON-REFOULEMENT.
A. The Principle of non-refoulement is not a principle of Customary 26
International Law
B. The principle of non-refoulement cannot be construed as a peremptory 27
norm.
C. Alternatively, in situations of mass influx, principles of non- 28
refoulement cannot be applicable.
IV. THERE IS NO SITUATION OF STATELESSNESS FOR THE OKUZAN PEOPLE 29
THAT ARISES IN THIS CASE AND BOLIRIA AND MAKONDA HAVE NO
OBLIGATION TO ADDRESS IT.
A. Okuzans have Mayzan nationality. 29
B. Okuzan people cannot be termed to be stateless 30
C. There is no obligation for Boliria and Makonda to address it. 31
PRAYER 32
TABLE OF ABBREVIATIONS
& Ampersand (And)
— Paragraph
AALCO Asian-African Legal Consultative Organization
AC Appeal Cases
All ER All England Law Reports
Annex Annexure
Apr April
Art Article
Austl Australia
Belg Belgium
CAT Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment
CIL Customary International Law
Co. Company
Colom. Colombo
DCC District Criminal Court
Dec December
Dept Department
Doc Document
ECHR European Court of Human Rights
Ed Edition
EU European Union
Eur. Ct. H.R. European Court of Human Rights
Feb February
Feb February
HCA High Court of Australia
HL House of Lords
I.C.J. International Court of Justice
i.e. Id est
I.L.C International Law Commission
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights

Id. Ibid
IDI Institut de Droit Internationale
Intl International
Jan January
Jul July
MoU Memorandum of Understanding
Mr. Mister
NGO Non-Governmental Organization
No Number
OPF Okuzans People Front
Para Paragraph
Res Resolution
Rev Revised
Supp. Supplement
U.N. United Nations
U.N.G.A. United Nations General Assembly
U.N.T.S. United Nations Treaty Series
U.S. United States
UDHR Universal Declaration of Human Rights
UKHL United Kingdom House of Lords
UNCLOS United Nations Convention on the Law of the Sea
UNHRC United Nations Human Rights Council
v. Versus
INDEX OF AUTHORITIES
ARTICLES
Asian-African Legal Consultative Organization (AALCO), Bangkok Principles 17
on the Status and Treatment of Refugees, 31 Dec., 1966.
Felice Morgenstern, The Right of Asylum, 1949 BRrr. Y.B. INT'L L. 327. 18
Laura van Waas, Amal de Chickera and Zahra Albarazi, The World's 31
Stateless, INSTITUTE ON STATELESS AND INCLUSION 14 (Dec. 2014),
https://files.institutesi.org/worldsstateless.pdf.
Louis B. Sohn and T. Buergenthal (eds.), The Movement of Persons across 18
Borders, Studies in Transnational Legal Policy, 23 AMERICAN SOCIETY OF
INTERNATIONAL LAW 90 (1992).
Michael Byers, Conceptualising the Relationship between Jus Cogens and 28
Erga Omnes Rules, 66 NORDIC JOURNAL OF INTERNATIONAL LAW, 211-39(1997).
Michael R. Taylor, Illegal Immigration and Moral Obligation, 22(1)PUBLIC 31
AFFAIRS QUARTERLY 29, (2008).
P. Constable, Afghan refugees facing eviction, Washington Post, June 16, 27
2001, A-14.
R. Arnold, What is statelessness?, UNITED NATIONS HUMAN RIGHTS COMMISSION, 31
https://www.unhcr.org/ibelong/wp-content/uploads/UNHCR-Statelessness-
2pager-ENG.pdf (last visited Apr. 15, 2021).
Rosemary, B., Andrew, S., The Safe Country Notion in European Asylum 26
Law, 9 HARV. HUM. RIGHTS J.187 (1996).
Ted Chiricos, Elizabeth K. Stupi, Brian J. Stults and Marc Gertz, 31
Undocumented Immigrant Threat and Support for Social Controls, 61(4)
STUDY OF SOCIAL PROBLEMS 673, (2014).

BOOKS
BLACK'S LAW DICTIONARY (revised 4th ed., 1968). 30
GUY S. GOODWIN-GILL, INTERNATIONAL LAW AND THE MOVEMENT OF PERSONS 18
BETWEEN STATES 203 (Oxford, Clarendon Press, 1978).
Illegal Immigrant, CAMBRIDGE DICTIONARY, 31
https://dictionary.cambridge.org/dictionary/english/illegal-immigrant (last
visited Apr. 15, 2021).
JAMES C. HATHAWAY, THE LAW OF REFUGEE STATUS (Butterworth 1991). 27
KARL DOEHRING, ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW (Elsevier Science 18
Publishers, 1992).
KAY HAILBRONNER, NON-REFOULEMENT AND “HUMANITARIAN” REFUGEES: CUSTOMARY 27
INTERNATIONAL LAW OR WISHFUL LEGAL THINKING?’ (Martinus Nijhoff Publishers,
1988).
NEHEMIAH ROBINSON, CONVENTION RELATING TO THE STATUS OF REFUGEES: ITS 18
HISTORY, CONTENTS AND INTERPRETATION (Institute of Jewish Affairs 1953).
PETER MHORTALANCZUK, AKEHURST'S MODERN INTRODUCTION TO INTERNATIONAL 18
LAW (7th rev. ed., 1997).
RICHARD PLENDER, INTERNATIONAL MIGRATION LAW (Rev. 2nd ed., 1988). 18
THE DIPLOMATIC PROTECTION OF CITIZENS ABROAD OR THE LAW OF INTERNATIONAL 18
CLAIMS (The Banks Law Publishing Co., 1915).
CASES
A.R. v. The Netherlands, No. 203/2002, CAT/C/31/D/203/2002 (2003). 21
Adan v. Secretary of State for the Home Department, [1999] 1 A.C. 293. 19
Asylum Case (Colom. v. Peru), 1950 I.C.J. Rep. 266 (Nov. 20) 26
BL v. Australia, No. 2053/2011, CCPR/C/112/D/2053/2011 (2014). 24
BS v. Canada, No. 166/2000, UN Doc CAT/C/27/D/166/2000 (2001). 22
Bugdaycay v. Secretary of State for the Home Department, (1987) 1 All ER 17
940 (HL).
Case Concerning the Barcelona Traction, Light and Power Company Limited, 25
(Belg. v. Spain), 1970 I.C.J. 3 (Feb. 5).
Case concerning the North Sea Continental Shelf (Germany v. Denmark), 26
Judgment, 1969 I.C.J. Rep. 3. (Feb. 20).
Cruz Varas v. Sweden, Application No. 15567/89, 20 March 1991. 27
H.M.H.I. v. Australia, No. 177/2001, CAT/C/28/D/177/2001 (2002). 22
Hirsi Jamaa v. Italy, 2012-II Eur. Ct. H.R. 97 (2012). 17
K v. Denmark, No. 2393/2014, CCPR/C/114/D/2393/2014 (2015). 24
Khlaifia v. Italy [GC], 16483 Eur. Ct. H.R. 387 (2016). 18
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 26
I.C.J. Rep. 226.
Louis De Raedt v. Union of India, (1991) 3 SCC 554. 17
Minister for Immigration and Multicultural Affairs v. Haji Ibrahim, [2000] 20
HCA 55 (Austl.).
MV v. The Netherlands, No. 201/2002, UN Doc CAT/C/30/D/201/2002, 22
(2003).
N.D. and N.T. v. Spain, No. 8695/2013, Eur. Ct. H.R. 320 (2015). 18
P.T. v. Denmark, No. 2272/2013, CCPR/C/113/D/2272/2013, (2015). 24
Prosecutor v. Katanga, Case No. ICC-01/04-01/07-2635, Decision on the 24
Prosecutor's Bar Table Motions, (Dec. 17, 2010), https://www.icc-
cpi.int/CourtRecords/CR2010_11294.PDF.
Question Concerning the Acquisition of Polish Nationality, Advisory Opinion, 29

