32317 R

INTERNATIONAL ANTI-CORRUPTION COURT-2023

Case Concerning KALINGA CORRUPTION

THE PEOPLE'S REPUBLIC OF GAURO

V.

PEOPLE’S REPUBLIC OF HARIKELA

MEMORIAL FOR THE (RESPONDENT)

3rd TIB-DUMCS ANTI-CORRUPTION MOOT COURT

COMPETITION 2023
 TABLE OF CONTENTS

Contents
Table of Contents ............................................................................................................................. I
Index of Authorities ........................................................................................................................ II
Statement of Jurisdiction............................................................................................................... VI
Questions Presented ..................................................................................................................... VII
Statement of Facts ...................................................................................................................... VIII
Summary of Argument ................................................................................................................. IX
Arguments ....................................................................................................................................... 1
I. THE DISPUTE IS NOT MAINTAINABLE OR NOT BEFORE THE PRESENT
COURT ...................................................................................................................................... 1
A. The dispute is not maintainable under IACC statute. ........................................................ 1
1. The dispute does not fall within the IACC's jurisdiction as defined in Article 6 of
IACC statute........................................................................................................................ 1
2. The matter does not meet the admissibility criteria set by the Article 9 of the IACC
Statute. ................................................................................................................................ 1
A. The dispute is not maintainable before the court due to the non-exhaustion of local
remedies (ELR) ....................................................................................................................... 2
1. Non-Exhaustion of Local Remedies causes lack of jurisdiction under International
Court 2
2. Exhaustion of Local Remedies must be performed to claim jurisdiction under
International Court .............................................................................................................. 3
II. THE CURRENT GOVERNMENT OF GAURO IS NOT LEGITIMATELY
ENTITLED TO FILE THE DISPUTE UNDER INTERNATIONAL LAW. ..................... 4
A. The Current Government of Gauro doesn’t hold the legal status as a government in
accordance with international law. ......................................................................................... 4
1. Current government’s (Kishtigarva) successful coup d'état necessarily violate
international law.................................................................................................................. 4
2. Current government created by outside intervention which is not legal under
International Law. ............................................................................................................... 5
3. Current governments created by the threat or use of force which is also illegal
under international law. ...................................................................................................... 6
B. Current Government violated the Democratic Principles and Political Self-Determination
................................................................................................................................................. 7
1. Current governments violated Democratic Principles .............................................. 7

I
 2. Current governments violated right to self-determination ........................................ 7
C. Kishtigarva government's violated Article 26 of VCLT by reaching agreement with
Kadampa. ................................................................................................................................ 9
III. HARIKELA AND SHUKLA COMPANY DID NOT VIOLATED
INTERNATIONAL LAW, INCLUDING THE UNITED NATIONS CONVENTION
AGAINST CORRUPTION AND CONVENTION ON COMBATING BRIBERY OF
FOREIGN PUBLIC OFFICIALS IN INTERNATIONAL BUSINESS
TRANSACTIONS. .................................................................................................................. 10
A. Harikela did not violate international law by not returning Avinor to Gauro authorities.10
1. Harikela acted in accordance with Article 14 of ICCPR ........................................ 10
2. Shukla Company did not violate UNCAC. ............................................................. 11
B. Shukla Company ensured right to health of the citizens. ................................................. 11
1. Shukla company acted in accordance with UDHR. ................................................ 11
2. Shukla Company acted in accordance with ICESCR. ............................................ 12
C. Shukla Company ensured equality and non-discrimination principle uner international
law. ........................................................................................................................................ 12
1. Shukla Company acted in accordance with ICCPR ................................................ 12
2. Shukla Company ensured equality and non-discrimination principle under UDHR.
..................................................................................................................................13
IV. HARIKELA DID NOT VIOLATED INTERNATIONAL LAW BY NOT
RETURNING AVINOR TO GAURO AUTHORITIES. .................................................... 15
A. Harikela did not violate international law by not returning Avinor to Gauro authorities.15
3. Harikela acted in accordance with Article 14 of ICCPR ........................................ 15
4. Harikela acted in accordance with Article 10 of UDHR ........................................ 15
B. Harikela acted in complying with the principle of extradition......................................... 16
1. Harikela followed principle of political offence exception. ................................... 16
2. Harikela acted in accordance with the principle of non-refoulement. .................... 17
Prayer for Relief ............................................................................................................................ 19

INDEX OF AUTHORITIES

II
 INTERNATIONAL TREATIES AND CONVENTIONS

 International Covenant on Civil and Political Rights (ICCPR), G.A. Res. 2200A (XXI)
(1966), art. 26.
 International Covenant on Civil and Political Rights (ICCPR), G.A. Res. 2200A (XXI)
(1966), art. 14
 International Anti-Corruption Court Statute
 International Court of Justice
 International Criminal Court
 Vienna Convention on Diplomatic Relations (VCDR) (500 UNTS 95, 23 UST 3227, 55
AJIL 1064

CASES

 Belgium v. Senegal (2012) ICJ Rep 422, paras 19–22.

