T2 —A

IN THE

INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE HAGUE

NETHERLANDS

THE NALSAR PUBLIC INTERNATIONAL LAW MOOT COURT COMPETITION, 2021

THE CASE CONCERNING THE OKUZAN REFUGEES OF MAYZAN

THE FEDERAL REPUBLIC OF PEMOLA

(APPLICANT)

V.

THE STATE OF BOLIRIA AND REPUBLIC OF MAKONDA

(RESPONDENT)

MEMORIAL for APPLICANT

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS ........................................................................................... IV

TABLE OF AUTHORITIES ............................................................................................. V

STATEMENT OF JURISDICTION ................................................................................. X

IDENTIFICATION OF ISSUES ...................................................................................... XI

STATEMENT OF FACTS ............................................................................................. XII

SUMMARY OF PLEADINGS ........................................................................................ XV

PLEADINGS ....................................................................................................................... 1

ISSUE I: THAT BOLIRIA AND MAKONDA HAVE OBLIGATION UNDER INTERNATIONAL LAW
TO PROVIDE PROTECTION TO ALL THOSE OKUZAN ASYLUM SEEKERS FROM MAYZAN WHO

SEEK ITS PROTECTION. ...................................................................................................... 1

A. OKUZAN ASYLUM SEEKERS ARE REFUGEES UNDER INTERNATIONAL LAW ............... 1

B. DUTY TO PROTECT REFUGEES WHO SEEK ASYLUM IN BOLIRIA AND MAKONDA ............ 1

C. THE RESPONDENTS HAVE A DUTY TO RENDER ASSISTANCE AT SEA .......................... 2

1. There is a duty to render assistance to those in distress at sea ............................. 2

2. There is a duty protect under SAR and SOLAS conventions ................................. 3

3. All the rescuees must be disembarked to a ‘place of safety’ ................................. 3

D. THE DUTY TO PROTECT IS APPLIED EXTRA-TERRITORIAL ...................................... 4

ISSUE 2: THAT BOLIRIA’S MEASURES OF CESSATION OF REFUGEE STATUS AND MAKONDA’S

MEASURES OF INTERDICTING THE OKUZAN PEOPLE ON THE CALASIAN SEA ARE IN

VIOLATION OF THEIR OBLIGATIONS UNDER INTERNATIONAL LAW. ................................... 5

A. THE ACTIONS OF RESPONDENTS HAVE VIOLATED THE CONVENTION RELATING TO

THE STATUS OF REFUGEES OF 1951 AND ITS PROTOCOL RELATING TO THE STATUS OF

REFUGEES OF 1967 ......................................................................................................... 5

1. The cessation of refuge status is not in accordance with art. 1C (5) and 1C (6) of
the Convention Relating to the Status of Refugees, 1951. ............................................ 5

a. There is no fundamental change in character 6

b. There is no change of enduring nature 7
I
 c. The Okuzans are still not protected in Mayzan 7

2. The acts of respondents are in violation of their obligation under art. 33 of the
Convention Relating to the Status of Refugees, 1951. .................................................. 8

a. The obligation of Non-Refoulement applies extra-territorially 8

b. Makonda has exercised effective jurisdiction over the interdicted ships 9
c. There is no bar on Non-Refoulement under art. 33(2) 10

B. THERE IS A VIOLATION OF OBLIGATIONS UNDER THE CONVENTION AGAINST TORTURE

AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT OF 1984 ... 10

1. The treatment to Okuzans satisfies the standard of torture ................................. 10

2. There is a real risk of facing torture .................................................................. 11

3. The obligation of Non-Refoulement is absolute .................................................. 11

4. The Okuzans must be protected from indirect refoulement ................................. 12

C. THERE IS VIOLATION OF OBLIGATIONS UNDER THE INTERNATIONAL COVENANT ON

CIVIL AND POLITICAL RIGHTS OF 1966 .......................................................................... 12

1. There is a violation of Non-Refoulement under art. 7 ......................................... 12

2. There is a violation of right to life under art. 6 .................................................. 12

3. The Okuzans have a right of liberty and freedom from arbitrary detention ........ 13

D. THERE IS A VIOLATION OF OBLIGATIONS UNDER THE UNITED NATIONS CONVENTION

ON THE LAW OF THE SEA OF 1982 .................................................................................. 13

1. The interdiction is not justified under art. 110 and Migrant Smuggling Protocol 13

E. THERE IS A VIOLATION OF OBLIAGTIONS UNDER OTHER INTERNATIONAL LAWS ..... 14

1. There is a violation of art. 37 of Convention of Rights of Child .......................... 14

2. There is a violations of obligation under art. 2 of CEDAW ................................ 14

3. There is a violation of obligation under International Convention on Elimination

of All Forms of Racial Discrimination ...................................................................... 15

ISSUE III: THAT BOLIRIA AND MAKONDA HAVE AN ERGA OMNES PARTES OBLIGATION TO
THE PRINCIPLE OF NON-REFOULEMENT. .......................................................................... 15

II
 A. THE RESPONDENTS OWE THE DUTY OF NON-REFOULEMENT TO THE STATE PARTIES TO
THE 1951 REFUGEE CONVENTION AND THE 1984 CONVENTION AGAINST TORTURE ........... 15

1. There is an Erga Omnes Partes obligation to Non-Refoulement as per the

judgement of Belgium v Senegal ............................................................................... 15

a. All state parties to the Refugee Convention and the Convention Against Torture
have a Common Interest in Compliance with the Principle of Non-Refoulement 17
b. Non-Refoulment is a Collective Obligation under ARSIWA 18

B. IN ARGUENDO, THE APPLICANT HAS STANDING TO MAKE A CLAIM FOR THE CESSATION
OF THE BREACH OF THE OBLIGATION OF NON-REFOULEMENT AS IT IS OWED TO THE WHOLE

INTERNATIONAL COMMUNITY ........................................................................................ 19

ISSUE IV: THAT BOLIRIA AND MAKONDA HAVE AN OBLIGATION UNDER INTERNATIONAL
LAW TO PREVENT THE OKUZAN PEOPLE FROM BEING LEFT STATELESS .......................... 19

A. THE OKUZANS REFUGEES FROM MAYZAN ARE STATELESS ................................... 19

1. The Okuzans are de jure stateless ...................................................................... 19

2. Okuzans are de facto stateless ........................................................................... 21

a. The Okuzans are Outside the Country of Nationality 21

b. The Okuzans are Unable and Unwilling to Avail Protection of Mayzan 21

B. BOTH BOLIRIA AND MAKONDA HAVE AN OBLIGATION TO PREVENT STATELESSNESS OF

OKUZAN........................................................................................................................ 22

1. The Okuzans have a right to nationality............................................................. 22

2. The Respondents have a duty to avoid statelessness ........................................... 22

a. There is a duty to prevent statelessness under CIL 23

b. There is duty to prevent statelessness under conventional law 25

PRAYER FOR RELIEF ............................................................................................... XVII

III
 LIST OF ABBREVIATIONS

¶ Paragraph

ARSIWA Articles on Responsibility of States for

Internationally Wrongful Acts

Art. Article

CAT Committee Against Torture

CEDAW Convention on Elimination of All Forms of

Discrimination Against Woman

CERD Convention on Elimination of All Forms of

Racial Discrimination

CIL Customary International Law

CRC Convention on Rights of Child

ICCPR International Covenant on Civil and Political

Rights

ICESCR International Covenant on Economic, Social

and Cultural Rights

ICJ International Court of Justice

ILC International Law Commission

ILM International Legal Material

MNF Mayzan National Front

MoU Memorandum of Understanding

PCIJ Permanent Court of International Justice

UN Charter United Nations Charter

UNGAR United Nations General Assembly Resolution

UNHCR United Nations High Commissions of

Refugees

UNTS United Nations Treaty Series

IV
 TABLE OF AUTHORITIES

TREATIES, CONVENTIONS & RESOLUTIONS

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Dec. 10, 1984, 1465 U.N.T.S. 85................................................................................ 9, 10, 11
Convention on the Avoidance of Statelessness in Relation to State Succession, Mar. 15,
2006, C.E.T.S. 200 .............................................................................................................. 23
Convention on the Elimination of All Forms of Discrimination against Women, Dec. 18, 1979,
1249 U.N.T.S. 13 ................................................................................................................ 14
Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S ................................. 1, 2, 13
Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3 ............................. 14
Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137 ....... 1, 2, 5, 8
Convention relating to the Status of Stateless Persons, Sept. 28, 1954, 360 U.N.T.S 117 ..... 19
European Convention on Nationality, Nov. 6, 1997, E.T.S. 166 .......................................... 23
International Convention for the Safety of Life At Sea, Nov. 1, 1974, 1184 U.N.T.S. 3..... 1, 3
International Convention on Maritime Search and Rescue, Apr. 27, 1979, 1403 U.N.T.S 97 1,
2, 3
International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21,
1965, 660 U.N.T.S. 195 ...................................................................................................... 15
International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 1717, 9, 12
Protocol Relating to the Status of Refugees, Jan. 31, 1997, 606 U.N.T.S. 267 ....................... 1
Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 ................. 3, 9

INTERNATIONAL COURT OF JUSTICE & PERMANENT COURT OF INTERNATIONAL JUSTICE

Activities on the Territory of the Congo (Congo v. Uganda), Judgment, 2005 I.C.J. Rep. 168
(Dec. 19) ............................................................................................................................... 6
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgement,
2010 I.C.J. Rep. 639 (June 19) ............................................................................................ 12
Barcelona Traction, Light and Power Co., Ltd. (Belgium v. Spain) 1970 I.C.J. Rep. 3 (Feb. 5)
........................................................................................................................................... 19
Case Concerning United States Diplomatic and Consular Staff in Tehran (United States v Iran),
Judgement, 1980, I.C.J. Rep. 3 (May 24)............................................................................. 23

V
Concerning the Application of the International Convention on the Elimination of All Forms
of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order, 2008
I.C.J. Rep. (Oct. 15) ............................................................................................................ 15
Gabikovo-Nagymaros Project (Hung. v. Slovk.), Judgment, 1997 I.C.J. Rep. 7 (Sept. 25) ..... 6
Matter of South-West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary
Objections, 1962, I.C.J. Rep. 319 (Dec. 21)......................................................................... 23
Nottebohm Case (Liechtenstein v. Guatemala), Second Phase Judgement, 1955, I.C.J. Rep. 4
(Apr. 6) ............................................................................................................................... 20
Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment,
2012, I.C.J. G.L. No. 144 (July 20) ..................................................................................... 15
RICHARD BARNES, THE INTERNATIONAL LAW OF THE SEA AND MIGRATION CONTROL IN

EXTRATERRITORIAL IMMIGRATION CONTROL (Bernard Ryan and ValsamisMitsilegas eds.,

MartinusNijhoff Publishers, 2010) ........................................................................................ 2
The Mavrommatis Palestine Concessions case (Greece v. U.K.), Judgement, 1924 P.C.I.J. (ser.
A) No. 2, at. 31 (Aug. 30) ..................................................................................................... 3
U.N. High Commissioner for Refugees, Guidelines on International Protection No. 3:
Cessation of Refugee Status under Article 1C (5) and (6) of the 1951 Convention relating to
the Status of Refugees (the “Ceased Circumstances” Clauses), U.N. Doc. HCR/GIP/03/03
(2003) ................................................................................................................................... 6

EUROPEAN COURT OF HUMAN RIGHTS

Hirsi Jamaa and Others v. Italy, Eur. Ct. H.R. 97, 132 (2012)............................................... 3
Klass v. Germany, 2 Eur. Ct. H. R. 214 (1978). ................................................................... 10
Mayeka and Mitunga v. Belgium, Eur. Ct. H.R. 23, 55 (2008) ........................................... 14
Medvedyev v. France, Eur. Ct. H.R. 39 (2010).................................................................... 10
Soering v. United Kingdom, Eur. Ct. H.R. (ser. A) (1989)..................................................... 9