1923 P.C.I.J. (ser. B) No. 7 (Sept. 15).
R. v. Secretary of State for the Home Dept., Ex Parte Sivakumaran, 1988 All 17
ER 193 (HL).
Regina v. Special Adjudicator (Respondent) ex parte Hoxha (FC) 19
(Appellant), [2005] UKHL 19.
S.K. v. Canada, No. 2484/2014, CCPR/C/127/D/2484/2014 (2019). 23
Soering v. United Kingdom, Application No. 14038/88, 7 July 1989. 27
SV v. Canada, No. 49/1996, UN Doc CAT/C/26/D/49/1996 (2001). 22
W.G.D. v. Canada, No. 520/2012 (CAT/C/53/D/520/2012) (2015). 21
X v. Canada, No. 2366/2014, CCPR/C/115/D/2366/2014 (2015). 23
X v. Denmark, No. 458/2011, CAT/C/53/D/458/2011 (2014). 21
Y v. Canada, No. 2314/2013, CCPR/C/116/D/2314/2013 (2016). 23
Y.H.A. v. Australia, No. 162/2000, CAT/C/27/D/162/2000 (2002). 21
TREATISES
Geneva Convention Relating to the Status of 14, 16, 17, 19, 20, 21, 25, 29,
Refugees, Jul. 28 1951, 189 U.N.T.S. 137. 31
International Covenant on Civil and Political 23
Rights, Dec. 16, 1996, 999 U.N.T.S. 171.
Protocol against the Smuggling of Migrants by 25
Land, Sea and Air, Nov. 15, 2000, 2241 U.N.T.S.
507.
Protocol Relating to the Status of Refugees, Jan. 18,25
31, 1967, 606 U.N.T.S. 267.
Statute of the International Court of Justice art. 25
38(1)(b).
Statute of the Office of the United Nations High 27
Commissioner for Refugees, G.A. Res. 428(V),
Annex, U.N. Doc. A/1775, para. 1 (1950).
United Nations Convention against Torture and 21
Other Cruel, Inhuman and Degrading Treatment
or Punishment art. 3, Dec. 10, 1984, 1465
U.N.T.S. 85.
United Nations Convention on the Law of the Sea, 25
Dec. 10, 1982, 1833 U.N.T.S. 397.
US v. Matta-Ballesteros, 71 F.3d 754, 764 (9th 26
circuit, 1995).
Vienna Convention on the Law of Treaties, May 23, 26,27
1969, 1155 U.N.T.S.331.
UNITED NATIONS SOURCES
G.A. Res. 36/148, U.N.Doc. A/RES/36/148 (Dec. 16, 1981). 28
G.A. Res. 69/119 (Dec. 10, 2014). 18
General Comment No. 2, CAT/C/GC/2/CRP.1/Rev.4 (2007). 21
HRC, General Comment No. 31: The Nature of the General Legal Obligation 23
imposed on State Parties to the Covenant, CCPR/C/21/Rev.1/Add/13 (Mar.
29, 2004).
Int’l Law Comm’n, Rep. on Draft Articles on Expulsion of Aliens, U.N. Doc. 18
No. A/69/10, (2014).
Int'l Law Comm'n, Draft conclusion 3, Peremptory Norms of General 26
International Law (Jus Cogens), Oral interim report, Mr. Charles Chernor
Jalloh, Seventieth session (14 May 2018).

UNHCR, Handbook on Procedures and Criteria for Determining Refugee
Status and Guidelines on International Protection, HCR/1P/4/ENG/REV. 4 19
(Feb., 2019).
Universal Declaration of Human Rights, 10 Dec., 1948, U.N.G.A. Res. 217 A
(III) (1948). 16,17
STATEMENT OF JURISDICTION
The Federal States of Pemola [“Pemola”], the State of Boliria [“Boliria”] and the
Republic of Makonda [“Makonda”] submit the following dispute to the International
Court of Justice [“ICJ”]. Pursuant to Article 40, paragraph 1 of the Statute of the ICJ
[“the Statute”], States may bring cases before the Court “either by the notification of
the special agreement or by a written application addressed to the Registrar.” The
parties submitted their dispute by a special agreement to the ICJ regarding
differences between them concerning The Okuzan Refugee from Mayzan signed at
Hague, Netherlands dated 311 January, 2021.The above is without prejudice to the
Respondent's right of raising any preliminary question with regards to the jurisdiction
of this Hon'ble Court pursuant to Article 79 of the Rules of the Court.
STATEMENT OF FACTS
OKUZAN PEOPLE IN MAYZAN
The state of Mayzan contains the Okuzan people who constate 28% of the
Mayzanian population. The Okuzan people follow the religion of Shinzou, which is
different from the religion followed by the religion followed by the majority population
which is Kyarism. The Okuzans originate mostly form the Eastern Province of Mayzan.
The Okuzans have been a suppressed people in the country of Mayzan, which led to
the NDP Government to enact legislation- Okuzan Protection Against Violence Act for
their protection
OKUZAN CRISIS IN MAYZAN
The MNF party in Mayzan endorses the belief that the Okuzan people are illegal
immigrants in the country. They belief in a homogenous Mayzan state without the
Okuzan people. In 2013 the MNF was given a vast mandate in the election. Once in
power, the MNF repealed the Okuzan Protection Against Violence Act. In reponse to
these measures, the Okuzan People's Front was created to fight for Okuzan Rights.
With several Anti-Okuzan sentiments rising inside Mayzan, the MNF party was re-
elected and they sought to review the citizenship of the Okuzans. Subsequently, a
bomb blast was conducted in three cities of Mayzan by the Freedom Fighters of
Okuzan. Subsequently, the MNF government declared an emergency in the Eastern
Province of Mayzan and began making arrests.
OKUZAN MIGRATION TO BOLIRIA
Fearing the widespread persecution by the MNF govenment, the Okuzan people
people crossed the border and entered into the state of Boliria. Despite all efforts by
the Bolirian and other organizations there was a paucity of food and sanitary which
could be given to the okuzan migrants. To this end, Boliria enacted the Refugee Status
Determination system to admit Okuzans into Boliria. Over 200,000 Okuzans entered
the territory of Boliria. By May 2020, there was an end to the emergency situation in
the Eastern Province of Mayzan. To prevent a political crisis, the Boliria entered into an
MoU with Mayzan to return back the Okuzan people who could prove their citizenship.
In. light of this Boliria announced that the refugee status of the Okuzan people would
cease to exist from 01 January, 2021.
OKUZAN MIGRATION TO MAKONDA
Fearing persecution on their return to Mayzan, the Okuzans crossed the Calasian
Sea and entered Makonda. To this end, there were several smugglers who would
transport Okuzans from Boliria to Makonda. By September, 2020 Makonda received