 Interhandel (Switz. v. U.S.), Preliminary Objections, 1959 I.C.J. Rep. 6, at 27 (Mar. 21)
 Elettronica Sicula S.p.A. (ELSI) (Italy v US) [1989] ICJ Rep 15; 28 ILM 1109.
 Case concerning Questions relating to the Obligation to Prosecute or Extradite (Belgium
v. Senegal), Judgment, I.C.J. Reports 2012, p. 422, at pp. 567–568, paras. 19–22.
 Nicaragua Case, ICJ Rep. 1986, 14 at 106. See also Corfu Channel Case, ICJ Rep.
 ICJ Rep. 1986, 14 at 124.
 East Timor (Portugal v. Australia), Judgment, ICJ Rep. 1995, 90 at 102.
 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
(Advisory Opinion) [2004] ICJ Rep 136 [88]
 Western Sahara, Advisory Opinion, ICJ Rep. 1975, 12 at 32]

 Norris v. Government of the United States HOUSE OF LORDS (Session 2007-08)

[2008] UKHL 1 A.C. 920
 Metal-Tech Ltd. v. The Republic of Uzbekistan (ICSID Case No. ARB/10/3).
 Van Bokkelen v Haiti (United States v Haiti) [1886-I] US Foreign Relations 1034
 Liasi v. Attorney General (1975) C.L.R. 558 (Cyprus).
 Abdulaziz, Cabales and Balkandali v The United Kingdom, 9214/80; 9473/81; 9474/81
[1985] ECHR 7.
 Soering v. The United Kingdom, European Court of Human Rights (ECtHR)
(Application No. 14038/88, 7 July 1989) para. 88.
 Othman (Abu Qatada) v United Kingdom, European Court of Human Rights (ECtHR)
(Application No. 8139/09, 17 January 2012) para 235, 258.
 Ahmad v. Wigen, 726 F. Supp. 389 (E.D.N.Y. 1989), aff’d, 910 F.2d 1063 (2d Cir. 1990)
 Karadzole v. Artukovic, United States Court of Appeals, Ninth Circuit, 247 F.2d 198 (9th
Cir. 1957).
 Crown Solicitor v Datuk Dr Jeffrey Kitingan, HCMP 1193/1990, [1994] HKCFI 204;
[1994] 1 HKC 516.

III
 Dawood Khan v. Canada, United Nations (UN) Human Rights Committee (HRC),
Communication No. 1302/2004, 10 August 2006, para. 5.6.
 Polay Campos v. Peru, UN Human Rights Committee (HRC), Communications No.
577/1994, para. 8.8.

BOOKS AND ARTICLE

 J.A. Frowein, ‘Jus cogens’in R. Bernhardt(ed.), Encyclopedia of Public International 209

Law, III (Amsterdam, 1997), 65-9 at 67. Cf. also Art. 19 of the ILC Draft Articles on
State Responsibility: (1998) 37 ILM 442.
 M. Whiteman (Washington, D.C., 1965), V, 874-965 and the authorities there cited. See
also Principle IV of the Declaration on Principles Guiding Relations between
Participating States, forming part of the (Helsinki) Final Act of the Conference on
Security and Cooperation in Europe, 1 August 1975: (1975) 10 ILM 1292 at 1294.
 On the question how the puppet character of a given government is to be determined, 164
see J. Crawford…
 Webster’s New Twentieth Century Unabridged Dictionary (2nd edn, 1959) 418
 Jakob Th. Moller on Article 7, Eide ed., The Universal Declaration of Human Rights, pp.
115–141.
 Equality and Non-Discrimination in International Human Rights Law, Li-ann Thio,
SPECIAL REPORT No. 240, December 31, 2020, p. 7.

UNITED NATIONS DOCUMENTS

 United Nations Convention against Corruption (UNCAC) (General Assembly resolution

58/4 of 31 October 2003) art. 44
 United Nations Convention against Corruption (UNCAC) (General Assembly resolution
58/4 of 31 October 2003) art. 9
 Convention on Combating Bribery of Foreign Public Officials in International Business
Transactions (“OECD Anti-Bribery Convention”), Nov. 21, 1997, OECD Doc.
DAFFE/IME/BR (97)20, reprinted in 37 I.L.M. 1 (1998). art. 1(1).
 United Nations Convention Against Transnational Organized Crime (UNTOC) adopted
in 2000 (U.N. Doc. A/RES/55/25) art. 9.
 International Covenant on Civil and Political Rights, adopted by GA Res 2200A (XXI)
on 16 December 1966.
 International Covenant on Economic, Social and Cultural Rights (ICESCR) (adopted 16
December 1966, entered into force 3 January 1976, 993 UNTS 3) art 12.
 Universal Declaration of Human Rights (UDHR) (UNGA Res 217A (III), UN Doc
A/810) (10 December 1948) art. 25(1).
 Universal Declaration of Human Rights (UDHR) (UNGA Res 217A (III), UN Doc
A/810) (10 December 1948) art. 2.
 UN Charter, art 2.
IV
 Revised Manual on the Model Treaty on Extradition and the Model Treaty on Mutual
Assistance in Criminal Matters (UNODC) (General Assembly in resolution 45/116 of 14
December 1990) art 2.
 Revised Manual on the Model Treaty on Extradition and the Model Treaty on Mutual
Assistance in Criminal Matters (UNODC) (General Assembly in resolution 45/116 of 14
December 1990) art 2(3).
 Universal Declaration of Human Rights (UDHR) (UNGA Res 217A (III), UN Doc
A/810) (10 December 1948) art. 2.
 Universal Declaration of Human Rights (UDHR) (UNGA Res 217A (III), UN Doc
A/810) (10 December 1948) art. 10.
 UN General Assembly, Model Treaty on Extradition (adopted by the General Assembly,
14 December 1990) (A/RES/45/116) art. 3(a).