U.N. TREATY BODIES

Agiza v. Sweden, U.N. Committee Against Torture, U.N. Doc. CAT/C/34/D/233/2003 (2005).
............................................................................................................................................. 6
Bachan Singh Sogi v. Canada, U.N. Committee Against Torture, U.N. Doc.
CAT/C/39/297/2006 (2007) ................................................................................................ 12
BS v. Canada, U.N. Committee Against Torture, U.N. Doc. CAT/C/27/D/166/2000 (2001) 10

VI
Dadar v. Canada, U.N. Committee Against Torture, U.N. Doc. CAT/C/35/D/258/2004 (2005)
........................................................................................................................................... 11
JHA v. Spain, U.N. Committee Against Torture, U.N. Doc. CAT/C/41/D/323/2007 (2008) 10
Mutombo v. Switzerland, U.N. Committee Against Torture, U.N. Doc. CAT/C/12/D/13/1993
(1994) ................................................................................................................................. 11

OTHER COURTS

E. v. Chief Constable of the Royal Ulster Constabulary 1 A.C. 536 (2009).......................... 14

S.S.H.D. v. M.A.(Somalia) [2018] E.W.C.A. Civ. 994 .......................................................... 6
Sale, Acting Commissioner, Immigration and Naturalization Service v. Haitian Centers
Council Inc. (1993) 509 U.S. 155 .......................................................................................... 9
Scaramanga v. Stamp, 5 C.P.D. 295 (1880) ........................................................................... 2
The Matter of Anudo Ochieng (Anudo V. United Republic of Tanzania), 012/2015, African
Court on Human and Peoples' Rights [Afr. Comm’n H.P.R.] (Aug. 22, 2018) ..................... 23

ARTICLES & JOURNALS

Aoife Duffy, Expulsion to Face Torture - Non-Refoulement in International Law, 20 INT’L J.

REFUG. LAW (2008)............................................................................................................. 12
Colin Aldrin Fieman, A State's Duty to Protect Refugees under Customary International Law:
A Case Study of Thailand and the Cambodian Displaced Persons, COLM. HUM. RTS. L. REV.
(1989) ................................................................................................................................... 1
Guy S Goodwin-Gill, The Haitian Refoulement Case: A Comment, 6(1) INT’L J. REFUG. LAW
(1994). .................................................................................................................................. 9
Mark Pallis, Obligations of States towards Asylum Seekers at Sea: Interaction and Conflicts
Between Legal Regimes, 14 INT. J. REFUG. LAW (2002) ........................................................ 3

BOOKS

ANNE T. GALLAGHER & FIONA DAVID, THE INTERNATIONAL LAW OF MIGRANT SMUGGLING
(2014) ................................................................................................................................. 13
Christian J. Tams, Individual States as Guardians of Community Interests, in FROM
BILATERALISM TO COMMUNITY INTEREST: ESSAYS IN HONOUR OF BRUNO SIMMA (Ulrich
Fastenrath et al. eds., 2011) ................................................................................................. 17
DOUGLAS GUILFOYLE, SHIPPING INTERDICTION AND THE LAW OF THE SEA (2009)................ 13

VII
GUY S. GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW (Oxford University Press,
1996) ................................................................................................................................ 2, 5
JAMES C. HATHAWAY, THE RIGHTS OF REFUGEES UNDER INTERNATIONAL LAW (2005).......... 8
Jason M. Pobjoy, The Convention on the Rights of the Child as a Complementary Source of
Protection, in THE CHILD IN INTERNATIONAL REFUGEE LAW (2017) .................................... 14
JOSEPH, S., SCHULTZ, J., &CASTAN, M., THE INTERNATIONAL COVENANT ON CIVIL AND

POLITICAL RIGHTS: CASES, MATERIALS, AND COMMENTARY (3rd ed. 2013) ..................... 12
M. NOWAK, U.N. COVENANT ON CIVIL AND POLITICAL RIGHTS – CCPR COMMENTARY (2nd
revised ed. 2005) ................................................................................................................. 14
MARILYN ACHIRON, NATIONALITY AND STATELESSNESS: A HANDBOOK FOR

PARLIAMENTARIANS N° 11 10 (UNHCR, 2005) ............................................................. 19, 20

MARTIN RATCOVICH, INTERNATIONAL LAW AND THE RESCUE OF REFUGEES AT SEA 174 (2019)
............................................................................................................................................. 9
PAUL WEIS, THE REFUGEE CONVENTION, 1951: THE TRAVAUX PRÉPARATOIRES ANALYZED
WITH A COMMENTARY BY DR. PAUL WEIS (Cambridge University Press, 1995) ..................... 1
SATYA N. NANDAN & SHABTAI ROSENNE, UNITED NATIONS CONVENTION ON THE LAW OF THE
SEA 1982: A COMMENTARY (Martinus Nijhoff Publishers, 1995)........................................... 4
UNHCR'S GLOBAL CONSULTATIONS ON INTERNATIONAL PROTECTION (Cambridge University
Press., 2003) ......................................................................................................................... 5
VIOLETA MORENO-LAX AND EFTHYMIOS PAPASTAVRIDIS, BOAT REFUGEES’ AND MIGRANTS AT
SEA: A COMPREHENSIVE APPROACH (Brill Nijhoff, ed. 2016) ............................................ 3, 9
VIOLETA MORENO-LAX, ACCESSING ASYLUM IN EUROPE: EXTRATERRITORIAL BORDER
CONTROLS AND REFUGEE RIGHTS UNDER EU LAW (2017).................................................... 10

UNITED NATIONS DOCUMENTS

Articles concerning the Law of the Sea with Commentaries, [1956] 2 Y.B. INT’L L. COMM’N,
U.N. Doc. A/CN.4/SER.A/1956/ADD.1................................................................................ 2
Conclusions of the Council and the Representatives of the Governments of the Member States
on Statelessness E.C. No.14978/15 (2015) .......................................................................... 22
Draft Articles on the Responsibility of States for Internationally Wrongful Acts, art. 48, U.N.
G.A.O.R. 53rd Sess. Supp. (No. 10), U.N. Doc. A/56/10 (2001)........................................... 16
Executive Committee of the High Commissioner’s Programme, Conclusion No. 106 (LVII),
U.N. Doc. A/AC.96/1035 (2006)......................................................................................... 22

VIII
Executive Committee of the High Commissioner’s Programme, Conclusion No. 69 (XXXII),
U.N. doc. A/AC.96/895 (1992) ............................................................................................. 4
Executive Committee of the High Commissioner’s Programme, Discussion Note on the
Application of the “Ceased Circumstances” Cessation Clause in the 1951 Convention, U.N.
Doc. EC/SCP/1992/CRP.1 (1991) ......................................................................................... 7
G. A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948) .............2, 22
G.A. Res. 55/25, Protocol against the Smuggling of Migrants by Land, Sea and Air,
supplementing the United Nations Convention against Transnational Organized Crime art. 8(7)
(Nov. 15, 2000) ................................................................................................................... 13
Interim Measures for Combating Unsafe Practices Associated with the Trafficking or Transport
of Migrants by Sea, IMO Doc. MSC/Circ.896/Rev.1 (June 12, 2001).................................... 3
U.N. Committee Against Torture, General Comment No. 4 on the Implementation of Article 3
of the Convention in the context of article 22, U.N. Doc. CAT/C/GC/4 (2017).................... 11
U.N. Committee on the Elimination of Racial Discrimination, General recommendation No.
XXX, U.N. Doc. HRI/GEN/1/Rev.9 (Vol.II) (2008)............................................................ 15
U.N. General Assembly, Declaration on Territorial Asylum, U.N. Doc. A/RES/2312(XXII)
(Dec. 14, 1967) ..................................................................................................................... 2
U.N. High Commissioner for Refugees, Advisory Opinion on the Extraterritorial Application
of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees
and its 1967 Protocol(Jan.26) ................................................................................................ 8
U.N. High Commissioner for Refugees, Roundtable on Temporary Protection: 19-20 July
2012. International Institute of Humanitarian Law, San Remo, Italy: Summary Conclusions on
Temporary Protection (July 20, 2012) ................................................................................... 8

IX
 STATEMENT OF JURISDICTION

Article 36(1) of the ICJ statute reads:

“The jurisdiction of the Court comprises all cases which the parties refer to it and all
matters specially provided for in the Charter of the United Nations or in treaties and
conventions in force.”

Article 40(1) of the statute reads:

“Cases are brought before the Court, as the case may be, either by the notification of
the special agreement or by a written application addressed to the Registrar. In either
case the subject of the dispute and the parties shall be indicated.”

It is hereinafter most respectfully submitted that the Parties have submitted the questions
contained in the Special Agreement (together with Corrections and Clarifications to
follow) (“the Case”) to the Court pursuant to Article 40(1) of the Court’s
Statute.1Therefore pursuant to Art. 36(1) of the ICJ statute read with Article 40(1), this
Hon’ble Court has jurisdiction over the present case.

1
Art. 1, Special Agreement submitted to the International Court of Justice by the Federal Republic of Pemola, the
State of Boliria and the Republic of Makonda on the differences between them concerning the Okuzans Refugees
from Mayzan.

X
 IDENTIFICATION OF ISSUES

The Federal Republic of Pemola respectfully requests this Hon’ble Court to adjudge:

ISSUE 1: That Boliria and Makonda have an obligation under international law to provide
protection to all those Okuzan asylum seekers from Mayzan who seek its protection.

ISSUE 2: That Boliria’s measures of cessation of refugee status and Makonda’s measures
interdicting the Okuzan people on the Calasian Sea are in violation of their obligations
under international law.

ISSUE 3: That Boliria and Makonda have an erga omnes obligation to the principle of
non-refoulement.

ISSUE 4: That Boliria and Makonda have an obligation under international law to prevent
the Okuzan people from being left stateless

XI
 STATEMENT OF FACTS

1960 Republic of Mayzan adopted its constitution

2008 MNF formed government in Mayzan.

2013 MNF re-elected as Government of Mayzan

2016 Okuzan Protection Against Violence Act 2006 was repealed.

2017 Anti-Okuzan speeches by MNF political leaders in election

campaigns.

15 Jan. 2018 MNF government was re-elected

18 Jan. 2018 Nationwide protest organized by Okuzan People’s Front.

31May 2018 Announcement of Citizenship review process by MNF government

against illegal immigrants in Mayzan which will start from 02 July
2018

01 June 2018 United Nations High Commissioner for Human Rights called for the
immediate suspension of the citizenship review process

29 June 2018 Report by Mayzan Human Rights Centre that very few Okuzans had
access to documentation to prove their citizenship because of low
levels of education and a rural based population.

01 July 2018 Bombing in 3 biggest cities of Mayzan. Freedom Fighters of Okuzans

took responsibility of the attacks. Their actions were condemned by
OPF.

02 July 2018 Minister for Interior Affairs responded against the attacks and
measures to be taken by government to maintain law and order.
President declared a state of emergency, imposed curfew and cut
access to internet in Eastern Province.

09 August 2018 Mayzan Herald reported arrest of more than 3000 Okuzans and many
were charged under Mayzan Terrorism Law, 2015.

1stweekof Thousands of Okuzans crossed border to seek asylum in Boliria.

September 2018 Bolirian Government and UNHCR provided shift camps, food and
sanitary amenities.

XII
 04 Bolirian Government started Refugee Status Determination (RSD)
November2018 process to provide documentation to Okuzan Refugees which was
lauded by UN Commissioner for Human Rights.

June 2019 Boliria registered and provide identification documentation to over

200,000 Okuzan refugees while the state of emergency continued to
be implemented in Eastern Province of Mayzan.

May 2020 Emergency was lifted by Mayzan Government and 300,000 Okuzan
refugees were registered in Boliria.

June 2020 Visit of Bolirian Prime Minister to Mayzan.

08 June 2020 Boliria and Mayzan Government signed an MoU in which Mayzan
agreed to allow all Mayzan citizens currently living in Boliria.