3000 Okuzans. Over the next month, Joran and Ligos who were Makonda's neighbors
also began receiving Okuzans. In order to prevent illegal migration, the three countries
signed an MoU to secure the Calasian Sea. Several Okuzans were returned back to
Boliria for being illegal immigrants. While this persisted, an NGO named Human Rights
Alert released a report which highlighted that the Mayzan Government was
persecuting the Okuzan people in the Eastern Province. The report mentioned that the
actions of Boliria and Mayzan violated the principle of non-refoulement.
INVOLVEMENT OF PEMOLA
The Republic of Pemola was a neighbour to Mayzan, it believed in upholding all the
principle of the 1951 Refugee Convention; and to that end, it sought to create a
trilateral dialogue between itself Boliria and Makonda for accepting Okuzan refugees
and upholding the principle of non-refoulement. However, these negotiations failed. To
reach a solution over these failed negotiations, the three countries decided to refer the
matter to the ICJ to discuss the nature of Obligations which Boliria and Makonda owed
to the Okuzan Refugees.
ISSUES RAISED
-I-
WHETHER BOLIRIA AND MAKONDA HAVE CONFORMED WITH ALL OBLIGATIONS UNDER
INTERNATIONAL LAW TO PROVIDE PROTECTION TO OKUZAN REFUGEES WHO FALL UNDER THEIR
JURISDICTION?
-II-
WHETHER BOLIRIA AND MAKONDA HAVE VIOLATED THEIR OBLIGATIONS UNDER THE CONVENTION
RELATING TO THE STATUS OF REFUGEES, 1951 AND ITS PROTOCOL RELATING TO THE STATUS OF
REFUGEES OF 1967, THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, 1966,
CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR
PUNISHMENT, 1984, UNITED NATIONS ON THE LAW OF THE SEA, 1982 AND OTHER RELEVANT
INTERNATIONAL LAWS?
-III-
WHETHER BOLIRIA AND MAKONDA HAVE AN ERGA OMNES OBLIGATION TO THE PRINCIPLE OF NON-
REFOULEMENT?
-IV-
WHETHER THERE IS A SITUATION OF STATELESSNESS FOR THE OKUZAN PEOPLE AND IF BOLIRIA
AND MAKONDA HAVE AN OBLIGATION TO ADDRESS IT?
SUMMARY OF ARGUMENTS
A. WHETHER BOLIRIA AND MAKONDA HAVE CONFORMED WITH ALL OBLIGATIONS UNDER
INTERNATIONAL LAW TO PROVIDE PROTECTION TO OKUZAN REFUGEES WHO FALL UNDER
THEIR JURISDICTION?
Boliria and Makonda have fulfilled their obligations under International law while
granting asylum to the Okuzans. The right to asylum is not an absolute right, rather it
is conditional on the acceptance of asylum by the host state. In the present dispute,
Makonda and Boliria have given a fair chance to the Okuzan asylum seekers to gain
asylum. In any case, Boliria and Makonda have a right to deny the grant of asylum as
they can exercise their sovereign discretion. Therefore, there is no binding obligation
on the states of Boliria and Makonda to grant any asylum and hence, they are in
conformity to their obligations under international law.
B. WHETHER BOLIRIA AND MAKONDA HAVE VIOLATED THEIR OBLIGATIONS UNDER THE
CONVENTION RELATING TO THE STATUS OF REFUGEES, 1951 AND ITS PROTOCOL
RELATING TO THE STATUS OF REFUGEES OF 1967, THE INTERNATIONAL COVENANT ON
CIVIL AND POLITICAL RIGHTS, 1966, CONVENTION AGAINST TORTURE AND OTHER
CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT, 1984, UNITED NATIONS
ON THE LAW OF THE SEA, 1982 AND OTHER RELEVANT INTERNATIONAL LAWS?
The Respondents submit that Boliria and Makonda have not violated their
obligations under the relevant international law and international conventions. Boliria's
measure of cessation of Okuzan's refugee status is not a violation of the 1951
Convention relating to the Status of Refugees [“Refugee Convention”] as there has
been a fundamental change in circumstances in connection with which Okuzans were
recognized as a refugee. Additionally, the obligation of non-refoulement is inapplicable
beyond the territorial boundaries of a State. As a result, the measures of interdiction
undertaken on high seas is not in violation of the Refugee Convention.
Boliria and Makonda have not violated their obligations under the Convention
against Torture [“CAT”] as the acts enumerated in the Compromis, though may
amount to cruel or inhuman treatment, butdo not raise to the level of ‘torture’ under
Article 1 of the CAT. Consequently, the Okuzans are not subject to the protection
against refoulement under Article 3 of the CAT is it solely applies to actions
contemplated under Article 1 of the CAT.
Boliria and Makonda have not violated their obligations under the International
Covenant on Civil and Political Rights [“ICCPR”] as the arbitrary arrests or detention of
Okuzans cannot be termed as harm contemplated under Article 6 or 7 of the ICCPR.
Further, there were no substantial grounds to believe that Okuzans will face a real risk
of irreparable harm upon their return to Mayzan. Boliria and Makonda have not violated
their obligations under the United Nations Convention on the Law of the Seas as their
interception measures were in conformity with Article 110 of the UNCLOS and were
within their rights under customary international law.
C. WHETHER BOLIRIA AND MAKONDA HAVE AN ERGA OMNES OBLIGATION TO THE
PRINCIPLE OF NON-REFOULEMENT?
The principle of non-refoulement does not have an erga omnes standing on two
basis- first, it is not a part of customary international law and second, it has not
obtained jus cogens status. Contained under the 1951 Refugee Convention, the
principle of non-refoulment creates human rights obligations on states parties. Owing
to the fact that the principle is not a part of CIL and has not obtained jus cogens
status, it does not allow the Applicant to have an erga omnes standing. In any case,
the principle of non-refoulement cannot obtain a erga omnes standing as the present
migrant crisis is one of a mass influx. In such instances, the principle of non-
refoulement loses it binding and non-derogatory value.
D. WHETHER THERE IS A SITUATION OF STATELESSNESS FOR THE OKUZAN PEOPLE AND IF
BOLIRIA AND MAKONDA HAVE AN OBLIGATION TO ADDRESS IT?
The Respondent submits that there is no situation of statelessness for the Okuzan
people and Boliria and Makonda have no obligation to address it. The Okuzans people
are the nationals of Mayzan as per the jus soli citizenship laws of the country. They
only require to furnish the relevant documents in order to prove their citizenship. In
this regards, undocumented persons cannot be considered stateless. Consequently,
Okuzans who do not have the necessary documents to prove their citizenship cannot
be considered stateless.
The governments of Boliria and Mayzan was reasonable to transfer the refugees
back to Mayzans who had expressly welcomed them back. Makonda is thus willing to
consider Mayzans as its nationals under the operation of its law, subject only to the
furnishing of necessary documents. Therefore, in such circumstances it cannot be
claimed that Okuzans are stateless and as a result thereof there is no obligation upon
Boliria and Makonda to address it.
ARGUMENTS ADVANCED
I. THAT BOLIRIA AND MAKONDA HAVE CONFORMED WITH ALL OBLIGATIONS UNDER
INTERNATIONAL LAW TO PROVIDE PROTECTION TO ALL THOSE OKUZAN ASYLUM SEEKERS
FROM MAYZAN WHO SEEK ITS PROTECTION.