MISCELLANEOUS

 Report of the International Conference on Primary Health Care [Declaration of Alma-

Ata]. Geneva, Switzerland: World Health Organization; 1978.
 Report of the International Conference on Population and Development, Cairo, 5-13
September 1994 (United Nations publication, Sales No. E.95.XIII.18), chap. I, resolution
1, annex, chaps. VII and VIII.
 Kinney E. The international right to health: what does this mean for our nation and our
world? Indiana Law Rev. 2001;34:1457–1475.

V
 STATEMENT OF JURISDICTION

It is hereinafter most respectfully submitted that the Respondent has approached this

International Anti-Corruption Court And it has jurisdiction to exercise this petition under Article

6 Statute of the International Anti-Corruption Court.

Article 6 states as follows-

“ 1. The Court has jurisdiction over all subjects covered by the Charter of United Nations, current

treaties and conventions, and any cases that the parties refer to it.

2. The states parties to the current Statute may at any moment proclaim that they acknowledge the

Court's jurisdiction in all legal matters relating to the present Statute as Compulsory ipso facto and

without special agreement, in respect to any other state adopting the same obligation. The

jurisdiction of the Court in all legal disputes concerning:

a. treaty interpretation;

b. disputes relating to international law;

c. issues of fact delineating the breach of any international obligation;

d. reliefs regarding breach of any international obligations.”

Both the Republic of Gauro and the Republic of Harikela are parties to the ICC statute and have

agreed on the fact submitted.

VI
 QUESTIONS PRESENTED

I. Is the dispute maintainable before the present court?

II. Is the current government of Gauro legitimately entitled to file the dispute under

international law?

III. Have Harikela and Shukla Company violated international law, including the United

Nations Convention against Corruption and Convention on Combating Bribery of Foreign

Public Officials in International Business Transactions?

IV. Has Harikela violated international law by not returning Avinor to Gauro authorities?

VII
 STATEMENT OF FACTS

Harikela argues that the International Anti-Corruption Court is not the appropriate venue for this

dispute. The allegations primarily concern internal political dynamics and procurement processes

within Gauro, which are beyond the scope of the court's jurisdiction. Harikela maintains that these

matters should be resolved through local judicial mechanisms or bilateral negotiations rather than

an international tribunal.

Harikela questions the legitimacy of the Kishitigarva-led government of Gauro to represent the

state in an international legal context. The abrupt and tumultuous manner in which this government

came to power, marked by civil unrest and the controversial ousting of the previous regime, casts

doubt on its legal standing and authority to file disputes under international law.

Harikela, along with the Shukla Company, refutes any accusations of violating the United Nations

Convention against Corruption and the Convention on Combating Bribery of Foreign Public

Officials in International Business Transactions. They argue that all contracts and dealings were

conducted in accordance with international standards and local laws. The involvement in Gauro’s

affairs was purely for investment and development purposes, without any intention of exerting

undue influence or engaging in corrupt practices.

Regarding Avinor’s extradition, Harikela contends that it did not violate international law by

refusing to extradite him to Gauro. Avinor’s request for political asylum is based on credible fears

of political persecution, given the volatile and potentially repressive nature of the current regime

in Gauro. Harikela asserts that extraditing Avinor under these circumstances would contravene

international human rights principles.

VIII
 SUMMARY OF ARGUMENT

ARGUMENT I

The dispute doesn't fall within the jurisdiction of the International Anti-Corruption Court (IACC)

statute as it primarily concerns internal political and administrative decisions of Gauro. It doesn't

meet the admissibility criteria set by Article 9 of the IACC Statute. The dispute is not maintainable

due to the non-exhaustion of local remedies, as per the rule of customary international law.

ARGUMENT II

The current government of Gauro is not legitimately entitled to file the dispute under international

law because it may have come to power through a coup d'état that lacks international recognition.

There are allegations of outside intervention in installing the government, which is not legal under

international law.

ARGUMENT III

Harikela and Shukla Company did not violate international law, including the United Nations

Convention Against Corruption (UNCAC) and the Convention on Combating Bribery of Foreign

Public Officials in International Business Transactions. Harikela acted in accordance with Article

14 of the International Covenant on Civil and Political Rights (ICCPR), and Shukla Company

ensured the right to health and equality of citizens.

IX
 ARGUMENT IV

Harikela did not violate international law by refusing to return Avinor to Gauro because Gauro

may not provide a fair trial, violating international human rights law. Harikela followed the

principle of political offense exception and non-refoulement in its decision.

X
 ARGUMENTS

I. THE DISPUTE IS NOT MAINTAINABLE OR NOT BEFORE THE PRESENT COURT

A. The dispute is not maintainable under IACC statute.

1. The dispute does not fall within the IACC's jurisdiction as defined in Article 6 of

IACC statute.

The issues at hand do not primarily concern treaty interpretation between Gauro and Harikela. The

core of the dispute revolves around internal political and administrative decisions of Gauro, not

violations of international law per se. The alleged corruption and subsequent political upheavals

are primarily domestic issues, not constituting a breach of international obligations.

There is a case where courts have ruled on jurisdictional limitations, such as the Belgium v.