15 June 2020 Boliria announced that it would commence the process of cessation of
refugee status of Okuzan refugees in its territory and refugee
protection for Okuzans in Boliria would and with effect of 01 January
2021. Okuzan refugees in Boliria started moving to Beyul continent
through Calasian sea to seek asylum.

September 2020 Makonda and its neighboring countries stared receiving Okuzan
people in their ports.

03 November Makonda, Joran and Ligos entered into a MoU on maritime security
2020 in respect to The Calasian Sea to prevent illegal migration and illegal
entry.

Nov.- Dec. 2020 More than 10000 Okuzan people were interdicted

05 Jan. 2021 Joint press statement of Foreign Ministers of Makonda, Joran and
Ligos that

all the measures undertaken by with regard to maritime surveillance

were in accordance with their international legal obligations. Also, in
Boliria, the Jinoras, an Okuzan family were the first to be sent back to
Mayzan.

15 Jan. 2021 Story in Makonda Daily Newspaper that more than 200 people
Okuzan Refugees) drowned in the Calasian Sea on the night of 13
January 2021.

XIII
20 Jan. 2021 Human Rights Alert (HRA) released a report named ‘The Innocent,
The Imprisoned, and The Impunity: The Situation of Okuzans in
Mayzan’ which includes case studies about the continued Human
rights violations in the Eastern Province of Mayzan and violation of
the principle of non-refoulment by Boliria and Makonda.

25 Jan. 2021 Trilateral dialogue between Pemola, Boliria and Makonda to negotiate
a solution for Okuzan people. This meeting concluded without a
solution.

31 Jan. 2021 Pemola, Makonda and Boliria enter into this special agreement to
submit the dispute over the nature of legal obligations e to the
International Court of Justice.

XIV
 SUMMARY OF PLEADINGS

ISSUE I: That Boliria and Makonda have an obligation under international law to
provide protection to all those Okuzan asylum seekers from Mayzan who seek its
protection.

The Okuzan refugees still face the threat of persecution in Mayzan that has been culminated
during the tenure of its incumbent populist government in the backdrop of decades of ethnic
violence and discrimination. Even the state organs have been violating human rights
consistently. As a result, the Okuzans are unwilling to return to Mayzan, as is evidenced by
their actions of voluntarily endangering their lives by trying to cross the sea, and are entitled to
all the protections under the refugee convention that have been afforded to them till date. The
Respondents have an obligation to provide protection to all the Okuzan asylum seekers under
art. 98 of Law of the sea and bring them to a place of safety.

ISSUE II: That Boliria’s measures of cessation of refugee status and Makonda’s measures
interdicting the Okuzan people on the Calasian Sea are in violation of their obligations
under international law.

The cessation of refugee status deprives them of various rights that they are entitled to under
various international treaties. The cessation is not in accordance with art. 1 C (5) of the
Convention Relating to the Status of Refugees. The alternative is to cross an ocean illegally at
the risk of drowning, which cannot be considered to a real option. The Interdiction measures
employed by Makonda violates the obligation of non-refoulement placed upon the Respondents
under numerous conventions as well as international customary law. Makonda’s interdiction
and refoulement to a state that is returning the Okuzans back to Mayzan breaches the same
obligation.

ISSUE III: That Boliria and Makonda have an erga omnes obligation to the principle of
non-refoulement.

It has been established by the ICJ in the case of Belgium v. Senegal that an obligation under a
multilateral treaty may be invoked by any State party against another if all State parties have a
common interest in complying by that obligation. Such a common interest to prevent torture,
which is protected by the obligation of non-refoulement, was interpreted to exist under the CAT
Convention in this very case. Moreover, the State parties to Refugee Convention possess the
common interest to protect the human rights of refugees including by way of the principle of

XV
non-refoulement. The obligation of non-refoulement further constitutes a collective obligation
under ARSIWA, which empowers even an uninjured State party like Pemola to hold the State
breaching it responsible.

ISSUE IV: That Boliria and Makonda have an obligation under international law to
prevent the Okuzan people from being left stateless.

The Okuzans have been left de jure stateless as per the definition of statelessness provided
under the 1961 Statelessness Convention which is now a part of customary international law,
as well as de facto stateless by virtue of their unwillingness to return to Mayzan due to valid
reasons of continued persecution. This is especially true for the Okuzan children born in the
territory of the Respondents, since they will be ineligible to irrespective of possession of proper
documents since Mayazn follows the citizenship law of jus soli.

XVI
 PLEADINGS

ISSUE I: THAT BOLIRIA AND MAKONDA HAVE OBLIGATION UNDER

INTERNATIONAL LAW TO PROVIDE PROTECTION TO ALL THOSE OKUZAN
ASYLUM SEEKERS FROM MAYZAN WHO SEEK ITS PROTECTION.

1. The asylum seekers from Okuzan fall under the definition of refugees as per the 1951
Convention Relating to the Status of Refugees2 read together with the 1967 Protocol
Relating to the status of Refugee3. The applicant also submits that there exists a duty
under international law to provide protection to all refugees and to render assistance to
people in distress on sea and a duty to disembark them to safety.4

A. OKUZAN ASYLUM SEEKERS ARE REFUGEES UNDER INTERNATIONAL LAW

2. Refugees are granted and denied protection on the basis which are outlined in the
Article1 of the Convention.5 Article 1A (2)6 of the 1951 Convention Relating to status
of refugees read along with the 1967 Protocol ‘refugee’ without any geographical and
time limits, as as any person who has cannot return to his or her country owing to a
well-founded fear of persecution.

B. DUTY TO PROTECT REFUGEES WHO SEEK ASYLUM IN BOLIRIA AND MAKONDA

3. First, whenever people travel abroad they are classified as alien in the host state under
international law, such people are entitled to protection of the host state by the virtue of
being a foreigner. The customary international law of protection of aliens provides that
an alien is owed a minimum level of protection by the host state.7 When the first state
of asylum admits refugees, even if it is for a temporary period, the refugees falls under
the definition of ‘alien’, regardless of how they entered or are staying in the territory.8
4. Second, the Okuzan asylum seekers have a right to seek and enjoy asylum. Article 14 of

2
Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137.
3
Protocol Relating to the Status of Refugees, Jan. 31, 1997, 606 U.N.T.S. 267.
4
Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3; International Convention on Maritime Search
and Rescue, Apr. 27, 1979, 1403 U.N.T.S 97; International Convention for the Safety of Life At Sea, Nov. 1,
1974, 1184 U.N.T.S. 3.
5
PAUL WEIS, THE REFUGEE CONVENTION, 1951: THE TRAVAUX PRÉPARATOIRES ANALYZED WITH A
COMMENTARY BY DR. PAUL WEIS, at 342 (Cambridge University Press, 1995).
6
Convention Relating to the Status of Refugees, art. 1, July 28, 1951, 189 U.N.T.S. 137.
7
Colin Aldrin Fieman, A State's Duty to Protect Refugees under Customary International Law: A Case Study of
Thailand and the Cambodian Displaced Persons, 21 COLM. HUM. RTS. L. REV. 287, 318 (1989).
8
Id.

1
 Universal Declaration of Human Rights states that “Everyone has a right to seek and
enjoy in other countries asylum from persecution”.9 In pursuance of this, the General
Assembly in 1967 adopted the declaration on territorial asylum10, it was agreed that the
grant of asylum should be respected by states11 and asylum shall be granted by a state in
exercise of its sovereignty,12 but this does not means states can violate art. 33 of the
Convention relating to the Status of Refugees.13

C. THE RESPONDENTS HAVE A DUTY TO RENDER ASSISTANCE AT SEA

1. There is a duty to render assistance to those in distress at sea

5. The duty to protect and save life at sea is given by 98(1) of the 1982 Convention on Law
of the Sea, it expressly requires every flag state ship to render assistance to any person
found in danger of being lost; to rescue person in distress or in need of assistance; to
render assistance to a ship after collision.14 Distress phase as defined in SAR convention
as a situation when there is a reasonable certainty that a vessel, a person or any other
craft is threatened by grave and imminent danger and requires immediate assistance.15
The duty to save people in distress at sea was identified as early as 1880 in Scaramanga
v. Stamp16 and is a fundamental and ancient norm of international law. The International
Law Commission has already defined its draft articles as codified customs17 and today
it is commonly acknowledged that Article 98(1) reflects customary international law.18
6. The refugees fleeing from Boliria are being smuggled to Makonda,19 it is evident from
the facts that the boats used for smuggling do not have adequate safety measures and are
often overcrowded, this resulted in the death of over 200 Okuzan refugees on 13th of
January 2021.20 Article 98(2) of UNCLOS establishes a duty on every coastal state to
maintain effective search and rescue services regarding safety on sea through mutual

9
G. A. Res. 217 A (III), Universal Declaration of Human Rights art. 14, (Dec. 10, 1948).
10
U.N. General Assembly, Declaration on Territorial Asylum, U.N. Doc. A/RES/2312(XXII) (Dec. 14, 1967).
11
GUY S. GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW 4 (Oxford University Press, 1996).
12
G. A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948).
13
Convention Relating to the Status of Refugees, art. 33, July 28, 1951, 189 U.N.T.S. 137.
14
Convention on the Law of the Sea, art. 98(1), Dec. 10, 1982, 1833 U.N.T.S. 3
15
International Convention on Maritime Search and Rescue, annex ¶ 1.3.13 Apr. 27, 1979, 1405 U.N.T.S 97.
16
Scaramanga v. Stamp, 5 C.P.D. 295 (1880).
17
Articles concerning the Law of the Sea with Commentaries, [1956] 2 Y.B. INT’L L. COMM’N 281, U.N. Doc.
A/CN.4/SER.A/1956/ADD.1.
18
Supra note11; RICHARD BARNES, THE INTERNATIONAL LAW OF THE SEA AND MIGRATION CONTROL IN
EXTRATERRITORIAL IMMIGRATION CONTROL, 134 (Bernard Ryan and ValsamisMitsilegas eds., MartinusNijhoff
Publishers, 2010).
19
Compromis ¶ 25.
20
Compromis ¶ 28.

2
 agreements and cooperation with neighbouring states.21

2. There is a duty protect under SAR and SOLAS conventions

7. The SAR and SOLAS Conventions represent a lex specialis with respect to the situation
of maritime rescue22 and can be used as an interpretative rule qua ‘subsequent
agreements’ for conflict resolution in international law.23 This principle was applied
between two or more treatise in Mavrommatis Palestine Concessions case. 24The duty to
render assistance is non-discriminatory in nature and applies to all persons in distress
without distinction i.e. regardless of circumstances in which the person is found,
nationality or status of such person.25 The right to be saved cannot be hindered by the
fact that the persons are engaged in an unlawful activity or are migrants.26

3. All the rescuees must be disembarked to a ‘place of safety’

8. In Hirsi Jamaa v. Italy27, the European Court of Human Rights held that rescuers have
the primary responsibility for taking care of the recuees. States cannot avoid their active
duty to secure human rights even if they have no jurisdiction over the area, special nature
of the maritime environment cannot justify an area outside law where the person is not
governed by any legal system.28
9. In extension to the definition of ‘rescue’ provided in the SAR convention, it also obliges
flag states to deliver the rescuees to a place of safety.29 The term ‘rescue’ is a single
unified act which involves saving persons at sea and then disembarking them to a place
of safety. In furtherance of this, UNHCR EXCOM adopted conclusions obligate the

21
Id.
22
Mark Pallis, Obligations of States towards Asylum Seekers at Sea: Interaction and Conflicts Between Legal
Regimes, 14 INT. J. REFUG. LAW 329, 331 (2002).
23
VIOLETA MORENO-LAX AND EFTHYMIOS PAPASTAVRIDIS, BOAT REFUGEES’ AND MIGRANTS AT SEA: A
COMPREHENSIVE APPROACH, 296 (Brill Nijhoff, ed. 2016); Vienna Convention on the Law of Treaties, May 23,
1969, 1155 U.N.T.S. 331; Draft Articles on the Law of Treaties with Commentaries’ [1966] II, Y.B. INT’L L.
COMM’N 183, 221 [14], U.N. Doc. A/CN.4/SER.A/1966/Add.1.
24
The Mavrommatis Palestine Concessions case (Greece v. U.K.), Judgement, 1924 P.C.I.J. (ser. A) No. 2, at. 31
(Aug. 30).
25
International Convention for the Safety of Life At Sea, annex Ch. V reg. 33(1), Nov. 1, 1974, 1184 U.N.T.S. 3;
International Convention on Maritime Search and Rescue, annex ¶ 2/1.10, Apr. 27, 1979, 1403 U.N.T.S 97.
26
Interim Measures for Combating Unsafe Practices Associated with the Trafficking or Transport of Migrants by
Sea, IMO Doc. MSC/Circ.896/Rev.1 (June 12, 2001).
27
Hirsi Jamaa and Others v. Italy, Eur. Ct. H.R. 97, 132 (2012).
28
Id, ¶ 178.
29
International Convention on Maritime Search and Rescue, annex Ch. 1, ¶ 1.3.2, Apr. 27, 1979, 1403 U.N.T.S
97.