The Countries of Boliria and Makonda have conformed to all obligations under
International Law to provide protection to the Okuzan asylum seekers. The grant of
asylum is the foundation to international refugee law. Boliria and Makonda have
created a system to allow asylum seekers refuge [A]. Boliria and Makonda are within
their discretionary rights to provide asylum under international law [B].
A. BOLIRIA AND MAKONDA HAVE ALLOWED ASYLUM SEEKERS REFUGE.
Both Boliria and Makonda have created a system to allow asylum seekers refuge.
Boliria created a system called the Refugee Status Determination system in order to
allow refugees to enter their country.1 Additionally, Makonda had also allowed several
of the illegal immigrants to enter its territory. It only sought to reduce irregular
immigration, which was its responsibility under International law.
Further, the MoU which was signed between Makonda and the two states of Joran
and Ligos, sought to reduce the illegal immigration2 upholds one of the important
aspects of seeking asylum under the 1951 Refugee Convention.
Lastly, it is pertinent to that the rights of the Okuzans under Art. 14 of the UDHR3
have not been violated as their right to seek refuge has not been restricted by
Makonda.4 Whenever states allow the asylum seekers the right to seek refuge, they
fulfil their obligations under the UDHR.
B. BOLIRIA AND MAKONDA ARE WITHIN THEIR DISCRETIONARY RIGHTS TO ALLOW
REFUGE
A State has the sovereign right to grant or refuse asylum in its territory to a
refugee.5 travaux preparatoires of UDHR also recognizes that refugee has right to only
seek asylum but not to be granted asylum.6 The State enjoys broad discretion in
determining whether the migrant is to be granted asylum or to use the right of
expulsion,7 which has been characterized as an inherent attribute of the sovereignty of
every State;8 subject to restrictions imposed in Article 32 of Refugee Convention.9
However, Article 32 of Refugee Convention deals with the expulsion of only those
refugees who are lawfully present in the country.10 Consequently, illegal immigrants
may also be expelled on other grounds than those specified in Article 3211 such as
entry in violation of the immigration laws of the territorial State.12
It is averred that Boliria and Makonda have jurisdiction over its own territory on
account of their sovereignty13 , and the authorities of the state have discretion in
granting asylum to asylum seekers in accordance with domestic and international
laws.14 Although, Article 14 of the Universal Declaration of Human Rights15 states
that:“Everyone has the right to seek and to enjoy in other countries asylum from
persecution.” The discretionary power on granting asylum based on objective data and
the testimony of the asylum- seeker lies with the authorities of the state where asylum
has been applied.16
A State has the sovereign right to grant or refuse asylum in its territory to a
refugee.17 The state enjoys broad discretion18 in determining whether the migrant is to
be granted asylum or to use the right of expulsion, which has been characterized as an
inherent attribute of the sovereignty of every state19
At its sixty-sixth session in 2014, the International Law Commission (ILC) adopted
a set of “Draft articles on the expulsion of aliens”.20 Article 9 of the Draft Articles21 ,
inter alia, states:“The collective expulsion of aliens is prohibited [However] A State
may expel concomitantly the members of a group of aliens, provided that the
expulsion takes place after and on the basis of an assessment of the particular case of
each individual member of the group in accordance with the present draft articles.”
In its commentary on Article 9 of the Draft Articles22 , the International Law
Commission (ILC) noted:“The prohibition of the collective expulsion of aliens set out in
paragraph 2 of the present draft article should be read in the light of paragraph 3,
Page Friday, April 08, 2022
which elucidates it by specifying the conditions under which the members of a group
of aliens may be expelled concomitantly without such a measure being regarded as a
collective expulsion within the meaning of the draft articles.”
The European Court of Human Rights in its 13 February, 2020 order in the matter of
N.D. and N.T. v. Spain23 quoting Khalifia v. Italy24 stated that:
“This right to be heard, which applies as a fundamental principle,
(a) guarantees to every person the opportunity to make known his or her views
effectively during an administrative procedure and before the adoption of any
decision liable to affect his or her interests adversely; and
(b) is designed to enable the competent authority effectively to take into account
all relevant information, to pay due attention to the observations submitted by
the person concerned, and thus to give a detailed statement of reasons for its
decision.”
The Court further held that: “…the alien need not necessarily be heard in respect of
all the information on which the authority intended to rely to justify its return decision,
but must simply have an opportunity to present any arguments against his removal.”25
Therefore, the rights to grant asylum lies with the host state. As long as the asylum
seeker has been given the opportunity to seek asylum, all requirements under the
UDHR and the Refugee Convention are fulfilled. Since Boliria and Makonda have
fulfilled those obligations, they have confirmed with their international obligations.
II. THAT BOLIRIA AND MAKONDA HAVE NOT VIOLATED THEIR OBLIGATIONS UNDER THE
1951 CONVENTION, 1967 PROTOCOL, ICCPR, CAT, UNCLOS AND OTHER RELEVANT
INTERNATIONAL LAWS.
The Respondent submits that Boliria and Makonda have not violated their
obligations under the Refugee Convention [A]; ICCPR [B]; Convention Against Torture
[C]; and UNCLOS [D].
A. BOLIRIA AND MAKONDA HAVE NOT VIOLATED THEIR OBLIGATIONS UNDER 1951
REFUGEE CONVENTION.
The Applicant submits that (a) Boliria's measure of cessation of the refugee status
is not in violation of the 1951 Convention and (b) Makonda's measure of interdicting
Okuzans in high seas is not in violation of the 1951 Convention.
a. Boliria's measure of the cessation of refugee status of Okuzans is not in
violation of the 1951 Convention.
The Refugee Convention ceases to apply to a person the moment the circumstances
in which he was recognized as a refugee cease to exist.26 The test under Article 1(C)
(5) of the Refugee Convention is forward and is completely unrelated to previous
persecution.27 Once a refugee ceases to have a ‘current well-founded fear’ the Refugee
Convention becomes inapplicable to him.28 Consequently, any material or durable
changes in the situation in Mayzan removing the basis of Okuzan's fear of persecution
allows Boliria to cease their refugee status.29
In the present case, it was only because of the imposition of the emergency in the
Eastern Province and the arrests made therein by the police forces that the Okuzans
left Mayzan seeking asylum in Boliria. The circumstances in which refugee status was
granted to Okuzans were an existing state of emergency, curfews, no access to
internet, and arrests of Okuzans. However, on May 20, Mayzan lifted the emergency in
the Eastern Province and as soon as on June 8, 2020 entered into a Memorandum of
Understanding with Boliria with the intention to welcome back all Mayzan citizens.
On the basis of aforesaid facts, one of the major circumstances in the connection of
which refugee status was granted had already ceased to exist, i.e., a state of
emergency. Moreover, there were no reports of continuing arrests of Okuzans at the
hands of Mayzan police forces. The primary fear of Okuzans, i.e., arbitrary arrest and
attention had thus ceased to exist upon the lifting of emergency. The situation in
Mayzan has thus significantly improved with the government of Mayzan showing a
positive intention of welcoming back Okuzans. The Okuzans can no longer claim that
they will not be adequately protected by the government of Mayzan. Thus, there has
been a fundamental change in circumstances in Mayzan pursuant to which Okuzans
can no longer be termed as ‘refugees’ under the Refugee Convention.
b. Makonda's measure of interdicting Okuzans in high seas is not in violation
of the 1951 Convention.
Article 33 of the Refugee Convention is limited in its scope only to the geographical
boundaries of the Contracting State. 30 Article 33 only prohibits the return or expulsion
of those refugees physically present in the Contracting State. 31 As a result, any action
taken against refugees outside the state territory cannot be violative of Article 33 of
the Refugee Convention.32 The United States Supreme Court in Sale v. Haitian
addressed the legality of the US's measure of interdicting Haitian citizens at the high
seas and held that Article 33 will have no application to the conduct of US outside
state borders.33 The High Court of Australia has also reached to similar conclusions
that Contracting State parties are only required to afford protection against
refoulement to refugees physically present in the country.34
The European Union, Australia and United States have similar interdiction
programmes of intercepting illegal immigrants at high seas; which evidently reflects
the subsequent practice of State parties with regards to their interpretation of Article
33.35 The travaux preparatoires of the Refugee Convention also reflects the intention of
the State Parties to make Article 33 of the Refugee Convention inapplicable to
situations of mass influx or migration of refugees at their frontiers.36 In the present
case, Makonda has intercepted Okuzans in the high seas through its maritime
surveillance programme. Therefore, any of the Makonda measures on the high seas
cannot be tested against Article 33 of the Convention.
B. BOLIRIA AND MAKONDA HAVE NOT VIOLATED THEIR OBLIGATIONS UNDER THE
CONVENTION AGAINST TORTURE.
Article 3 of the Convention Against Torture [“CAT”] prohibits Parties to return or
expel a person to a State only when there are substantial grounds for believing that he
or she will be subjected to torture. 37 In a claim of violation of Article 3 of the CAT, the
burden of proof lies on the applicant to establish that there existed a foreseeable,
personal and real risk of torture or ill-treatment upon return.38 A mere existence of
pattern of mass human rights violations39 and a general situation of violence violations
of human rights do not constitute sufficient grounds for determining if an individual is
personally at risk.40
The Respondent submits that Boliria and Makonda have not violated their
obligations under the CAT as (a) violence against Okuzans by majority Mayzans
cannot be considered as ‘torture’; (b) the razing of houses and burning of crops does
not fall under the definition of ‘torture’; (c) arrest and detention of Okuzans does not
satisfy the threshold of ‘torture’ and (d) isolated instances of torture do not satisfy the
requirement of Article 3 of the CAT.
a. The violence against Okuzans by the majority Mayzans cannot be considered
as ‘torture’.
Actions of private individuals even if amounting to torture are excluded under
Article 1 of the CAT unless done with the instigation, consent or acquiescence of a
public official.41 The violence committed against private individuals, even if amounting
to ‘torture’ cannot be included under Article 1.
b. The razing of houses and burning of crops does not fall under the definition
of ‘torture’.
Article 3 of the CAT is only applicable to individuals who are at risk of being tortured
as contemplated under Article 1 of the CAT. 42 The obligation of non-refoulement is not