Senegal (International Court of Justice, 2012), focusing on jurisdictional aspects related to

domestic issues.1

2. The matter does not meet the admissibility criteria set by the Article 9 of the IACC

Statute.

The situation in Gauro may still be subject to investigation or prosecution domestically, which has

not been exhaustively pursued. The political and administrative complexities of Gauro, including

the regime change and asylum requests, extend beyond the scope of ‘corruption’ as understood by

the IACC.

1
Belgium v. Senegal (2012) ICJ Rep 422, paras 19–22.

1
A. The dispute is not maintainable before the court due to the non-exhaustion of local

remedies (ELR)

1. Non-Exhaustion of Local Remedies causes lack of jurisdiction under International

Court

As established in the case of Interhandel (Switz. v. U.S., 1959), ELR is a well-recognized rule of

customary international law. It mandates that before calling a state's international responsibility

into question, the state where the violation occurred must be given an opportunity to redress it

within its domestic legal framework.2

In Interhandel, the United States contended that the ICJ lacked jurisdiction because local remedies

in the U.S. had not been exhausted by Interhandel, the Swiss company. The ICJ recognized this as

an admissibility issue, implying that if local remedies are not exhausted, the international court

should not entertain the case.3 The Interhandel case further illustrates that when domestic

proceedings are still pending, and they aim to obtain the same result as the international

proceedings, the international claim becomes inadmissible.4

The distinction between admissibility and jurisdiction in the context of ELR, as understood in the

Interhandel case, suggests that the appropriateness of bringing a claim against Kishtigarva's

government to an international forum hinges on whether domestic remedies were exhausted, not

just on the legal jurisdiction of the issue.

2
Interhandel (Switz. v. U.S.), Preliminary Objections, 1959 I.C.J. Rep. 6, at 27 (Mar. 21
3
Ibid.
4
Ibid

2
 2. Exhaustion of Local Remedies must be performed to claim jurisdiction under

International Court

The ELSI case (concerning the United States and Italy) demonstrates that the essence of the claim

must be pursued domestically as far as permitted by local law. This principle applies even if the

form and arguments presented domestically differ from those in international proceedings.5 Italy's

failure to demonstrate the exhaustion of domestic remedies, resulting in the ICJ finding the ELR

rule satisfied, can be contrasted with the situation in Gauro. If Kishtigarva's government or its

challengers cannot demonstrate that all domestic remedies were exhausted or proved ineffective,

it would imply a violation of the ELR principle.

In FINE DOO v. North Macedonia, the European Court of Human Rights found the application

inadmissible as domestic remedies had not been fully explored.6 Similarly, in Maslák v. the Czech

Republic, the applicant's failure to pursue available domestic remedies led to the inadmissibility

of his claim.7 The ruling that doubts about the effectiveness of a domestic remedy do not render it

ineffective, as seen in the Maslák case, could apply if there were skepticism about the efficacy of

Gauro's domestic legal system. Simply doubting the system's effectiveness wouldn't justify

bypassing it for international proceedings.

5
Elettronica Sicula S.p.A. (ELSI) (Italy v US) [1989] ICJ Rep 15; 28 ILM 1109.
6
FINE DOO and Others v North Macedonia (App no 37948/13) ECHR 17 May 2022
7
Maslák v Czech Republic (Application no. 7158/12) (Judgment) [2017] ECHR 1

3
II. THE CURRENT GOVERNMENT OF GAURO IS NOT LEGITIMATELY ENTITLED

TO FILE THE DISPUTE UNDER INTERNATIONAL LAW.

A. The Current Government of Gauro doesn’t hold the legal status as a government in

accordance with international law.

1. Current government’s (Kishtigarva) successful coup d'état necessarily violate

international law.

A change in government often results from the threat or use of force against the incumbent regime,

a phenomenon known as a coup d’etat.8 According to case law and legal theories, there are two

basic tests by which a coup d’etat is legitimized. The first, the substantial test, is the popular

acceptance, even if tacit, of the change and the legal values invoked thereby. The second, the

formal test, is the legitimization of the “Coup d’Etat Government” through the recognition of its

actions by the next lawful Government.9

The Court held that the coup failed to meet the substantial test of legality: “The violently imposed

will did not manage to inspire the respect and obedience to the values which it invoked and called

upon society as a whole to recognize.” As for the formal test, i.e., recognition of actions of a

usurper regime by the subsequent lawful government, the Court noted that the lawful government

had reinstated many public officials dismissed by the usurpers and the legislature had enacted the

Coup d’Etat (Special Provisions) Law, 1975 (No. 57 of 1975), which expressly provided that “the

coup d’etat and the ‘coup d’etat Government’ had no legal basis whatsoever.”10

8
Webster’s New Twentieth Century Unabridged Dictionary (2nd edn, 1959) 418
9
Liasi v. Attorney General (1975) C.L.R. 558 (Cyprus).
10
Ibid.

4
Kishtigarva’s government is identified as a Coup d’Etat Government due to its adherence to the

required standards. Despite this, it only garnered recognition from Kadampa. The absence of

public acceptance further signifies that the new government has not passed the substantial test.

Therefore, Kishtigarva has not met the qualifications to be deemed a legitimate coup d’etat

government.

2. Current government created by outside intervention which is not legal under

International Law.