3
 states to follow the general practice of dismemberment to the ‘next port of call’30 which
generally refers to the most appropriate port for disembarkation purposes.31
10. This practise necessarily implies that the coastal state is faced with prospect of (at least
temporarily) accepting the asylum-seekers under the principle of non-refoulment. If the
vessel is found unworthy for sea the disembarkation should be at the costal state in the
immediate vicinity of the rescue.32 Also, the flag state has the primary responsibility if
the rescued intends to request asylum from the flag state.33 The refugees fleeing from
Boliria are intending to seek asylum in Makonda, not only there exists a duty to render
assistance to these refugees but duty to deliver them to a place of safety where there is
no threat or fear of persecution.

D. THE DUTY TO PROTECT IS APPLIED EXTRA-TERRITORIAL APPLICABILITY OF DUTY TO

PROTECT

11. The obligations under SAR convention apply ‘throughout the ocean’ unlike the powers
34
of interdiction whose exercise is subordinated to limitations, the use of the generic
term ‘at sea’ in Article 98 of the UNCLOS supports the interpretation provided under
SAR convention. Individuals outside a state’s territory may fall within the jurisdiction
of state if acts or omission by state may adversely affect them.35
12. In Ilaşcu and others v. Russia and Moldova the Court held that ‘even in the absence of
effective control’ over part of its territory (found under the power of a de facto non-state
entity which is effectively controlled by a third state government), a state still has
positive human rights obligations.36 The duty to protect refugees at sea is concomitant
to the most basic human right, right to life.37

30
Executive Committee of the High Commissioner’s Programme, Conclusion No. 69 (XXXII), U.N. doc.
A/AC.96/895, at 31 (1992).
31
Background Note on the Protection of Asylum- Seekers and Refugees Rescued at Sea, UNHCR (Mar. 18, 2002),
https://www.unhcr.org/protection/globalconsult/3e5f35e94/background-note-protection-asylum-seekers-
refugees-rescued-sea.html.
32
Id, at 7.
33
Id.
34
SATYA N. NANDAN & SHABTAI ROSENNE, UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982: A
COMMENTARY, 177 (Martinus Nijhoff Publishers, 1995).
35
CEDRIC RYNGAERT, JURISDICTION TOWARDS REASONABLE TEST, 192-211 (Malcolm Langford ed., Cambridge
University Press, 2012).
36
Ilascu and others v. Russia and Moldova, Eur. Ct. H.R. 318 (2004).
37
Human Rights Committee, General Comment No 36: The Right to Life, 124th session, U.N. Doc.
CCPR/C/GC/36 (Oct. 30, 2018) ¶ 18.

4
ISSUE 2: THAT BOLIRIA’S MEASURES OF CESSATION OF REFUGEE STATUS
AND MAKONDA’S MEASURES OF INTERDICTING THE OKUZAN PEOPLE ON
THE CALASIAN SEA ARE IN VIOLATION OF THEIR OBLIGATIONS UNDER
INTERNATIONAL LAW.

A. THE ACTIONS OF RESPONDENTS HAVE VIOLATED THE CONVENTION RELATING TO THE

STATUS OF REFUGEES OF 1951 AND ITS PROTOCOL RELATING TO THE STATUS OF

REFUGEES OF 1967

13. The Applicant submits that the cessation of refugee status by Boliria is a clear violation
of Article 1C (5), Article 1C (6) and interdiction of Okuzans by Makonda violates
Article 33 of the Convention Relating to the Status of Refugees 1951. Further, the act of
withdrawal of protection must be made after assessing the situation and due respect must
be given to principle of non-refoulement.38 The cessation of refugee status and
interdiction of Okuzans by Makonda, Joran and Ligos, leaves refugees with no effective
option than to go back to Mayzan thus these actions are in clear violation of principle of
non-refoulement.39

1. The cessation of refuge status is not in accordance with art. 1C (5) and 1C (6)
of the Convention Relating to the Status of Refugees, 1951.

14. The ceased circumstances clause propounds that the refugee convention shall cease to
apply on a person when the circumstance due to which he/she was given the refugee
status cease to exist.40 This change in circumstances must be fundamental in nature
which removes the basis of any fear of persecution.41 The ExCom conclusions adopted
in 1992 highlighted the essentials for cessation of refugee status, it states that assessment
must be made keeping in mind the fundamental, stable and durable character of
changes. 42 Moreover, according to the adopted ceased circumstances clause shall not
apply to the refugees who continue to have a well-founded fear of persecution.43

38
Fitzpatrick, J. & Bonoan, R., Cessation of refugee protection, in E. FELLER, V. TÜRK, & F. NICHOLSON, REFUGEE
PROTECTION IN INTERNATIONAL LAW: UNHCR'S GLOBAL CONSULTATIONS ON INTERNATIONAL PROTECTION,
491-544 (Cambridge University Press., 2003).
39
Supra note 30.
40
Convention Relating to the Status of Refugees art. 1C (5), July 28, 1951, 189 U.N.T.S. 137; Convention Relating
to the Status of Refugees art. 1C (6), July 28, 1951, 189 U.N.T.S. 137.
41
Supra note 11.
42
Supra note 30.
43
Id.

5
 15. After Boliria made the announcement on 15th June 20202, that it will start process of
cessation of refugee status, the Okuzans from Boliria fearing for their lives started
fleeing to Makonda which shows that they still had a well-founded fear of persecution.44

a. There is no fundamental change in character

16. Cessation based on ceased circumstances comes into play only when changes have taken
place that address the causes of displacement which lead to the recognition of refugee
status.45 Grounds for cessation do not go beyond verifying that grounds for recognition
of refugee status continue to exist, the test is whether there has been a significant and
non-temporary change.46 The basis of the change in the present case is the MOU signed
between Boliria and Mayzan, such diplomatic assurance are contrary to the principle of
non-refoulement and thus should not be used as a loophole to undermine the principle
where there are substantial grounds of believing that the person may face persecution.47
17. UNHCR identifies fundamental change as development in governance that leads to a
complete political transformation48, this transformation is evidenced by significant
reforms, repeal of oppressive laws, re-establishment of legal protection and security
against discriminatory actions.49 The country of origin should also provide insurance of
basic rights like right to life, liberty and to non-discrimination, freedom to peaceful
assembly, freedom of speech movement and access to rule of law and courts.50 The HRA
report provides us with useful evidence and can be considered by the hon’ble court to
reach the judgment as seen in the Armed activities in the territory of Congo51 case. The
Okuzans face continuous persecution and women of the Okuzan community are being
brutally raped and their houses and crops burned down. 52

44
Compromis, ¶ 25.
45
U.N. High Commissioner for Refugees, Guidelines on International Protection No. 3: Cessation of Refugee
Status under Article 1C (5) and (6) of the 1951 Convention relating to the Status of Refugees (the “Ceased
Circumstances” Clauses), U.N. Doc. HCR/GIP/03/03 (2003).
46
S.S.H.D. v. M.A.(Somalia) [2018] E.W.C.A. Civ. 994.
47
Agiza v. Sweden, U.N. Committee Against Torture, U.N. Doc. CAT/C/34/D/233/2003 (2005).
48
U.N. High Commissioner for Refugees, Note on the Cessation Clauses, U.N. Doc. EC/47/SC/CRP.30 (May 30,
1997).
49
Id. ¶ 20.
50
Id. ¶ 23.
51
Activities on the Territory of the Congo (Congo v. Uganda), Judgment, 2005 I.C.J. Rep. 168 (Dec. 19);
Gabikovo-Nagymaros Project (Hung. v. Slovk.), Judgment, 1997 I.C.J. Rep. 7 (Sept. 25).
52
Compromis, ¶ 29.

6
 b. There is no change of enduring nature

18. If the application of ceased circumstances clause is prematurely applied, it can result a
person to return in a volatile situation which can cause additional renewed stability.
positive developments in a country of origin must be durable and stable.53 A situation is
only stable when it stops to change, therefore UNHCR advocated a minimum waiting
period of twelve to eighteen months to assess the developments.54 General practice
employed by states is consistent with UNHCR’s recommendation, Switzerland has a 2-
year waiting period and Netherland has a 3-year waiting period.
19. The Okuzans have always been a marginalized community of Mayzan, their literacy
rate is very low and access to employment, healthcare and is limited in the eastern
province where most of the Okuzans reside.55 There has been a rise in anti-Okuzan
sentiments among the general public through speeches and actions of the MNF’s
government.56
20. When development in a country occur in context of violence, absence of human rights
guarantees, ineffective governance a longer waiting period must be employed to confirm
the durability of change.57 Monitoring also includes implementation of any peace
agreement and restoration of social stability in the country of origin.58 Even if the MOU
is considered as evidence of change in circumstances, no functional and utilitarian
monitoring of the MOU has been taken place as the government of Mayzan refuses to
provide any data on the Okuzan families who have returned. 59

c. The Okuzans are still not protected in Mayzan

21. A refugee must be able to effectively re-avail him or herself of the protection of his or
her own country.60 Protection goes beyond physical security or safety as it includes

53
Supra note 45.
54
Executive Committee of the High Commissioner’s Programme, Discussion Note on the Application of the
“Ceased Circumstances” Cessation Clause in the 1951 Convention, U.N. Doc. EC/SCP/1992/CRP.1, at ¶11
(1991).
55
Compromis, ¶ 6.
56
Compromis, ¶ 11.
57
Supra note 45.
58
J. Fitzpatrick & R. Bonoan, Cessation of refugee protection, in E. FELLER, V. TÜRK, & F. NICHOLSON, REFUGEE
PROTECTION IN INTERNATIONAL LAW: UNHCR'S GLOBAL CONSULTATIONS ON INTERNATIONAL PROTECTION,
491-544 (Cambridge University Press., 2003).
59
Compromis, ¶ 29.
60
International Covenant on Civil and Political Rights art. 12(4), Dec. 19, 1966, 999 U.N.T.S. 171; U.N. Human
Rights Committee, CCPR General Comment No. 27: Article 12 (freedom of movement), HRI/GEN/1/Rev.9 (Vol.
I) (1999).

7
 enabling residents to exercise their rights, including right to basic livelihood. 61 Even if
it is considered that the Okuzans will be provided protection under the MOU, the MOU
itself states that only the citizens who do not have the documents will have their
documentation arranged for.62

2. The acts of respondents are in violation of their obligation under art. 33 of the
Convention Relating to the Status of Refugees, 1951.