applicable to acts that only amount to cruel, inhuman or degrading treatment.43 Only
acts which cause severe mental or physical pain or suffering can constitute ‘torture’. 44
The term ‘torture’ being one of the worst possible human rights violations should not
be used in an inflationary manner; and its severity must always be distinguished from
a cruel or degrading treatment.45 The razing of complete settlements, including the
complete destruction of houses has been considered as ‘cruel, inhuman or degrading
treatment’.46 Therefore, certain instances of burning of houses and crops does not
reach to the level of ‘torture’ as contemplated under Article 1 of the CAT.
c. Arrest and detention of Okuzans do not fall under the definition of ‘torture’.
Arbitrary arrest or detention even for indefinite time periods in substandard prison
conditions has not been interpreted to mean ‘torture’ under Article 1 of the
Convention.47 In addition to such arbitrary arrests, the Applicant is required to show a
specific intention of arbitrary arresting Okuzans in order to inflict torture. 48 There is no
evidence whatsoever that the government authorities of Mayzan inflict torture upon
the arrested Okuzans or the prison conditions are substandard to an extent that they
amount to ‘torture. Therefore, mere arbitrary arrest and detention of Okuzans, even for
a long time cannot constitute ‘torture’.
d. The isolated instances of torture do not satisfy the requirement of Article 3
of the CAT.
The non-refoulement obligations only exists when there are substantial grounds for
believing that an individual faces a foreseeable, personal and real risk of being
subjected to torture.49 Even in cases where an individual claims to be part of a group
at a risk of being tortured, the individual is required to establish a present and
personal risk of torture.50 The Applicant in order to establish that Okuzan women,
solely by virtue of their identity, run the risk of being tortured must furnish a
widespread practice of torture being inflicted upon Okuzan women. Therefore, in this
regard certain case studies of gender-based violence though does not satisfy the
threshold of foreseeable and personal risk.
C. BOLIRIA AND MAKONDA HAVE NOT VIOLATED THEIR OBLIGATIONS UNDER THE
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS.
A Contracting State is only prohibited from returning an individual to his country of
origin if he faces a real risk of irreparable harm such as that contemplated by Article 6
or 7 of the ICCPR.51 The Respondent submits that Boliria and Makonda have not
violated their obligations under the ICCPR as (a) the arrest of Okuzans cannot be
contemplated as harm under Article 6 or 7 and (b) there were no substantial grounds
for believing that Okuzans faced a real risk of irreparable harm.
a. The arrest of Okuzans cannot be contemplated as harm under Article 6 or 7.
In this regard, the jurisprudence of the Human Rights Committee [“HRC”] is clear
that arbitrary detention or arrests is specifically covered under Article 9 of the ICCPR. 52
State parties’ non-refoulement obligations are not triggered on the mere grounds that
an individual faces a real risk of being arbitrarily detained.53 An individual is thus
required to show with positive proof that his arbitrary detention and arrest poses a
substantial risk of irreparable harm as contemplated under Article 6 or 7.54
In the present case, since June 2019 there have been no reports of the arrests of
Okuzans in connection with the 2018 bombings. Even otherwise, there is no evidence
to suggest that arrested Okuzans are subjected to torture or treatment that is violative
of Article 6. Further, the mandatory two-week detention process is in compliance with
the domestic law of Mayzan and it cannot be held as arbitrary; as it also applies
universally to all Mayzan citizens. In any event, mere arbitrary detention and arrest in
itself cannot pose a real risk of harm as contemplated under Article 6 or 7. Therefore,
the arbitrary arrest or detention of Okuzans cannot be included in the threshold of ‘real
risk of irreparable harm’.