The prohibition of intervention in the internal affairs of States is ‘part and parcel of customary

international law’.11 It has been said that ‘support for an opposition within another state is perhaps

one of the clearest examples of unlawful intervention in the affairs of that state’.12 This was the

central issue in the Nicaragua Case, in which the International Court of Justice considered that:

‘… in international law, if one State, with a view to the coercion of another State, supports and

assists armed bands in that State whose purpose is to overthrow the government of that State, that

amounts to an intervention by the one State in the internal affairs of the other, whether or not the

political objective of the State giving such support and assistance is equally far-reaching.’13

The principle that intervention in the internal affairs of states is against customary international

law is pivotal. In the context of Gauro, the allegation is that the current government was installed

by outside intervention, potentially by Kadampa. This intervention, especially if it involved

support for opposition forces within Gauro, would be akin to the scenario in the Nicaragua Case,

11
Nicaragua Case, ICJ Rep. 1986, 14 at 106. See also Corfu Channel Case, ICJ Rep.
12
R. Jennings / A. Watts,.
13
ICJ Rep. 1986, 14 at 124.

5
where the International Court of Justice (ICJ) deemed such actions as intervention in internal

affairs and, therefore, unlawful.

3. Current governments created by the threat or use of force which is also illegal under

international law.

Art. 2, para. 4, of the UN Charter prohibits the threat or use of force against the territorial integrity

or political independence of any State, or in any other manner inconsistent with the purposes of

the United Nations.14 These rules concerning the illegal use of force belong to the core principles

of jus cogens.15

For the continued recognition of a government in exile it is irrelevant whether the belligerent

occupant imposes its own military or, in case of annexation, civilian government on the territory

or whether a (nominally independent but foreign controlled) ‘puppet government’ made up of

nationals of the occupied State is formed under its auspices.16 Puppet governments are regarded as

no more than agents of the belligerent occupant.17

The current government of Gauro being installed by force or threat violates Article 2, paragraph

4, of the UN Charter, which prohibits the use of force against the territorial integrity or political

independence of any state. If the rise of the Kishitigarva-led government in Gauro involved such

elements, it would contravene the jus cogens norms concerning the illegal use of force.

14
UN Charter, art 2.
15
M. Whiteman (Washington, D.C., 1965), V, 874-965 and the authorities there cited. See also Principle IV of the
Declaration on Principles Guiding Relations between Participating States, forming part of the (Helsinki) Final Act
of the Conference on Security and Cooperation in Europe, 1 August 1975: (1975) 10 ILM 1292 at 1294.
16
On the question how the puppet character of a given government is to be determined, 164 see J. Crawford..
17
Cf. Judgment 107/1945 of the Criminal Court of Heraklion In re G., (1943-5) 12 AD 165 no. 151, 437-40 at 439;
William F. Peralta v. The Director of Prisons (1945), (1947) 22 Philippine LJ 26-32 at 28.

6
B. Current Government violated the Democratic Principles and Political Self-Determination

1. Current governments violated Democratic Principles

The democratic principles are given legal effect in the International Covenant on Civil and Political

Rights (ICCPR),18 which provides for the establishment of a ‘democratic society’ in states

parties.19 In addition to rights to freedom of expression,20 peaceful assembly,21 and association,22

the ICCPR recognises a right of peoples to political self-determination.23 Rights of political

participation are recognised in article 25: citizens24 have the right to (a) ‘take part in the conduct

of public affairs, directly or through freely chosen representatives’, and (b) ‘vote and to be elected

at genuine periodic elections which shall be by universal and equal suffrage and shall be held by

secret ballot, guaranteeing the free expression of the will of the electors’.25

2. Current governments violated right to self-determination

International law has not traditionally been concerned with domestic government arrangements:

each state has the right to choose its own form of government, free from external interferences by

other states and international organizations. The position is expressed in Military and paramilitary

18
International Covenant on Civil and Political Rights, adopted by GA Res 2200A (XXI) on 16 December 1966.
19
ibid arts 14(1), 21 and 22(2).
20
ibid art 19.
21
ibid art 21.
22
ibid art 22.
23
ibid art 1(1).
24
cf Council of Europe’s Convention on the Participation of Foreigners in Public Life at Local Level (adopted
Strasbourg, 5 February 1992) CETS No 144.)
25
International Covenant on Civil and Political Rights art 25

7
activities in and against Nicaragua:‘[E]ach State is permitted, by the principle of State

sovereignty, to decide freely [the nature of its] political, economic, social and cultural system. 26

There is general agreement that the right of peoples to self-determination is a significant

‘constitutional’ norm in the international law order, a norm of jus cogens27 standing, and an

obligation erga omnes28.

The International Court of Justice recognised that the principle of self-determination of peoples,

enshrined in the UN Charter, and reaffirmed by in General Assembly Resolution 2625 (XXV) and

common Article 1, ‘was recognised in international law as a “right” of peoples to self-

determination: a right erga omnes’.29Also the International Court of Justice emphasized in the

Western Sahara Advisory Opinion, 'the application of the right of self-determination requires a

free and genuine expression of the will of the peoples concerned'.30

The principle of self-determination, recognized as a right erga omnes and a norm of jus cogens,

emphasizes that peoples should freely choose their political status without external interference.

In Gauro's case, if the current government’s installation impeded the free and genuine expression

of the will of its people, it would constitute a violation of this principle, as highlighted in the

Western Sahara Advisory Opinion by the ICJ.