22. The main protection provided to refugees under international law is rendered as an
obligation not to send them back to the country where they face persecution.63 Article
33 of the Convention relating to the Status of Refugees states that, a refugee must not be
expelled in any manner whatsoever by a contracting state to the frontiers of a territory
where his life and freedom would be threatened on account of his nationality, political
opinion, race, membership to a social group or religion.64
23. Both Makonda and Boliria are contracting states 65 i.e. party to the convention relating
to refugees of 1951 and its protocol of 1967.66 Secondly, the Okuzans face a continuing
threat to life and freedom on account of their race as established in the above contentions
they fall under the definition of refugee as defined in Article 1.67 A refugee can be
rejected by state only after objective assessment of the refugee claim, UNHCR obligates
state to provide temporary protection to the refugees.68

a. The obligation of Non-Refoulement applies extra-territorially

24. The principle of non-refoulement applies extraterritorially following an interpretation of

article 33(1) of refugee convention69 as per article 31 of VCLT in ‘good faith in
accordance with ordinary meaning to be given to the terms of treaty and in light of

61
Supra note 45.
62
Compromis, ¶ 23.
63
JAMES C. HATHAWAY, THE RIGHTS OF REFUGEES UNDER INTERNATIONAL LAW 154-277 (2005).
64
Convention Relating to the Status of Refugees art. 33, July 28, 1951, 189 U.N.T.S. 137.
65
Compromis, ¶ 33.
66
Sir Elihu Lauterpacht & Daniel Bethlehem, The scope and content of the principle of non-refoulement:
Opinion, in E. FELLER, V. TÜRK, & F. NICHOLSON, REFUGEE PROTECTION IN INTERNATIONAL LAW: UNHCR'S
GLOBAL CONSULTATIONS ON INTERNATIONAL PROTECTION, 87-177 (Cambridge University Press., 2003).
67
Joan Fitzpatrick, The Refugee Convention, 1951: The TravauxPréparatoiresAnalysed with a Commentary.
Edited by Paul Weis. New York: Cambridge University Press, 1995., 90 AM. J. INT'L L. 175–176 (1996).
68
U.N. High Commissioner for Refugees, Roundtable on Temporary Protection: 19-20 July 2012. International
Institute of Humanitarian Law, San Remo, Italy: Summary Conclusions on Temporary Protection (July 20, 2012),
https://www.unhcr.org/uk/506d8ee49.pdf.
69
U.N. High Commissioner for Refugees, Advisory Opinion on the Extraterritorial Application of Non-
Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967
Protocol(Jan.26), 2007), https://www.unhcr.org/cgi-
bin/texis/vtx/home/opendocPDFViewer.html?docid=4d9486929&query=extraterritorial.

8
 treaty’s object and purpose.’70 Firstly, all the provisions of the refugee convention that
are indeed restricted to territory of state make a particular mention of such restriction,
applying an argument a contrario, Art. 33(1) contains no such limitation and thus cannot
be said to be restricted to a particular territory.71
25. Secondly, art. 33(1) is of fundamental humanitarian nature which calls for an extensive
interpretation, UNHCR places most weight on ‘any relevant rules of international law
applicable in the relations between parties.’72 The requirement of relevant norms is
justified through customary international human rights law which indicates
extraterritorial effect of principle of non-refoulement.73 This reasoning behind
extraterritorial applicability is found in human rights treaties, like ICCPR, the CAT etc.74

b. Makonda has exercised effective jurisdiction over the interdicted ships

26. In the case of Hirsi Jamaa v. Italy, the court found that the practice of interception of
refugees at high seas by Italy was in clear violation of the principle of non-refoulement,
persons intercepted and pushed back should be protected if they have not reached a
state’s territory.75 This has now been held in a long and consistent body of
jurisprudence76, as contrary to the case Sale v. United States77 which allowed
interdiction at high sea. The judgement is heavily criticized for its narrow and restrictive
interpretation of refugee law.78
27. UNHCR has stated that a state’s obligation of not to return refugees to place where there
is a risk of persecution extends to wherever it exercises effective jurisdiction, therefore
it does not matter whether such persons are on state’s territory or not, but rather, whether
they come under the effective control of the (would be host) state.79 Effective control
can be exercised by a state through active- contact actions (seizing, towing, boarding)

70
Vienna Convention on the Law of Treaties art. 31, May 23, 1969, 1155 U.N.T.S 331.
71
Supra note 69.
72
Supra note 23; Vienna Convention on the Law of Treaties art. 31(3)(c), May 23, 1969, 1155 U.N.T.S 331.
73
MARTIN RATCOVICH, INTERNATIONAL LAW AND THE RESCUE OF REFUGEES AT SEA 174 (2019).
74
International Covenant on Civil and Political Rights art. 7, Dec. 19, 1966, 999 U.N.T.S. 171; Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3, Dec. 10, 1984, 1465 U.N.T.S.
85.
75
Supra note 27.
76
Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) (1989); Banković v. Belgium, 2001-XII Eur. Ct. H.R.
890.
77
Sale, Acting Commissioner, Immigration and Naturalization Service v. Haitian Centers Council Inc. (1993) 509
U.S. 155.
78
Supra note 63; Guy S Goodwin-Gill, The Haitian Refoulement Case: A Comment, 6(1) INT’L J. REFUG. LAW
103 (1994).
79
Supra note 69.

9
 or through passive- contactless actions (warning, re-routing, blockading).80 Effective
control is established through such active or passive steps, which counts as an exercise
of jurisdiction.81

c. There is no bar on Non-Refoulement under art. 33(2)

28. It is a general principle of law that exceptions to international human rights treaties
must be interpreted restrictively. 82 Under article 33(2), States Parties must demonstrate
that there exist “reasonable grounds” for regarding a refugee as a danger to the security
of the country of refuge. A finding of dangerousness can only be “reasonable” if it is
adequately supported by reliable and credible evidence.83 Further, there must be rational
connection between the means - refoulement and the ends – elimination and alleviation
of the danger to security, and states must be able to show that removing the individual
will help them achieve the ends.84

B. THERE IS A VIOLATION OF OBLIGATIONS UNDER THE CONVENTION AGAINST TORTURE

AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT OF 1984

29. Article 3 of the convention obligates state parties to practice non-refoulement and not
expel, extradite, or return a person to another state where there are substantial grounds
that he would be subjected to torture.85 The practices like interception, rejection at
frontier, pushback operations and deportations also engage responsibilities of state under
this article.86

1. The treatment to Okuzans satisfies the standard of torture

30. Article 3 is applicable only to instances of torture,87 applying the definition of torture as
defined in article 1 to the present case88, it is clear that Okuzans are at a risk of being

80
Medvedyev v. France, 51 Eur. Ct. H.R. 39 (2010); Violeta Moreno-Lax and MariagiuliaGiuffré, The Raise of
Consensual Containment: From ‘Contactless Control’ to ‘Contactless Responsibility’ for Forced Migration
Flows, in SATVINDER SINGH JUSS, RESEARCH HANDBOOK ON INTERNATIONAL REFUGEE LAW (Edward Elgar,
2019).
81
VIOLETA MORENO-LAX, ACCESSING ASYLUM IN EUROPE: EXTRATERRITORIAL BORDER CONTROLS AND
REFUGEE RIGHTS UNDER EU LAW 624 (2017).
82
Klass v. Germany, 2 Eur. Ct. H. R. 214 (1978).
83
Supra note 5.
84
Attorney-General v. Zaoui and Others [2005] 1 NZLR 690 (N.Z.).
85
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3, Dec. 10,
1984, 1465 U.N.T.S. 85.
86
JHA v. Spain, U.N. Committee Against Torture, U.N. Doc. CAT/C/41/D/323/2007, at ¶ 8.2 (2008).
87
BS v. Canada, U.N. Committee Against Torture, U.N. Doc. CAT/C/27/D/166/2000, at ¶ 7.4 (2001).
88
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 1, Dec. 10,
1984, 1465 U.N.T.S. 85.

10
 tortured upon return to Mayzan. The acts of Mayzan government has caused severe
mental and physical pain to Okuzans, they were arbitrarily arrested on account of merely
dissenting the government of Mayzan, and the emergency imposed has denied them of
their basic rights.89

2. There is a real risk of facing torture

31. The probability of facing torture relates to the phrase ‘would be in danger of being
subjected to torture’, the level of risk of facing torture should go beyond theory or
suspicion and must be highly probable.90
32. Firstly, there is a consistent pattern of gross human rights violations 91in Mayzan, it has
a systematic practice of torture which evident from the speeches of ministers,
employment of law and discrimination against Okuzans. Secondly, the violations of
human rights include not only harassment and violence against minority groups along
with widespread use of sentencing and imprisonment of persons exercising fundamental
freedoms but also situations that are conducive to genocide.92 The evidence in such cases
is habitual, widespread and deliberate use of torture at least in a considerable part of the
country.93 Thirdly, there should be incidents of past torture and other ill treatment, the
quality and quantity of past experiences of torture is taking in account, 94which are very
many in this case. Lastly, risk is evidenced by personal factors which make individual
particularly vulnerable to torture risk, indication of these is persons ethnic background,
religious affiliations etc. 95

3. The obligation of Non-Refoulement is absolute

33. Article 3 provides for an absolute protection from refoulment i.e. nobody can be
excluded from this protection, even if the person poses a threat to the national security
or has committed serious crimes.96 States cannot invoke any exceptional circumstances

89
Compromis, ¶ 16.
90
U.N. Committee Against Torture, General Comment No. 4 on the Implementation of Article 3 of the Convention
in the context of article 22, U.N. Doc. CAT/C/GC/4 (2017); U.N. Committee Against Torture, General Comment
No. 1: Implementation of Article 3 of the Convention in the Context of Article 22 (Refoulement and
Communications), U.N. Doc. A/53/44, Annex IX (1997).
91
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3(2), Dec.
10, 1984, 1465 U.N.T.S. 85.
92
Supra note 90.
93
U.N. Committee Against Torture, Summary Account of the Results of the Proceedings Concerning the Inquiry
on Egypt, U.N. Doc. A/51/44 (1996).
94
Dadar v. Canada, U.N. Committee Against Torture, U.N. Doc. CAT/C/35/D/258/2004 (2005).
95
Mutombo v. Switzerland, U.N. Committee Against Torture, U.N. Doc. CAT/C/12/D/13/1993 (1994).
96
Supra note 90.

11
 to justify torture.97 Therefore, even if Okuzans are considered a threat to respondents’
national security they cannot be denied protection under article 3.98

4. The Okuzans must be protected from indirect refoulement

34. The Committee in its general comment has stated that article 3 also covers cases where
the refugee is expelled to a third state or any other country where there is a risk of torture
or a risk of being returned to his or her country of origin.99 Therefore, even after
interdiction if the refugees reach Boliria, where they have no protection, they will
eventually have to leave to Mayzan, this will be a clear violation of article 3.

C. THERE IS VIOLATION OF OBLIGATIONS UNDER THE INTERNATIONAL COVENANT ON

CIVIL AND POLITICAL RIGHTS OF 1966

1. There is a violation of Non-Refoulement under art. 7

35. Article 7 of the convention which prohibits refoulement is wider in scope as compared
to article 3 of CAT, as it incorporates cruel, inhuman or degrading treatment.100 The
prohibition of degrading treatment is one of the rules of general internal law and is
101
binding on states in all circumstances. Moreover, states are under an obligation to
ensure that they secure covenant rights to all the persons who are under its control, states
cannot expel, extradite, deport or remove a person if there are substantial grounds to
establish that they may suffer irreparable loss.102

2. There is a violation of right to life under art. 6

36. Article 6 obligates state parties to grant protect right to life of human being and no to
deprive anyone of his life arbitrarily.103 The 200 refugees who drowned were going to

97
Supra note 47.
98
Bachan Singh Sogi v. Canada, U.N. Committee Against Torture, U.N. Doc. CAT/C/39/297/2006 (2007).
99
Korban v. Sweden, U.N. Committee Against Torture, U.N. Doc. CAT/C/21/D/88/1997, at ¶ 7 (1998).
100
Aoife Duffy, Expulsion to Face Torture - Non-Refoulement in International Law, 20 INT’L J. REFUG. LAW 373
(2008).
101
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgement, 2010 I.C.J.
Rep. 639, at ¶ 87 (June 19).
102
U.N. Human Rights Committee, General Comment No. 31 on The Nature of the General Legal Obligation
Imposed on States Parties to the Covenant, U.N. Doc CCPR/C/21/Rev.1/Add. 1326 (2004).
103
International Covenant on Civil and Political Rights art. 6, Dec. 19, 1966, 999 U.N.T.S. 171; JOSEPH, S.,
SCHULTZ, J., &CASTAN, M., THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS: CASES,
MATERIALS, AND COMMENTARY (3rd ed. 2013).