b. There were no substantial grounds from believing that Okuzans faced a real
risk of irreparable harm on return.
The applicant must satisfy the high threshold for establishing that substantial
grounds for believing such a real risk of irreparable harm exists.55 As per the
jurisprudence of HRC, a state's determination of the risk of harm under Article 6 or 7
cannot be interfered with unless it is arbitrary or a manifest denial of justice. 56 Further,
the availability of internal flight or relocation is sufficient grounds to infer that an
individual is not at risk of suffering irreparable harm under Article 6.57
In the present case, the HRA report is the only evidence which documents the
alleged human rights violations by the armed forces stationed in the Eastern Province.
International courts and tribunals have often excluded NGO Reports as evidence
because of their hearsay and biased nature.58 In this case, no such international body
or even other NGO's such as Amnesty International have reported the said human
rights violations by Mayzan armed forces. Even otherwise, Okuzans could always seek
internal flight or relocation as the armed forces were only stationed in the Eastern
Province.
Thus, it was not unreasonable for Boliria or Makonda to come to the conclusion that
there were no substantial grounds that Okuzans will face a real risk of irreparable
harm. Therefore, the determination of Boliria and Makonda with regards to the
situation of Mayzan was not arbitrary or manifestly unjust.
D. MAKONDA HAS NOT VIOLATED ITS OBLIGATIONS UNDER THE UNCLOS.
Makonda has the right to visit, board and search a vessel pursuant to Article 110 of
the UNCLOS in case the vessel is reasonably suspected to be without nationality. 59
Moreover, under Article 8(7) of the Protocol Against the Smuggling of Migrants by
Land, Sea and Air, Makonda is authorized to search, seize or even arrest a vessel it
reasonably suspects to carry illegal immigrants within it.60 The Protocol has 150
parties signifying the widespread acceptance of the rule of law and along with the
State Practice of USA, Australia and EU, it points to a customary rule of international
law allowing State Parties to intercept vessels carrying illegal immigrants to their
territory.61
III. That Boliria and Makonda Do Not have an Erga Omnes Obligation to the
Principle of Non-Refoulement.
The Respondent submits that Boliria and Makonda do not have an erga omes
obligation to the principle of non-refoulement. The principle of non-refoulement
precludes states from returning individuals to countries where they might face
persecution, must act as the final bulwark of international protection.62 This principle
has been affirmed under Art. 33 of the 1951 Refugee Convention63 and the 1967
Protocol relating to the Status of Refugees.64
The ICJ in the Barcelona Traction Case had opined that erga omnes partes
obligations are obligations of a State towards the international community as a whole
which are ‘the concern of all States’ and for whose protection all States have a ‘legal
interest’.65 Erga Omnes obligations have further been defined in the Institute of
International Law Resolution on Obligations and Rights erga omnes in International
Law under Art. 1(a) as general principles of international law which a state owes at
large to the international community.66 Boliria and Makonda submit that they do not
have an erga omnes obligation for the principle of non-refoulement.
The principle of non-refoulement is not a principle of Customary International Law
[A]. Non-refoulement has not attained a status of jus cogens norm in International
Law [B]. In Arguendo, the principle of non-refoulement cannot attain erga omnes
status in situations of mass influx [C]. In light of this status of the principle of non-
refoulement, it does not have an erga omnes character.
A. THE PRINCIPLE OF NON-REFOULEMENT IS NOT A PRINCIPLE OF CUSTOMARY