26
Military and paramilitary activities in and against Nicaragua (Nicaragua v United States), (Merits) [1986] ICJ
Rep 14 [205]
27
J.A. Frowein, ‘Jus cogens’in R. Bernhardt(ed.), Encyclopedia of Public International 209 Law, III (Amsterdam,
1997), 65-9 at 67. Cf. also Art. 19 of the ILC Draft Articles on State Responsibility: (1998) 37 ILM 442.
28
East Timor (Portugal v. Australia), Judgment, ICJ Rep. 1995, 90 at 102.
29
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion)
[2004] ICJ Rep 136 [88]
30
Western Sahara, Advisory Opinion, ICJ Rep. 1975, 12 at 32]

8
C. Kishtigarva government's violated Article 26 of VCLT by reaching agreement with

Kadampa.

Article 26 of the VCLT mandates that governments must respect state treaties, embodying the

wider principle of pacta sunt servanda31.

In the case of Van Bokkelen v Haiti, it was stated: “Just as private contracts bind individuals,

treaties of all types, when made by the appropriate authority, are obligatory upon nations. These

treaties should be interpreted fairly and liberally, in line with the intentions of the contracting

parties, and should be upheld with the utmost good faith.”32

Paragraph 30 discusses the Kishtigarva government's plans to do agreement with Kadampa, which

could affect Harikela. Paragraph 31 involves the agreement with Kadampa, potentially impacting

prior treaty commitments. If these actions contravene existing treaties, they could be seen as

violating the principle of pacta sunt servanda. This principle obligates governments to honor state

treaties, as highlighted in Van Bokkelen v Haiti.

31
VCLT, art 26.
32
Van Bokkelen v Haiti (United States v Haiti) [1886-I] US Foreign Relations 1034

9
III. HARIKELA AND SHUKLA COMPANY DID NOT VIOLATED INTERNATIONAL

LAW, INCLUDING THE UNITED NATIONS CONVENTION AGAINST CORRUPTION

AND CONVENTION ON COMBATING BRIBERY OF FOREIGN PUBLIC OFFICIALS

IN INTERNATIONAL BUSINESS TRANSACTIONS.

A. Harikela did not violate international law by not returning Avinor to Gauro authorities.

1. Harikela acted in accordance with Article 14 of ICCPR

OECD Anti-Bribery Convention specifically targets the issue of bribery in international business

transactions. It requires parties to criminalize the bribery of foreign public officials in connection

with international business transactions.33 Harikela and the Shukla Company in Gauro were

conducted in compliance with local and international laws. There is no substantive evidence to

suggest that bribes were offered, promised, or given to foreign public officials in Gauro. In the

Metal-Tech Ltd. v. The Republic of Uzbekistan case34, it has been stated that corruption allegations

were critically examined. This case set a precedent for the burden of proof required in corruption

allegations in international law. Only a mere presumption of violation will not be a sufficient

ground for accusing someone. Some council were also established to investigate but the council

found no substantial proof of corruption against high government officials and foreign officials.35

So, mere presumption is not sufficient and Harikela did not violate OECD Anti-Bribery

convention.

33
Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (“OECD
Anti-Bribery Convention”), Nov. 21, 1997, OECD Doc. DAFFE/IME/BR (97)20, reprinted in 37 I.L.M. 1 (1998).
art. 1(1).
34
Metal-Tech Ltd. v. The Republic of Uzbekistan (ICSID Case No. ARB/10/3).
35
Agreed Fact, para.

10
 2. Shukla Company did not violate UNCAC.

Article 9 of UNCAC stated that state party shall take the necessary steps to establish appropriate

systems of procurement based on transparency, competition, and objective criteria in decision-

making that are effective in preventing corruption.36 Shukla Company had a contract with Gauro

states that they will provide vaccines to the COVID patients and will build a hospital for them.

They did their work properly. But the Gauro government of has lacking transparency in public

procurement when it came to importing vaccines, maintaining an oxygen supply, and establishing

a Covid hospital37 not the Shukla Company. Its business policy has been admired. So, Shukla

Company did not violate any provisions of UNCAC.

B. Shukla Company ensured right to health of the citizens.

1. Shukla company acted in accordance with UDHR.

Public health has a long tradition of recognizing that participation is integral to health promotion.38

UDHR states in Article 25(1) that everyone has the right to a standard of living adequate for the

health and well-being of himself and of his family, including food, clothing and medical care etc.39

In the agreed fact, the Gauro government and the Shukla Company make a contract to supply the

COVID-19 vaccine and to build a COVID hospital in the Gauro State.40 Shukla Company will also

provide oxygen to the Gauro State. According to the Ministry of Health, only the Shukla Company

36
United Nations Convention Against Transnational Organized Crime (UNTOC) adopted in 2000 (U.N. Doc.
A/RES/55/25) art. 9.
37
Agreed Fact, para. 20.
38
Report of the International Conference on Primary Health Care [Declaration of Alma-Ata]. Geneva, Switzerland:
World Health Organization; 1978.
39
Universal Declaration of Human Rights (UDHR) (UNGA Res 217A (III), UN Doc A/810) (10 December 1948)
art. 25(1).
40
Agreed Fact, para. 14.

11
had the capacity to supply the vaccine and construct the hospital in the shortest possible time.