12
 Makonda to seek its protection from persecution, it was also evident that they were high
risk because of overcrowded smuggling boats. 104

3. The Okuzans have a right of liberty and freedom from arbitrary detention

37. Interdiction and cessation will create a situation where the refugees will be detained by
the Mayzan to verify their citizenship, this will infringe their right to liberty, arbitrariness
must be interpreted more broadly to include elements of inappropriateness, injustice and
105
lack of predictability. This means that remand in custody pursuant to lawful arrest
must not only be lawful but reasonable in all the circumstances. 106

D. THERE IS A VIOLATION OF OBLIGATIONS UNDER THE UNITED NATIONS CONVENTION ON

THE LAW OF THE SEA OF 1982

38. Apart from the obligation to protect refugees at sea as defined above, UNCLOS grants
states right to visit a flagless ship suspected of being smuggling migrants.107 However,
it does not allow interdiction, ‘interdiction’ is a two-step procedure, first is the boarding,
inspection, search of ship, and second when suspicions are justified, seizing or
prohibition of ship.108 The actions employed by Makonda violate the principle of non-
refoulement.

1. The interdiction is not justified under art. 110 and Migrant Smuggling Protocol

39. Article 110 of UNCLOS only provides right to visit and does not authorizes the states
to interdict the vessels in case of migrant smuggling. 109The right to board and inspects
does not extend to seize a ship, moreover, neither there is case of slave trading or
piracy.110 Therefore, Makonda cannot has no right to interdict refugee ships under
UNCLOS.
40. Although, the migrant protocol does state that, states may take appropriate measures111
but article 19 of the protocol affirms that all actions taken under the protocol must be in

104
Compromis, ¶ 28.
105
Hugo Van Alphen v. Netherlands, Judgements, U.N. Human Rights Committee, U.N. Doc.
CCPR/C/39/D/305/1988 (1990).
106
A. v. Australia, Judgements, Judgements, U.N. Human Rights Committee, U.N. Doc. CCPR/C/59/D/560/1993
(1997).
107
Convention on the Law of the Sea art. 110, Dec. 10, 1982, 1833 U.N.T.S. 397.
108
DOUGLAS GUILFOYLE, SHIPPING INTERDICTION AND THE LAW OF THE SEA 263–264 (2009).
109
ANNE T. GALLAGHER & FIONA DAVID, THE INTERNATIONAL LAW OF MIGRANT SMUGGLING 409-430 (2014).
110
Id.
111
G.A. Res. 55/25, Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United
Nations Convention against Transnational Organized Crime art. 8(7) (Nov. 15, 2000).

13
 conformity with existing human rights rules, including the prohibition on discrimination
and non-refoulement.112 Further, migrant smuggling protocol makes explicit reference
to states to protect right to life of the smuggled migrants, coercive actions may result in
loss of life and thus violate the core human rights obligation113.

E. THERE IS A VIOLATION OF OBLIAGTIONS UNDER OTHER INTERNATIONAL LAWS

1. There is a violation of art. 37 of Convention of Rights of Child

41. Article 37(a) provide complementary protection to children from torture, the article
prohibits refoulement of children to a place where there is a risk of them facing torture,
cruel, inhuman or degrading treatment.114 This is more expansive scope as children may
experience harm in different ways to adult and may suffer a more acute form of harm.115
116
The refugees from Mayzan consisted of children, thus there arises an obligation to
provide this complementary protection to the child refugees.

2. There is a violations of obligation under art. 2 of CEDAW

42. States are obliged to take all appropriate measures to eliminate discrimination against
women by any person, organization or enterprise,117 gender-based violence comes under
the ambit discrimination under article 1.118The committee on elimination of
discrimination against women has held that non refoulement although not explicitly
mentioned comes under the purview of convention and should be followed wherever
there is a real, personal and foreseeable risk of serious forms of gender violence.119

112
G.A. Res. 55/25, Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United
Nations Convention against Transnational Organized Crime art. 19 (Nov. 15, 2000).
113
M. NOWAK, U.N. COVENANT ON CIVIL AND POLITICAL RIGHTS – CCPR COMMENTARY 122-124(2nd revised ed.
2005).
114
Convention on the Rights of the Child art. 37(a), Nov. 20, 1989, 1577 U.N.T.S. 3; Jason M. Pobjoy, The
Convention on the Rights of the Child as a Complementary Source of Protection, in THE CHILD IN INTERNATIONAL
REFUGEE LAW 186–238 (2017).
115
Mayeka and Mitunga v. Belgium, 46 Eur. Ct. H.R. 23, 55 (2008); E. v. Chief Constable of the Royal Ulster
Constabulary 1 A.C. 536 (2009).
116
Clarifications No. 65.
117
Convention on the Elimination of All Forms of Discrimination against Women art. 12, Dec. 18, 1979, 1249
U.N.T.S. 13.
118
Convention on the Elimination of All Forms of Discrimination against Women art. 1, Dec. 18, 1979, 1249
U.N.T.S. 13.
119
N. v. Netherlands, Judgements, U.N. Committee on the Elimination of Discrimination against Women, U.N.
Doc. CEDAW/C/57/D/39/2012 (2014).

14
 3. There is a violation of obligation under International Convention on
Elimination of All Forms of Racial Discrimination

43. All state parties to ICERD have an obligation to take preventive action to eliminate all
forms of discrimination.120 The Committee on the Elimination of Racial Discrimination
has emphasized that States’ have an obligation to practice non-discrimination, states
have to fully comply with non-refoulement obligations arising out of international norms
concerning refugees and human rights.121 Further, as a state party to ICERD, the
respondents have committed to attending extraterritorial radicalized effects of its
laws,122 acts and policies, hence, the respondents should refrain from any act of
supporting or helping other nations radicalized projects.

ISSUE III: THAT BOLIRIA AND MAKONDA HAVE AN ERGA OMNES PARTES
OBLIGATION TO THE PRINCIPLE OF NON-REFOULEMENT.

44. The Applicant submits that it has the right to intervene in this matter for the enforcement
of the obligation of non-refoulement since it is an obligation erga omnes partes.

A. THE RESPONDENTS OWE THE DUTY OF NON-REFOULEMENT TO THE STATE PARTIES TO THE
1951 REFUGEE CONVENTION AND THE 1984 CONVENTION AGAINST TORTURE

1. There is an Erga Omnes Partes obligation to Non-Refoulement as per the

judgement of Belgium v Senegal

45. In the case of Belgium v Senegal,123it was established by the ICJ that an obligation under
a multilateral treaty may be treated as enforceable at the option of any other party to the
convention in appropriate cases. Such treatment would make the obligation erga omnes
partes.
46. This court defined obligations erga omnes partes as such obligations wherein every
State party has an interest in compliance with them in any given case. It held that “the
common interest in compliance with the relevant obligations under the Convention

120
International Convention on the Elimination of All Forms of Racial Discrimination art. 2, Dec. 21, 1965, 660
U.N.T.S. 195.
121
U.N. Committee on the Elimination of Racial Discrimination, General recommendation No. XXX, U.N. Doc.
HRI/GEN/1/Rev.9 (Vol.II), at ¶ 25-28 (2008).
122
Concerning the Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Provisional Measures, Order, 2008 I.C.J. Rep., ¶ 353 (Oct. 15).
123
Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, 2012, I.C.J.
G.L. No. 144, ¶ 69 (July 20).

15
 against Torture implies the entitlement of each State party to the Convention to make a
claim concerning the cessation of an alleged breach by another State party.”124
47. Observing that a lack of special interest would not bar a state party from asserting a
claim for the enforcement of an obligation and that a common interest would suffice,
this court stated that “If a special interest were required for that purpose, in many cases
no State would be in the position to make such a claim.”
48. The Applicant submits that this particular case entails the same kind of situation
enumerated in the ICJ’s dictum in the case of Belgium v Senegal since no particular
State has a special interest in the enforcement of the principle of non-refoulement.
49. If the obligation of non-refoulment were allowed to be invoked only in cases where the
claimants possessed a special interest and not a collective one, no state would be able to
make the claim for the breach of such obligation against the state returning refugees to
their home state facing persecution, because no State would be the injured or specially
affected by the said breach. Only the stateless and persecuted refugees would be
affected.
50. The International Law Commission’s Draft Articles on Responsibility of States for
Internationally Wrongful Acts125 specifically deals with the invocation of responsibility
by a State other than an injured State. A State other than an injured State may invoke the
responsibility of another State if two conditions are met: first, the obligation breached is
owed to a group of States to which the State invoking the responsibility belongs; and
secondly, the obligation is established for the protection of a collective interest of the
group.126 Obligations protecting collective interest of a group of states may derive from
customary international law, or from multilateral treaties. Such obligations are also
referred to as obligations erga omnes partes.127

124
Id.
125
Draft Articles on the Responsibility of States for Internationally Wrongful Acts, art. 48, U.N. G.A.O.R. 53rd
Sess. Supp. (No. 10) at 43, U.N. Doc. A/56/10 (2001).
126
Id.
127
Id.

16
 a. All state parties to the Refugee Convention and the Convention Against
Torture have a Common Interest in Compliance with the Principle of
Non-Refoulement

51. As per the Belgium v Senegal judgment, having a common interest implies that the
obligations in question are owed by any State party to all the other States parties to the
Convention.128
52. It has been explicitly held by the ICJ that “The common interest in compliance with the
relevant obligations under the Convention against Torture implies the entitlement of
each State party to the Convention to make a claim concerning the cessation of an
alleged breach by another State party.” This court further observed that the States parties
to the Convention possess a common interest to ensure that acts of torture are prevented
in light of their shared values, on the basis of the object and purpose of the Convention
as mentioned in the Preamble: “to make more effective the struggle against torture…
throughout the world”.
53. The ICJ further recalled in the case of Gambia v Myanmar129 its Advisory Opinion on
Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide, in which it observed that “in such a convention the contracting States do not
have any interests of their own; they merely have, one and all, a common interest,
namely, the accomplishment of those high purposes which are the raison d’être of the
convention.” The emphasis here is less on the existence of a common interest than on
the absence of an individual interest.
54. Therefore, the notion of obligations applicable erga omnes partes implies that “even in
the absence of an express clause recognizing standing, all States can institute
proceedings if they seek to defend a small range of obligations protecting fundamental
community values [forming the raison d’etre of a treaty].”130 For an obligation to be
deemed erga omnes partes, such obligation must be essential for the fulfillment of the
object and purpose of the treaty.
55. The Applicant submits that the Torture and Refugee Conventions are similar to the
Genocide Convention in that in all these, the contracting parties do not have an interest

128
Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment, 2012, I.C.J.
G.L. No. 144, ¶ 68 (July 20).
129
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Provisional Measures, 2020 I.C.J. Rep., at ¶ 3 (JAN. 23).
130
Christian J. Tams, Individual States as Guardians of Community Interests, in FROM BILATERALISM TO
COMMUNITY INTEREST: ESSAYS IN HONOUR OF BRUNO SIMMA 379, 386 (Ulrich Fastenrath et al. eds., 2011).