INTERNATIONAL LAW
Principles of International law which boast of state practice and opinio juris are
given the status of customary international law.67 The United Nations General
Assembly has acknowledged the status of a customary international law to have a
binding character to all states.68 Similarly, the ICJ has also placed significant
authoritative value to customary sources of International law as can be seen through a
catena of decisions foremost among which was the Nicaragua v. United States of
America.69 The principle of non-refoulement does not fulfil the requirements to be
considered a Customary International Law.
The requirements of a norm under CIL. are “repetitious and virtually uniform”70
state practice and opinio juris.71 Au contraire, extensive state practice72 and opinio
juris73 has asserted that the state is not bound by principle of non-refoulement.
Consequently, principle of non-refoulement cannot be construed as principle of
customary international law.
While it is accepted that some instances non-refoulement has been considered to
be CIL, that interpretation has been afforded only in times when the question of
refoulment has had to be addressed with wider Human Rights issues.74 However,
presently, the question of non-refoulement is to be construed in a stricter sense75 to
only the 1951 Refugee convention and not a violation of other rights, as there has
been a cessation of the disturbances in the Eastern Territory of Mayzan. Additionally,
the stricter interpretation is to be the interpretation taken into consideration as there
are no other allied rights of an erga omnes nature associated with the present non-
refoulement obligations.
B. THE PRINCIPLE OF NON-REFOULEMENT CANNOT BE CONSTRUED AS A PEREMPTORY
NORM.
The notion of jus cogens or peremptory norms is expressed in international law
through Articles 53 and 64 of the 1969 Vienna Convention on the Law of Treaties.76
Jus Cogens norms are manifestations of ‘intrasngressible principles’77 . The notion of
peremptory norms into the Vienna Convention acknowledged the fact that there were
such principles which States could not simply legislate away, or agree amongst
themselves to abrogate. 78 It is submitted that the principle of non-refoulment has not
attained the status of being jus cogens or a peremptory norm.
The requirement of “acceptance and recognition” as a criterion for identifying a
peremptory norm of general international law (jus cogens)79 is distinct from
acceptance and recognition as a norm of general international law. 80 The international
community as a whole has merely acknowledged but not attributed such distinct
recognition to principle of the non- refoulement. To this end, the United Nations High
Commission for Refugees has merely affirmed the potential of non-refoulment to be a
peremptory norm.81 However, its status as a jus cogens has neither been declared by
the United Nations or the International Court of Justice.
Although UNHRC has consistently pleaded for characterisation of non-refoulement
as a peremptory norm, 82 it must be taken into account that UNHRC is a special body
entrusted with Humanitarian Crisis. The attribution of UNHRC, however, cannot be
equated with State practice and recognition.83 Furthermore, such proposal has been
construed as proposal de lege ferenda, rather than statement de legelata.84 Therefore,
principle of non-refoulement cannot be construed as a peremptory norm.
C. ALTERNATIVELY, IN SITUATIONS OF MASS INFLUX, PRINCIPLES OF NON-REFOULEMENT
CANNOT BE APPLICABLE.
Even if it may be construed that the principle of non-refoulement is an erga omnes
obligation, its applicability does not extend to Makonda and Boliria in the present
instances. The principle of non-refoulement cannot be applied when the situation
involves the mass influx of refugees. The determination of a mass influx situation is a
subjective determination85 — there is no minimum number of people.86 The flow of
immigrants to Boliria and Makonda constitutes a mass influx as such flow places huge
strain on the economy and state machinery of Boliria and Makonda.
Travaux preparatoires87 of Refugee convention reveals that Switzerland and the
Netherlands proposed that a comprehensive and absolute duty of non-refoulement was
untenable in the face of a mass influx.88 The President agreed, ruling that “the
possibility of mass migrations across frontiers or of attempted mass migrations was
not covered by Article 33.”89 In pursuance of such resolution, the French term
refoulement was added to the English text of the article following the word “return” to
ensure that the duty of non-return was understood to have “no wider meaning” 90 than
the French expression which did not govern in a mass influx.
The UN declaration on territorial asylum provides exception to the principle of non-
refoulement in order to safeguard the population, as in the case of a mass influx of
persons.91 Therefore, Boliria and Makonda is not bound to abide by the Non-
refoulement obligation in order to safeguard the its population.
IV. THERE IS NO SITUATION OF STATELESSNESS FOR THE OKUZAN PEOPLE THAT ARISES
IN THIS CASE AND BOLIRIA AND MAKONDA HAVE NO OBLIGATION TO ADDRESS IT.
A refugee is someone who is unable or unwilling to return to their country of origin
owing to a well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group, or political opinion.92 The
Respondent submits that the Okuzans are not stateless as, Okuzans have Mayzan
nationality [A.], Okuzans cannot be termed ‘stateless’ [B.] and Boliria and Makonda
have no obligation to address it [C.].
A. OKUZANS HAVE MAYZAN NATIONALITY.
Only States that are parties to the 1954 Convention relating to the Status of
Stateless Persons [“1954 Convention”] are obliged to provide protection to persons
not considered a national by any state.93 Every country has different rules concerning
the citizenship - the two major principles being the jus sanguinis (citizenship on the
basis of descent) and jus soli (citizenship given by birth). 94 It is solely and exclusively
within the purview of a State to determine who its nationals are.95
In the present case, Okuzans are the nationals of as Mayzan follows jus soli
citizenship. Jus Soli has been defined as the law of the place of one's birth. 96 Okuzans
thus have been the citizens of Mayzan since their birth and are only required to show
the documents to prove their citizenship. It must also be noted that the government
emphasized on reviewing the citizenship documents of all the people currently residing
in Mayzan97 and not exclusively of the Okuzans who comprise of 28% of the total
population.98 Nationality also enables people to find employment, to make use of
public services, to participate in the political process and to have access to the judicial
system.99 This can be clearly seen from the participation of the OPF in the elections of
Mayzan.100
An illegal immigrant is someone who lives or works in another country without any
legal right to do so. 101 In essence, such a person utilizes the resources meant for the
citizens of the countries and the taxes paid by the taxpayers’ money. They can also
cause changes and disruption within the country and may be perceived as a threat to
the national security. Consequently, States are justified in their concerns that such
illegal immigrants pose a threat to their national culture and identity.102 Further,
public discourse has also characterized undocumented immigration as a
multidimensional threat.103 The State should not bear the burden of keeping illegal
immigrants at the cost of the safety of its nationals. Therefore, the sole intention of
the Mayzan government was to reduce illegal immigrants from the State and retain
the citizens who have been native to the State.104
B. OKUZAN PEOPLE CANNOT BE TERMED TO BE STATELESS

The Respondent submits that undocumented persons cannot be treated as
stateless.105 Although statelessness has a complex definition, it is clear that
undocumented persons who are at the risk of becoming stateless cannot be equated
with stateless persons.106 The risk of becoming stateless is a farfetched reality from
actually being stateless.
The Okuzan people who do not have their documents cannot be considered to be
stateless as, lack of documentation does not mean a lack of nationality. 107 As has been
discussed above, the Okuzans have acquired the Mayzan nationality by birth. The
Memorandum of Understanding entered into between State of Boliria and Republic of
Mayzan states clearly that in absence of documentation to prove the citizenship of
Mayzans, they would be detained for a period of two weeks during which the
documentation would be arranged for by the Ministry of Interior Affairs.108 The purpose
of the detention is to solely work according to the law as has been laid down in Mayzan
Immigration Control Act, 1988.
Thus, the intention of the State is not to leave the Okuzans stranded and stateless,
but only to allow those people to enjoy the rights who actually belong to the State.
The State has also given a fixed time period for the detention of the people not having
documents to prove their citizenship and have even volunteered to arrange for the
same.
C. THERE IS NO OBLIGATION FOR BOLIRIA AND MAKONDA TO ADDRESS IT.
Due to the jus soli citizenship laws followed in Mayzan, the Okuzans have obtained
the citizenship of Mayzan since their birth. The advantage of the jus soli principle is
that it is considered as a means of eliminating statelessness.109 In addition to that,
Boliria is a developing country andcould only redirect a certain budget and number of
resources towards the assistance of the Okuzan asylum-seekers and refugees.110
However, despite their constraints they haeve fully honoured the commitments of the
Refugee Convention and helped the Okuzan asylum-seekers. It was only after the
lifting of the emergency and after the statement given by Mayzan that they would
welcome back all Mayzan citizens who were currently living in Boliria111 that Boliria
decided to go ahead with the cessation of the refugee status of the Okuzans.
It was a fair assumption to be made by Boliria and Makonda that the refugees shall
return to Mayzan, seek help from the Mayzan government in obtaining their
documents if they do not possess them and return to their homeland and continue
living there.
As has been mentioned, lack of documents does not mean statelessness. Thus, in
absence of a situation of statelessness, Boliria and Makonda need not address it.
PRAYER
In light of the foregoing arguments, the State of Boliria and Republic of Makonda,
respectfully prays to the Court to adjudge and declare that:
1. That Boliria and Makonda have conformed with all legal obligations under
international law to provide protection all Okuzan's asylum seekers.
2. That Boliria and Makonda have not violated their obligations under the Refugee
Convention, ICCPR, CAT, UNCLOS and other relevant international laws.
3. That Boliria and Makonda do not have an erga omnes obligation to the principle
of non-refoulement
4. That there is no situation of statelessness for the Okuzans and Boliria and
Makonda have no obligation to address it.
The Hon'ble Court may pass any other relief or declaration it deems fit in the
interest of justice, equity and good conscience.
Respectfully Submitted
Agents for the State of Boliria and Republic of Makonda