Shukla Company did all

2. Shukla Company acted in accordance with ICESCR.

States parties have a core obligation to ensure the satisfaction of minimum essential levels of the

right to health including essential primary health care.41 Failure to protect or fulfill responsibilities

relating to health are construed the accountability of the state under national and international

law.42 Article 12 of ICESCR also recognize the right of everyone to the enjoyment of the highest

attainable standard of physical and mental health.43 Shukla Company build a COVID hospital and

supply oxygen for the patients in accordance with the contract. They gave vaccine to the COVID

patients who need the dosage immediately. If they did not give them the vaccine they might have

died. So, Shukla Company ensured right to health of citizens.

C. Shukla Company ensured equality and non-discrimination principle uner international

law.

1. Shukla Company acted in accordance with ICCPR

Discrimination under international law need not be intentional, it only have the effect of impairing

the enjoyment of rights.44 Article 26 of the ICCPR provides that all persons are equal before the

law and the law shall prohibit any discrimination and guarantee to all persons equal and effective

41
Report of the International Conference on Population and Development, Cairo, 5-13 September 1994 (United
Nations publication, Sales No. E.95.XIII.18), chap. I, resolution 1, annex, chaps. VII and VIII.
42
Kinney E. The international right to health: what does this mean for our nation and our world? Indiana Law Rev.
2001;34:1457–1475.
43
International Covenant on Economic, Social and Cultural Rights (ICESCR) (adopted 16 December 1966, entered
into force 3 January 1976, 993 UNTS 3) art 12.
44
UN Committee on Economic, Social and Cultural Rights. General Comment 14: The Right to the Highest
Attainable Standard of Health. Geneva, Switzerland: United Nations: 2000. UN Document E/C.12/2000/4.

12
protection against discrimination on any ground.45 ECHR in the Abdulaziz, Cabales and

Balkandali v. The United Kingdom case stated that differential treatment was justified on objective

and reasonable grounds.46 Shukla Company has built a COVID hospital and started to give

vaccines to patients. These vaccines were given to citizens on a priority basis, particularly

government officials, defense personnel, and elderly people over 50 years old.47 This is not an

actual discrimination. It is a justifiable and reasonable discrimination under Belgian Linguistic

Case. So, Shukla Company did not violate equality and non-discrimination principle.

2. Shukla Company ensured equality and non-discrimination principle under UDHR.

Equality and non-discrimination principle is a positive state obligations to protect individuals from

discrimination and the equal protection of the law.48 Article 2 of the UDHR49 states that principle

of equality and non-discrimination is violated when differential treatment is accorded to an

individual or group on the basis of personal characteristics.50 ECtHR in the Abdulaziz, Cabales

and Balkandali v. The United Kingdom case, held that a difference of treatment is discriminatory

if it ‘has no objective and reasonable justification between the means employed and the aim sought

to be realized’.51 Shukla Company had given vaccines and oxygen to Gauro State. They first gave

45
International Covenant on Civil and Political Rights (ICCPR), G.A. Res. 2200A (XXI) (1966), art. 26.
46
European Court of Human Rights, Abdulaziz, Cabales and Balkandali v The United Kingdom, 9214/80; 9473/81;
9474/81 [1985] ECHR 7.
47
Agreed Fact, para. 16.
48
Jakob Th. Moller on Article 7, Eide ed., The Universal Declaration of Human Rights, pp. 115–141.
49
Universal Declaration of Human Rights (UDHR) (UNGA Res 217A (III), UN Doc A/810) (10 December 1948)
art. 2.
50
Equality and Non-Discrimination in International Human Rights Law, Li-ann Thio, SPECIAL REPORT No. 240,
December 31, 2020, p. 7.
51
Abdulaziz, Cabales and Balkandali v. The United Kingdom, 15/1983/71/107-109, Council of Europe: European
Court of Human Rights, 24 April 1985.

13
vaccine to the aged people. If they did not do so then they might have affected by COVID. So, this

is a justifiable and reasonable discrimination and the company is not liable for this.

14
IV. HARIKELA DID NOT VIOLATED INTERNATIONAL LAW BY NOT RETURNING

AVINOR TO GAURO AUTHORITIES.

A. Harikela did not violate international law by not returning Avinor to Gauro authorities.

3. Harikela acted in accordance with Article 14 of ICCPR

Article 14 of ICCPR protects the right of everyone in the proceedings of criminal cases. 52 It sets

out a general guarantee of equality before courts and tribunals and entitles individuals to a fair and

public hearing by a competent, independent and impartial tribunal established by law.53 In Ahmad

case, the petitioner had argued that the court should deny his extradition because as a PLO member

accused of violence against Israelis in West Bank territory, he would not receive a fair trial in

Israel.54 In the agreed fact, some of Orindom’s leaders in a public event said that they want

Avinor’s punishment without trial. They also started arbitrarily detaining many government

officials.55 Here, they did not ensure fair trial to the accused person which is opposed to article 14

of ICCPR. As current Gauro Authorities cannot ensure a fair trial or secure minimum guarantees

in criminal proceedings, by not returning Avinor to Gauro, Harikela acted in accordance with

international human rights law.