17
 of their own but only a common interest in the accomplishment of the higher purpose of
prevention of torture and protection of human rights. Moreover, the obligation of non-
refoulement is crucial for the fulfillment of the object and purpose of the Refugee
Convention and the Convention against Torture. This entitles Pemola to make the claim
concerning the breach of the principle of non-refoulement by the Respondents.

b. Non-Refoulment is a Collective Obligation under ARSIWA

56. To lie within the ambit of erga omnes partes, obligations must be “collective
obligations”, meaning that they must be applicable between more than two States, i.e.
apply to a group of States and must have been established under a collective interest.
The performance of these obligations in a given case is not owed to one State
individually.131
57. The violation of these obligations will injure any particular State only if certain
additional requirements are met. A State is said to be injured by the breach of a collective
obligation only if it is “specially affected” by it, i.e. affected in a manner which separates
it from the generality of the other states to which the obligation is owed.132Examples of
collective obligations include the environment and the security of a region by means of
a regional nuclear-free-zone treaty or a regional system for the protection of human
rights.133
58. Therefore, it is submitted that the obligation of non-refoulement is a collective obligation
under Article 33 of the Refugee Convention as well as Article 3 of the Convention
against Torture because it is not applicable to any one state individually but is an
obligation binding on a group of state parties and was established under the common
interest of preventing torture and preventing human rights violations of refugees. Thus,
the obligation of non-refoulement is strictly erga omnes partes.
59. Furthermore, in the 2005 Krakow session of Institute of International Law, the
Resolution on Obligations erga omnes in International Law was passed under the
Rapporteurship of M. Giorgio Gaja, Article 1(b) of which defines obligations erga
omnes as “an obligation under a multilateral treaty that a State party to the treaty owes

131
International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts,
Nov. 2001, Supplement No. 10 (A/56/10), chp.IV.E.1, at 118.
132
Id, at 119.
133
Id, at 125.

18
 in any given case to all the other States parties to the same treaty… so that a breach of
that obligation enables all these States to take action.”134
B. IN ARGUENDO, THE APPLICANT HAS STANDING TO MAKE A CLAIM FOR THE CESSATION OF
THE BREACH OF THE OBLIGATION OF NON-REFOULEMENT AS IT IS OWED TO THE WHOLE

INTERNATIONAL COMMUNITY

60. The dictum of an obligation owed erga omnes was propounded by this court in the
Barcelona Traction Case,135 wherein it distinguished between an obligation owed by a
state “towards the international community as a whole”,136 or erga omnes, and an
obligation simply owed by a state to another state with which it has entered into treaty
stipulations. In this court’s opinion in this case, the obligations owed towards the whole
of the international community are few, and concern them “by their very nature.” It is
submitted that non-refoulement is also such an obligation.

ISSUE IV: THAT BOLIRIA AND MAKONDA HAVE AN OBLIGATION UNDER

INTERNATIONAL LAW TO PREVENT THE OKUZAN PEOPLE FROM BEING
LEFT STATELESS

A. THE OKUZANS REFUGEES FROM MAYZAN ARE STATELESS

1. The Okuzans are de jure stateless

61. The 1954 Convention on Statelessness137 includes a strictly legal definition of a stateless
person: “a person who is not considered as a national by any State under the operation
of its law”138 (what is known as de jure stateless).139 This definition has achieved the
status of customary international law.140
62. As per the 1954 Convention, a person is stateless until his application of citizenship is
not considered by the administrative authority of the state. A person who is national of
a state enjoys the rights given by the state and his/her nationality is confirmed as per the
state’s law.

134
M Giorgio Gaja, Institut de Droit International ‘Resolution on Obligations ergaomnes in International Law’
(2005) 71(2) AnnIDI 286–9 art. 1 (b).
135
Barcelona Traction, Light and Power Co., Ltd. (Belgium v. Spain) 1970 I.C.J. Rep. 3 (Feb. 5).
136
Id. ¶ 33.
137
Convention relating to the Status of Stateless Persons, Sept. 28, 1954, 360 U.N.T.S 117.
138
Convention relating to the Status of Stateless Persons, art. 1, Sept. 28, 1954, 360 U.N.T.S 117.
139
MARILYN ACHIRON, NATIONALITY AND STATELESSNESS: A HANDBOOK FOR PARLIAMENTARIANS N° 11 10
(UNHCR, 2005).
140
Draft Articles on Diplomatic Protection with Commentaries, as contained in ‘Report of the International Law
Commission, ILC 58th Sess., 48-49, U.N. Doc. A/61/10 (2006).

19
 63. The Okuzan refugees who migrated to Boliria are stateless as per the definition of 1954
convention because Mayzan does not consider them as their citizen until they provide
documents to prove their nationality. They are currently de jure stateless as laws of
Mayzan do not automatically receive them as nationals of their state. The Okuzan people
who currently have refugee status are also stateless in migratory context and are entitled
to stateless status under the Statelessness convention as they do not possess documents
to prove their citizenship under Mayzan’s laws.
64. In the Nottebohm case,141 the International Court of Justice stated that: “According to
the practice of States, to arbitral and judicial decisions and to the opinion of writers,
nationality is a legal bond having as its basis a social fact of attachment, a genuine
connection of existence, interest and sentiments, together with the existence of
reciprocal rights and duties.”142 The citizenship review exercise is discriminatory as it
deprives the nationality of Okuzans, which represent the minority in Mayzan, on ethnic
grounds, which will make it impossible to establish such a legal bond.
65. The Democratic Republic of Mayzan follows jus soli citizenship law and the Okuzan
people who fail to produce the valid documentation, due to lack of birth registration,
would be left stateless despite being born in the territory of Mayzan.
66. Mayzan’s own statistics provide that at the very least, thousands of illegal immigrants
are living in the country.143 The Government of Mayzan intends to review the citizenship
documents of Okuzans and deport them if they are unable to produce the “valid”
documentation. The Mayzan Human Rights Centre also noted that the review process
would unfairly impact the Okuzans since “very few” of them had access to citizenship-
proving documents due to their low levels of education and rural lifestyle. Furthermore,
the same was observed by Professor Buten Kaya from Mayzan National University, who
went so far as to write that the citizenship review exercise would leave true-born citizens
of Mayzan stateless.144 Okuzans do not possess documentation to establish genuine and
effective link with their country.
67. Therefore, at the very least, thousands of Okuzans would be left stateless once the said
review is done after they return from Boliria, though the real number would be much
higher due to the reasons pointed out by Mayzan Human Rights Centre and Professor

141
Nottebohm Case (Liechtenstein v. Guatemala), Second Phase Judgement, 1955, I.C.J. Rep. 4 (Apr. 6).
142
Supra note 139.
143
Compromis, ¶ 13.
144
Id., ¶ 14.

20
 Buten Kaya. It is submitted that the Mayzan does consider Okuzans its Nationals without
producing documents, which they are not able to produce. Thus, the Okuzans are de jure
stateless. This gives rise to a situation of statelessness for the Okuzan people, which
Boliria and Makonda are obliged to prevent under international law.
68. The Okuzan children born in the territory of the Respondents have been left stateless
irrespective of whether their parents are found to be valid citizens of Mayzan or not,
since Mayzan follows the principle of jus soli to grant citizenship. Since the Okuzan
children during these two years were not born in Mayzan’s territory and do not possess
any relevant documents relating to birth registration, they will be unable to get
citizenship from it. Therefore, at the very least, the children of the Okuzans born outside
Mayzan are stateless.

2. Okuzans are de facto stateless

69. De facto stateless persons are persons outside the country of their nationality who are
unable or, for valid reasons, are unwilling to avail themselves of the protection of that
country.145 The individual is thus unable to demonstrate that he/she is de jure stateless,
yet he/she has no effective nationality and does not enjoy national protection. S/he is
considered to be de facto stateless.

a. The Okuzans are Outside the Country of Nationality

70. The Okuzans are outside their country of nationality, Mayzan. They are in Boliria,
Makonda, and Pemola.

b. The Okuzans are Unable and Unwilling to Avail Protection of Mayzan

71. De facto stateless persons are unable or unwilling to avail the protection of their country
of nationality for valid reasons. Such protection includes return to the State of
nationality. Okuzans are unwilling to avail themselves of Mayzan’s protection as a State
due to lack of documentation, and unwilling too, as evidenced by their attempts to cross
an entire sea, endangering their lives, so as not to be returned to Mayzan.
72. Okuzans have a valid reason to be unwilling to avail the protection of Mayzan – their
well-founded fear of persecution for reasons of their race and religion, based on decades
of discrimination and violence which had culminated in recent years and forced them

145
Hugh Massey, UNHCR and De Facto Statelessness, U.N. Doc. LPPR/2010/01 (UNHCR, 2010).

21
 to flee their country. It is submitted that several thousand Okuzan Refugees are de facto
stateless because of the persecution and administrative barriers in Mayzan.

B. BOTH BOLIRIA AND MAKONDA HAVE AN OBLIGATION TO PREVENT STATELESSNESS OF

OKUZAN

1. The Okuzans have a right to nationality

73. Article 15 of the 1948 Universal Declaration of Human Rights provides that “Everyone
has the right to a nationality and that no one shall be arbitrarily deprived of his nationality
nor denied the right to change his nationality.”146
74. Apart from the UDHR, the right of every person to a nationality and the right not to be
arbitrarily deprived of one's nationality is referenced in numerous human rights
instruments such as the Convention on the Elimination of All Forms of Racial
Discrimination; the International Covenant on Civil and Political Rights; the Convention
on the Elimination of All Forms of Discrimination Against Women; and the Convention
on the Rights of the Child.147
75. UN Human Rights Council has stated that the right to a nationality is a fundamental
human right.148 UNHCR Executive Committee’s (ExCom) Conclusion No 78 (XLVI)
on ‘Prevention and Reduction of Statelessness and the Protection of Stateless
Persons’,149 also recognizes the “right of everyone to a nationality”. The Council of the
European Union has affirmed that ‘the right to a nationality is a fundamental legal
right.’150

2. The Respondents have a duty to avoid statelessness

76. The duty to prevent statelessness is closely related to the right of nationality. This
obligation is negative duty arising from the right to nationality.

146
G. A. Res. 217 A (III), Universal Declaration of Human Rights, art. 15, (Dec. 10, 1948).
147
Executive Committee of the High Commissioner’s Programme, Conclusion No. 106 (LVII), U.N. Doc.
A/AC.96/1035 (2006).
148
Human Rights Council Res. 7/10, U.N. Doc. A/HRC/RES/7/10 (Mar. 27, 2008).
149
Executive Committee of the High Commissioner’s Programme, Report of the Forty-Sixth Session of the
Executive Committee of the High Commissioner’s Programme, UN doc A/AC.96/860 (1995).
150
Conclusions of the Council and the Representatives of the Governments of the Member States on Statelessness
E.C. No.14978/15 (2015).