1
Moot Compromis, —19
2
Moot Compromis, —26.
3
Universal Declaration of Human Rights, art. 14, 10 Dec., 1948, U.N.G.A. Res. 217 A (III) (1948).
4
5
Asian-African Legal Consultative Organization (AALCO), Bangkok Principles on the Status and Treatment of
Refugees, art. 111(1), 31 Dec., 1966.
6
Felice Morgenstern, The Right of Asylum, 1949 BRrr. Y.B. INT'L L. 327, 336.
7
Felice Morgenstern, The Right of Asylum, 1949 BRrr. Y.B. INT'L L. J. 327, 336; KARL DOEHRING, ENCYCLOPEDIA OF
PUBLIC INTERNATIONAL LAW 110-111 (Elsevier Science Publishers, 1992); PETER MHORTALANCZUK, AKEHURST'S MODERN
INTRODUCTION TO INTERNATIONAL LAW 261 (7th rev. ed., 1997).
8
Louis De Raedt v. Union of India, (1991) 3 SCC 554; EDWIN M. BORCHARD, THE DIPLOMATIC PROTECTION OF CITIZENS
ABROAD OR THE LAW OF INTERNATIONAL CLAIMS 48 (The Banks Law Publishing Co., 1915); GUY S. GOODWIN-GILL,
INTERNATIONAL LAW AND THE MOVEMENT OF PERSONS BETWEEN STATES 203 (Oxford, Clarendon Press, 1978).
9
Geneva Convention Relating to the Status of Refugees art. 32, Jul. 28 1951, 189 U.N.T.S.137 [hereinafter
“Refugee Convention”].
10
Id.
11
Nehemiah Robinson, Convention Relating to the Status of Refugees: Its History, Contents and Interpretation
134 (Institute of Jewish Affairs 1953).
12
GUY S. GOODWIN-GILL, INTERNATIONAL LAW AND THE MOVEMENT OF PERSONS BETWEEN STATES 203 (Oxford, Clarendon
Press, 1978); Karl Doehring, Aliens, Expulsion and Deportation, ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 109, 110-
111 (Amsterdam, Elsevier Science Publishers, 1992); R ICHARD PLENDER, INTERNATIONAL MIGRATION LAW, 467- 468
(Rev. 2nd ed., 1988); Louis B. Sohn and T. Buergenthal (eds.), The Movement of Persons across Borders, Studies
in Transnational Legal Policy, 23 AMERICAN SOCIETY OF INTERNATIONAL LAW 90 (1992).
13
Hirsi Jamaa v. Italy, 2012 II Eur. Ct. H.R. 97, 173 (2012).
14
Bugdaycay v. Secretary of State for the Home Department, (1987) 1 All ER 940 (HL).
15
Universal Declaration of Human Rights, art. 14, 10 Dec., 1948, U.N.G.A. Res. 217 A (III) (1948).
16
R. v. Secretary of State for the Home Dept., Ex Parte Sivakumaran, (1988) All ER 193 (HL).
17
Protocol Relating to the Status of Refugees, art. 2, Jan. 31, 1967, 606 U.N.T.S. 267.
18
Id.
19
Id.
20
G.A. Res. 69/119 (Dec. 10, 2014).
21
Int’l Law Comm’n, Rep. on Draft Articles on Expulsion of Aliens, art. 9, U.N. Doc. No. A/69/10, at —45 (2014).
22
Id.
23
N.D. and N.T. v. Spain, No. 8695/2013, Eur. Ct. H.R. 320 (2015).
24
Khlaifia v. Italy [GC], 16483 Eur. Ct. H.R. 387 (2016).
25
Id.
26
Refugee Convention, supra note, art. 1C(5).
27
Regina v. Special Adjudicator (Respondent) ex parte Hoxha (FC) (Appellant), [2005] UKHL 19.
28
Adan v. Secretary of State for the Home Department, [1999] 1 AC 293, 306G
29
UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International
Protection, HCR/1P/4/ENG/REV. 4 (Feb., 2019).
30
Haitian Refugee Center v. Gracey, 809 F.2d 840 (D.C.C. 1987).
31
2A GRAHL-MADSEN, A., THE STATUS OF REFUGEES IN INTERNATIONAL LAW (Leyden: Sijthoff 1966); Minister for
Immigration and Multicultural Affairs v. Khawar, [2002] HCA 14 (Austl.).
32
G. Goodwin-Gill, The Refugee in International Law 74-76 (Oxford 1983).
33
Sale, Acting Commissioner v. Haitian Centers Council, 509 US 155 (1993).
34
Minister for Immigration and Multicultural Affairs v. Haji Ibrahim, [2000] HCA 55 (Austl.).
35
European Union Agency for Fundamental Rights, Scope of the principle of non-refoulement in contemporary
border management: evolving areas of law, https://fra.europa.eu/sites/default/files/fra_uploads/fra-2016-scope
-non-refoulement_en.pdf (2016).
36
Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Summary Record of the
Sixteenth Meeting, at 6, U. N. Doc. A/CONF.2/SR.16 (July 11, 1951); Conference of Plenipotentiaries on the
Status of Refugees and Stateless Persons, Summary Record of the Thirty-fifth Meeting, at 21-22 U. N. Doc.
A/CONF.2/SR.35 (July 25, 1951).
37
United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment
art. 3, Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter “Torture Convention”].
38
Y.H.A. v. Australia, No. 162/2000, CAT/C/27/D/162/2000 (2002); CAT, General Comment No. 2, — 16,
CAT/C/GC/2/CRP.1/Rev.4 (2007).
39
A.R. v. The Netherlands, No. 203/2002, CAT/C/31/D/203/2002, — 7.3 (2003); W.G.D. v. Canada, No. 520/2012
(CAT/C/53/D/520/2012), — 8.4. (2015).
40
X v. Denmark, No. 458/2011, CAT/C/53/D/458/2011, — 9.3 (2014).
41
H.M.H.I. v. Australia, No. 177/2001, CAT/C/28/D/177/2001 (2002).
42
SV v. Canada, No. 49/1996, UN Doc CAT/C/26/D/49/1996, — 9.8 (2001).
43
BS v. Canada, No. 166/2000, UN Doc CAT/C/27/D/166/2000, — 7.4 (2001); MV v. The Netherlands, No.
201/2002, UN Doc CAT/C/30/D/201/2002, — 6.2 (2003).
44
Torture Convention, supra note, art. 1.
45
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Page 1 Friday, April 08, 2022

2nd NALSAR UNHCR Public International Moot, 2021

Case Concerning the Okuzan Refugees From Mayzan

D. Makonda has not violated its obligations under the UNCLOS. 24

ICCPR International Covenant on Civil and Political Rights

STUDY OF SOCIAL PROBLEMS 673, (2014).

Question Concerning the Acquisition of Polish Nationality, Advisory Opinion, 29

Jalloh, Seventieth session (14 May 2018).

transport Okuzans from Boliria to Makonda. By September, 2020 Makonda received

FROM MAYZAN WHO SEEK ITS PROTECTION.

as contemplated under Article 1 of the CAT. 42 The obligation of non-refoulement is not

risk of irreparable harm’.

A. THE PRINCIPLE OF NON-REFOULEMENT IS NOT A PRINCIPLE OF CUSTOMARY

B. OKUZAN PEOPLE CANNOT BE TERMED TO BE STATELESS

Agents for the State of Boliria and Republic of Makonda

(Dec. 17, 2010), https://www.icc-cpi.int/CourtRecords/CR2010_11294.PDF.

America), I.C.J. Rep. 1986, (14) 109.

Doc. A/1775, — 1 (1950).

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