4. Harikela acted in accordance with Article 10 of UDHR

Article 10 of UDHR states that everyone is entitled in full equality to a fair and public hearing by

an independent and impartial tribunal, in the determination of his rights and obligations and of

any criminal charge against him.56 HRC in the Smith v. Jamaica case stated that accused persons

52
International Covenant on Civil and Political Rights (ICCPR), G.A. Res. 2200A (XXI) (1966), art. 14.
53
Id. art. 14(1)
54
Ahmad v. Wigen, 726 F. Supp. 389 (E.D.N.Y. 1989), aff'd, 910 F.2d 1063 (2d Cir. 1990)
55
Agreed Fact, para. 28.
56
Universal Declaration of Human Rights (UDHR) (UNGA Res 217A (III), UN Doc A/810) (10 December 1948)
art. 10.

15
must have adequate time and facilities for the preparation of their defense and it is an important

element of the guarantee of a fair trial.57 In the agreed fact, it has been stated that Kishitigarva's

administration started arbitrarily detaining government officials who were barred from seeing

attorneys. Even some leaders publicly said that they want Avinor’s punishment without trial.58 But

HRC in the Polay Campos v. Peru case, stated that Tribunals without faceless judges do not satisfy

basic standards of fair trial, the tribunal must be independent and impartial.59 So, Harikela did not

violate international law by not returning Avinor because Gauro state will not give them fair trial

and which in violation of human rights law.

B. Harikela acted in complying with the principle of extradition.

1. Harikela followed principle of political offence exception.

Article 3(a) of the Model Treaty on extradition states that extradition shall not be granted if the

offence for which extradition is requested is regarded by the requested state as an offence of a

political nature.60 In the Karadzole v Artukovic case, The Ninth Circuit affirmed the district court's

finding that Artukovic should not be extradited his crimes were fallen under political offense

exception.61 In the Solicitor v Kitinga case, the government of Malaysia had arrested Sabah

politician Jeffrey Kitingan and sought to obtain evidence from five witnesses in Hong Kong. Judge

Clare-Marie Beeson refused, ruling that the proceedings against Kitingan were "of a political

character" and that the request was an abuse of process.62 Avinor and many other ministers commit

crimes in Gauro State such as they lack transparency in public procurement when it comes to

57
Smith v. Jamaica, UN Human Rights Committee (HRC), Communications No. 282/1988, para. 10.4
58
Agreed Fact, para. 28.
59
Polay Campos v. Peru, UN Human Rights Committee (HRC), Communications No. 577/1994, para. 8.8.
60
UN General Assembly, Model Treaty on Extradition (adopted by the General Assembly, 14 December 1990)
(A/RES/45/116) art. 3(a).
61
Karadzole v. Artukovic, United States Court of Appeals, Ninth Circuit, 247 F.2d 198 (9th Cir. 1957).
62
Crown Solicitor v Datuk Dr Jeffrey Kitingan, HCMP 1193/1990, [1994] HKCFI 204; [1994] 1 HKC 516.

16
importing vaccines, maintaining an oxygen supply, and establishing a COVID hospital.63 Lack of

transparency in public procurement is amount to political offense. As Avinor is accused for

political offense, by not returning Avinor to Gauro, Harikela acted in accordance with the principle

of political offense exception.

2. Harikela acted in accordance with the principle of non-refoulement.

The principle of non-refoulement is an integral component of the protection against torture or other

forms of cruel, inhuman or degrading treatment or punishment, or arbitrary deprivation of life. 64

The prohibition of refoulement apply to a range of serious human rights violations including

torture, and other cruel, inhuman or degrading treatment, denial of the right to a fair trial65, risks

of violations to the rights to life.66 HRC in the Dawood Khan v. Canada case, stated that the

principle of non-refoulement prohibits the transfer of individuals to the requesting state if they are

unable to ensure the protection of the person.67 When Avinor request political asylum to Harikela

and flew there, Kishitigarva, the major leader of Arindom, quickly seized control of the

government and proclaimed himself as the nation's president.68 After assuming power, he started

arbitrarily detaining numerous government officials. He also barred from seeing attorneys. 69 This

include degrading treatment depraving of life. Even some leaders publicly said that they want

Avinor’s punishment without trial.70 If Harikela returned Avinor to Gauro, he may also face the

63
Agreed Fact, para. 20.
64
Soering v. The United Kingdom, European Court of Human Rights (ECtHR) (Application No. 14038/88, 7 July
1989) para. 88.
65
Othman (Abu Qatada) v United Kingdom, European Court of Human Rights (ECtHR) (Application No. 8139/09,
17 January 2012) para 235, 258.
66
Human Rights Committee (HRC), General Comment No. 31, para 12
67
Dawood Khan v. Canada, United Nations (UN) Human Rights Committee (HRC), Communication No.
1302/2004, 10 August 2006, para. 5.6.
68
Agreed Fact, para. 27.
69
Id, para. 28.
70
Id.

17
same degrading and inhuman punishment and others. So, by not returning Avinor to Gauro,

Harikela acted in accordance with principle of non-refoulement.

18
 PRAYER FOR RELIEF

For the foregoing reasons, the Respondent respectfully requests this Honorable Court to adjudge

and declare that:

I. The dispute is not maintainable before the present court.

II. The current government of Gauro is not legitimately entitled to file the dispute under

international law.

III. Harikela and Shukla Company did not violated international law, including the United Nations

Convention against Corruption and Convention on Combating Bribery of Foreign Public Officials

in International Business Transactions.

IV. Harikela did not violate international law by not returning Avinor to Gauro authorities.

Respectfully submitted,

AGENTS FOR THE RESPONDENT

19