22
 a. There is a duty to prevent statelessness under CIL

77. The obligation that “statelessness shall be avoided” has become a principle of
international law.151 It is enumerated in Article 4 of the European Convention on
Nationality,152 the Explanatory Report of which explicitly states that “the obligation to
avoid statelessness has become part of customary international law....”153 Furthermore,
the Council of Europe’s explanatory report of the 2006 State Succession Convention154
also notes that the avoidance of statelessness forms a part of customary international
law.155 Preambular paragraph 2 of the Convention provides that “the avoidance of
statelessness is one of the main concerns of the international community in the field of
nationality, since the non-fulfilment of this right leads to statelessness. The European
Convention on Nationality refers in its Article 4 to both these general principles of
international law.”
78. The Universal Declaration of Human Rights, which contains the right to nationality, is
a part of customary international law.156 Furthermore, the African Court on Human and
Peoples’ Rights has recognized that the right to nationality exists under customary
international law in its unanimous judgment in the case of Anudo v Tanzania.157
79. The ICJ has confirmed that birth in a territory is one of the more important connections
underlying the genuine link test for nationality.158 Customary international law provides
the right to a nationality and prohibits the creation of statelessness. Furthermore, that a
person who is not otherwise a national of any state must be considered national of the
state in which he was born has been the conclusion and consensus among many. This
holds consensus among and was the conclusion of Vitoria,159 the Institute of
International Law,160 the International Law Association,161 and the Harvard Research in

151
Steven M. Schneebaum, Kurić and Others v. Slovenia & Kurić and Others v. Slovenia (Just Satisfaction) (Eur.
Ct. H.R.), 53 I.L.M.1073–1160 (2014).
152
European Convention on Nationality, Nov. 6, 1997, E.T.S. 166.
153
European Convention on Nationality, ¶ 33, 34, Nov. 6, 1997, E.T.S. 166
154
Convention on the Avoidance of Statelessness in Relation to State Succession, Mar. 15, 2006, C.E.T.S. 200.
155
Council of Europe Convention on the avoidance of statelessness in relation to State succession - Explanatory
Report, ¶ 1, C.E.T.S. 200 (May 19, 2006).
156
Case Concerning United States Diplomatic and Consular Staff in Tehran (United States v Iran), Judgement,
1980, I.C.J. Rep. 3 (May 24); Matter of South-West Africa (Ethiopia v. South Africa; Liberia v. South Africa),
Preliminary Objections, 1962, I.C.J. Rep. 319 (Dec. 21).
157
The Matter of Anudo Ochieng (Anudo V. United Republic of Tanzania), 012/2015, African Court on Human
and Peoples' Rights [Afr. Comm’n H.P.R.] (Aug. 22, 2018).
158
Supra note 141.
159
Reflectiones Theologicae Xii: De Indis Et De Iure Belli Reflectiones, [1953], II Y.B. INT’L L. COMM’N, U.N.
Doc. A/CN.4/SER.A/1953/Add.1.
160
Tableau General des Resolutions, [1953], II Y.B. INT’L L. COMM’N, U.N. Doc. A/CN.4/SER.A/1953/Add.1
161
Report Of The Thirty-Third Conference 29 [1953], II Y.B. INT’L L. COMM’N, U.N. Doc. A/CN.4/L.573.

23
 International Law,162 and was also even the rule in the Justinian Code.163
80. In his dissenting opinion in Ramadan v Malta, Judge Pinto de Albuquerque held that
states party to the ECHR have a positive obligation to grant nationality to children born
in their territories who would otherwise be stateless, and that this protection is not
limited to foundlings.164 The Court also held in Kuric v Slovenia that there was a
customary international positive obligation to avoid statelessness.165The Human Rights
Committee (HRC) has also held that birth in a territory is an important factor in
considering whether a person has as sufficient connection to justify the right to return to
that territory under ICCPR.166
81. Looking at state practice, it is observed that a huge number of states that already grant
nationality to any child, stateless or not, that is born in their territory. Of those states that
do not, a large number of them make an exception and grant nationality to stateless
children born in the territory. Furthermore, states routinely criticize the acts of other
states when they fail to grant nationality to stateless children, and defend themselves not
by rejecting the obligation but explaining that the obligation does not apply for some
other reason. Thus, states are under a customary international legal obligation to grant
nationality to children born in their territory, if the child would be otherwise
stateless.167An even larger number of states that do not practice jus soli normally, but
will make an exception expressly for cases of statelessness. 168
82. Thus, it is submitted that the Respondents must grant nationality and avoid statelessness
of Okuzan refugees and especially Okuzan children born in their territory to comply
with their obligations under customary international law, as otherwise, those children
will be left stateless owing to their parents being stateless.

162
Draft Law Of Nationality [1953], II Y.B. INT’L L. COMM’N, U.N. Doc. A/CN.4/156.
163
JUSTINIAN I, CODE OF JUSTINIAN (Encyclopedia Britannica, 2019).
164
Convention on reduction of statelessness, Aug. 30, 1961, 989 U.N.T.S 175; American Convention on human
rights, art. 20(2), Nov. 22, 1969, T.S. 36; African Charter on the Rights and Welfare of the Child, art. 6(4), July
11, 1990, CAB/LEG/24.9/49 (1990).
165
Supra note 151.
166
U.N. Human Rights Committee, CCPR General Comment No. 17: Article 24 (Rights of the Child),
HRI/GEN/1/Rev.9 (Vol. I) (1989).
167
U.N. Secretary General, Impact of the arbitrary deprivation of nationality on the enjoyment of the rights of
children concerned, and existing laws and practices on accessibility for children to acquire nationality, inter alia,
of the country in which they are born, if they otherwise would be stateless, ¶ 28, U.N. Doc. A/HRC/31/29 (Dec.
16, 2015).
168
Id. at ¶ 30.

24
 83. The 1961 convention even permits states to opt out of the automatic nationality grant to
stateless children born in their territory.169 Yet, it is extremely pertinent to show that no
states parties have entered a reservation to this obligation, which outlines the
fundamental importance of this obligation.

b. There is duty to prevent statelessness under conventional law

84. Article 1(1) of the 1961 Convention provides that a contracting state ‘shall grant its
nationality to a person born in its territory who would otherwise be stateless.’ The
articles of the Convention aim to avoid statelessness at birth. The same is now expressly
provided for in the legislation of over 100 States, as well as in regional treaties.170
85. Article 5 of 1965 Convention on the Elimination of All Forms of Racial Discrimination
obliges States to “guarantee the right of everyone, without distinction as to race, colour,
or national or ethnic origin, to equality before the law,” particularly in the enjoyment of
several fundamental human rights, including the right to nationality.171
86. Article 24 of the 1966 International Covenant on Civil and Political Rights provides that
“Every child shall be registered immediately after birth and shall have a name,” and that
“every child has the right to acquire a nationality.”172 Moreover, Article 7 of the
Convention on the Rights of the Child requires that “[the] child shall be registered
immediately after birth and shall have the right from birth to a name, the right to acquire
a nationality and, as far as possible, the right to know and be cared for by his or her
parents.” This is replicated in art 18(2) of the Convention on the Rights of Persons with
Disabilities with respect to children with disabilities.
87. The Convention on the Rights of the Child also provides that “States Parties shall ensure
the implementation of these rights in accordance with their national law and their
obligations under the relevant international instruments in this field, in particular where
the child would otherwise be stateless.”
88. In furtherance of this, CCPR General Comment 17 lays down that the purpose of Article
24 of the ICCPR is “to prevent a child from being afforded less protection by society

169
Guidelines On Statelessness No. 4: Ensuring Every Child’s Right to Acquire a Nationality through Articles 1-
4 of the 1961 Convention on the Reduction of Statelessness, UNHCR (Dec. 29, 2012),
https://www.unhcr.org/protection/statelessness/5465c9ff9/guidelines-statelessness-nr-4-ensuring-childs-right-
acquire-nationality.html.
170
M. MANLY & L VAN WAAS, THE VALUE OF HUMAN SECURITY FRAMEWORK IN ADDRESSING STATELESSNESS
105 (An Edwards & C Ferstman eds., 2010).
171
Supra note 139.
172
International Covenant on Civil and Political Rights, art. 24, Dec. 16, 1966, 999 U.N.T.S. 171.

25
 and the State because he is stateless.” In considering the right to a nationality, the Human
Rights Committee concluded that all “states are required to adopt every appropriate
measure, both internally and in cooperation with other States, to ensure that every child
has a nationality when he is born.”173 Where states are not granting nationality to
children born in their territory, there is arguably an obligation for those states, in good
faith cooperation with other states, to locate a nationality for the child.174
89. The CRC has been ratified by 196 countries of the world, including the Respondents,
making it the most widely ratified international human rights treaty in history. Therefore,
it is important to note that, even if a specific state that bears this obligation to grant
nationality to stateless children cannot be pinpointed, it is certain that all states parties,
and thus all states in the world, are parties to the CRC and are under the obligation to
ensure that any stateless child acquires a nationality.
90. The Inter-American Convention on Human Rights reiterates the right to a nationality
found in the Declaration on Human Rights and expands it significantly under article 20.
The European Convention on Nationality further expressly requires states to grant
nationality to a child born in their territory where the child would be otherwise stateless,
based on jus soli.175
91. UNHCR Executive Committee’s Conclusion No 78176 expressed its concern “that
statelessness, including the inability to establish one’s nationality, may result in
displacement”, and stressed “that the prevention and reduction of statelessness and the
protection of stateless persons are important also in the prevention of potential refugee
situations”. The UN General Assembly (UNGA) further endorsed UNCHR ExCom’s
Conclusion 78.177

173
Supra note 166; Case of Expelled Dominicans & Haitians v Dominican Republic, Inter-Am. Ct. H.R. (ser. C)
No. 282, ¶ 258 (Aug. 28, 2014).
174
William Thomas Worster, The Obligation to Grant Nationality to Stateless Children Under Customary
International, 27 MICH. L. REV. (2019).
175
European Convention on Nationality art. 6, Nov. 6, 1997, E.T.S. No. 166; U.N. Secretary General, Impact of
the arbitrary deprivation of nationality on the enjoyment of the rights of children concerned, and existing laws and
practices on accessibility for children to acquire nationality, inter alia, of the country in which they are born, if
they otherwise would be stateless, ¶ 36, U.N. Doc. A/HRC/31/29 (Dec. 16, 2015).
176
Executive Committee of the High Commissioner’s Programme, Report of the Forty-Sixth Session of the
Executive Committee of the High Commissioner’s Programme, UN doc A/AC.96/860 (1995).
177
G. A. Res. 50/152, Office of the United Nations High Commissioner for Refugees: Resolution/ adopted by the
General Assembly (Feb. 9, 1996).

26
 92. Moreover, the ILC has concluded on numerous occasions that international law
provides for a right to a nationality178 and recommended that children born stateless
should receive the nationality of the birth state.179
93. The Applicant submits that the children born in the territory of Boliria and Makonda in
time period between September 2018, when Okuzan started crossing the borders of
Mayzan, to January 2021 when their refugee protection ended, have been left stateless,
since their parents themselves are stateless. The right to acquire a nationality is
enshrined in the International Covenant on Civil and Political Rights,180 and various
other international instruments. Boliria and Makonda being parties to the ICCPR have
obligation to grant those children nationality to their state to eliminate their current
stateless status. They also have an obligation to register all children born in their
territories along with their names so that they do not face hardships in proving
appropriate links that entitle them to a nationality and are consequently not left stateless.

178
Nationality in relation to the succession of States,Y.B. INT’L L. COMM’N, U.N. Doc.A/CN.4/493 and Corr.1;
Draft articles on the expulsion of aliens,Y.B. INT’L L. COMM’N, U.N. Doc. A/69/10 ¶ 43.
179
;Draft Convention on the Elimination of Future Statelessness art. 1, [1954] II Y.B. INT’L L. COMM’N, U.N.
Doc. [A/CN. 4/81]; Draft Convention on the Reduction of Future Statelessness, [1954] II Y.B. INT’L L. COMM’N
U.N. Doc. A/CN. 4/88).
180
International Covenant on Civil and Political Rights, art. 24, Dec. 16, 1966, 999 U.N.T.S. 171.

27
 PRAYER FOR RELIEF

WHEREFORE, IN LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED, REASONS

GIVEN AND AUTHORITIES CITED, THIS HON’BLE COURT MAY BE PLEASED TO
ADJUDGE AND DECLARE THAT:

I. That Boliria and Makonda have an obligation under international law to provide
protection to all those Okuzan asylum seekers from Mayzan who seek its
protection.

II. Boliria’s measures of cessation of refugee status and Makonda’s measures

interdicting the Okuzan people on the Calasian Sea are in violation of their
obligations under international law.

III. Boliria and Makonda have an erga omnes obligation to the principle of non-
refoulement.

IV. Boliria and Makonda have an obligation under international law to prevent the
Okuzan people from being left stateless.

OR PASS ANY SUCH ORDER OR DIRECTIONS THE HON’BLE COURT DEEMS FIT AND
PROPER IN THE FURTHERANCE OF JUSTICE, EQUITY AND GOOD CONSCIENCE, ALL OF
WHICH IS RESPECTFULLY SUBMITTED.

Sd /-

AGENTS FOR THE APPLICANTS

XVII